COURT FILE AND PARTIES
COURT FILE NO.: FC-08-1665-1
DATE: 20130906
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: James Keith Leeson, Applicant
AND:
Tracey Lynne Leeson, Respondent
BEFORE: Justice Patrick Smith
COUNSEL:
The Applicant was self-represented
Jonathon Richardson Counsel, for the Respondent
HEARD: August 20, 2013
ENDORSEMENT
[1] This is a motion brought by the Applicant for an order varying the Orders of Sheffield J. dated June 16, 2010 and December 16, 2010 for child and spousal support respectively.
[2] The parties were married August 9, 1997 and have three children born of their marriage, namely: Katilyn Leeson, born December 9, 2000; Emma Leeson, born July 12, 2002; and Jacob Leeson, born February 11, 2004.
[3] The parties separated May 12, 2008.
[4] Custody of the children is jointly held and time is shared on a week-on, week-off basis.
[5] The Applicant is 42 years old and works for TD Canada Trust. The amount of his income is in dispute. The Applicant states at paras. 23 to 25 of his factum that his “regular” income is $50,389.00 per annum and that his total income for 2012 was $55,618.00. At para. 77 of his factum he projects his income for 2013 to be $59,778.00.
[6] The Respondent is 40 years of age and suffers from remitting multiple sclerosis and dysesthesia. She is currently employed as an occasional teacher with the Ottawa Catholic School Board and anticipates that she will earn the sum of $14,048.64 in 2013. The Applicant disagrees and maintains that her income for 2013 will be $19,844.
[7] In June 2010, Justice Sheffield found that the Applicant’s income was $46,036.00 and awarded the sum of $903.00 for child support. Justice Sheffield also found that the Respondent was entitled to spousal support but declined to make an order, and stated at para. 30:
A review of Mr. Leeson’s financial statement discloses that with the present child support obligation and debt load he is carrying, he has a limited ability to contribute towards a spousal award. That too may change should he declare bankruptcy or seek more remunerative employment in the future.
[8] The June 2010 endorsement of Sheffield J. provided at para. 33 that:
Since I am giving consideration to Ms. Savoy’s financial gift to her daughter, for the purpose of spousal support, if that gift changes or ceases in the future, this would constitute a material change in circumstances. Similarly, if Mr. Leeson makes an assignment in bankruptcy, this could also constitute a material change in circumstances as it could leave Mr. Leeson in a better financial position.
[9] On December 16, 2010 the Applicant brought a motion for a Divorce Judgment and was ordered to pay spousal support in the amount of $500.00 per month. Justice Sheffield also ordered that the Applicant could bring no further motions without leave of the court but did allow for a review of spousal support after 24 months. It is the later order that has led to the present motion before the court.
[10] Finally, Justice Sheffield ordered that the Applicant pay the sum of $12,000.00 in costs. Payment of this award has never been made notwithstanding that Justice Sheffield required the sum being enforced as support. The Applicant’s position is that the award was discharged as a result of his personal bankruptcy.
The Position of the Applicant
[11] The Applicant maintains that the Order for spousal support was premised on three important factors:
the Respondent’s allegation that her medical expenses were in excess of $2,000.00 per month and that she would no longer be covered by the Applicant’s health insurance plan upon the granting of a divorce;
the fact that her mother ceased her monthly gift of $1,400 per month; and
the Applicant’s assignment in bankruptcy.
[12] Regarding the Respondent’s medical costs, the Applicant suggests that they are much lower than the estimated $2,000.00 per month and are as low as $105.76 or $306.07 per month.
[13] With respect to the financial assistance the Respondent received from her family the Applicant alleges that she continues to receive this assistance.
[14] The Applicant’s position is that his bankruptcy has not left him in a better financial position whereas the Respondent’s income has increased and her expenses have decreased.
[15] Finally, the Applicant argues that since the orders of Sheffield J., the Respondent has not discharged her obligation to become self-supporting. The Applicant suggests that any financial hardship she is experiencing is a result of her multiple sclerosis and not a result of the marriage.
[16] With respect to child support, the Applicant argues that the sum of $684.00 per month is warranted based upon his income of $55,619.00 and the Respondent’s income of $19,844.00.
[17] Regarding spousal support, the Applicant’s position is that the sum of $54.00 per month is appropriate and should be fixed for a period of 8 years.
[18] Finally, the Applicant requests that child support be reviewed and adjusted each year based upon an exchange of tax returns and Notices of Assessment.
The Position of the Respondent
[19] The position of the Respondent as set out at para. 4 of her factum is that, based upon her income of $14,049.00 and the Applicant’s income of $59,778.00, the amount of child support, based on the Ontario Child Support Guidelines, O. Reg. 391/97 [“Guidelines”], should be $971.00 per month and spousal support should be awarded at the higher end of the range of $402.00 per month. My review of the guidelines indicates that, using the incomes set out above ($14,049.00/$59,778.00) the table amount of child support would be $1,164.00 per month.
[20] The Respondent argues that there is no evidence that there has been a material change in circumstances justifying a change in support. The Respondent submits that she continues to have considerable medical expenses and continues to carry the burden of the majority of the expenses for the children.
Discussion
[21] With respect to the quantum of child support there is no reason to depart from the table amount in the Guidelines particularly in view of the evidence that the Respondent is carrying more than half of the costs to maintain the children. The only remaining issue is the income of the Applicant.
[22] Having examined the financial information filed, I find that the Applicant’s income for 2013 is $55,619.00.
[23] An order shall issue varying the para. 19 of the Order of Sheffield J. dated June 16, 2010 to provide that, commencing September 1, 2013 the Applicant shall pay the sum of $1,081.00 per month for the support of the children.
[24] The Applicant does not deny that the Respondent has an entitlement to support. However, he submits that the current payment of $500.00 per month should be reduced to the sum of $54.00 per month commencing January 1, 2014 and ending on December 31, 2021.
[25] There is some merit to the Applicant’s argument that the Respondent’s medical expenses are not as high as they were when the order for her support was made. Justice Sheffield in his endorsement clearly stated that a reduction in these expenses could constitute a material change in circumstances. The evidence before the court is somewhat vague as to what the Respondent’s medical expenses are but, on balance, I find that there has been a reduction. This factor, combined with the evidence that the Respondent is receiving financial assistance from her family and that the bankruptcy of the Applicant did not appreciably improve his financial situation, convince me that there has been a material change in circumstances and that a reduction in the level of spousal support is warranted.
[26] I do not agree, however, with the position of the Applicant that spousal support should be reduced to the sum of $54.00 per month. Using the income figures set out above and applying the Guidelines, para. 2 of the order of Sheffield J. dated December 16, 2010 is varied to provide that, commencing September 1, 2013, the quantum of spousal support is varied to the sum of $250.00.00 per month.
[27] Notwithstanding the limited success of the Applicant, I do not intend to make an award for costs. The Applicant was self-represented and has failed to pay any portion of the cost award of $12,000.00 ordered by Sheffield J.
Justice Patrick Smith
Date: September 6, 2013
COURT FILE NO.: FC-08-1665-1
DATE: 20130906
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: James Keith Leeson, Applicant
AND:
Tracey Lynne Leeson, Respondent
BEFORE: Justice Patrick Smith
COUNSEL:
The Applicant was self-represented
Jonathon Richardson Counsel, for the Respondent
ENDORSEMENT
Justice Patrick Smith
Released: September 6, 2013