Family Responsibility Office v. Wade DeCarlo 2012 SCJ mini 9

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 03-438
DATE: 2012-05-02

RE: Family Responsibility Office (for the benefit of Françoise Lalonde), Applicant

AND

Wade DeCarlo, Respondent

BEFORE: The Honourable Justice Michel Z. Charbonneau

COUNSEL:
Me Patrice J. Cormier for FRO

Me Meredith Holmes for Wade DeCarlo

HEARD: April 13, 2012

ENDORSEMENT

1The director has filed a statement of arrears which indicates Mr. DeCarlo is in arrears in his child support payments ordered by this court on July 16, 2009. The total arrears are $3,682.47 made up of arrears of periodic payments in the amount of $1,367.93 and a lump sum of $2,176.54.

2The order of July 16, 2009 provided that Mr. DeCarlo owed arrears of periodic support as of that date in the amount of $6,276.00 and a further $2,006.01 on account of extraordinary expenses for a total of $8,282.01.

3The order retroactively varied the order of the court dated March 9, 2005 by increasing the amount of periodic support owed for 2007, 2008 and 2009 based on Mr. DeCarlo’s actual income for those years. It is important to note that both orders were made on consent.

4The 2005 order also provided for payment of special expenses for day care, health expenses at least $100.00 above the medical health insurance coverage including orthodontics, post-secondary education, extracurricular activities. Although certain expenses had to be agreed upon or, in default of agreement, fixed by mediation, expenses for medical, dental orthodontic treatment, day care and summer camps were immediately declared by the order as being extraordinary expenses to be shared according to a proportion 42% by Mr. DeCarlo and 58% for Mrs. Lalonde effective of April 1, 2005.

5The order of July 16, 2009 also ordered Mr. DeCarlo to pay costs of $3,000.00 to Mrs. Lalonde.

6Mr. DeCarlo disputes the amount claimed by FRO as arrears. First of all, he claims that FRO included in its calculations from 2006 to 2009 amounts for extraordinary expenses which were neither ordered nor agreed.

7Secondly, Mr. DeCarlo alleges that he paid $2,543.13 on account of extraordinary expenses under protest pending the final order of July 16, 2009 and that this amount was not credited to him by FRO.

8Thirdly, he takes the position that the order of July 16, 2009 did not fix the arrears of support and extraordinary expenses as of that date but rather determined what the valid extraordinary expenses were for the 2006-2009 period.

9Finally, Mr. DeCarlo claims FRO overcharged him $287.05 in 2007 and unreasonably charged him a $250.00 fee for an NSF cheque.

10The problem with Mr. DeCarlo’s submissions is that the order of Justice Lalonde of July 16, 2009 established a clean slate effective May 31, 2009 for the arrears for periodic payments and effective July 15, 2009 for the extraordinary expenses. The only reasonable interpretation of the order was that the Court was fixing the arrears in relation to both types of support and took into account all charges and credits which should have been made by FRO to that date.

11As a result FRO re-calculated the balance owing according to the terms of the order taking into account both the new and old monthly support payments and the amount of arrears fixed for special expenses. It actually took several months to implement the order. As of the 31 st of August, the new balance owed was established at $9,330.54 which reflects the arrears fixed by the order and the revised monthly payment which increased from $449.00 to $662.00 as of June 1, 2009.

12Finally, what Mr. DeCarlo identifies as an NSF fee is simply an accounting entry to offset the credit given previously for the cheque in question.

13I, therefore, find that Mr. DeCarlo effectively is in arrears in the amount of $3,682.47 as of March 31, 2012.

14Mr. DeCarlo is ordered to pay the arrears on or before the 15 th day of August 2012. In default of payment FRO may ask the court for a Warrant of Committal committing Mr. DeCarlo to jail for a period of 30 days.

15The facts were complicated by the language used by the parties for the order of July 16, 2009 and therefore no costs are awarded to either party.

Charbonneau, J.

Date: May 2, 2012

COURT FILE NO.: 03-438

DATE: 2012-05-02

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Family Responsibility Office (for the benefit of Françoise Lalonde), Applicant

AND Wade DeCarlo, Respondent