BARRIE COURT FILE NO.: FC-12-458-00

DATE: 20130606
CORRIGENDA: 20130715

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LEAH BAYE, Applicant

AND:

PHILLIP CANNING, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL:
R.I. Robertson, Counsel, for the Applicant

Respondent Self Represented

HEARD: May 31, 2013

REVISED ENDORSEMENT

The text of the original endorsement has been corrected with text of corrigendum

(released July 15, 2013) appended.

[1] The Respondent Phillip Canning (“Mr. Canning”) brings a motion to vary a child support order of Wood J. dated April 14, 1999 based on changes to his income and the age of the oldest child. The Applicant Leah Baye (“Ms. Baye”) opposes the relief sought and in her response to motion to change seeks a retroactive variation of child support, the determination of the correct quantum of ongoing child support and a determination with respect to s.7 expenses. The matter proceeded as a one day trial and both parties gave viva voce evidence.

[2] The following background facts will provide context.

[3] The parties have two children Amanda Victoria Canning born March 23, 1992 and Cassandra Lynn Canning born February 28, 1996. By way of consent order on April 14, 1999 Ms. Baye obtained custody of the two children and Mr. Canning was required to pay child support in the amount of $502 based on his income of $30,576. The Guideline amount was $452 at that time for two children.

[4] Mr. Canning has paid the required child support throughout this period of time. The Order of 1999 did not require him to provide up to date financial statements or proof of income and he did not voluntarily produce proof of his income over the years to Ms. Baye. Ms. Baye did not request any information from him about his income over the years.

[5] Both parties have re-partnered and Mr. Canning and his spouse have two young children at home. Cassandra resides with Ms. Baye and her spouse. Amanda has finished college and lives on her own.

[6] Mr. Canning brought a motion to change March 29, 2012. He requested that his child support be reduced and it be based on support for one child. The parties’ older child Amanda was over 18 and had completed her diploma course at a community college. Prior to bringing the formal application to change, the parties entered into a “kitchen table” agreement to amend and reduce the child support. Neither party had legal advice and neither party disclosed their income to each other.

[7] It is clear from the evidence at trial and the exhibits that Mr. Canning’s income increased significantly after the 1999 order. Based on the years 2009, 2010 and 2011 his line 150 income for each of those years was as follows:

2009 - $72,487

2010 - $72,103

2011 - $63,300

[8] Mr. Canning did not provide a copy of his Income Tax Return or Notice of Assessment for 2012 but his evidence suggests that he had income of about $29,500. His previous employment was as a truck driver; however, he left that position and in 2012 earned income by working part-time for the School Board and part-time for the Township of Springwater driving a snow plough. In 2013 he continues with these two sources of income. In the winter of 2013 he earned about $5,000 from the Township of Springwater. His hours with the School Board have recently increased so he is working 5.5 hours per day at $20.74 per hour with a gross pay of about $570 per week. The gross pay was lower until his hours were increased recently. His goal is to increase his hours to obtain a full-time position, eight hours per day, with the School Board. He anticipates working again for the Township of Springwater in the winter of 2013.

[9] For the same periods in question Ms. Baye owned a store in her community. Her income for the period in question based on her line 150 income was as follows:

2009 - $ 8,920

2010 - -$11,118

2011 - -$15,000

2012 - -$ 9,787

[10] In 2013 she closed the store and began operating a food booth at a local market earning approximately $600 to $1,200 per month. Additionally she has begun working at the same market for an employer, working 10 to 15 hours per week at $10 per hour.

[11] The parties’ youngest daughter Cassandra resides at home with Ms. Baye and is 15 years of age. There is evidence that she requires specialized footwear and that she is a diabetic requiring certain medications each month. Her medications are covered to the extent of 70 or 80 percent based on a health plan of Ms. Baye’s spouse’s employer. There is no evidence before the court as to the amount that Cassandra or her mother are required to pay per month. There is evidence that she requires specialized footwear of about $500 but these have not been purchased. Mr. Canning was not advised of any of these requirements in advance of trial. In addition, Cassandra has an interest and a hobby in photography and her step-father recently purchased for her a computer with camera and it has been requested that Mr. Canning reimburse this $1,500 expense.

[12] Amanda attended college in Barrie and achieved a diploma in marketing, graduating in April of 2012. She attended for two academic years, September of 2010 to April 2011 and September 2011 to April 2012. She did not reside at home with her mother. She resided in Barrie with her mother’s brother during the academic year and on her own during the summer months. She did not return home to reside with her mother in the summers. She visited with her mother from time to time including Christmas vacation, March Break and some week-ends.

[13] Mr. Canning and Ms. Baye reached an agreement with their daughter that they would each pay one-third of her tuition, $7,350, to assist her with her academics. Mr. Canning paid the sums of $784 and $522 on her behalf to the College. Ms. Baye paid her $500 and has agreed that she will pay her daughter another $1,700 to assist with repayment of an OSAP loan. Ms. Baye takes exception to the agreement on the same basis that she objected to the “kitchen table” agreement. She was not aware of the level of income that Mr. Canning was earning when the agreement was discussed. His income by 2009 had risen to over $70,000. I therefore reject this agreement as in any way binding on the parties, or of any assistance in determining a fair and equitable basis to determine Mr. Canning’s obligations toward s.7 expenses for Amanda.

[14] The parties have agreed that Amanda’s total tuition for the two academic years was $7,350. Amanda received an OSAP loan which she continues to be responsible for. The loan is approximately $16,000. Ms. Baye’s evidence was that Amanda was paying $500 per month room and board while she lived in Barrie with Ms. Baye’s brother. An undated letter filed as part of Exhibit 1 signed by Jeff Lagacy (brother of Ms. Baye) and Amanda Canning recites that Amanda is paying Jeff $500 a month for board and transportation.

[15] Prior to trial there was discussion about whether Amanda would be called as a witness or whether a letter would be filed by her. At the trial the letter was filed prepared by Amanda confirming the amounts paid or agreed to be paid by her parents. Her letter acknowledges that her mother helped her with purchases of school expenses and her father did not. Ms. Baye filed an Exhibit detailing school expenses paid by her of about $2,200. This included a laptop, a clock radio and other sundry expenses for which receipts were provided.

[16] Amanda turned 18 March 23, 2010. After finishing high school that year she commenced community college in the fall. She resided at home until September when she commenced residing with her uncle in Barrie to attend her college program.

POSITION OF THE PARTIES

Position of Mr. Canning

[17] It is the position of Mr. Canning that his child support obligations should be in accordance with the Guidelines and on his 2012 income. Further, this child support should be for one child, Cassandra, who remains at home and is 15. He submits that child support for Amanda should have ended in 2010 when she finished her secondary school education and he has overpaid child support. Thereafter his obligation to support her should be grounded in the tuition agreement that he entered into with his former spouse and his daughter and that is that he would pay one-third of her tuition.

Position of Ms. Baye

[18] It is the position of Ms. Baye that she is entitled to child support arrears for both children going back three years from the date of the motion to change. Ms. Baye’s position can be summarized as follows:

2009

Mr. Canning’s line 150 income - $72,489

Monthly Guideline support - $ 1,072

Monthly actual payment - $ 502

Arrears for nine months - $ 5,130 (April 2010-December 2010)

2010

Mr. Canning’s line 150 income - $72,108

Monthly Guideline support - $ 1,067

Monthly actual payment - $ 502

Arrears - $ 6,780 (for 12 months)

2011

Mr. Canning’s line 150 income - $63,300

Monthly Guideline support - $ 940

Monthly actual payment - $ 502

Arrears - $ 5,256 (for 12 months)

2012

Mr. Canning’s line 150 income – not properly documented and his evidence was it was approximately - $30,000

Child Support should be based on the previous year’s income of $63,300 and Child Support should be divided because Amanda completed her post-secondary program in April of 2012.

Monthly child support for two children for four months:

• $ 940

Monthly child support for one child for eight months:

• $ 577

Monthly actual payment - $ 502 (for 12 months)

Support obligation - $8,376

Arrears - $2,352

2013

Ms. Baye requires child support for one child and submits that it should be based on his 2011 income of: - $63,300

Monthly Guideline support - $ 577

Monthly actual payment - $ 502

Arrears (to May 1, 2013) - $ 375

[19] Ms. Baye suggests that when all these factors are added the child support arrears requested are $19,893.

[20] Ms. Baye also requests a contribution toward the arrears of s.7 expenses for Amanda. Because Ms. Baye had negative income in these years she submits that she should not be responsible for any expenses for Amanda nor should Amanda bear any obligation to contribute given her 2010 income of $2,332. Ms. Baye seeks the entire school tuition reimbursement of $7,350, reimbursement for the room and board expense of $8,000 and out-of-pocket expenses paid by Ms. Baye of $2,288 for a total of $17,639.03 less the $1,200 paid by Mr. Canning directly on behalf of Amanda. Ms. Baye therefore seeks $16,439 for reimbursement for these s.7 expenses.

[21] Ms. Baye also seeks reimbursement for expenses for Cassandra. First of all, $550 for orthopaedic insoles required but not yet purchased. Second, reimbursement for a computer and camera of $1,520 purchased by her step-father, totalling $2,070.

Mr. Canning’s Position

[22] Mr. Canning’s position is that he has overpaid child support for the period following Amanda’s completion of high school. Ms. Baye did not require any financial disclosure from him over the years. He submits that he is not obligated to pay child support arrears prior to Ms. Bay’s response to his motion to change. At no time did she request any financial disclosure. Mr. Canning submits that the court should be governed by the agreement the parties entered into reducing the support by 50 percent. He further submits that he is not responsible for s.7 expenses for Amanda save and except for his agreement that he would pay one-third of the tuition. He admits that he still owes his daughter $900 pursuant to that agreement.

[23] Mr. Canning submits that child support for Cassandra should be based on his 2012 income of about $30,000 in accordance with the Guidelines for one child. He submits that he should not be responsible for the laptop and camera purchased for Cassandra. This was done without consultation with him and purchased by her step-father. He also submits that he should not be responsible for the orthotic shoes because there was a lack of notice to him about such an issue.

ANALYSIS

[24] I am satisfied that the “kitchen table” agreement entered into by the parties is of no force and effect. Ms. Baye signed this agreement without full disclosure from Mr. Canning. He did not provide her with a Financial Statement which would have indicated that his income had more than doubled in the years that followed the original order of Justice Wood in 1999. In addition, neither party had the benefit of legal advice before entering into such an agreement.

[25] The Supreme Court of Canada has provided considerable guidance about child support in retroactive awards. In D.V.S. v. S.R.G. 2006 SCC 37 as Bastarache J. stated for the majority at para. 123:

In general, I believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to date more than three years before a formal notice was given to the payor parent.

[26] In D.V.S. the court made it clear that it is the payor parent’s responsibility to ensure that dependent children are receiving the appropriate amount of support. As the court stated at para. 132 and 135:

In the context of retroactive support, this means that a parent will not have fulfilled his/her obligation to his/her children if (s)he does not increase child support payments when his/her income increases significantly… Thus, while retroactive child support awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a point when a retroactive award is needed.

[27] I am satisfied that Ms. Baye is entitled to request child support arrears going back three years from the date of filing the motion to change. The motion to change was filed at the end of March 2012 so there are nine months to be examined for 2009. Based on the Child Support Guidelines and Mr. Canning’s line 150 income for 2009 and the calculation submitted by Ms. Baye, I am satisfied that the arrears for 2009 are $5,130 calculated as follows:

Guideline amount - $1,072 x nine months $9,648

Amount Paid - $ 502 x nine months $4,518

Balance owing $5,130

[28] For 2010 I accept that Mr. Canning’s line 150 income was $72,100. However, I note that that year Amanda turned 18, finished high school and in September left home to attend Community College. For children over the age of majority the Federal Child Support Guidelines sets out as follows:

Section 3(2)

Child the Age of Majority or Over

Unless otherwise provided under these Guidelines, for a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for support of a child is

(a) the amount to be determined by applying these Guidelines as if the child were under the age of majority or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

[29] On the facts of this case Amanda was not living at home and came home at Christmas and occasional week-ends. She did not return home to reside at home during the summers. Her mother’s home was still her official address and she left items of clothing and personal possessions behind. But Ms. Baye was relieved of the day to day costs of having an adult child at home on a regular basis. I accept Ms. Baye’s evidence that she equipped her daughter with food items when she sent her off to school and she assisted her with college expenses. Guideline support for two children is $1,067 which is equivalent to $533 per month per child. Ms. Baye is entitled to child support for Cassandra for the full year but I would reduce her entitlement for Amanda once she commenced community college and was no longer residing at home. For this period I reduce Mr. Canning’s obligation to the sum of $250 per month for the months in question. I am therefore satisfied that the amount of support required to be paid by Mr. Canning for Amanda to Ms. Baye is $250 per month for the four months September to December 2010. Therefore the total obligation is as follows:

Guideline Amount - $1,067 x 8 months $ 8,536

For Amanda - $250 x 4 months $ 1,000

For Cassandra - $533 x 4 months $ 2,132

Total amount required $11,668

Total amount paid - $502 x 12 months $ 6,024

Child Support Balance Owing $ 5,644

[30] For 2011 I apply a similar analysis. I accept that Mr. Canning’s line 150 income was $63,300. The Guideline support for one child (Cassandra) is $470 and an appropriate level of support for Amanda is again $250 per month.

For Cassandra - $470 x 12 months $5,640

For Amanda - $250 x 12 months $3,000

Total $6,640

Less payments made - $502 x 12 months $6,024

Balance owing $2,616

[31] For the year 2012 Mr. Canning submits that his income was significantly lower. He was no longer earning the same level of income that he enjoyed when he was a truck driver. He told the court that he had hearing difficulties making it difficult to be in trucking but he continued to operate a snow plough part-time for the Township in the winter months. In addition, he wanted to be home for his young children and not on the road as a truck driver. I am satisfied that this drop in income was a personal choice without regard to his ongoing obligation to his two children Cassandra and Amanda. In addition, Mr. Canning did not provide any evidence to the court about the income that his spouse earned or any assets that they may have available to them.

[32] Mr. Canning did not provide a sworn Financial Statement with his Application nor did he provide one prior to trial contrary to the order given at a settlement conference January 14, 2013. That conference also required him to provide his Income Tax Return and Notice of Assessment for 2012. He did not provide this in advance nor did he provide it at trial. Under the circumstances I have no hesitation in imputing 2012 income to him in the amount of $63,300 which was his previous year’s income and the lowest of the three previous years.

[33] Amanda completed her community college course in April of 2012. I am satisfied that the support for her should be limited to $250 per month for four months. Child support for Cassandra for $470 per month should be based on the imputed income of $63,300. The amount owing is therefore:

For Cassandra - $470 x 12 months $5,640

For Amanda - $250 x 4 months $1,000

Total obligation $6,640

Total paid $502 x 12 months $6,024

Arrears $ 616

[34] For 2013 I am satisfied that once again income should be imputed to Mr. Canning in the amount of $63,300; however, his obligation is now to support one child and the Guidelines for one child indicate support obligation of $577. He has been paying $502 per month so the arrears as of May 1, 2013 are $373.

[35] After applying the above analysis I find that the arrears are as follows:

2009 - $ 5,130

2010 - $ 5,644

2011 - $ 2,616

2012 - $ 616

2013 (to May 1) - $ 373

Total Arrears - $14,379

[36] I accept Mr. Canning’s evidence that he has two young children with his spouse and I am satisfied that the arrears can be addressed by an additional payment of $200 per month to Ms. Baye until they are satisfied in full.

SECTION 7 EXPENSES

[37] An analysis of s.7 expenses requires a consideration of the income of both spouses. Ms. Baye operated a business and showed an income loss for 2010, 2011 and 2012. In 2013 she started new employment operating at a local market earning $600 to $1,200 per month and now has also indicated she is earning $100 to $150 per week in wages as of June 2013 in addition to her market income.

Section 7 Expenses toward Amanda

[38] Amanda has now completed her program with the benefit of OSAP and some payments from her parents. Both parents agree that they owe her further amounts. Ms. Baye has paid $500 and has agreed to pay her $1,700. Mr. Canning has paid $1,300 and agrees that he still owes $900.

[39] A child has some obligation to make a contribution towards their own post-secondary expenses especially if both parents are of modest means. Her mother had limited ability to support her. Her father had more ability to support her. He continued to pay child support on her behalf in accordance with the court order even though she was not living at home and he made cash contributions as noted. Amanda remains responsible for the OSAP loan. I do not have information before me as to what she earned from her summer jobs or part-time jobs in 2011 and 2012. Paragraph 3 of the settlement conference of January 14, 2013 required the following disclosure:

3. A summary of all s.7 expenses claimed (or paid for Amanda, along with proof of Amanda’s earnings) for any year of post secondary for which a claim is made (and details of dates that Amanda lived with the A after she finished high school.)

[40] Although Amanda has an OSAP loan no information was provided as to whether she expended all of this loan for educational purposes or whether she retains some portion as savings. Proof of Amanda’s complete earnings was not disclosed.

[41] Ms. Baye claims $16,439 for s.7 expenses for Amanda. But it is clear that she did not expend this amount. Her expenditures were limited to the $2,200 of out-of-pocket expenses documented at trial together with her contribution towards Amanda’s tuition of $500. Both Ms. Baye and Mr. Canning have promised their daughter further amounts as noted.

[42] Ms. Baye’s total expenditure to date to assist her daughter is $2,700 and based on the imputed income for Ms. Baye of $15,000 and Mr. Canning of $63,300 I am satisfied that Mr. Canning ought to reimburse Ms. Baye for 75 percent of her expense of $2,700 or $2,025. This amount can be categorized as arrears and paid at the rate of $50 per month to Ms. Baye commencing July 1, 2013 until the amount is satisfied.

[43] Ms. Baye ran a business showing a loss for three years. She requests the court not attribute any of these s.7 expenses to her on the basis that she could not maintain previous types of employment because of her health issues. However, she has now found employment and demonstrated her ability to earn income and I am satisfied that a reasonable level of income should be attributed to her during the important years when Amanda was at school. I find that it was not reasonable for Ms. Baye to operate a business at a loss for three years during the critical years while her daughter was at community college. Her current income indicates that she is capable of earning at least $15,000 per year and I would impute that level of income to her for those years under consideration for s.7 purposes.

Section 7 Expenses for Cassandra

[44] Ms. Baye claims s.7 expenses for Cassandra. First of all, she claims specialized orthotics and second, reimbursement for a laptop computer purchased by Cassandra’s step-father. Although the laptop computer is of assistance to her, it was purchased without any notice or warning to Mr. Canning and it was purchased by her step-father. Under the circumstances I do not find that this is a proper claim for which Mr. Canning ought to contribute. I view the orthotic footwear differently. Although it was not previously raised as an issue and although there is no actual expense yet, I am satisfied that Mr. Canning ought to contribute 75 percent of this expense and this amount is payable within 30 days of receiving the receipt from Ms. Baye for the anticipated expenditure.

CONCLUSION

[45] In the result it is ordered that Mr. Canning owes Ms. Baye $14,379 for child arrears up to and including May 1, 2013. Mr. Canning is required to pay these arrears at the rate of $200 per month commencing July 1, 2013 until paid in full.

[46] Ongoing child support for Cassandra is fixed at $577 per month starting June 1, 2013.

[47] It is further ordered that Mr. Canning pay Ms. Baye $2,025 towards s.7 expenses for Amanda payable $50 per month commencing July 1, 2013. Mr. Canning is required to contribute 75 percent of Cassandra’s orthotic expense 30 days after receiving a receipt.

DISCLOSURE

[48] The parties are required to serve and file a copy of their last year’s Income Tax Return and Notice of Assessment on the other party by July 1 of each year. Because Mr. Canning has failed to produce his 2012 Tax Return and Notice of Assessment for trial as ordered he is required to serve and file his 2012 Tax Return and Notice of Assessment by July 1, 2013.

[49] Mr. Canning is self-represented. If counsel for Ms. Baye cannot obtain his consent as to form and content of the order within 20 days of submitting same to him, then the approval as to form and content of the order by Mr. Canning is waived.

COSTS

[50] Ms. Baye has achieved substantial success on her response to the motion to change. If the parties cannot agree on costs, then Ms. Baye may make written submissions as to costs within 30 days of the release of this endorsement or such further period of time if counsel requests an extension. Mr. Canning will then have 20 days to make a written response. Costs submissions are to be send in care of my judicial assistant at the court house in Barrie.

MULLIGAN J.

Date: July 15, 2013

C O R R I G E N D A

1. Page 8, para. 30, lines 5 and 8 now read:

For Amanda - $250 x 12 months $3,000

Balance owing $2,616

2. Page 9, para. 35, lines 4 and 7 now read:

2011 - $ 2,616

Total Arrears - $14,379

3. Page 11, para. 45, line 1 now reads:

In the result it is ordered that Mr. Canning owes Ms. Baye $14,379 for child arrears up to...