COURT FILE AND PARTIES

COURT FILE NO.: FS-148

DATE: 2013-12-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeffrey Eugene Tanner, Applicant

AND:

Wendy Christine Tanner, Respondent

BEFORE: The Honourable Mr. Justice J. W. Sloan

COUNSEL:
Sandra McCulloch, for the Applicant

Shawn Richarz, for the Respondent

HEARD: December 3, 2013

ENDORSEMENT

[1] In this matter, a provisional hearing took place in Nova Scotia on March 25, 2013.

[2] Unfortunately for the parties, the procedure to deal with such family matters when they reside in different provinces is far from streamlined. In this matter, the Applicant was not obligated to serve his material on the Respondent who would have at least had an opportunity if she wished, to file material before the presiding judge.

[3] This procedure of course leaves that judge with evidence from only one party.

[4] Under S19(7) of the Divorce Act I can either confirm the provisional order without variation, confirm the provisional order with variation or refuse to confirm the provisional order.

[5] Based on material before me and in particular the Judgment of Justice Williams dated the 22nd day of January 2002, the Applicant was to provide copies of his income tax returns on an annual basis. This he never did, and at least technically he is in contempt of Justice Williams’ Judgment.

[6] This fact is particularly noteworthy because the order sets out his annual income for 2002 at $50,377 per year where in reality from at least 2009 forward he has earned approximately $108,000 per year.

[7] In addition, based on the material before me Mr. Tanner was to maintain an insurance policy which he stopped doing in May of 2011 when he also stopped paying child support.

[8] The Respondent only asks the court to recalculate child support back to January 1, 2009 which I will do. I would certainly have considered going back further given the clear wording of Justice Williams’ Judgment.

[9] It is also somewhat disturbing to note that the Applicant did not include in his materials to the Nova Scotia court letters from the Respondent's lawyer dated September 30, 2011 and January 3, 2012, where he specifically requests the last three years income tax returns from the Respondent.

[10] On material before me, I find that the Applicant had the following incomes in 2009 - $108,080, in 2010 - $107,359, in 2011 - $107,873, in 2012 - $108,000 and for the purposes of this judgment in 2013 - $108,000.

[11] I find that the Respondent had the following incomes for the same years as follows; in 2009 - $38, 242, in 2010 - $33,854, in 2011 - $41,396, in 2012 - $47,519 and for the purposes of this judgment in 2013 - $47,519.

[12] For the same period of time I find that the child earned; in 2009 - $3514, in 2010 - $12,590, in 2011- $5,567, in 2012 - $4,712 and in 2013 - $4,434.

[13] I find absolutely no reason why the Applicant should not have been paying child support based on the income of $108,000 since January 1, 2009 and more than likely on some figure higher than what he was paying before 2009.

[14] Like Justice Moira C. Legere Sers, I do not find that an automobile and expenses arising from its ownership are Section 7 expenses on the facts of this case. I am, as she was, prepared to allow $130 per month as a transportation expense.

[15] For the 2009/10 school year after deducting the vehicle purchase, car insurance, registration car repairs, tires, gas, maintenance and regular oil changes I find the child’s Section 7 expenses to be $5,231.33 plus a transportation amount of $1,560 for a total of $6791.33.

[16] For the 2010/11 school year after deducting similar expenses and adding the transportation component, I find the child's section 7 expenses to be $11,116.

[17] For the 2011/12 school year, I find the child's Section 7 expenses based on the above formula to be $17,331.13.

[18] For the 2012/13 school year, I find the child's Section 7 expenses based on the above formula to be $16,111.

[19] Therefore the total section 7 expenses of the child from 2009 until the end of the first semester in 2013 equals $51,349.46.

[20] Based on the child's earnings she should contribute the following amounts: in 2009 - $2000, in 2010 - $9442.50, in 2011 - $2783.50 and in 2012 - $2356 for total of $14,226.

[21] When this amount is deducted from the total amount it leaves $37,123.46 ($51,349.46 -$14,226) to be split by the parents.

[22] For the years 2009 through 2012 the Applicant essentially averaged $108,000 per year in earnings and the Respondent essentially average $40,000 per year in earning. Therefore the Applicant should be should have paid 73% of the above section 7 expenses which equals $27,100.13.

[23] It is acknowledged that the husband paid $8,552.34 to date, leaving a shortfall of $18,547.78.

[24] Based on the husband's earnings he should have been paying child support pursuant to the guidelines as follows; in 2009 - $901 per month, in 2010- $896 per month and in 2011, 2012 & 2013 - $900 per month.

[25] In 2009 he paid $600 per month for a shortfall of $301 per month times 12 months equals $3,612.

[26] From January to August of 2010, he paid $682 per month when he should have been paying $896 per month for a shortfall of $214 per month times eight months, which equals $1,712.

[27] From September 2010 to December of 2010 the child was away at school. I would therefore reduce the guideline support to 50% or $448 per month. The Applicant paid $682 per month and therefore should receive a credit of four times $234 per month or ($936).

[28] From January to March of 2011 the child was at school. Therefore I would assess the guideline support at 50% or $450 per month. The Applicant paid $682 per month and therefore should receive a credit for the difference of $232 per month times three months which equals ($696).

[29] In April of 2011 no child support was paid and therefore $450 is owing since the child was still in school.

[30] The child returned home for the months of May to August 2011. Therefore, child-support should have been paid for those four months in the amount of $900 per month for a total of $3,600.

[31] From September to December of 2011 the child was again in school and child support should have been paid in the amount of $450 per month times four months for a total of $1,800.

[32] From January to April 2012 again no child support paid. Since the child was in school child support should have been paid at the rate of $450 per month times four months for a total of $1,800.

[33] From May to August of 2012, the child could not get out of her lease at school and therefore she stayed and worked. Therefore no child support should be paid for that period.

[34] From September to December of 2012 child support should have been paid at the rate of $450 per month for a total of $1800.

[35] From January to December 2013 the child has been living at home and full child support should be paid at the rate of $900 per month times 12 months equals $10,800.

[36] Therefore the Applicant owes arrears of child support of $23,942.

[37] Since the Applicant is obligated to pay for the life insurance policy which the Respondent took over responsible ability for commencing in May of 2011 he owes her 32 months of premiums at the rate of $26.24/month which equals $839.68. In addition, he shall continue paying the Respondent $26.24 per month until further order of a court of competent jurisdiction.

[38] In summation the Applicant owes to the Respondent for guideline and Section 7 support and insurance premiums as of December 2013 the amount of $43,329.46 (23,942+18,547.78+839.68) and I do so order that, that amount is payable by the Applicant to the Respondent within 30 days.

[39] The addition the Respondent shall continue to pay child support in the amount of $900 per month plus 70% of the child section 7 expenses after deducting 50% of the child’s annual income.

[40] The Respondent shall be entitled to her costs.

[41] Therefore, the Provisional Order of The Honourable Justice Moira C. Legere Sers, dated June 11, 2013 is varied as set out in this endorsement.

[42] If the parties are unable to agree on costs, the Respondent shall forward her brief submissions on costs to me. The Applicant shall forward his brief response to me within 10 days of receiving the Respondent’s submissions. The Respondent shall then forward her reply, if any, to me by within 10 days of receiving the Applicant’s submissions. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca

J. W. Sloan J.

Date: December 10, 2013