ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LOLA MARY LAWRENCE
Applicant
– and –
DANIEL ADEDAMOLA ADEWUMI
Respondent
Self-Represented
Self-Represented
HEARD AT OTTAWA: May 6, 2013
AMENDED REASONS FOR JUDGMENT
Corrected decision: The text of the original judgment was corrected
on June 11, 2013, and the description of the correction is appended.
Kane J.
1The respondent, moving party, being a resident of Edmonton, Alberta, presents this application:
(a) To vary the order of Smith J. of this court dated May 13, 2011, and thereby reduce arrears calculated and not paid thereunder;
(b) To credit him the amount of payments of child support he in fact has paid thereby reducing the amount of any arrears of child support;
(c) To credit any arrears owing by him with child support the mother should have paid him during his sole custody of the child between January 6 until April 10, 2010; and
(d) For an order of access with the child.
2The child, Daniel Feyisayo Adewumi, was born on January 21, 2009, and is currently four years old. The moving party acknowledges he is the biological father of this child.
3The parties attended today unrepresented by counsel. The father specifically attended via telephone.
4Both parties wish to settle the issues between them and avoid further court appearances. The primary issue is the appropriate amount of child support, the amount of such arrears and the payment thereof. The father’s driver’s license is or has been subject to the threat of cancellation due to unpaid child support. During argument today, each party made concessions to their position in order to gain some certainty as to their position and in order to be able to move forward.
5The father, the moving party currently is a graduate engineer and is completing his studies to obtain a Master in Business Administration scheduled to be completed by May, 2014 at which point he anticipates his present income will increase. The father is married, has two other children in university and is financially tight at the moment.
6The mother, the responding party to this application, holds a Master degree in Agriculture and Economics. She has encountered difficulty obtaining and holding full-time employment commensurate with her qualifications. She is hopeful she will be accepted in an intern program with the Federal Government in the near future. She presently holds two part time jobs, one as a cashier in a grocery store.
7Master MacLeod on February 2, 2011, made an interim without prejudice order granting the father regular access upon reasonable notice plus access via Skype including voice and video. Regular direct access has been difficult given the distance between residences. The father complains the mother has prevented access via Skype.
8A final order was issued by Smith J. of this court on May 13, 2011. The court therein granted sole custody to the mother. The father was ordered to pay child support on the basis of his annual income of $92,000 consisting of $809/month commencing April 1, 2010, plus 80% share of 2011 daycare expenses plus 80% of annual YMCA expenses. The mother’s annual income was estimated to be $20,000.
9McMunagle J. on July 22, 2011, on a motion by the father to vary the above order by reducing the amount of child support varied the final order of Smith J. and reduced the amount of child support to $500/month plus $241/month for s. 7 extraordinary expenses, both effective April 1, 2011. McMunagle J. refused to address whether the reduction of child support ordered due to the lower income level of the father, should be retroactive to April 1, 2010. Arrears calculated at that higher level remain outstanding and formed part of the argument today.
10The orders dated May 13 and July 22, 2011 are silent as to access.
11The parties today agree that the slate be wiped clean for the period prior to April 1, 2010. There is therefore no arrears owing by or credits to the payor for the period prior to April 1, 2010. Enforcement agencies accordingly such as F.R.O. should therefore amend their records accordingly.
12The parties today agree that there are no arrears of contribution by the payor father towards s. 7 expenses prior to April 1, 2011. It is agreed that the father’s obligation to contribute towards such s. 7 expenses is hereby fixed regardless of respective income levels, in the amount of $241 per month commencing April 1, 2011, and to continue thereafter at $241 per month until and including July 1, 2014. By July, 2014, it is anticipated that the income levels of each parent should be higher than today and an adjustment thereof will then be required.
13The parties agree that the amount of child support payable by the father to the mother should be calculated annually until and including July 1, 2014, pursuant to the Ontario Child Support Guidelines, O. Reg. 391/97 based on the actual past annual line 150 income of the father throughout the period April 1, 2010, until today and that appropriate adjustments be made to amounts payable and arrears calculations by the parties and enforcement agencies such as F.R.O.
14Accordingly, the parties agree that the amount as above of child support, separate from the above fixed amount of s. 7 expense, payable by the father to the mother from April 1, 2010, is as follows:
YEAR
MONTHLY CHILD SUPPORT – 1ST OF EACH MONTH
BASED ON ANNUAL INCOME
April 1, 2010 to December 30, 2010
$486/month
$54,000
2011
$871/month
$98,600
2012
$919/month
$105,000
2013
$880/month
$100,000 (current salary which may increase by annual bonus)
15The above liability for child support increases by the monthly s. 7 expense contribution of $241 per month commencing April 1, 2011, as stated above.
16Monthly child support payable in 2014 is to be re-calculated and paid on the amount of gross income the father earned in 2013 as soon as the father receives his 2013 T-4 from his employer, a copy of which is to be sent to the mother immediately upon the father’s receipt of the same.
17Against the above liability, the father is to be credited with the following payments made by him as follows:
(1) April, 2010 - $50
(2) May, 2010 - $350
(3) June, 2010 - $1,450
(4) July, 2010 - $400
(5) August, 2010 - $400
(6) November, 2010 - $400
(7) December, 2010 - $200
(8) January, 2011 - $100
(9) February, 2011 - $300
(10) March, 2011 - $300
(11) April, 2011 - $300
(12) June, 2011 - $627
(13) August, 2011 - $234.57
(14) October, 2011 - $234.57
(15) November, 2011 - $500
(16) December, 2011 - $500
(17) January, 2012 - $500
(18) February, 2012 - $500.03
(19) March, 2012 - $500.02
(20) April, 2012 - $500
(21) May, 2012 - $500.02
(22) July, 2012 - $7,444.09
(23) July, 2012 - $500.02
18There have been no payments of child support since July, 2012.
19The above payments by the father are to be deducted from the above calculated liability for child support. Subject to the provisions in para. 22, the resulting deficiency or arrears are not payable or collectible until July 1, 2014, and upon that date such arrears are to be paid in full. The father is scheduled to have completed his MBA by that date and to be in receipt of a resulting increase in salary by July 1, 2014, thereby permitting to pay these arrears.
20The above resulting arrears will be increased for the following reason. The payor father is presently experiencing cash flow difficulties. To accommodate that difficulty, but without thereby reducing the payor’s liability, it is agreed that the payor father shall pay on the first day of each month commencing May 1, 2013, the sum of $700/month against his current liability of $880 plus $241/month which results in a shortfall during that period of $421/month from May 1, 2013, until June 1, 2014. Subject to the provisions in para. 22, this secondary source of arrears, totalling $5,894, shall also be payable on July 1, 2014. Enforcement thereof is adjourned to that date.
21The father is entitled to access with the child upon reasonable notice to the mother. That access shall, without limitation, include:
(1) one week of holidays between July 1 and August 30, in 2013, and two continuous weeks of holidays between July 1 and August 30, 2014, and each year thereafter provided the father notifies the mother in writing of the date of such holidays no later than May 30 each year whether he is able to exercise that right that summer and the date thereof. Such holidays may only be exercised in Canada unless the mother agrees otherwise in writing;
(2) one weekend per two months from Friday at 6 p.m. until Sunday at 5 p.m. to be exercised in Ottawa if the father can attend and if he gives two weeks prior notice thereof;
(3) bi-weekly Skype communication to be exercised Saturday or Sunday as selected by the father every six months, and to be exercised at 7 p.m.
22If he has not done so, the father must immediately file his 2012 and 2013 income tax return and provide the mother with a copy of the same. Any refund entitlement thereunder shall be recoverable and paid against the father’s above arrears of child support. Such application of income tax refunds may occur before July 1, 2014, and shall be an exception to the delay in recoverability of arrears under paras. 19 and 20 above.
23The above orders of Smith J. and McMunagle J. are varied accordingly.
Kane J.
Released: June 11, 2013
APPENDIX
Correction to paras. 19 and 20, and insertion of para. 22
The words “Subject to the provisions in para. 22” were inserted at the beginning of the second sentence of para. [19].
The words “Subject to the provisions in para. 22” were inserted at the beginning of the second last sentence of para. [20].
Paragraph [22] was inserted as a new paragraph.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LOLA MARY LAWRENCE
Applicant
– and –
DANIEL ADEDAMOLA ADEWUMI
Respondent
AMENDED REASONS FOR JUDGMENT
Kane J.
Released: ** June 11, 2013**