COURT FILE NO.: FC-06-1545

DATE: 2012/08/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LING (EDWARD) LIU

Applicant

– and –

CHING-YUEN (CONNIE) CHANG

Respondent

Thomas W. Curran, for the Applicant

Self-Represented

HEARD: June 27, 2012

decision on child support arrears

m. Linhares de Sousa J.

MANDATE OF THIS MOTION

[1] This matter came before me as five different motions. One of the motions was to determine whether Minutes of Settlement signed by the parties on September 13, 2011 was binding on the parties. I found that it was binding and issued an order in accordance with the Minutes of Settlement to take effect on the date of the Minutes of Settlement, namely September 13, 2011. The issue of a change in the custody of and access to the child is proceeding by way of a trial of an issue.

[2] One outstanding issue between the parties remained, namely the calculation of child support arrears as of the date on which the Minutes of Settlement were signed by the parties. The parties agreed to present their written submissions on the question of the calculation of child support, on which I would make a final decision on the question of calculation of child support arrears. I have now received those submissions and the following are my reasons and order in relation to the calculation of child support arrears owed by Ms. Chang to Mr. Liu. Because the parties dealt with this in their written material, I have also determined the calculation of child support arrears to the date of the parties’ written submissions, namely July, 2012.

[3] In this matter, the exercise of calculating child support arrears payable by Ms. Chang to Mr. Liu includes, the determination of the retroactive date from which child support is payable, the determination of Ms. Chang’s income and the province in which she lived at the applicable time, the determination of the applicable Federal Child Support Guidelines tables, the determination of what payments of child support has been paid by Ms. Chang for which she is entitled a credit, the determination of the amounts payable by both parties for the travel costs of their son between British Columbia and Ontario and the according of a credit for the travel costs amount paid by the parties and finally, the determination of amounts paid for section 7 expenses for the child by the parties and the according of a credit for the section 7 expenses paid by each of the parties.

[4] At the outset I make the following comments, because the calculation of the arrears of child support was the only remaining issue before me, it was, therefore, completely inappropriate for Ms. Chang to raise, once again, in her written material, the question of the enforceability of the Minutes of Settlement. I have ruled on the issue and an order has been issued.

[5] It is also inappropriate for Ms. Chang to raise questions of whether she should have any obligation to pay child support for the reasons she gives. There is no evidence that the child does not benefit from the child support payments she makes to Mr. Liu. I agree with the submissions of counsel for Mr. Liu that the law is clear that (a) once it is determined that child support is payable to a recipient parent in accordance with the Child Support Guidelines, as is the case here, the recipient is not required to account for the monies received, but is assumed to have provided for the child and (b) that gratuitous monies spent by the payor parent cannot be credited to support payable under an order unless the parties can agree or it is otherwise ordered by the Court, neither of which, has occurred here. It is also clear from the material filed by Mr. Liu that he does provide for his child.

[6] The starting point for the calculation of arrears of child support payable by Ms. Chang to Mr. Liu is the Minutes of Settlement signed by the parties on September 13, 2011, and which now forms the basis of the existing order. The Order provides as follows:

(1) The calculation of child support is retroactive to the date of the application and Ms. Chang is to be credited with all amounts paid.

(2) Child support payable by Ms. Chang to Mr. Liu shall be the “appropriate table amount of child support in accordance with the Child Support Guidelines”. Given the fact that the parties were married and divorced, the Federal Child Support Guidelines apply to the facts of this case. Furthermore, the quantum of child support payable shall be reconciled “annually, following receipt of income tax notices of assessment for each party.” At that time the parties are to determine the table amount payable and reconcile any outstanding claims for section 7 expenses and effect the financial reconciliation by making the necessary payment forthwith. All section 7 expenses are to be agreed upon in advance, with agreement not to be unreasonably withheld and based on the child’s best interest.

(3) Ms. Chang is not obligated to contribute to any special expenses incurred by Mr. Liu for extracurricular activities and cultural or language education for the child.

(4) Ms. Chang is entitled to deduct the amount of $150 from the child support payable by her in the month of July to reflect the cost incurred by her with respect to their son’s extracurricular activities or cultural or language education.

(5) The parties are to share proportionately to their income all reasonable costs for summer camp as long as it is a substitute daycare. Ms. Chang is to provide Mr. Liu with receipts for all expenses claimed for summer camp.

(6) Ms. Chang is to provide Mr. Liu with receipts for all transportation costs for their son. The parties agreed that they have shared equally all unaccompanied minor fees to date.

[7] Of relevance as well is the fact that the parties’ previous agreement provided for the equal sharing of their son’s travel expenses between Vancouver and Ottawa.

[8] The first question to decide is the retroactivity date, or when was Mr. Liu’s application commenced? Mr. Liu submits that it is June of 2009 and Ms. Chang submits that it is October of 2009. The circumstances that led to this dispute are the following. Prior to entering into the Minutes of Settlement on September 13, 2011, the parties were bound by prior Minutes of Settlement dating back to 2007. For reasons that one need not go into here, child support payments, payable by both parties, were provided for under the prior Minutes of Settlement. According to Ms. Chang, the parties commenced a slight deviation from the prior Minutes of Settlement by taking a set-off approach to their respective payments. Disagreements arose between the parties over the payment of child support and also an issue arose about holiday time Mr. Liu could take with his son. As a result, Mr. Liu commenced proceedings in April, 2009. In that process a first case conference was scheduled in June of 2009. For legal reasons which, again need not be discussed here, the parties could not agree on whether they should proceed by way of the current application before the court or by having Mr. Liu withdraw his application and commence a new application. It was agreed, in order to resolve the issue, that a new application would be commenced. This was done by Mr. Liu in October, 2009. Hence the two different dates of reference for the “date of this application.”

[9] On the strict interpretation of the Minutes of Settlement of September 13, 2011, I find that the effective retroactive date is October, 2009. It was under the new application, commenced by Mr. Liu in October, 2009 that the parties entered into the September 13, 2011 Minutes of Settlement. That date should govern. Although, I might add, that it is recognized that Ms. Chang has been on notice since April, 2009 that Mr. Liu would be making a claim for child support arrears. That claim in October of 2009 was no surprise to her.

[10] Ms. Chang submits that, as a result of the agreed upon deviation from the prior Minutes of Settlement for the set-off approach in which the parties had engaged leading up to the new application being brought by Mr. Liu, she is left in a credit position in the payment of child support as of October, 2009 (according to Ms. Chang, she would have paid her child support up to March of 2010) which ought to be taken account of in the determination of child support arrears payable by her to Mr. Liu. I cannot accept this submission. Firstly, to do so would be to go behind the existing order and put into question the September 13, 2011, Minutes of Settlement which has already been adjudicated on. Secondly, in support of her position, Ms. Chang relies on alleged facts and agreements between the parties about which there is no evidence before me. Mr. Liu denies Ms. Chang’s submissions. To consider what Ms. Chang submits should be considered is beyond the reach of what is before me which is simply, in accordance with the parties’ agreement, the calculation of child support arrears retroactive to October, 2009, based on the written submissions of the parties. It is not for this Court to examine the financial dealings of the parties dating back before the current Minutes of Settlement.

DETERMINATION OF TOTAL CHILD SUPPORT PAYABLE FOR PERIOD OF RETROACTIVITY - OCTOBER, 2009 TO JULY, 2012 INCLUSIVE.

[11] I now deal with the applicable Federal Child Support Guidelines amount. In October, 2009, Ms. Chang was living in Vancouver, British Columbia. She returned to live in Ontario some time in March of 2012. From the e-mails submitted by Mr. Liu in his written material that move took place at the end of March, 2012. Consequently, from and including the month of October, 2009, until Ms. Chang’s move back to Ontario at the end of March, 2009, Ms. Chang was obligated to pay child support in accordance with the Federal Child Support Guidelines for her resident province of British Columbia. From and including the month of April, 2012, to the present and ongoing, Ms. Chang was and is obligated to pay child support in accordance with the Federal Child Support Guidelines for her resident province of Ontario. Contrary to the submissions of Ms. Chang, the declared income used to determine the table amounts is her line 150 income as it appears in her income tax returns and notices of assessment and not an adjusted income as appears on her worksheet and calculations.

[12] I agree with Ms. Chang that the child support guideline table amounts to be used are those that are in force for the applicable period. While in his calculations counsel for Mr. Liu has used the British Columbia tables, it appears that he has used for all years of retroactivity the monthly child support guideline table amount for that province that were in force as of 2012 (table amounts that came into force on December 31, 2011, tab B of Applicant’s Submission on Child Support Arrears).

[13] As Ms. Chang points out the British Columbia child support guideline monthly table amounts for the years 2009, 2010 and 2011 were different from, lesser than the table monthly amounts used by counsel for Mr. Liu. According to Ms. Chang they would be lower by $70 per month for the period in question. She has not in any way substantiated her calculations on this point. Furthermore, Ms. Chang has also used an adjusted income and not her line 150 income. For this reason, I cannot accept her calculations.

[14] I have consulted directly the applicable Federal Child Support Guidelines for the province of British Columbia in arriving at the figures below. Based on Ms. Chang’s line 150 declared income for the respective years and with her province of residence being British Columbia I find the child support payable by Ms. Chang to Mr. Liu for the following period to be as follows. I have also used whole year incomes for Ms. Chang because this is historical information rather than changing amounts of child support in one year.

(a) October to December, 2009, inclusive (line 150 income $102,953):

$930 x 3 = $2,790

(b) January to December, 2010, inclusive (line 150 income of $98,000):

$889 x 12 = $10,668

(c) January to December, 2011, inclusive (line 150 income of $102,346):

$925 x 12 = $11,100

(d) January to March, 2012, inclusive (using line 150 income for 2011 until 2012 income ascertained and for the province of British Columbia):

$925 x 3 = $2,775

(e) April to July, 2012, inclusive (using line 150 income for 2011 until 2012 income ascertained and for province of Ontario):

$895 x 5 = $4,475

[15] Ongoing child support after July, 2012, shall be $895 per month in accordance with the Federal Child Support Guidelines for the province of Ontario until Ms. Chang’s 2012 income can be ascertained and support changed in accordance with the existing order based on the September, 2011, Minutes of Settlement of the parties.

[16] Based on the above the total child support payable by Ms. Chang for the period October, 2009 to July, 2012 inclusive is found to be $31,808.

DEDUCTIONS FROM CHILD SUPPORT PAYABLE BASED ON CREDITS OWED TO MS. CHANG

[17] The total amount of child support payable by Ms. Chang to Mr. Liu of $31,808 for the period of retroactivity is to be reduced by any credits owed to Ms. Chang for the following items:

(1) any child support paid by her during the period in question;

(2) Mr. Liu’s share of travel costs for the child between Vancouver and Ottawa in accordance with the parties’ Minutes of Settlement and after an accounting of those expenses; and

(3) Mr. Liu’s share of the child’s section 7 expenses as provided for in the parties’ Minutes of Settlement and after an accounting of those expenses.

[18] With respect to point (1) above, the parties appear to agree that Ms. Chang has paid child support for the period in question to the month of September, 2011, the amount of $5,922.43. Ms. Chang has also presented evidence in her material that between and including the month of October, 2011, to June, 2012, she paid an additional amount of child support to Mr. Liu of $2,133.19 (see exhibits C and H of Respondent’s Submission on Child Support Arrears) for a total amount of support paid of $8,055.62. This amount should be credited to Ms. Chang.

[19] With respect to point (2), Ms. Chang claims that the parties agreed to share all of the costs of travel for their son between Vancouver and Ottawa proportionately to the parties’ incomes. She asks this Court for an order that these travel costs be shared proportionately to the parties’ incomes.

[20] Counsel for Mr. Liu argues that during the negotiation of the September 13, 2011, Minutes of Settlement the parties could not agree on whether the travel costs be shared proportionally to the parties’ income or equally as they had done under a previous agreement. In the absence of this agreement, the parties agreed to alternate the purchase of their son’s air travel ticket. According to counsel for Mr. Liu only after Mr. Liu signed the Minutes of Settlement did Ms. Chang add the words to paragraph 2 (iv) (a) “proportionate to their income” and without his consent. Mr. Liu argues that all other insertions found in the hand-written Minutes of Settlement are initialled by him. That one is not.

[21] This is a serious allegation and Ms. Chang in her written submissions has not in any way responded to it. She has merely presented calculations of Mr. Liu’s proportionate contribution to the amounts she has spend on the child’s travel costs from the winter of 2009 to the winter of 2012.

[22] The evidence showed that prior to the signing of the September, 2011, Minutes of Settlement the parties agreed to share equally their son’s travel costs. This is found in their prior agreement (see tab A, paragraph 16, of the Respondent’s Submission on Child Support Arrears). The current order based on the September 13, 2011, Minutes of Settlement is silent as to this issue because of this unresolved dispute. The parties shall share equally all of the unaccompanied minor fees to date and Ms. Chang is to provide Mr. Liu with receipts for their son’s transportation costs.

[23] In the past the parties agreed to share these transportation costs equally. They have continued to share the unaccompanied minor fees associated with their son’s travel equally. There will, therefore, be an order that all travel costs, including the unaccompanied minor fees are to be shared equally between the parties for the period in question, namely, from September, 2009 to the end of March, 2012, when Ms. Chang moved her residence to Ottawa and the need to travel ceased. Mr. Liu’s 50% share of the travel costs for that period should therefore be deducted from the child support payable by Ms. Chang.

[24] Mr. Liu’s counsel indicates that Ms. Chang has already deducted Mr. Liu’s 50% share of the travel costs from the child support she should have paid Mr. Liu, but they still have to be accounted for in this calculation.

[25] Ms. Chang has provided receipts for the travel costs, inclusive of the unaccompanied minor’s fee, paid by her for the years 2009 to 2012, namely $6,363.96 (see tab J of Respondent’s Submissions on Child Support Arrears). This includes her son’s travel expense of $575.75 for the winter of 2012. Ms. Chang recognizes that Mr. Liu has paid $652 for the unaccompanied minor’s fees.

[26] It is Mr. Liu’s position that as a result of the September 13, 2011, Minutes of Settlement, the parties began to alternate the purchase of their son’s travel costs. As a result Ms. Chang paid for their son’s travel for the Chinese New Year in February, 2012, and he paid for his son’s airfare to Vancouver during the March break.

[27] This being the case, that would make the total outstanding amount of travel costs to be shared equally between the parties to be $5,136.21 ($6,363.96 – ($575.75+$652). Mr. Liu’s share would be $2,568.10 which should be deducted from the child support payable by Ms. Chang.

[28] With respect to point (3), both parties have submitted claims for expenses incurred for this item during the period in question. The September 13, 2011, Minutes of Settlement provides that Ms. Chang is not obligated to contribute to the child’s extracurricular activities and cultural or language education. Furthermore, Ms. Chang is entitled to deduct the amount of $150 from the support payable in July of each year to reflect costs incurred by her with respect to extracurricular activities or cultural or language education for the child. For the years of 2009, 2010, 2011 and 2012, the total amount of deduction from the child support payable would be $150 x 4 or $600. A deduction of $600 is therefore allowed from the total child support payable. No other amount is provided for except for camps.

[29] With respect to summer camp fees, as long as it is a substitute daycare, the September, 2011, Minutes of Settlement provide that the camp expenses shall be shared in proportion to the parties’ respective incomes. While the figures presented by the parties vary slightly, Ms. Chang has presented evidence that she has spent for the years 2010, 2011 and 2012 a total of $3,123.75 on camps for her son during the summer months, which would replace daycare. As per her documentation she incurred $919.75 in 2012, $894 in 2011 and $1,310 in 2010. Ms. Chang is therefore entitled to deduct Mr. Liu’s proportionate share of that expense from any child support payable.

[30] Based on the respective incomes for the parties for the years in question Mr. Liu’s proportionate share for the year 2010 is 57%, for the year 2011 it is 58.6% and for the year 2012 it is 54.5%. On my calculations Mr. Liu’s proportionate share of the camp expenses for the year 2010 is $747.70, for the year 2011 it is $523.88 and for the year 2012 it is $501.26 for a total for those years of $1,772.84.

[31] On my calculations, the total amount of deductions or credits to be accorded to Ms. Chang from the total amount of support payable from October, 2009 to July, 2012 are $8,055.62 (child support paid) + $2,568.10 (travel costs) + $600 (July extracurricular costs) + $1,772.84 (reasonable summer camps) for a total of $12,996.56.

[32] Based on these calculations the child support arrears found to be owed by Ms. Chang payable to Mr. Liu is $18,811.44 ($31,808 - $12,996.56). It is ordered that the arrears of child support are to be paid within 14 days from the release of this decision, failing which interest on the amount of child support owed, at the usual court rate is to be applied and paid.

[33] The last issue to be dealt with is the question of costs. It is evident that the Mr. Liu has been substantially successful on this motion and as the successful party is entitled to his costs unless there is some reason not to award those costs. I cannot find any such reason. Ms. Chang was successful on the issue of the application date.

[34] I was not informed of any Offers to Settle which have been made by either of the parties which this Court should consider.

[35] Ms. Chang has behaved unreasonably in this matter. She unreasonably delayed the taking out of the final order based on the September 13, 2011, Minutes of Settlement. While Ms. Chang did not agree with Mr. Liu’s calculation of child support arrears, she acknowledges that some child support arrears were owing (at least $10,099.30 as put in her written submissions) yet she made no effort to pay the child support which she herself recognized were in arrears. That was acting unreasonably.

[36] I am cognizant of the parties’ financial means in this matter. This matter should not have come to a hearing.

[37] For all of the above reasons, Ms. Chang is ordered to contribute to Mr. Chang’s costs in an amount that I fix at $8,000. This amount is payable forthwith.

M. Linhares de Sousa J.

Released: August 30, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LING (EDWARD) LIU

Applicant

– and –

CHING-YUEN (CONNIE) CHANG

Respondent

decision on child support arrears

M. Linhares de Sousa J.

Released: August 30, 2012