ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-99-0933-0001
DATE: 23-August-2013
B E T W E E N:
THERESA PATRICIA COTE
Unrepresented
Applicant
- and -
MELVIN ALLAN MARK TAYLOR
Paul Lesarge, for the Respondent
Respondent
- and -
MINISTER OF COMMUNITY AND SOCIAL SERVICES
Kristen Bucci, for the Respondent
Mr. Justice D.C. Shaw
Reasons On Motion
[1] This is a motion to rescind arrears of child support and to terminate a child support order.
[2] The moving party, Melvin Allan Mark Taylor, is a 54 year old First Nations man who spent the majority of his youth in residential schools.
[3] At age 19, he was convicted of second degree murder and sentenced to life imprisonment. He served 12 years in a federal penitentiary at which time he was released on day parole. A condition of his day parole was that any conviction for a criminal offence would result in his return to incarceration for an indefinite term, to be released again only on the recommendation of the parole board.
[4] Following his release from prison, Mr. Taylor remained out of trouble with the law for the next 19 years.
[5] In the early 1990’s he began residing with Theresa Patricia Cote. They had a son, Christopher Mark Cote, born October 20, 1993. Mr. Taylor and Ms. Cote married in 1994. They separated in 1997. On December 21, 2000, Platana J. granted an order, on consent, pursuant to which Ms. Cote was awarded custody of Christopher and Mr. Taylor was awarded access. Mr. Taylor was required to pay support for Christopher in the amount of $325 per month, commencing October 1, 2000, based on an imputed income of $37,500. Arrears of support were fixed in the sum of $2,534, to be paid at the rate of $25 every second week.
[6] In September 2007, Mr. Taylor was convicted of sexual assault and possession of a prohibited weapon. He was sentenced to one day imprisonment on each charge, to be served concurrently. However, on release from his one day sentence, he was re-arrested and incarcerated for breaching his day parole. He was incarcerated from September 25, 2007 until he was again released on day parole on December 17, 2012.
[7] On December 18, 2012, Mr. Taylor moved into the John Howard Society residence in Thunder Bay. He continues to reside there. He receives a daily allowance in the amount of $4.30 per day from the John Howard Society.
[8] In 2007, Mr. Taylor had T-4 income of $37,310. The records of the Family Responsibility Office show that as of the date of his incarceration for breach of his day parole, Mr. Taylor’s support payments were in good standing and the arrears referred to in the December 21, 2000 support order had been paid in full.
[9] While he was incarcerated from September 25, 2007 to December 17, 2012, Mr. Taylor had no income. Since December 18, 2012, while residing at the John Howard facility, Mr. Taylor’s income has been limited to the allowance of $4.30 per day paid to him by the John Howard Society.
[10] Mr. Taylor’s support payments owing under the December 21, 2000 began to go into arrears immediately after his incarceration. The arrears continue to accrue. The records of the Family Responsibility Office, current to February 1, 2013, show arrears of $23, 387. His arrears as of today would exceed $25,000 and will increase each month.
[11] Ms. Cote entered into an assignment of support agreement with the Ministry of Community and Social Services, commencing July 1, 2009 and ending October 1, 2012. The total amount of support arrears owing to the Ministry is $9,168.35. The balance of the arrears, of approximately $16,000 as of today, is owed to Ms. Cote.
[12] The Director of the Family Responsibility Office recently directed the suspension of Mr. Taylor’s driver’s license under s. 37 of the Family Responsibly and Support Arrears Enforcement Act.
[13] Mr. Taylor deposes that he has searched for employment but without success. He refers to possible jobs as a meat cutter, taxi driver, shop laborer and delivery driver, but states that all these positions require a driver’s license.
[14] Ms. Cote deposes that Mr. Taylor will be receiving over $187,000, and as much as $250,000, as a settlement relating to the years that Mr. Taylor spent in residential schools. She deposes that Mr. Taylor’s sister recently received a settlement of $187,000. Ms. Cote deposes that Mr. Taylor telephoned her after the suspension of his driver’s license and told her he needed his license so that he could buy a truck when he received his residential school settlement monies.
[15] Mr. Taylor deposes that when he was five or six years old he was taken from his home in Hornepayne and sent to residential school in Moosonee under threat by social services that if he and his two oldest siblings did not go they would be apprehended. After a couple of years in Moosonee, Mr. Taylor was separated from his siblings and sent to another residential school in Sault Ste. Marie. He was sent to high school in Geraldton where he boarded with a family. He states that his parents only visited him once when he was in residential school, that he was forced to stop speaking his native language and that sometimes harsh physical discipline was used to enforce rules. Mr. Taylor provides no information about whether he will receive a settlement relating to his years in residential schools, or how much or when that might be.
[16] Mr. Taylor’s counsel submits that a residential school settlement is not a sure thing and that, in any event, it would not be appropriate to require Mr. Taylor to pay support arrears from a settlement made for wrongs committed on aboriginal people.
[17] Counsel for the Ministry of Community and Social Services submits that the arrears of support should be paid from Mr. Taylor’s residential school settlement. Counsel submits that the arrears should not be rescinded but rather that enforcement of the arrears should be limited to a reasonable amount until such time as Mr. Taylor receives his settlement. Counsel submits that such an arrangement would allow Mr. Taylor to have his driver’s license reinstated. The Ministry takes no position on the termination of ongoing support. Ms. Cote submits that the arrears should not be rescinded and that ongoing support should not be terminated.
The Law
[18] The discretionary power to vary or rescind a support order is found in s. 17 of the Divorce Act, read in conjunction with s. 14 of the Child Support Guidelines.
Under the Divorce Act
s. 17(1) Order for variation , rescission or suspension – A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively ,
(a) a support order or any provision thereof on application by either or both former spouses; or
(4) Factors for child support order – Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
(6.1) Guidelines apply – A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
Under the Child Support Guidelines
s.14. Circumstances for variation – For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997)
Section 19(1)(a) of the Child Support Guidelines provides:
s. 19(1) Imputing income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
[19] In DiFrancesco v Couto, 2001 8613 (ON CA), [2001] O.J. No. 4307 (C.A.), the Court of Appeal stated
“The first issue for the determination on an application for variation of support payments or arrears is whether there has been a change in circumstances sufficient to warrant the variation sought. Once that threshold has been met, the presenting issue is whether rescission is justified in the context of the changed circumstances”. (Emphasis in original)
[20] The court held that in exercising its discretion to rescind arrears, the court must assess both the present capacity and the future capacity of the payor to pay the arrears.
Discussion
[21] I am satisfied that there has been a material change in circumstances since the granting of the order of December 21, 2000 warranting a variation of that order. Pursuant to s. 17(6.1) of the Divorce Act, the variation of child support shall be in accordance with the Child Support Guidelines.
[22] During his five years of incarceration between September 25, 2007 and December 17, 2012, Mr. Taylor did not have the means to pay the amount of support required under the December 21, 2000 order or, indeed, any support whatsoever. The determination of support in the December 21, 2000 order was made in accordance with the Child Support Guidelines, on the basis of income imputed to Mr. Taylor of $37,500. He had no income after his incarceration. Under the Guidelines, no support would be payable by Mr. Taylor after his incarceration unless income could be imputed to him under s. 19(1) of the Guidelines. Under s.19 (1) of the Guidelines, the court may impute such amount of income to a parent as it considers appropriate in the circumstances. The list of circumstances set out in s. 19(1), including 19(1) (a), are illustrative, not exhaustive, although non-enumerated circumstances must relate to the objectives of the Guidelines set out in s.1 (see Hainsworth, Child Support Guidelines Service (Toronto Canada Law Book, loose-leaf), at p 5-61). The objectives refer to the financial means of spouses, consistency of orders and making the calculation of support orders more objective.
[23] I fail to see any rational basis to impute income to Mr. Taylor while he was incarcerated for five years. There may be situations where a payor is convicted of an offence against his spouse or a family member, or of an offence to defeat creditors, where it would offend public policy to allow an incarcerated person to avoid his support obligation because of his crime. (see Bernard v Bernard, [2208] A.J. No. 302 (A.B.Q.B.) at para 42 and 43). However, the matters for which Mr. Taylor was incarcerated, during which time his support arrears accrued, had no connection with his support obligations. I am not prepared to find that although Mr. Taylor had no ability to pay the support ordered to be paid on December 21, 2000, public policy demands that he not be relieved of his obligation because he is benefitting from his criminal act.
[24] The facts of this case do not fall within the circumstances contemplated by s. 19(1) of the Guidelines. If income cannot be reasonably imputed, I do not see how the arrears can stand. It is significant that his support payments were in good standing when he was incarcerated on September 25, 2007 and that the arrears have all accrued after that date.
[25] This is not a situation where a payor has been incarcerated for a short period of time and has then returned to his employment. Mr. Taylor was incarcerated for five years. He had no employment to return to. He has relied on the services of the John Howard Society during the eight months since his release for food and shelter.
[26] I see no principled basis to distinguish between the arrears that have accrued during incarceration, and the arrears that have accrued since Mr. Taylor’s release. Mr. Taylor’s circumstances are such that it would not be reasonable to find that he is presently intentionally unemployed with the meaning of s.19 (1) of the Guidelines. He is 54 years of age, he has convictions for murder and sexual assault, he has spent 17 years in prison, he has no driver’s license. He has deposed to possible jobs which were closed to him because he had no driver’s license.
[27] I do not find that Mr. Taylor has unreasonably delayed seeking relief from his support obligations. The motion to change was filed on March 25, 2013, three months after Mr. Taylor was released from prison. It is not realistic to expect that he should have brought his motion while in the penitentiary in Manitoba.
[28] I turn to the question of whether the possibility that Mr. Taylor will receive a residential school settlement in an amount as much as $250,000 should prevent his motion from being granted.
[29] A settlement would be recognition of the wrongs done to Mr. Taylor as a child. Mr. Taylor’s years in residential schools may well be a factor leading to his crimes and incarceration. The Supreme Court of Canada in R v Ipeelee, 2012 SCC 13, 2012 S.C.C.13 instructs sentencing judges to take judicial notice of the negative outcomes of the residential school experience on aboriginal offenders. The settlement is not a windfall to Mr. Taylor. It is compensation.
[30] If Mr. Taylor had been in receipt of the settlement monies at the time of the December 21, 2000 order, they would not have been taken into account in an award of support under the Guidelines Table, except to the extent that income was or should have been earned from the monies. (Section 19 (1) (e) of the Guidelines provides that income may be imputed if a spouse’s property is not reasonably utilized to generate income).
[31] I am not satisfied on the facts of this case that any settlement that Mr. Taylor may receive because of his residential schools experience can properly be characterized as “future capacity to pay” as intended in DiFrancesco. If the support arrears had arisen before Mr. Taylor’s incarceration, while he was or should have been earning income, his future capacity to pay those arrears from any residential school settlement would be quite a different matter. However, in this case, the arrears all arose while Mr. Taylor had no income and no ability to earn income.
[32] A future residential school settlement does not change the fact that Mr. Taylor has had no income since his incarceration on September 25, 2007. In my opinion, the potential settlement does not provide a rational basis to find, after the fact, that during those years Mr. Taylor should have paid Guideline support based on an income of $37,500 that he never in fact received. Otherwise, one would also have to conclude that because of the settlement, the order of December 21, 2000, based on an income of $37,500 should continue indefinitely for so long as Christopher remains a child of the marriage, even though Mr. Taylor does not have any income.
[33] I appreciate that in all likelihood this will appear unfair from Ms. Cote’s perspective. She has been left to her own resources without Mr. Taylor’s help, to raise and financially support Christopher. Christopher will be entering college in September this year. Ms. Cote has carried out her responsibilities as a parent. It is not easy being a single parent and it is even harder when there is no support from the other parent. However, it would be wrong to impute an income to Mr. Taylor when there is no basis to do so out of sympathy for Ms. Cote’s position.
[34] An order shall go rescinding the arrears that have accrued to date under the order of December 21, 2000. Because Christopher is entering college in September 2013, I am not prepared to terminate Mr. Taylor’s obligation to pay child support. However, in view of his financial situation, the order of December 21, 2000 shall be changed to provide that Mr. Taylor shall, at present, pay zero child support for Christopher, subject to variation in the event of a change in circumstances. For so long as Christopher remains a child of the marriage, Mr. Taylor shall forthwith inform Ms. Cote in writing of the details of any employment he obtains, including verification from his employer of his salary or wages, He shall also inform Ms. Cote in writing forthwith of the details of any residential school settlement that he may receive and of any income earned from the settlement monies (this relates to the provisions of s. 19(1)(e) of the Child Support Guidelines).
[35] This is not an appropriate case for an award of costs.
“original signed by”
The Hon. Mr. Justice D.C. Shaw
Released: August 23, 2013
COURT FILE NO.: FS-99-0933-0001
DATE: 23-August-2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THERESA PATRICIA COTE
Applicant
- and –
MELVIN ALLAN MARK TAYLOR
Respondent
REASONS ON MOTION
Shaw J.
Released: August 23, 2013
/nf