ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-470
DATE: 20121004

BETWEEN:

BRENDA ELAINE MACRAE
Applicant

– and –

GERALD HOWARD BAIN
Respondent

Myron M. Breslow, for the Applicant
Eric Lavictoire, for the Respondent

HEARD: September 21, 2012

DECISION

Charbonneau J.

[ 1 ] Both parties bring their separate motion to change the child support provisions of the Divorce Order of Justice Darlene Acton of the Alberta Court of Queen Bench dated December 14, 2001.

[ 2 ] The Divorce Order provided as follows:

IT IS ORDERED:

That the Plaintiff shall pay to the Defendant child support in the sum of $430.00 per month, payable on the 1st day of each and every month, commencing on the 1st day of the month following the granting of the Divorce Judgment and Corollary Relief Order, and continuing to be paid for so long as the child continues to be child of the marriage according to the Divorce Act , Canada.

[ 3 ] The Applicant requests the following changes:

1. The Respondent’s annual income for 2012 be imputed in the amount of $68,000 and that he pay support in accordance with the Child Support Guidelines retroactive to January 1, 2009.

2. That the Respondent pay to the Applicant his proportionate share of the child’s special expenses for 2011 and 2012 and in the future including the costs of her participation in a competitive soccer league.

3. That the Respondent provide security for the payment of his support obligations including designating the Applicant as beneficiary of his life insurance policy and designating Brittney as a beneficiary under his medical benefit plan.

[ 4 ] The Respondent asks the court:

1. To terminate child support.

2. In the alternative, to adjust the monthly child support to the amount provided by the Child Support Guidelines in accordance with the father’s actual annual income.

3. To declare that the father is not liable to pay for special expenses.

Background

[ 5 ] The parties were married on September 29, 1994 and separated on July 16, 1997. They have one child, Brittney MacRae Bain, born February 12, 1996.

[ 6 ] On November 12, 1997, the parties entered into a separation agreement. Each was represented by a solicitor and acknowledged receiving independent legal advice. The relevant provisions of that agreement are as follows:

(5)CUSTODY

The wife shall have sole custody of the infant children of the marriage namely; Brittney MacRae Bain born on February 12, 1996 and the husband shall have liberal and generous access;

(6)CHILD MAINTENANCE

(6.1)The husband (Gerald H. Bain) shall pay Maintenance for the infant child of the marriage namely; Brittney MacRae Bain, in the amount of $381.00 per month, commencing November 1, 1997 and on the 1 st day of the month each and every month thereafter until she attains the age of eighteen (18) years, provided however that if the child while continuing to reside with the mother and is in full time attendance at a recognized educational institution and receiving passing grades, the payments will continue until the age of twenty-one (21) years.

(6.2)The husband (Gerald H. Bain) agrees to continue to maintain Brenda Bain, Shannon Christina MacRae-Ormerod and Brittney MacRae Bain, on his Health and Dental insurance plan, including (where applicable, Blue Cross or its equivalent) for as long as he is able under the terms of his employment.

(16)TERMS OF AGREEMENT

(16.1)The parties agree that this Agreement shall survive any dissolution of the marriage. If the marriage is dissolved, then this Agreement shall be read as if the word “former” were inserted before the words “husband” and “wife”. The Agreement may be terminated or amended by the parties in writing signed by both of them.

[ 7 ] Both parties agree that the Respondent has had very little, if any, access to Brittney since the separation. The Respondent alleges he made efforts to have access but was denied by the Applicant who moved without giving her new address. The Applicant denies that she prevented the Respondent from exercising access. She alleges that the Respondent only attempted to exercise access once in 2001.

[ 8 ] Although the Respondent fell in arrears of child support initially, he has been paying steadily since the Divorce Order and was not in arrears at the start of the present proceedings. The Family Responsibility Office has been collecting the support payments pursuant to the terms of the Divorce Order. The Respondent has continued to pay the sum of $430.00 per month to this date.

[ 9 ] The Applicant first initiated her motion to change on May 26, 2011. An order obtained after an uncontested trial was set aside on consent because the Respondent had not received notice of the proceedings.

[ 10 ] Neither side submitted that there did not exist a change of circumstances when the Applicant initiated the proceedings in May 2011. Mr. Bain’s taxable income had increased to $65,329.32 in 2008, $68,152.43 in 2009, $68,287.00 in 2010, and $111,440.00 in 2011 although this last amount included an $88,452.00 severance payout.

The Applicant’s Position

[ 11 ] The Applicant submits that the Order should be varied because the following change in circumstances has taken place:

1. The Respondent’s income has increased substantially.

2. The Applicant now has to pay substantial special expenses for Brittney. On the one hand, she had to pay $5,800.00 for orthodontics between November 15, 2007 and June 8, 2010. Secondly, Brittney plays competitive soccer and for the year 2011 alone, the costs were $12,245.00. She expects the costs for 2012 for monthly fees and special tournaments will exceed $6,000.00.

[ 12 ] The Applicant also submits that the Order should be varied retroactively to take into account the substantial increase in the Respondent’s income since the date of the Divorce Order. The Applicant seeks retroactivity to January 2008.

The Respondent’s Position

[ 13 ] The Respondent submits that all support must be terminated because he was laid off February 11, 2011 and has been unemployed ever since. In 2012, he has just started a new business and states his monthly income will only be $1,812.00 that he will receive from employment insurance. The Respondent submits that if the order is varied, it should not be varied retroactively and that in any event, for the purpose of any increase in child support, his average income for the last four years should be used and not the total income of 2011 which includes a substantial one-time severance pay-out.

The Issues

1. What amount of annual gross income should be attributed to the Respondent in 2011 to determine an appropriate variation for child support?

2. Should the variation be made retroactively and, if so, back to what date?

3. Is the Respondent liable to pay for a portion of the soccer expenses and the orthodontic expenses as special expenses pursuant to s.7?

4. If the Order is varied to include payment of special expenses, should the variation be retroactive and, if so, back to what date?

Analysis

[ 14 ] I agree with the parties that there has been material changes in circumstances linked to the variation of the husband’s gross annual income. In fact, I find that there have been two such changes. The first when the husband’s income increased from approximately $50,000.00 at the time of the Divorce Order in 2001 to approximately $68,000.00 in 2010. The second material change occurred when the husband was laid off from his long standing position with Carlisle Power Transmission. He has been receiving employment insurance benefits since June 2012.

The Respondent’s Gross Annual Income

[ 15 ] There is no dispute that the Respondent’s gross annual income was $68,000.00 in 2010. In February 2011, the Respondent was laid off. However, he received a severance allowance which brought his taxable income up to $111,000.00. As of June 2012, he is now receiving $1,812.00 per month or $12,684.00 for the last nine months of the year. Assuming an income of $68,000.00 in 2011 and extending the balance of the severance pay-out into 2012, I find that his total income in 2012 is $43,000.00 plus $12, 684.00, for a total income of $55, 684.00.

[ 16 ] I find that the treatment of the severance payment in this fashion is fair and equitable for both parties in view of the very nature of severance which is to provide an income over a given period of time to allow the person to find other employment. On that basis, I find that the basic child support payment in accordance with the Guidelines is $ 629.00 per month for the year 2011 and $502.98 per month for the year 2012.

Retroactivity

[ 17 ] The Supreme Court of Canada in D.B.S. v. S.R.G. 2006 SCC 37 , [2006], 2 S.C.R. 231, sets out the four factors which this Court must consider before ordering a retroactive child support award:

1. Whether there exists a reasonable excuse why support was not sought earlier;

2. Whether the payor parent is guilty of blameworthy conduct;

3. The present and past circumstances of the child;

4. Whether the payor parent will suffer hardship by a retroactive award.

[ 18 ] The evidence discloses that the Applicant considered bringing the matter to court for an increase in child support in April 2010. Although she had located the Respondent, she decided to delay litigation in order to wait to see if Brittney would make the team and because she was looking after her dying stepfather. (See paragraphs 18 and 19 of her affidavit of July 26, 2012). She failed to do anything to at least notify the Respondent of her intention to seek an increase of child support.

[ 19 ] It is noteworthy that she did not attempt to notify the Respondent of her intentions. The first attempt to notify the Respondent was at the end of February 2011, when her counsel sent a letter to the Respondent. The letter was returned by Canada Post with the mention “R.T.S. moved”. She made certain efforts to locate the Respondent but states she was unable to do so. The Respondent was only effectively notified that the Applicant was seeking increasing support when he received notice of arrears from the Family Responsibility Office on October 24, 2011.

[ 20 ] I find that the Applicant has not provided a reasonable excuse for the delay in notifying the Respondent. This factor militates against exercising the Court’s discretion in awarding a retroactive award.

[ 21 ] There is no evidence of blameworthy conduct. It is noteworthy that the Separation Agreement and the Divorce Judgment do not impose an obligation on the Respondent to notify the Applicant of any increase in his income. Since the Divorce Order, the Respondent has faithfully paid the support ordered by the Divorce Order and has maintained Brittney on his medical plan. The Applicant concedes that he provided her with the insurance claim forms which she effectively used until she misplaced them and did not seek additional ones.

[ 22 ] It is also important to say that the Respondent’s income did not dramatically increase in the years after the divorce of 2001. The evidence indicates he was earning $50,000.00 in 2001 and $68,000.00 in 2010.

[ 23 ] I find the Respondent is not guilty of blameworthy conduct which should incline the Court to award a retroactive award.

[ 24 ] There is no evidence that Brittney’s well-being has been in any way affected by the failure to increase the child support in accordance with the Respondent’s increase in income. To the contrary, all the evidence suggests that the total income of the Applicant’s household with her new spouse has been greater than the Respondent’s and that Brittney is striving. In 2009, the annual household income of the Applicant was $76,000.00, in 2010 $78,500.00, and in 2011, $81,000.00

[ 25 ] I take into account that Brittney’s present circumstances are such that she has greater than usual financial needs because of her association with a competitive soccer team. I find that this is important and beneficial to her.

[ 26 ] I find that this latter present circumstance is one which militates somewhat in favour of a retroactive award.

[ 27 ] Finally, I find that any retroactive award will cause a substantial hardship on the Respondent because of his present unemployment status. This factor weighs against a retroactive award.

[ 28 ] The Supreme Court in D.B. S. v. S.R.G., supra, decided that as a general rule, the date of effective notice should be used as the date of variation. My analysis leads me to the conclusion that the new child support order should be retroactive but only to the date of effective notice, namely, October 2011.

Extraordinary Expenses

[ 29 ] Although both the Separation Agreement and the Divorce Order make no mention of special expenses, the evidence satisfies me that the parties did not intend to exclude them in the future. On the one hand, the medical insurance covered some special expenses. Moreover, it is reasonable to infer that the parties were well aware that special expenses could very well arise when the child became a teenager. It cannot be said that silence on the matter meant no possibility of claiming special expenses in the future.

[ 30 ] I also conclude that the soccer expenses qualify as special expenses. In this day and age, most parents with a similar range of income encourage their children to participate in such competitive sports. It is important for the overall well-being of the teenager. The Respondent, however, should only be liable for a portion in the approximate range of 20% to 30% in all circumstances.

[ 31 ] For all of these reasons, there will be the following order:

1. The Divorce Order of 2001 is varied.

2. The Respondent is ordered to pay child support for Brittney, effective October 1, 2011, in the amount of $629.00 per month based on an annual income of $68,000.00.

3. The Respondent is ordered to pay child support effective January 1, 2012 in the amount of $502.98 per month based on an income of $55,680.00

4. In addition, the Respondent is ordered to pay $1,000.00 on account of Brittney’s competitive soccer expenses for the 2011 year and $2,500.00 for the 2012 year.

5. The issue of the responsibility of the Respondent for any further special expenses for the subsequent years, including soccer expenses, is to be decided by agreement or further court order once the actual special expenses and income of the parties are known.

[ 32 ] If so advised, counsel may provide me with brief written submissions on the issue of costs within 20 days.

Mr. Justice Michel Z. Charbonneau

Released: October 4, 2012

COURT FILE NO.: 11-470
DATE: 20121004

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: BRENDA ELAINE MACRAE Applicant – and – GERALD HOWARD BAIN Respondent DECISION Mr. Justice Michel Z. Charbonneau

Released: October 4, 2012