ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 6887/12
DATE: 2012-12-19
BETWEEN:
DIANE CHARLENE EPPS
Applicant
– and –
RICHARD ALAN EPPS
Respondent
George McFadyen, Counsel for the Applicant
No One Appearing on behalf of the Respondent, Richard Epps
HEARD: December 13, 2012
DESOTTI, J.
A. Facts
[ 1 ] This matter comes before me as a variation of a child support order issued out of the Superior Court by Justice McDermid on April 11, 2002 and confirmed by me on July 2 nd , 2010. This variation, that was obtained by way of a provisional order out of a Central Kent Family Proceeding Court, in England, dated October 26 th , 2011, was predicated on the actual income of the respondent in his employment as a landscape architect.
[ 2 ] I take no issue with the quantum of support that was determined by the Central Kent Family Court of England to be an appropriate amount of support based on the evidence of employment earnings by the respondent, Richard Alan Epps. This was the evidence before that court and that court responded accordingly.
[ 3 ] What was and is most troublesome is that the respondent purposefully left his employment as a boilermaker with the Boilermakers Union out of Sarnia to engage in a new relationship in England. Perhaps in England, love trumps child support and the financial obligations that flow from procreation but not as I found as a conclusion of law in July, 2010.
[ 4 ] In any event, there is no issue that had the respondent continued to work as a boilermaker, his income would have been in excess of $80,000.00. There is also no issue that the respondent on July 2, 2010, attempted to have the child support award and arrears reduced and eliminated and this relief was not granted.
B. Analysis
[ 5 ] I infer that this attempt to obtain a reduction of support from an English court and then have this amount confirmed in Ontario is a result of the respondent’s attempt to obtain his pension income from his former Boilermaker union.
[ 6 ] Presently, there are three children that are still in need of child support and potentially s. 7 extraordinary expenses as defined in the Child Support Guidelines. There is a claim for $479.00 per month as extraordinary expenses, which I conclude is excessive given that only one child is still engaged in activities that can be seen as warranting extraordinary expenses.
[ 7 ] Those expenses are for Madelyn and her competitive dance programme. Her annual expenses are approximately $900.00 plus the expenses to attend approximately five competitive meets. I would fix those expenses at $2,900.00, of which each party would be responsible for approximately half of those expenses or $1,450.00 or $125.00 payable by the husband to his former spouse the applicant Diane Charlene Epps towards those extraordinary expenses per month.
[ 8 ] I would fix the starting point of those expenses on September 1 st , 2012 and on the first of each month thereafter to and including June 1 st , 2013 and then this amount of s.7 expense would be terminated.
[ 9 ] Given my determination on this reduction in extraordinary expense , I am prepared to hear from counsel for the applicant on the issue of reduction in arrears concerning those extraordinary expenses that have been accumulating since Justice McDermid’s order and fixing a new amount for those arrears based on a more realistic determination of extraordinary expenses.
[ 10 ] In the event that there was not any activity that would meet the definition of extraordinary expenses over the last ten years then there should be a corresponding reduction of child support arrears.
[ 11 ] Furthermore, the respondent should have paid approximately half of his son’s Colin’s expenses at post-secondary school taking a programme that certified him as an underwater welder. Those expenses I fix at $15,000.00 of which I find the respondent Richard Alan Epps responsible for approximately one-half or $7,500.00 based on the proportionate share of expenses to be borne by both parties. Those expenses will be added to the arrears of child support.
[ 12 ] There are three remaining children still in need of child support. There are two children still in high school, Madelyn and Curtis, and one child in attendance at Lambton College, MacKenzie. The evidence of the applicant is that when Colin became self-sufficient in July of 2011, she advised FRO and they made the appropriate adjustment in child support. Likewise, when her daughter MacKenzie took a year off school to become an OPAR worker in Australia, no child support was sought for her. I am unaware whether child support for the remaining two children was reduced to the Table amount of $1,159.00 per month.
[ 13 ] Since I heard no evidence on this point, I have reduced the arrears of child support for this period accordingly. If I am wrong in that determination, and since I have indicated that some recalculation of s. 7 expenses should be presented to me, this issue can be formally addressed at a later point.
[ 14 ] The mandated child support guidelines for three children, based on an imputed income of $80,000.00, is $1,511.00 per month (not $1,530.00), based on the most recent Child Support Guidelines. This amount I am ordering to be paid effective September 1 st , 2012 and on the 1 st of each month thereafter predicated on the respondent’s imputed income of as stated at $80,000.00 and not the amount that he is actually earning in his employment in England.
[ 15 ] The amount of $1,603.00 that had been in place for four children by Justice McDermid is thus varied to $1,511.00 effective July 1st of 2011 and then varied again to reflect only two children from August 1 st , 2011 until September 1 st ,2012, given that the applicant’s daughter MacKenzie was in Australia. The Guideline amount for this period of time of thirteen months, that is from July, 31 st , 2011 until August 31 st , 2012, is $1,159.00.
[ 16 ] Finally, the applicant spouse was responsible for all of her child MacKenzie’s tuition expenses at Lambton College (Massage Therapy). I find those expenses to be reasonably fixed at $5,000.00 for which the respondent would be required to pay his proportionate share of $2,500.00. This sum of $2,500.00 shall also be added to the accumulated arrears.
[ 17 ] In the result:
Child support is varied from $1,530.00 to $1,511.00 per month effective September 1 st , 2012 and on the 1 st of each month thereafter, predicated on an imputed income to the respondent of $80,000.00.
I am fixing extraordinary expenses for the child Madelyn in the amount of $125.00 per month effective September 1 st , 2012 and on the first of each month thereafter for reasons already expressed. In addition, the respondent shall be credited with the sum of $479.00 per month from September 1 st , 2010, when the child Colin attended post-secondary school for his underwater welding diploma until September1, 2012 or a period of 24 months or the sum of $11,496.00. Thereafter, no further s. 7 expenses shall be accumulated except for the $125.00 payable by the respondent for his daughter Madelyn. This amount of s. 7 expenses shall be terminated on June 2nd, 2012.
The respondent is to be credit with the sum of $19.00 ($1,530.00 - $1,511.00 = $19.00) per month for the month of July, 2011 and then ($1,511.00 - $1,159.00 = $352.00) $352.00 for the months of August 2011 through to September 2012 while the daughter, MacKenzie was residing in Australia. This sum of $4,576.00 ($352 x 13 = $4,576.00) shall as well be credited against the arrears owing by the respondent (I am assuming that this reduction was not automatically calculated by FRO).
The sum of $7,500.00 shall be added to the arrears of the respondent to reflect his failure to pay for his son Colin’s post-secondary welding course.
A further sum of $2,500.00 shall also be added to these arrears of child support to reflect the respondent’s failure to pay his proportionate share of his daughter, Mackenzie’s Lambton College course.
All of the arrears of child support shall constitute a charge against the respondent’s realized pension income from his former union the Boilermakers. Furthermore, no sum shall be paid out to the respondent, Richard Alan Epps, as pension income earned through this union, without first honouring this charge by the applicant wife as her claim for ongoing child support arrears. I appreciate that the authorities who collect these monies (FRO) may be limited to half this eligible amount, nevertheless, I am mandating that whatever portion of these pension funds that they can legally collect shall be used to discharge the significant child support arrears that have accumulated and which was purposefully engineered by the respondent, father.
[ 18 ] I am fixing costs of this hearing in favour of the applicant, wife, Diane Charlene Epps, in the amount of $2,500.00 plus disbursements and H.S.T.
“J.A. Desotti”
The Honourable Mr. Justice John A. Desotti
Released: December 19, 2013.
COURT FILE NO.: 6887/12
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: DIANE CHARLENE EPPS Applicant – and – RICHARD ALAN EPPS Respondent
REASONS on motion
DESOTTI, J.
Released: December 19, 2013