ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-2935
DATE: 2012-12-06
BETWEEN:
David John Corfield Applicant/Appellant on the Appeal – and – Sandra Corfield-Walker Respondent/Respondent on the Appeal
Self-Represented
Self-Represented
HEARD: December 4, 2012
THE HONOURABLE JUSTICE J.R. HENDERSON
reasons for decision on appeal
[ 1 ] The Applicant appeals the order made by Justice L. Rogers of the Ontario Court of Justice, dated April 20, 2011 (“the 2011 Order”), whereby Justice Rogers terminated the Applicant’s obligation to pay child support for the child, Molly, as of April 30, 2010.
[ 2 ] By way of background, the Applicant and the Respondent have two children, namely Molly, born September 21, 1988, and Chase, born February 18, 1987. Since the parties separated both of the children have generally been in the custody of the Respondent.
[ 3 ] By order of Justice R. L. Budgell dated January 3, 2002, the Applicant was ordered to pay child support for the two children in the amount of $234 per month based on his annual income of $15,909. That order also fixed the quantum of the arrears of support.
[ 4 ] By order of Justice E. S. Martin, dated March 11, 2009, (“the 2009 Order”) the Applicant’s obligation to pay child support for Chase was terminated as of April 30, 2009, and the Applicant was ordered to pay child support for Molly in the amount of $172 per month “until she completes her first program of studies at Niagara College, which is estimated to be April, 2011”. This amount of child support was based upon the Applicant’s imputed annual income of $20,000. In the same order Justice Martin fixed the arrears of child support as at March 31, 2009 at $3,700.
[ 5 ] The matter next came before Justice Rogers in 2011 on the Applicant’s motion to change the 2009 Order. In his motion, the Applicant requested that the quantum of the arrears set in the 2009 Order be reduced, and that child support for Molly be terminated as of April 30, 2009.
[ 6 ] In her written endorsement, Justice Rogers declined to deal with the issue of any arrears that had accumulated prior to the 2009 Order, and Justice Rogers varied the 2009 Order so that child support for Molly terminated on April 30, 2010.
[ 7 ] The Applicant claims that Justice Rogers erred in making the 2011 Order because she refused to deal with the arrears issue; she refused to hear the Applicant’s submissions that his income had declined; and she did not accept the Applicant’s submission that support for Molly should terminate in April 2009.
[ 8 ] In my view, none of the points raised by the Applicant in this appeal have any merit.
[ 9 ] Regarding the arrears issue, the Applicant submits that Chase was not in full-time attendance at school from June 2006 to September 2007, and that Molly was not in full-time attendance at school from June 2007 to September 2008. Therefore, the Applicant requested a variation to the 2009 Order that would give him credit or reduce his child support obligations for those periods of time.
[ 10 ] The difficulty for the Applicant on this appeal is that Justice Martin made retroactive changes to the child support obligations, and recalculated the arrears as of March 31, 2009. When Justice Rogers heard the Applicant’s motion to change, Justice Rogers was required to accept the 2009 Order as correct as at the date of that order.
[ 11 ] In my view, Justice Rogers was correct in law when she told the Applicant that she would not go behind the 2009 order, and that she would not reopen the issue of child support for the time period that preceded the 2009 order. Those matters had been dealt with by Justice Martin; the 2009 Order had not been appealed; and the 2009 Order was deemed to be the correct decision at the time.
[ 12 ] Regarding Justice Rogers’ refusal to hear the Applicant’s submissions as to a change in his income, Justice Rogers correctly observed that the Applicant had presented no evidence as to any change in his income. Therefore, Justice Rogers was again correct in law when she declined to hear oral submissions on that issue. Thus, Justice Rogers did not err by using the annual income that was imputed to the Applicant by Justice Martin in the 2009 Order.
[ 13 ] Regarding the termination of support for Molly, Justice Rogers heard evidence that Molly was in full-time attendance as a student at Niagara College commencing in September 2008 and that Molly continued to be enrolled as a student at Niagara College, completing her third year, in April 2011. Further, Justice Rogers also heard evidence that Molly had not achieved good marks at Niagara College, and in fact had failed many of her courses.
[ 14 ] Justice Rogers took that evidence into account when she determined that the Applicant was only obliged to pay child support for Molly for her first two years at Niagara College, ending in April 2010, and was not obliged to pay child support for any period thereafter. In my view that decision was within the discretion of the trial judge. Justice Rogers’ determination that child support should terminate for Molly on April 30, 2010 does not constitute an error in law, and does not constitute a palpable or overriding error of fact.
[ 15 ] For all of these reasons, this appeal is dismissed.
Henderson, J.
Released: December 6, 2012
COURT FILE NO.: 11-2935
DATE: 2012-12-06
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: David John Corfield Applicant/ Appellant on the Appeal – and – Sandra Corfield-Walker Respondent/ Respondent on the Appeal REASONS FOR decision on appeal Henderson, J.
Released: December 6, 2012