SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-98-58492-1
DATE: 2012/02/02

RE: Judith Elizabeth Verhey, Applicant

AND

Michael Scott Fitzpatrick, Respondent

BEFORE: Mr. Justice Peter Annis

COUNSEL: Gil D. Rumstein, for the Applicant
Self-represented, for the Respondent

HEARD: January 25, 2012

ENDORSEMENT

Introduction

[ 1 ] This is a motion to vary the order of Belch J., dated April 27, 2001.

[ 2 ] The principal issue is whether the respondent father should pay retroactive support for the three years prior to bringing the application. The applicant mother also seeks an order establishing a repayment schedule for arrears of child support.

[ 3 ] In addition, the applicant seeks s. 7 extraordinary expenses for the extracurricular activities of their two children.

Background Facts

[ 4 ] The parties married on February 14, 1994. They separated a little after four years on April 23, 1998. They were divorced on April 22, 2000.

[ 5 ] They have two children from the marriage, Lisa (D.O.B. November 5, 1996) and Joshua (D.O.B. January 16, 1998).

[ 6 ] The matter came before Belch J. who made the following orders:

(a) Commencing May 1, 2001, the respondent was to have paid child support of $879 per month based on annual income of $65,012.

(b) Arrears of child support were fixed at $1,000 and were to be repaid at the rate of $200 per month.

(c) Daycare arrears were fixed at $6,000 and were to be repaid by monthly payments in the amount of $200 per month.

(d) An equalization payment was awarded to the applicant in the amount of $27,500 which was to be paid at the rate of $200 per month commencing January 1, 2002.

(e) In addition, the order contained the following paragraph:

That the parties shall adhere to the reporting obligations as enunciated in the Federal Child Support Guidelines , to ensure that the future child support obligations remain commensurate with the provisions of the Federal Child Support Guidelines.

[ 7 ] The respondent’s income of $65,000 in 2001 increased to $95,000 in 2008. There are issues as to whether the applicant requested an increase in child support or raised issues of his income with the respondent.

[ 8 ] In negotiations prior to the hearing, the parties agreed on the number of points, the most important being that the respondent will pay monthly Table child support in the amount of $1,334 for the two children. He has been paying this amount since September 2011.

[ 9 ] The parties have agreed that the arrears of child-support pursuant to Belch J.’s order is fixed at $7,000.

[ 10 ] The respondent has also consented to a judgment issuing in the amount of $23,500 for amounts due to her for the equalization payment. Until the payment has been satisfied the applicant has a trust claim against the respondent’s pension.

Retroactive Payment of Child Support

[ 11 ] I agree with the applicant that she is entitled to retroactive child support for the period of three years prior to the filing of application in July 2011.

[ 12 ] The principles governing the making of an order for retroactive child support have been laid down in S.(D.B.) v. G.(S.R.) , 2006 SCC 37 (S.C.C.) .

[ 13 ] Specifically, the factors the court must consider, amongst all the relevant circumstances include: reasonable excuse for delay, conduct of the payor spouse, circumstances of the child, and hardship. None of the factors is determinative. The court indicated that the date on which the notice of the request was made would normally be the minimum commencement, and that orders ordinarily ought not to back go further than three years beyond that.

(i) Reasonable Excuse for the Delay

[ 14 ] The applicant claims that she raised the issue of child support payments with the respondent in the past. She added that he claimed he did not have the means to pay the support already ordered for various reasons.

[ 15 ] The father inadvertently provided more information on this issue when addressing the equalization debt. He stated that the applicant was prepared to forgive the debt in 2005 because he told her that he was having financial difficulties and could not pay it. She apparently was prepared to waive the debt, but has since changed her mind.

[ 16 ] What I imply from the father’s description of these circumstances is that he was misrepresenting his financial situation. If he was unable to make payments on the equalization debt, I conclude that this would have led the applicant to believe that no increase in his income had occurred.

[ 17 ] The applicant further submits that she had justifiable fears that the respondent would react vindictively to any demand by her for an increase in child support. She argues after the fact that her fear was reasonable given the worsening relations between the parents and the father’s alleged alienation of the son since she raised the issue of increased support. It would appear that the situation has deteriorated since the support issue has been reopened. Nevertheless, I would not place much emphasis on this evidence to justify delay.

[ 18 ] I find that the mother’s delay in not requesting an increase in child support at an earlier date is reasonable.

(ii) Conduct of the Respondent

[ 19 ] I have already indicated that the respondent was implicitly misrepresenting to the applicant that no increase in his income had occurred from his conversations over waiving the equalization debt.

[ 20 ] The applicant also argues that the order of Belch J. is sufficient to require the respondent to pay retroactive child support. He ordered the parties to adhere to the reporting obligations in the Guidelines to ensure support obligations were maintained.

[ 21 ] It is acknowledged that neither party adhered to this order. This makes it somewhat problematic for the applicant to rely upon it to the exclusion of the other factors described in S. (D.B.) v. G. (S.R.) , supra .

[ 22 ] The order of Belch J. does add to the weight of the evidence tending to demonstrate that the respondent was fully aware of his continuing disclosure obligation and made no bona fide effort to remain current with his child support obligations.

[ 23 ] I also note the comments in S. (D.B.) v. G. (S.R.) , supra , at para. 108 which emphasize that the extent of the differential between actual and required support is a factor in concluding that a spouse could not maintain a reasonable belief that he was meeting his obligations.

[ 24 ] In present circumstances, where the respondent’s income has increased by more than 50 per cent from 2001 to 2008, I am satisfied that he had no reasonable belief that he was meeting his obligations.

[ 25 ] I conclude that there is evidence of blameworthy conduct on the part of the respondent that weighs in favour of a retroactive support order.

(iii) Circumstances of the Child

[ 26 ] Consideration of the children’s present circumstances suggest that payment of unpaid arrears would assist achieving some degree of parity in the housing standards of the parents to the benefit of the child.

[ 27 ] The mother has been living with her parents forcing the children to share accommodation. The father has remarried and purchased his childhood home. The mother hopes to purchase a townhouse which will be better suited to accommodating the children.

[ 28 ] I conclude that the circumstances of the children also support a retroactive payment of arrears.

(iv) Hardship

[ 29 ] Based on the respondent’s financial statements, I would not conclude that payment of child support arrears would create undue hardship.

[ 30 ] For all the foregoing reasons I order the father to pay retroactive child-support commencing July 2008. By the agreement of the parties the total retroactive amount owing is $23,075.

S. 7 Extraordinary Expenses

[ 31 ] The children are enrolled in various extracurricular activities. Lisa is involved in dance and recreational soccer. Josh is involved in hockey and recreational soccer.

[ 32 ] Lisa has been dancing since the age of three. She has been involved in competitive dance and is contemplating a career in dance. Her goal was to receive a dance scholarship and attend college in the United States. Her involvement increases her self-esteem and has physical and social benefits.

[ 33 ] Joshua has been involved in hockey since 2005. Joshua has confidence issues and hockey helps boost his confidence.

[ 34 ] Expenses incurred by the mother for these extracurricular activities have increased over the years: $525.00 in 2008; $3,309.95 in 2009; $3,698.78 in 2010 and $5,700 in 2011.

[ 35 ] The mother seeks an order that the respondent pay his proportionate share of these expenses incurred in 2011 and continue to pay the same amount in 2012.

[ 36 ] There is no issue that the father supports the children and their extracurricular endeavours. I think it is fair to conclude that his main concern is the expense claimed to support Lisa’s dancing activities.

[ 37 ] He notes that in addition to the amount spent by the applicant he paid for three of Lisa’s out of town dance competitions in Peterborough, Buffalo New York and Scarbrough, claiming that he paid an amount of $1,950 to support these activities.

[ 38 ] He points out that Lisa chose not to attend at Canterbury High School which is a highly reputable fine arts school in Ottawa.

[ 39 ] He also argues, without contradiction, that he has not been consulted on any of these expenditures prior to them being made.

[ 40 ] In all the circumstances, I find that $5,700 is not reasonable in comparison with previous year’s expenditures and bearing in mind the relatively modest income of the respondent. The father’s proportionate share of $5,700 amounts to more than four per cent of his gross income.

[ 41 ] There is also no explanation why Lisa would not want to attend Canterbury High School, which one would think would add to her credentials if she is serious in pursuing a career in the arts world.

[ 42 ] There are likely significant post-secondary educational expenses awaiting the parents, three quarters of which will be the father’s responsibility. Large investments in a possible career of a 15 year-old child are not justifiable in the present economic situation of the parties.

[ 43 ] I would set a maximum of $4,500 for extraordinary expenses commencing January 1, 2011. This amount is a slight increase to those incurred in recent years, prior to nearly doubling in 2011. This results in s. 7 special and extraordinary monthly payments by the respondent of $275, less any amounts paid by him to date.

Schedule of Arrears Payments

[ 44 ] I conclude that the father is able to pay the mother $1,950 per month in total child-support and arrears.

[ 45 ] The respondent’s financial statement shows a monthly surplus, in addition to child support payments, of over one thousand dollars, if one backs out the monthly payments of $520 on a personal loan to his current wife and portions of the payments to TD Canada trust loan of $720 required to pay off legal fees and a vehicle loan.

[ 46 ] Repayment of child support debts must take priority over these debts.

[ 47 ] Backing out child support payments of $1,345 and s. 7 payments in the order of $275 from the amount of $1,950, leaves $330 to contribute to the payment of arrears. This should allow the arrears to be paid off in slightly under six years.

Unresolved Matters

[ 48 ] No submissions were made on the issues of a restraining order or interest payable on the unpaid equalization amount. The applicant may bring these matters forward at the motion concerning custody, should it proceed.

Costs

[ 49 ] I award the applicant $4,500 in legal fees on a partial indemnity basis, plus disbursements and HST.

[ 50 ] This award takes into consideration my conclusion that the applicant was more successful on pecuniary issues. Offers to settle by either party have no effect on the award of costs.

[ 51 ] The costs award also reflects the applicant’s Bill of Costs on a full recovery basis, the rule of proportionality and my assessment of the work involved and complexity of matters raised.

Order

(a) Order to go in accordance with the terms of the signed consent filed at the hearing.

(b) The respondent is ordered to pay the applicant his proportionate share of s. 7 special and extraordinary expenses to a maximum of $4,500.00 annually commencing January 1, 2011, less any contributions made to date.

(c) The respondent is ordered to pay the applicant retroactive child support and other arrears in the total amount of $23,075.00, which shall be paid to the applicant in monthly amounts of $330.00.

(d) The respondent shall pay interest of two per cent on any unpaid child support commencing January 1, 2012.

(e) The respondent shall pay the applicant $4,500.00 in costs and disbursements of $271.77 plus HST forthwith.

Mr. Justice Peter Annis

Date: February 2, 2012

COURT FILE NO.: FC-98-58492-1
DATE: 2012/02/02

ONTARIO SUPERIOR COURT OF JUSTICE RE: Judith Elizabeth Verhey, Applicant AND Michael Scott Fitzpatrick, Respondent BEFORE: Mr. Justice Peter Annis COUNSEL: Gil D. Rumstein, for the Applicant Self-represented, for the Respondent ENDORSEMENT Annis J.

Released: February 2, 2012