ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-2764-00
DATE: 2012-10-12
B E T W E E N:
MALKGORZATA ATTARD
Mariola Bednarska, for the Applicant
Applicant
- and -
DAVID ATTARD
David Attard on his own behalf
Respondent
HEARD: October 9, 2012
REASONS FOR JUDGMENT
J.F. McCartney J.
[ 1 ] This is an undefended application in which the applicant seeks the following relief, firstly, a finding that the court has jurisdiction to deal with the issues of access and support in the face of a court order issued by a court in Florida in the United States, and secondly, she requests a change from the access/support provisions as set out in the Florida order.
[ 2 ] The following are the facts:
The parties married in Ontario on June 6, 1990 and separated in 2002. The separation agreement is dated September 9, 2002. They divorced in Florida on October 2, 2002.
There are two children of the marriage, Justin Attard born May 18, 1991, presently 21 years of age; Kassandra Attard, born December 30, 1993, presently 18 years of age.
By the terms of the Florida Divorce Judgment, the applicant obtained custody of the children, she was permitted to move them to Canada, and the respondent was to pay $1,000.00 per month child support for them.
On May 2, 2003, child support was increased to $2,000.00 per month until June 1, 2004 when it reverted to $2,000.00 per month.
On August 3, 2004, a “Stipulation” was signed in which the parties agreed that the children would reside with the respondent for a month each summer at his expense, but if the applicant failed to send the children to Florida, then child support “abated” until further order of the Court.
In the summer of 2007, due to short notice by the respondent, the applicant was unable to obtain the necessary passports for the children to travel to Florida as requested by the respondent. Thereupon, the respondent attended the Court in Florida and obtained an order terminating the child support payments as of July 31, 2007.
Once the applicant, who testified she had not received notice of the above-mentioned hearing due to a change in her mailing address, enquired as to why support payments had stopped and found out what had happened, she commenced an application in Ontario on June 10, 2008 to rectify the situation. This application was heard on an uncontested basis on July 10, 2008 by Ricchetti J. of the Superior Court.
Justice Ricchetti quite rightly came to the conclusion that s. 42 of The Children’s Law Reform Act , while it deals only with custody and access, should apply here, giving the Court jurisdiction, since these issues are so linked with the child support issue herein. However, he concluded in dismissing the application on February 10, 2010 there was not sufficient evidence to show a material change in circumstances to justify varying the court order as required by s. 42.
The applicant thereupon began to collect evidence to show a material change in circumstances now existed, and commenced the present application on July 5, 2011. In it she asked that the access requirement that the children must spend a month each summer with their father, considering all the circumstances and in particular the fact that they are now adults, should be abandoned, and the children should be allowed to make their own arrangements for visitation with their father as mutually agreed. I agree with this suggestion.
[ 3 ] The applicant also asks that child support be reinstated, arguing that it was wrong, as had been held in several Ontario cases, to cancel child support due to a lack of access, and thus punish the child who is blameless. Apart from this proposition, however, the applicant has, to my mind, established a material change in circumstances dating from the date the previous application was heard by Justice Ricchetti in June of 2009. The reasons are clear. Firstly, with respect to need, the evidence shows that the children have both relied almost solely on their mother, the applicant, for support since their father, the respondent, stopped paying support in August of 2007. Justin, who is now 21, has now graduated from Everest College having done so in March of 2012, but has been unable to find work. His total costs for his course at the college was $18,395.00, which was finance through student loans, and modest part-time earnings. Kassandra, who has just started her first year of a four-year course at the University of Toronto in Employment Relations (a four-year undergraduate program) had fees and costs of books for the first year of $7,134.00, even though she hopes to get this amount reduced on the basis of her mother’s modest income. Kassandra also works part-time at very modest wages to finance the debts. And probably neither of the children could have gotten where they are in financing their education without being able to live at home and with the support of the applicant. In that regard, it should be noted that the applicant is only able to earn in the neighbourhood of $20,000.00 to $25,000.00 per annum. She owns the home where she and the children live which is worth about $475,000.00, but carries a mortgage of $270,000.00, with a mortgage payment of over $1,000.00 per month. Further, she has accumulated a debt with the bank which has reached $110,000.00.
[ 4 ] On the other hand, with respect to ability to pay, the respondent appears to be doing quite well. He has remarried, but has no children. His new wife is steadily employed as a computer programmer. He has two registered companies - Attard Electric Inc. - an electrical contractor, and Attard Builder Contractor Inc. - a general construction company. He has boasted to the children that he owns 10 houses, which he rents out, as well as a condominium. He has four registered vehicles for pleasure and work, an expensive Grady-White fishing boat, and vacations in Europe for a month each year. He is jointly building a 6 car garage with an apartment on top for his parents to stay in when they visit. He has boasted to his children during recent visits that some years he has made over a million dollars.
[ 5 ] So, all considered, there is no question that the respondent should have been supporting his children over the years. Furthermore, I have the distinct impression, after considering the evidence, that he is the type of person that has the ability to adjust his income as he feels it is required. And so, while I am only prepared to make this decision effective as at June 22, 2009, the date the previous application was heard by Ricchetti J., I am ordering the following:
(a) Access
[ 6 ] Justin Attard having reached the age of 18 years and having completed his education is no longer to be considered a child of the marriage for the purpose of support/custody and access as of April 1, 2012.
[ 7 ] Kassandra Attard having reached the age of 18 years but still pursuing her education, is to be considered a child of the marriage for the purpose of custody and support, but due to her age and maturity will no longer be required to visit with her father other than as she and he can agree.
(b) Child Support
[ 8 ] I note that in the original Divorce Judgment in October 2002, some 12 years ago, the respondent was ordered to, and did for many years, pay child support of $1,000.00 per month. Since that time, and particularly in recent years, he has prospered, and so there is no reason to question that he could pay more than this amount at present. According to the Guidelines, a person making $68,000.00 per annum today will be paying $1,000.00 per month child support for two children. So it is likely that the respondent is making a least double this amount at present (i.e. $136,000.00 per annum) and so I am imputing this amount of income to him. So according to the Guidelines he should be paying $1,830.00 per month child support for the two children from June 22, 2009 up until April, 2012, when he is no longer required to pay support for Justin, and it is so ordered.
[ 9 ] Thereafter, child support for Kassandra, calculated on an income of $136,000.00 will be $1,150.00 monthly, commencing April 1, 2012, and it is so ordered.
(c) Extraordinary Expenses - Education
[ 10 ] It appears that the respondent should also have been paying his share of educational expenses for the children. I have already indicated what these expenses are to date for each of Justin and Kassandra.
[ 11 ] Assuming income of $25,000.00 for the applicant and $136,000.00 for the respondent, they are to share these expenses proportionately in the past for both children and in the future for Kassandra in a ration of 15/85.
(d) Costs
[ 12 ] Applicant’s counsel has presented me with a modest bill of costs, showing, her fees and disbursements on a partial and on a substantial indemnity basis up to, but not including, the trial. The applicant was clearly successful and the respondent completely ignored the proceedings. I can see no reason not to allow substantial indemnity costs as claimed in the amount of $5,786.83, which are to be paid by the respondent forthwith.
J.F. McCartney J.
Released: October 12, 2012
COURT FILE NO.: FS-11-2764-00
DATE: 2012-10-12
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MALKGORZATA ATTARD Applicant - and – DAVID ATTARD Respondent REASONS FOR JUDGMENT J.F. McCartney J.
Released: October 12, 2012