ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: FS-12-76153
Date: 20130704
B E T W E E N:
ANITA McGRATH
Self-represented
Applicant
- and -
DANIEL McGRATH
Self-represented
Respondent
Heard: June 20, 2013
ENDORSEMENT
Justice Thomas A. Bielby
[1] The respondent has before the court, a motion to vary the order of Kruzick J., dated December 8, 2009. He is seeking a reduction, retroactively, of child and spousal support.
[2] The relief sought is opposed by the applicant.
[3] It was ordered that the matter proceed by way of a trial of an issue. The parties are self-represented. The only evidence heard was the testimony of the two parties.
[4] The respondent was not present when the December 8, 2009 Order was made. It appears the respondent chose not to attend nor did he file a financial statement or supporting financial documentation.
[5] Justice Kruzick imputed an income to the respondent of $66,000.00. The respondent was and is a licensed plumber.
[6] The order required the respondent to pay child support of $1,287.00 per month and spousal support of $1,500.00 per month, both commencing May 1, 2009.
[7] The respondent seeks a reduction based upon his income in the intervening years.
[8] The applicant submits that the respondent is capable of working as a plumber but has chosen not to. She asks that he continue to be required to pay support on the income he would earn as a plumber.
MOVING PARTY, THE RESPONDENT
[9] The respondent testified that he has had minimal income over the last three years. At times he has been on Ontario Works.
[10] He is currently working as a research assistant earning $500.00 per week. This employment started June 10, 2013.
[11] He acknowledged that he is a licensed plumber by trade but testified that there are many union members looking for work. On further questioning the respondent testified that he had not paid his union dues and had been expelled from the union.
[12] The respondent testified that he does not have his driving license which he would require if he took a job directly with an employer or was self-employed. His license was suspended for one year as a result of an impaired driving charge. The suspension period has expired but the respondent admitted he had not yet requested the reinstatement of his license.
[13] The respondent states that to seek employment as a plumber he would need his tools which are in the possession of the respondent.
[14] The respondent testified that he is an alcoholic and has been one for years, well before his separation from the applicant. He testified that in 2012, he went to his mother’s home in Newfoundland for seven months, for rehabilitation. His mother is a nurse and monitored his use of alcohol.
[15] The respondent testified that he can now drink socially but does not drink to excess. He admitted he has not sought professional help in regards to his alcoholism beyond his mother’s experience as a nurse.
[16] When the respondent returned from Newfoundland in July, 2012, he was arrested on a warrant issued as a result of his non-attendance in court regarding proceedings initiated by the Family Responsibility Office.
[17] The respondent testified that he has been suffering from depression and as a result, drank to excess. The result was that he could not hold gainful employment, or even look for employment.
[18] In his 2009 income tax return the respondent claimed line 150 income of $39,000.00. His disclosed income for 2010 was $19,000.00, for 2011, $12,500.00 and for 2012, he disclosed income of $7,188.00.
[19] The respondent admitted that he has not paid any support voluntarily since the order was made. The arrears are in excess of $100,000.00.
[20] The respondent is renting a basement apartment in a house for which he pays $580.00 per month. The apartment is a sublet from a woman who is also the respondent’s current employer.
[21] The respondent asks the court to vary the support based on the income he earned in those years.
RESPONDING PARTY, THE APPLICANT
[22] It was the evidence of the applicant that the respondent was an alcoholic before separation and was able to work full time as a plumber.
[23] She testified that at times, the respondent would work for cash, “under the table”.
[24] She testified that the respondent told the Family Responsibility Office that he had earned $120,000.00 one year, working as plumber.
[25] She testified that the respondent continually delayed court proceedings, stating a proceeding started by FRO was adjourned 14 times.
[26] The applicant testified that she has returned to school at York University, seeking a Bachelor of Science degree in nursing. She has completed two years of a four year program.
[27] As a result of the respondent not paying support and the cost of school the applicant has a large debt load that includes the debt the family had at separation.
[28] The applicant is working for the summer with the March of Dimes and carries two part time jobs. Her mother assists her with child care.
[29] The applicant testified that the respondent is capable of working as a plumber and has chosen not to do so. She submits the respondent has manipulated everything in an effort to avoid support and that he only commenced the variation proceedings when he was forced to and after his arrest.
ANALYSIS
[30] There are clear credibility issues in regards to the evidence of the respondent. His past behaviour would suggest that he has little regard for court proceedings and the obligations imposed by court orders.
[31] The respondent chose not to participate in the matter before Justice Kruzick in December, 2008.
[32] After the order was made, the respondent made no voluntary efforts to comply, even partially.
[33] He only decided to challenge the order after being arrested.
[34] I find it more than a coincidence that the respondent’s financial misfortunes commenced after the order was made.
[35] I accept the respondent drank alcohol to an excess during the marriage but continued to work full time.
[36] I find that the reason the respondent cannot obtain work through the plumber’s union is that he chose not to pay union dues.
[37] The reason he has no driver’s license to drive to a job is because he has not taken any steps to have the license reinstated.
[38] The reason the arrears of support, both spousal and child, are so high because he has voluntarily chosen not to pay any support.
[39] The respondent’s credibility may have been reviewed in a better light if he had paid some support on a regular basis in an amount he thought he could afford.
[40] The respondent blames his current situation on the fact he is an alcoholic. It affected his ability to seek and keep work, yet he did not seek any professional help other than living with his mother for seven months.
[41] The respondent testified that he continues to drink socially but can now control himself not to drink to excess. Once a person becomes an alcoholic, they remain one, regardless of whether they have stopped drinking. It seems to me that to properly deal with alcoholism, one has to stop drinking all together.
[42] I agree with the comments of the applicant. The respondent has manipulated his recorded levels of income in order to avoid support. The applicant is capable of working as a plumber and should be required to pay support on the income a plumber can earn.
[43] The applicant is not asking me to impute a higher level of income, representing the wages a plumber can earn in 2013, but is just seeking to enforce the existing order.
[44] I take judicial notice that the construction industry is in need of skilled trades people which would include plumbers.
[45] The respondent argues that the applicant has kept his tools, for no good reason, and which prevents him from working as a plumber.
[46] The applicant testified that some of the tools were borrowed from her father who is now deceased. These tools have been returned to her mother.
[47] The remainder of the tools were sold to a neighbour for $50.00. The applicant was desperate for money to take care of the needs for children. I accept her evidence on this point and find that her actions were reasonable given that no support was being paid.
[48] In short, I find that the respondent has failed to establish a material change of circumstances which would cause me to vary the order of December 8, 2009.
[49] The respondent was capable in 2009 to work as a plumber and earn the imputed wage and continues to be so capable. The capability has not changed since December, 2008, and I do not accept the failure to work as a plumber was the fault of anyone other than the respondent.
[50] I do not believe the respondent when he testified that he rarely worked for cash.
[51] The arrears, however, are now at a level that may be insurmountable, at least for the short term. If I accept anything from the respondent’s evidence is that he is an alcoholic and that it may have had some influence on his actions, or lack thereof. I will allow him sometime to formulate a plan to pay the arrears.
[52] I also note that the applicant has agreed that spousal support should terminate at the end of August, 2015. The respondent said he agreed with this termination date, but challenges the amount to be paid.
DECISION
[53] I order the following:
The order of Kruzick J., dated, December 8, 2009, paragraph 5 therein, shall be amended by adding the following sentence, “The respondent’s obligation to pay spousal support shall terminate on August 31, 2015.
The enforcement of the accrued arrears, as they exist on June 20, 2013, shall be suspended until December 31, 2013.
The support due after June 20, 2013, pursuant to the order of Kruzick J., shall remain payable and of any arrears which will accrue after June 20, 2013 are enforceable.
The balance of the order of Kruzick J. made December 8, 2009, is confirmed and remains unchanged.
Any other relief sought by the respondent in his motion to vary is dismissed.
Justice Thomas A. Bielby
Released: July 4, 2013
COURT FILE NO.: FS-12-76153
DATE: 20130704
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANITA McGRATH
Applicant
- and –
DANIEL McGRATH
Respondent
ENDORSEMENT
Bielby J.
Released: July 4, 2013