COURT FILE NO.: 1660/09
DATE: 2013 04 02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Scott Fowler
Applicant
– and –
BreighAnn Elaine Fairburn
Respondent
Self-Represented
Self-Represented
HEARD: March 25, 2013
reASONS FOR jUDGMENT
e.J. KOKE J.
[1] The parties married in 2005. Their daughter, Keigharrah Lynn Fowler was born in 2006. Following their separation in 2008 Mr. Fowler commenced this application, wherein he made a claim for divorce. He later added claims for custody, access and future and retroactive child support. Ms. Fairburn responded to the claim by making claims for similar relief. The parties resolved all the issues prior to trial, with the exception of the claims for future and retroactive child support.
Background
[2] Mr. Fowler was born on March 12, 1983 and is 30 years old. Ms. Fairburn was born on January 15, 1986 and is 27. The parties met in the city of Sault Ste. Marie, Ontario and married on August 20, 2005. After they married they continued to live in Sault Ste. Marie.
[3] Both parties worked during the marriage. Mr Fowler was employed by a company owned by his father called Manna International Inc. Ms. Fairburn was employed as a registered nurse.
[4] Keigharrah Lynn was born on February 2, 2006. The parties separated on February 4, 2008, several days after Keigharrah’s second birthday. She is now 7 years old.
[5] Following their separation the parties exercised custody of their daughter on an alternating weekly basis. On September 23, 2009 they signed a separation agreement in which they agreed that they would have shared custody of Keigharrah within the meaning of the “Guidelines”.[^1] They also agreed that in the event either of them moved more than 80 kilometres from the municipal boundaries of Sault Ste. Marie, Keigharrah would reside primarily with the parent remaining in Sault Ste. Marie, unless otherwise agreed.
[6] The separation agreement provided that for purposes of determining child support for Keigharrah, Mr. Fowler’s annual income was $36,000 and Ms. Fairburn’s annual income was $53,000. They agreed that to satisfy each other’s obligation to pay child support in accordance with the Guidelines, Ms. Fairburn would establish a Registered Education Savings Plan (“RESP”)for Keigharrah into which she would contribute $2000 annually by way of monthly payments of $165, rather than make a direct payment of support to Paul.
[7] In November, 2009, several months after the parties signed the separation agreement, Ms. Fairburn moved to the community of Elliot Lake, Ontario which is a distance of over 200 kilometres from Sault Ste. Marie. Thereafter, Keigharrah, who was three years old at the time, resided primarily with Mr. Fowler in Sault Ste. Marie. Ms. Fairburn continued to work full time as a registered nurse after she moved to Elliot Lake.
[8] Initially, after moving to Elliot Lake Ms. Fairburn exercised access every other weekend from Friday evening through Sunday evening, with week about access during the summer of 2010. In September, after Keigharrah started school, access was increased and Ms. Fairburn exercised access every other weekend from Friday evening to Monday morning, as well as one night during the week from about 4 p.m. until 1 p.m. the following day. Mr. Fowler estimated that the total time Ms. Fairburn exercised access over a two week period was equal to about 109 hours out of 336 hours or 32.2 % of the total two week period.
[9] Ms. Fairburn remained in Elliot Lake through February, 2011, at which time she secured employment in Sault Ste. Marie and she moved back to that community.
[10] Following Ms. Fairburn’s return to Sault Ste. Marie, the parties agreed that Ms. Fairburn would have access every second weekend from Friday at 4 p.m. until Monday morning at 11 a.m. and one night during the week from 4 p.m. until 1 p.m. the following day, with week about in the summer. Mr. Fowler has estimated that this is also equal to about 109 hours out of 336 hours over a two week time period, or 32.2% of the time, an estimate which was not disputed by Ms. Fairburn.
[11] On September 29, 2011 Justice McMillan ordered that Ms. Fairburn was to have access with Keigharrah every second weekend from Wednesday after school to the following Monday morning at school, as well as every second Thursday from after school to 6:30 p.m. According to Mr. Fowler, this is equal to about 115.5 hours out of 336 in a 2 week period or 34.2% of the time.
[12] Effective January 16, 2013 the parties resumed a shared access arrangement on a week about basis.
Issues
[13] The following issues must be decided by the court:
a) Effective January 16, 2013, how much child support should be paid by Ms. Fairburn?
b) Effective January 16, 2013, how much child support should be paid by Mr. Fowler, and in computing such support, should income be imputed to Mr. Fowler and should consideration be given to the income he has earned during the preceding three year period?
c) Should Ms. Fairburn be required to pay retroactive support for the time period that she and Mr. Fowler did not exercise shared access (November, 2009 until January 16, 2013)? If she is required to pay retroactive support, how much should she pay and what terms should apply to such payment?
Issue 1: Child Support payable by Ms. Fairburn effective January 16, 2013.
[14] The parties agree that Ms. Fairburn’s income for 2012 was $79,043.06. Guideline support requires her to pay monthly child support of $717.31. Ms. Fairburn asks the court to consider the fact that she gave birth to a second child following the separation and as a single parent she has difficulty making ends meet with two children.
[15] This is not a situation where I am prepared to reduce the amount payable on the basis of hardship or other circumstances. I note that Mr. Fowler now has a second child as well and his new spouse has twins from a previous relationship. His spouse is not currently employed and Mr. Fowler therefore has responsibility for meeting the financial needs of four children. He earns substantially less than Ms. Fairburn. It is my view that it would not be fair or just to reduce the amount payable by Ms. Fairburn.
[16] I am ordering that Ms. Fairburn’s obligation to pay child support is to be based on a payment of $717.31 per month retroactive to January 16, 2013. The evidence is that she paid support of $370 per month for the months of January, February and March of 2013, which I calculate to be $925 for the two and a half month time period from January 16, 2013 through March 31, 2013. I calculate that the amount now payable by her for this time period pursuant to my order is $1793.75 ($717.31 x 2.5 months). There is therefore a retroactive amount of $868.75 payable by Ms. Fairburn for this time period which is the difference between these two amounts ($1793.75 - $925 = $868.75). This retroactive obligation of $868.75 can be set off against or reduced by any amounts which Mr. Fowler may be required to pay Ms. Fairburn for child support for this time period.
Issue 2: Child Support payable by Mr. Fowler effective January 16, 2013
[17] Financial statements filed by Mr. Fowler reveal that he earned an income of $33,319 in 2007, an income of $36,000 in 2008, an income of $36,000 in 2009 and an income of $31,200 in 2010. During this time period he was employed with Manna International.
[18] In 2010 Manna International experienced financial difficulties and Mr. Fowler was laid off effective November 30, 2010.
[19] Mr. Fowler applied for Employment Insurance benefits after he was laid off and while receiving these benefits he took courses and completed the licensing requirements to become a real estate salesperson. Thereafter he was taken on as a real estate associate with a local real estate brokerage. His 2011 tax return indicates that he earned a gross income from real estate in that year of $14,839.46. The tax return indicated that his expenses in earning this income were $3101.72. He therefore received a net income from real estate in 2011 of $11,737.73. When combined with Employment Insurance benefits of $14,924 his total income in 2011 was $26,661.73.
[20] In 2012 Mr. Fowler continued to work as a real estate salesperson on a full time basis. To earn some additional income he also drove a school bus for which he was paid $3450.57. He has now resigned from his job as a bus driver since he found that it was interfering with his work as a real estate salesperson.
[21] Mr. Fowler had not yet filed his income tax return for 2012 on the date of the trial but he provided evidence confirming that he was paid total real estate commissions of $15,778 in 2012. When combined with his bus driving income, Mr. Fowler therefore received the total sum of $19,228.57 in 2012. He submits that this amount ($19,228.57) should be used as a basis for calculating his income for child support purposes as per the Guidelines. An income of $19,228.57 would require him to pay $153.10 per month as per the Guidelines.
[22] At trial it became apparent that Mr. Fowler was under the mistaken impression that for the purposes of calculating his support payments the total or gross amount received by him in the way of real estate commissions comprised his income and was to be applied to the Guidelines, and that he was not entitled to deduct therefrom any of the expenses he incurred in earning these commissions. He did not have available the particulars of these expenses at trial. If I apply the same percentage of expenses to commissions as that used in calculating his 2011 income from real estate, (21%), I calculate that his net income from real estate in 2012 is $12,464.62. When Mr. Fowler’s net earnings from real estate are combined with his bus driving income his total income for 2012 is approximately $15,915.19.
[23] For the purpose of determining the amount of support payable by Mr. Fowler I am prepared to find that his total income in 2011 was approximately $15,915. As will become apparent, a more exact calculation, in which his actual expenses are assessed in computing his total income, is not necessary in the circumstances of this case.
[24] In my view, this is a situation where some additional income should be imputed to Mr. Fowler and that in determining the amount of child support payable by him I should take into consideration his income over the preceding three year period. My reasons for coming to this conclusion include the following:
[25] Firstly, it takes time for a new real estate salesperson to build up a portfolio of interested buyers and sellers, and therefore it requires a period of time before such a salesperson can expect to earn a reasonable living. Mr. Fowler testified that now that he has worked in the field for almost two years it is reasonable to expect that his earnings will increase in the future.
[26] Secondly, notwithstanding the fact that he felt compelled to resign from his part time job as a school bus driver Mr. Fowler has expended time and energy on several business ventures in addition to his work as a real estate salesperson during the past several years. He has an interest in a building which he is renovating. He testified that this building will be listed for sale this year. He is also involved as a partner in a restaurant venture and he anticipates that the restaurant will be open for business this summer.
[27] There is no guarantee that either the sale of the building or the opening of the restaurant will produce additional income to Mr. Fowler in the coming year. However, Mr. Fowler’s involvement in these ventures has taken time and energy which could have been directed towards earning income from a more secure source. Although I do not criticize Mr. Fowler for engaging in these entrepreneurial pursuits, I note that he has made unilateral choices which in my view have had a detrimental effect on his income and on his ability to pay support. In the circumstances of this case, if I fail to adopt a flexible approach in determining Mr. Fowler’s total income I will be imposing a higher financial burden on Ms. Fairburn, and this would not be fair to her. She should not be expected to pay the price for Mr. Fowler’s choices.
[28] Mr. Fowler presented himself in court as an intelligent, articulate and organized young man who is not afraid of work. There is no doubt in my mind that he is capable of earning an income of at least $30,000 per year, and in likelihood he could earn significantly more, even if I assume that some of his time and energy will be devoted to his entrepreneurial ventures. I also find that it is likely that he will in fact earn at least $30,000 in the coming year, given the fact that he has now worked as a real estate agent for almost two years on what he testified was a full time basis. Considering all these circumstances I find that his annual income for Guideline purposes should be deemed to be $30,000.
[29] Applying an annual income of $30,000 to the Guidelines results in Mr. Fowler having an obligation to pay child support of $245.00 a month. This obligation commences January 16, 2013. I calculate that he is required to pay Ms. Fairburn a total amount of $612.50 for the time period of January 16, 2013 through March 31, 2013.
[30] I have ruled that Ms. Fairburn is obligated to pay Mr. Fowler the additional sum of $868.75 for this two and a half month time period. The difference between the respective amounts owing is $256.25 and this is the net retroactive amount owing by Ms. Fairburn to Mr. Fowler from January 16, 2013 to the end of March, 2013.
Issue 3: Should Ms. Fairburn be required to pay retroactive support for the time period that she and Mr. Fowler did not exercise shared access ( November, 2009 until January 16, 2013)? If she is required to pay retroactive support, how much should she be obligated to pay and what should comprise the terms of payment?
[31] Mr. Fowler claims retroactive support commencing from the time Ms. Fairburn moved to Elliot Lake (November, 2009).
[32] Mr. Fowler did not file his application for child support until November 15, 2010.
[33] In my view, it would be unfair for the court order that Ms. Fairburn pay child support for a time period prior to the time she was first given formal notice of this claim. In coming to this conclusion I am influenced by the following considerations:
[34] Firstly, I expect that until she received notice of Mr. Fowler’s claim for child support Ms. Fairburn arranged and managed her financial affairs on the assumption that Mr. Fowler was satisfied with the existing arrangement. In fact, I note that the timing of the application for child support coincided with Mr. Fowler’s lay-off from the family business. He appeared to be content with the existing arrangement up until his own financial situation became somewhat tenuous.
[35] In the circumstances, I believe it will likely impose a hardship on Ms. Fairburn if she is now expected to meet this additional and unexpected obligation for the time prior to the date she received notice of this claim.
[36] Secondly, and related to the first consideration, I note that the parties had agreed in their separation agreement that in lieu of child support, Ms. Fairburn would pay $165.00 monthly into an RESP on behalf of Keigharrah. The evidence before me is that she continued to make these payments prior to receiving notice of Mr. Fowler’s application for support, thereby honouring the agreement between the parties.
[37] Thirdly, following her move to Elliot Lake, Ms. Fowler made the trip to and from Sault Ste. Marie to see Keigharrah at least every other weekend, sometimes more often. This imposed on her a substantial expense which I am prepared to take into consideration in determining if she is now required to pay child support during that time period.
[38] In conclusion, I find that Ms. Fairburn’s obligation to pay retroactive support should not commence prior to November 15, 2010.
[39] I note that from the time she returned to Sault Ste. Marie until January 16, 2013, Ms. Fairburn had access to Keigharrah less than 40% of the time. It is my view that for the time period after Ms. Fairburn received notice that Mr. Fowler was claiming child support, she had an obligation to contribute to Keigharrah’s expenses by paying child support. To the extent she failed to pay child support during this time period, or paid less than what I determine to be the required amount, she is under an obligation to pay retroactive child support.
[40] I see no reason why the amount payable by Ms. Fairburn should not be based on the Federal Child Support Guidelines. At all times, she earned a reasonable income which was significantly more than Mr. Fowler’s income; however it was Mr. Fowler who was left with most of the expenses related to Keigharrah’s care during this time period.
Assessment of Ms. Fairburn’s obligation to pay Child Support (November 15, 2010 – January 31, 2013)
[41] I calculate Ms. Fairburn’s obligations to pay child support effective November 15, 2010 to be as follows:
November 15, 2010 to December 31, 2010
[42] Ms. Fairburn’s total annual income in 2009 as per her 2009 Notice of Assessment was $55,931.
[43] The child support guidelines in effect at that time would have required Ms. Fairburn to pay child support of $518.00 per month.
[44] I calculate that for the above time period Ms. Fairburn should have paid child support of $777.00 (1.5 months x $518.00).
[45] In conclusion, retroactive child support payable by Ms. Fairburn for the time period November 15, 2010 through December 31, 2010 is $777.00, less any actual amounts paid.
January 1, 2011 to December 31, 2011
[46] Ms. Fairburn’s 2010 tax return indicates that her total income for that year was $72,596.48. Ms. Fairburn went on maternity leave after returning to Sault Ste. Marie in February, 2011 and her income declined that year. Her 2011 income tax return indicates that her total income in 2011 was $52,216.59.
[47] Based on an income of $52, 216.59, I assess Ms. Fairburn’s child support obligation as per the Guidelines to be $483 a month in 2011. If the obligation is based on the 2010 income of $72,596.48, I assess her obligation to be $664 per month. Mr. Fowler submits that in March, 2011 the parties entered into an agreement with the assistance of counsel that Ms. Fairburn would pay child support in the sum of $460 per month. The sum of $460 per month was based on Ms. Fairburn’s anticipated actual income in 2011. Mr. Fowler submits that he wishes to honour this agreement.
[48] I therefore assess Ms. Fairburn’s child support obligation throughout this year to be $5520.00 (12 x $460.00).
[49] In conclusion, retroactive child support payable by Ms. Fairburn for the time period January 1, 2011 through December 31, 2011 is $5520.00, less any actual amounts paid.
January 1, 2012 to December 31, 2012
[50] In January, 2012 the parties attended at a motion before Justice Whalen and he ordered that Ms. Fairburn be required to pay child support of $370.00 per month. Ms. Fairburn had not yet filed her 2011 income tax returns at the time of the motion and the sum of $370.00 was based on Ms. Fairburn’s estimated income in 2011 of $41,000. Justice Whalen’s order was made without prejudice to any potential retroactive child support claim at trial.
[51] As indicated, Ms. Fairburn’s total income in 2011 was determined to be $52,216.59. Mr. Fowler submits that this amount should be the basis on which the 2012 support obligations should be calculated, and that Ms. Fairburn should be required to pay child support in 2012 at the rate of $471.00 per month, as per the guidelines; I agree.
[52] Accordingly, I calculate that retroactive child support is payable by Ms. Fairburn for the time period January 1, 2012 through December 31, 2012 in the amount of $5652.00 (12 x $471.00), less any actual amounts paid.
January 1, 2013 to January 15, 2013
[53] The parties agree that Ms. Fairburn’s income for 2012 was $79,043.06. As noted above, Ms. Fairburn’s child support obligation based on this income amount is $717.31 monthly.
[54] I find that Ms. Fairburn is obligated to pay retroactive child support for this time period in the amount of $358.66 (1/2 x $717.31), less any amounts paid.
Summary: Child Support Payable by Ms. Fairburn (Nov. 15, 2010 – March 31, 2013)
[55] I have determined that the following amounts of child support should have been paid by Ms. Fairburn during the above time period:
November 15, 2010 to December 31, 2010:… $777.00
January 1, 2011 to December 31, 2011:…….$5520.00
January 1, 2012 to December 31, 2012:…….$5652.00
January 1, 2013 to January 15, 2013:………..$358.66
January 16, 2013 to March 31, 2013:…….…. $256.25
Total Payable:………………………………….$12,563.91
Amount of Child Support Paid by Ms. Fairburn (November 15, 2010 – January 15, 2013)
[56] I have determined that Ms. Fairburn is entitled to credit for the following child support payments she made between November 15, 2010 and January 15, 2013. I have not provided her with credit for any payments after January 16, 2013 (the date the parties agreed to resume shared custody and the date Mr. Fowler became obligated to pay child support) because she has already received credit for these payments when I calculated the amount owing by her for the time period January 16, 2013 to the end of March, 2013 (see paragraph 30 above).
March, 2011 – August, 2011 – 6 payments x $460.00……..…$2760.00
October, 2011 – January, 2012 – 4 payments x $225.00….…..$900.00
February, 2012 – December, 2012 – 10 payments x $37.00…$3700.00
January 1, 2013 – January 15, 2013 – 1 payment x $185.00….$185.00
Total………………………………………………………………..........$7545.00
Summary and Conclusions: Retroactive Child Support payable by Ms. Fairburn.
[57] I have determined that Ms. Fairburn is obligated to pay retroactive child support but that this obligation did not commence until she received notice from Mr. Fowler that he was no longer satisfied with the existing arrangement and that he was making an application to the court for child support. I have determined that Ms. Fairburn’s financial obligation for support between November 15, 2010 and March 31, 2013 totalled $12,563.91 and that she had paid $7545.00 in support during this time period, an amount for which she is entitled to credit. In conclusion, I calculate that retroactive support owing by Ms. Fairburn to Mr. Fowler is $5018.91.
[58] I do not expect that this amount can be paid immediately in a lump sum form, and I am therefore ordering that effective April, 2013 Ms. Fairburn’s is to pay an additional monthly sum in the amount of $100 until this amount is paid in full. Provided Ms. Fairburn makes these monthly payments as required, there will be no interest accruing on this sum.
The RESP
[59] As noted above, the parties agreed in their separation agreement of September, 2009 that Ms. Fairburn would satisfy her obligation to pay child support by establishing a Registered Education Savings Plan for Keigharrah into which she would contribute $2000 annually by way of monthly payments of $165.
[60] The evidence before me is that the RESP account was established by Ms. Fairburn in accordance with the settlement agreement entered into by the parties on September 23, 2009. According to Ms. Fairburn there is $1960 in the account at the present time. I have applied these monies to the support payments Ms. Fairburn would otherwise have been required to make prior to November 15, 2010.
[61] Mr. Fowler takes the position that this amount should be paid to him or alternatively the account should be placed in his name because these payments should properly be classified as support payments. The separation agreement is silent on the issue as to whose name the RESP should be in.
[62] Ms. Fairburn testified that this account cannot be held jointly, and if it is transferred to Mr. Fowler she will lose the government grant portion of the monies contained in the plan.
[63] Clearly, when the agreement was made to establish the account the objective of both parties was to assist Keigharrah with her future educational expenses. This objective can be met by an order requiring Ms. Fairburn to hold these funds in trust on behalf of and for the benefit of Keigharrah, and not to use the funds for any purposes other than for Keigharrah’s educational expenses. Accordingly, I make such an order.
Section 7…Extraordinary Expenses.
The parties have agreed that they would each be responsible for paying the extraordinary expenses incurred by them in relation to any activities in which they enrol or involve Keigharrah. Accordingly, it is not necessary for me to make an order with respect to extraordinary expenses.
Summary of Decisions Made and Collateral Orders
[64] The decisions I have made can be summarized as follows.
a) Effective January 16, 2013, and on the first day of each month thereafter , the respondent, BreighAnn Elaine Fairburn is to pay to the applicant, Paul Scott Fowler support for Keigharrah Lynn Fowler (D.O.B. February 2, 2006), in the monthly amount of $717.31, based on her annual gross income of $79,043.06.
b) Effective January 16, 2013, and on the first day of each month thereafter, the applicant, Paul Scott Fowler is to pay to respondent, BreighAnn Elaine Fairburn support for Keigharrah Lynn Fowler (D.O.B. February 2, 2006), in the monthly amount of $245.00 per month, based on his annual gross income of $30,000.00.
c) Their respective obligations will be met if Ms. Fairburn pays the monthly amount of $472.31, being the difference between the amounts payable by the respective parties ($717.31 - $245.00 = $472.31)
d) Retroactive support is owing by Ms. Fairburn to Mr. Fowler in the amount of $5018.91. Commencing April 1, 2013 Ms. Fairburn is to pay an additional monthly sum of $100 until this amount of $5018.91 has been paid in full. There is to be no interest accruing on this sum if the payments are made as ordered.
e) Ms. Fairburn to hold the sum of $1960 which is presently in an RESP account in trust for BreighAnn Elaine Fairburn, and she is required to use these funds exclusively for the Keigharrah’s future educational expenses.
f) There is no order as to special and extraordinary expenses.
g) The parties are to provide disclosure of their current incomes to each other by the last day of February in each and every year, and are to provide to each other copies of their annual income tax returns, together with all schedules, attachments and slips, and any notice of assessment or reassessment provided by Canada Revenue Agency as soon as these become available, in each and every year. This obligation is imposed on the parties for as long as child support is to be paid.
h) The respondent shall maintain extended medical and dental coverage for Keigharrah as long as coverage is available through her work and Keigharrah is eligible for support.
i) Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.
Costs
[65] If the parties intend to claim costs from each other, they are to make written submissions setting out the reasons why such costs should be payable. These submissions should include copies of any written offers to settle the claims which are the subject of this decision. The submissions should not be longer than three pages, not including any attachments. The submissions must be filed within 10 days of the release of this judgment.
E.J. Koke J.
Released: April 2, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Scott Fowler
Applicant
– and –
BreighAnn Elaine Fairburn
Respondent
REASONS FOR JUDGMENT
E.J. Koke J.
Released: April 2, 2013
[^1]: Child Support Guidelines as defined in s. 2(1) of the Divorce Act, R.S.C. 1985 c.3 as amended