COURT FILE NO.: FC-08-029315
DATE: 20131213
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALLEN C. GUNDERSON, Applicant
AND:
PATRICIA K. GUNDERSON, Respondent
BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN
COUNSEL: Applicant, self-represented
Respondent, self-represented
HEARD: December 4, 2013
ENDORSEMENT
[1] In May 2013, there were three court orders in effect regarding these parties: one setting ongoing spousal support, time-limited; one setting support payments for their two children at $1208 per month based on an annual income of the payor father, Allen Gunderson, of $84,000; and a third fixing $167 per month as ongoing section 7 expense for half of Cameron’s hockey costs. On May 8, 2013, the respondent mother, Patricia (Trish) Gunderson and the applicant father signed Minutes of Settlement. The agreement was that, in return for the father rolling over to her all the moneys in his RRSP account (approximately $194,300), the mother would accept this payout as full satisfaction of child support arrears and future child support, all spousal support, and all claims for s.7 expenses for the children.
[2] The problem, discovered soon after the purported settlement, is that the full RRSP account could not be released; almost half of the account was locked in.
[3] Patricia Gunderson moves for an order reinstating the child support orders or confirming that the prior child support orders remain in full force and effect. The position of the mother is that she consents to retaining the amount advanced of $99,700 (plus income tax of $2,735.01) in full satisfaction of all present and future spousal support and of arrears of child support. She calculates that the total future spousal support payable to the termination date and arrears of child support come within slightly more than $1,000 of the partial RRSP advance. She calculated the child support arrears from the FRO statement of September 17, 2012 at $37,651 less payments of $9,822.56 from December 2012 to June 2013. By her calculation, the balance of arrears stands at $27,828.44. Together with the total time-limited spousal support to be paid, the total comes to $100,828.44 or only $1,113.33 more than the partial RRSP advance, according to Ms. Gunderson.
[4] The father disagrees with her calculation. He swore, according to para. 2 of his affidavit opposing this motion, that:
The amount of the arrears is $30,000 by FRO calculation, if we subtract from the arrears (sic) from the amount received by the respondent Patricia Gunderson, there is still a balance of $72,450.17 which clearly shows that there is no arrears.
[5] I do not accept this evidence of Allen Gunderson as accurate. No FRO statement is attached to his affidavit as proof of what he says is the amount of the arrears. Patricia Gunderson was able to show the FRO balance at September 2012 which she used as the basis for her calculation, on the FRO First Notice of Suspension annexed to her affidavit. The subtraction of $30,000 from the partial RRSP advance plus the income tax payment shows nothing about arrears; it shows only the resulting figure as within $550 of the amount Ms. Gunderson used as the spousal support to be paid to the termination date of $73,000.
[6] My calculation of child support and s.7 arrears, using the FRO Statement of Arrears of September 17, 2012 as the basic starting point to September 2013 when this motion was case-conferenced, shows arrears owing of $37,521 less payments to her of $9,822.56, a figure not disputed by Mr. Gunderson, leaving net arrears of child support and the s.7 order at $27,698.44, very close to the respondent’s calculation to June 2013. As I pointed out earlier, there is nothing from FRO to back up Mr. Gunderson’s figure of $30,000 and give it substance from a neutral source.
[7] The conclusion is that the total of child support arrears plus spousal support of $73,000 to be paid to the termination date comes within $983.33 over the partial advance received by Patricia Gunderson from Allen Gunderson’s RRSP account. Even when the income tax paid is added in, the amount of arrears is within $1,751.73 under the RRSP advance plus the tax.
[8] The respondent mother is content to accept the partial RRSP payment in full satisfaction of all spousal support and child support arrears. Apart from the small disagreement with her calculation, I did not hear Mr. Gunderson as disagreeing seriously with her position.
[9] The issues remaining are what effect, if any, the Minutes of Settlement have on the ongoing child support orders and whether the s.7 order sought by Ms. Gunderson for half of Cole’s karate fees and special tutoring, or $157 per month, is appropriate to be made at this time.
[10] Regarding his present income situation, Mr. Gunderson says he now earns $38,400 annually as an arborist. For years, he worked as a firefighter earning $78,000 yearly. He left that job by his own choice to take a job as project manager for BP Oil/Haliburton. His annual income from that employment was $84,000. It was while he earned income at that level that the child support order of $1208 per month was made. He swore in his affidavit on this motion that the BP job ended after the massive oil spill in the Gulf of Mexico and the shut-down of all work in the field where he was employed. He asks in para. 7 of his affidavit that if he is to pay child support, the court should take into account the payout from his RRSP to the respondent and relate current child support to his current income. His position is that he lost the BP/Haliburton job through no fault of his own and he has applied for employment as a firefighter but he has been unsuccessful so far.
[11] Ms. Gunderson submits that the child support orders in place when the Minutes of Settlement were entered should continue in force and that Mr. Gunderson has abilities to obtain other employment that is available, such as commercial diving, in which he has acted as an instructor. She opposes any reduction now because she sees his decisions as egocentric, disregarding the needs of his children and his parental obligations.
[12] In view of the conclusion I have come to, there is no need to deal with the quantum of ongoing child support on this motion. The analysis of the state in law of the current child support orders starts with the fact that when the Minutes were signed and Justice McGee on May 21, 2013 incorporated paras. 1, 2 and 3 of the Minutes into a court order, she did not vary or set aside the prior orders. The words from the Minutes of Settlement incorporated into the court’s order were that:
The applicant ...shall forthwith roll over to the Respondent all funds in his RBC RRSP account No. 567140751 (approximately $194,303.00) ...Trish is accepting the RRSP rollover in full and complete satisfaction of all child support, spousal support and section 7 arrears, and in satisfaction of Allen’s ongoing and future child support, section 7 and spousal support payments ...
In consideration for receipt of the RRSP rollover outlined in paragraph 1 above, Trish confirms that there are no past, present, or future child support payments due and payable by Allen with respect to his child support obligation for Cameron Kai Niklas Gunderson, born March 22, 2000, and Cole Josef Peter Gunderson, born March 21, 2001, (“children”), and no past, present or future section 7 and spousal support payments due and payable by Allen.
[13] There is nothing in these paragraphs that actually varies or strikes or sets aside the prior support orders. No doubt that would have happened later had the Applicant father not failed to provide the full consideration the parties had agreed upon. In the words of para. 2 incorporated into the court order, the Respondent never was in “receipt of the RRSP rollover outlined in paragraph 1.” As the consideration failed, the portions of the settlement that speak to her release of the Applicant from all future child support, s. 7 and spousal support arrears no longer bind her. It is only because she has elected to keep the partial payment and her agreement to accept it in lieu of child support arrears and spousal support past, present and future that makes this partial release possible.
[14] Therefore, the court orders of November 17, 2009 by Gilmore J. where ongoing child support is ordered at $1208 per month, among other things, and of August 23, 2011 by McDermot J., where the s.7 expense order for Cameron’s hockey was made, remain in force. If the applicant father wants to change them in view of his position that he can only earn a much lower income now through no fault of his own, it is for him to seek a case conference date to deal with his intended motion to vary and if not otherwise resolved, to bring forward and serve a motion to that effect. On that motion, the onus will be on the respondent to show why income should be imputed now to the father where his loss of the BP/Haliburton job was not self-inflicted but due to other circumstances and it will be for the Applicant to show why an $80,000-a-year man suddenly cannot find employment beyond half that.
[15] As to the Respondent’s request for a s.7 order to share Cole’s tutoring and karate expenses, the father does not really disagree with the Respondent’s position that Cole likes and is helped by karate lessons but sees no need for extra tutoring. However, the mother has a letter from Cole’s principal indicating that Cole is having more problems than Mr. Gunderson believes, including lack of focus in class, blowing up in class, missing things during instruction and work time and failing to complete homework because of inadequacies in recording things to be done.
[16] Cole himself admits that he feels “very stressed in class” because of work piling up. Admittedly, the letter is from January 2013, some eleven months ago but it does indicate concerns from the school that not enough was being done to help Cole, and corroborates the mother that tutoring help is needed which she is providing alone. However, I see no evidence of need for more than two sessions per month, not four at $50 each. Half of the tutoring at $100 per month and the karate lessons which both parents agree are good for him amounts to $107 per month. The father’s motion to lower child support payments was dismissed on August 23, 2011. Until he succeeds in obtaining such an order, I see no reason, on all the evidence including the income level in the order setting child support, still in force, why he should not be required to share the s.7 expenses at this time.
[17] Commencing December 1, 2013, the Applicant father will pay s.7 expenses for Cole in the amount of $107 per month until further order. So ordered.
[18] In addition, the respondent retaining the partial RRSP payment, and on her consent and in my view appropriately, the father not opposing, it is ordered that the applicant father’s obligations to pay spousal support, arrears of spousal support and arrears of child support up to and including September 2013 are terminated. The Order of May 21, 2013, based on the prior Minutes of Settlement is set aside and vacated.
[19] The order for child support of November 17, 2009 and the order of August 23, 2011 setting Cameron’s s.7 expense payment continue in effect until further order or agreement of the parties. The respondent mother has left the door open to a future child support change in para. 11 of her affidavit in support of this motion:
- If the Applicant Father wishes to pay out future child support, at some point in the future, he may do so, and the Respondent Mother will be open to all offers in the future.
HOWDEN J.
Date: December 13, 2013