ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 182/10
DATE: February 27, 2013

BETWEEN:

Jody Anne Fraser

Jody Anne Fraser in person

Applicant

• and -

Anthony George Enoch Fraser

R. Sandy Bruce for Mr. Fraser

Respondent

Ministry of Community and Social Services

Assignee

James H. Rayner for the Ministry of Community and Social Services

HEARD: August 16, 2012

KORPAN J.

1The respondent father, Anthony George Enoch Fraser, brings this motion to change the final order of Wood J. dated July 4, 2001 to retroactively decrease the amount of child support he was ordered to pay, to reduce or rescind the arrears of child support that have accumulated and to terminate his obligation to pay child support for each of the four children of the marriage.

2The applicant mother, Jodi Anne Fraser, is the support recipient. Ms. Fraser did not defend or oppose the motion to change.

3The assignee, the Ministry of Community and Social Services has an interest in the proceeding as the entire amount of the child support arrears is owed to the Ministry by virtue of an assignment made by Ms. Fraser in 2001. The Ministry filed an affidavit responding to the motion to change. The Ministry opposes any decrease in the amount of child support payable and any reduction in the child support arrears and suggests that Mr. Fraser’s obligation to pay child support terminated on dates later than those proposed by him.

4Mr. Fraser testified at the trial. Ms. Fraser testified for the Ministry at the trial.

Background

5Mr. and Ms. Fraser were married in 1989 and separated in 2000. They are not yet divorced.

6Mr. and Ms. Fraser have four children, Emily, now age 26, Scott, now age 25, Erin, now age 23 and Dean, now age 21.

7Mr. Fraser became self employed in the home repair and refinishing business in 1999. At the time of the separation in 2000 Mr. Fraser was self employed working odd jobs doing some painting, repairs and furniture refinishing in his home based business.

8Following the separation in 2000 Emily resided with Mr. Fraser and Scott, Erin and Dean resided with Ms. Fraser.

9In May 2001 Ms. Fraser commenced an application for custody and child support.

10On the first return date of the application on May 30, 2001 Mr. Fraser was acting in person and assisted by duty counsel. The parties signed minutes of settlement for an interim child support order requiring Mr. Fraser to pay interim child support of $748 per month for the three children living with Ms. Fraser based on an annual imputed income of $40,000, which $748 was set off against child support payable by Ms. Fraser of $219 per month for Emily who was in Mr. Fraser’s care, for a net child support payment by Mr. Fraser of $529 per month. Mr. Fraser agreed to the imputed annual income of $40,000. The application was adjourned to June 20, 2001 for a case conference.

11Mr. Fraser did not participate in the application after May 30, 2001. He did not attend at the case conference held on June 20, 2001 at which time the application was adjourned to July 4, 2001 for an uncontested trial to proceed on affidavit evidence.

12Mr. Fraser did not attend at the uncontested trial on July 4, 2001 at which time a final child support order was made on the same terms as the interim order, a net payment of $529 per month to be paid by Mr. Fraser for the three children in Ms. Fraser’s care based on an imputed annual income of $40,000.

13Ms. Fraser has been in receipt of Ontario Disability Support Program benefits for health-related issues since prior to the separation in 2000. She assigned the child support order dated July 4, 2001 to the Ministry on August 1, 2001 and agrees that any arrears are owed to the Ministry.

14The Family Responsibility Office has recorded the child support owing pursuant to the order and the support payments made by Mr. Fraser since October 1, 2001. The FRO agreed to stop enforcement of ongoing child support in February 2010. Mr. Fraser does not dispute the support payments recorded as made by him totaling $24,787.50 in the Director’s Statement of Arrears.

15According to the Director’s Statement of Arrears dated November 18, 2010, the outstanding arrears are $29,570.50. The FRO calculations have recorded the support due at the rate of $529 per month from August 1, 2001 to February 2010.

16According to Mr. Fraser’s calculations, the support arrears owing are nominal. Mr. Fraser’s calculations are based on his actual total annual income over the years as shown on his notices of assessment with child support terminating for the children on their 18th birthdays.

17According to the Ministry’s calculations, the support arrears are $42,825. The Ministry’s calculations record child support due from August 1, 2001 to January 1, 2009 based on an imputed annual income of $40,000 in varying monthly amounts based on the children moving in and out of Ms. Fraser’s residence from time to time.

18Mr. Fraser commenced this motion to change on December 8, 2010. The order dated July 4, 2001 has never been varied.

19Mr. Fraser bases his claim for a retroactive reduction in the child support and a reduction or rescission of child support arrears on his never having earned as much as $40,000 income annually.

Discussion

Change in Circumstances

20The starting point for any motion to change a child support order under section 37(2.1) of the Family Law Act, R.S.O. 1990, c. F.3, is that the party seeking the change must establish a change in circumstances within the meaning of the Child Support Guidelines, O. Reg. 391/97 [as amended] since the order was made. Section 37(2.2) of the Family Law Act says that a court making an order under s. 37(2.1) shall do so in accordance with the child support guidelines.

21Section 14.1 of the Child Support Guidelines sets out what constitutes a change in circumstances for purposes of varying a child support order made in accordance with the table and reads:

For the purposes of subsection 37(2.2) of the Act and subsection 17(4) of the Divorce Act (Canada), any one of the following constitutes a change in circumstances that gives rise to the making of a variation order:

1. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

22If the court is satisfied that there has been a change in circumstances within the meaning of the Guidelines since the order was made, the court’s authority under s. 37(2.1) of the Family Law Act to change a child support order and adjust arrears is broad. Section 37(2.1) of the Family Law Act reads:

37(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

23Mr. Fraser bases his claim for a retroactive reduction in the child support and a reduction or rescission of child support arrears on his never having earned as much as $40,000 income annually.

24Albeit acting in person with the assistance of duty counsel, Mr. Fraser consented to an interim order based on imputed annual income of $40,000 and then failed to defend the application and participate in the court proceedings. Mr. Fraser says that he thought that everything was dealt with at the first court appearance. He says that he has never earned as much as $40,000 annually and that he does not know what “imputed” means.

25To determine whether there has been a change in Mr. Fraser’s income since the July 4, 2001 order I must determine what his actual income has been since that time and whether income should be imputed to him since the order was made.

26Section 19(1)(a) of the Guidelines allows the court to impute income to a parent as it considers appropriate in the circumstances if the parent 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 parent. A parent is intentionally under employed within the meaning of s. 19(1)(a) of the Guidelines if he earns less than he is capable of earning having regard to all of the circumstances. In determining whether to impute income the court should consider the age, education, experience, skills and health of the parent, the parent’s past earning history and the amount of income the parent could earn if he worked to capacity: see Drygala v. Pauli, 2002 41868 (ON CA), 2002 CarswellOnt 3228 (C.A.).

27Mr. Fraser’s total income as shown on his notices of assessment from 2000 to 2010 is as follows:

2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010

$20,829 $15,233 $6,229

-$5,151 $7,526

$34,381 $37,466

$36,350

$35,212 $35,338

$37,272

28Mr. Fraser produced his notices of assessment from 2000 to 2010. He did not produce any of his income tax returns including for the years from 2000 to 2004 when he was self employed. Nor did he produce any evidence of his business expense deductions for the years from 2000 to 2004. For 2001 he produced only his post-bankruptcy notice of assessment, not his pre-bankruptcy notice of assessment. He did not produce any of the documentation from his bankruptcy. He says he lost the back-up documentation for his income tax returns in a flood in his basement. He did not contact his trustee in bankruptcy or the accountant who prepared his income tax returns to obtain any documentation.

29Mr. Fraser’s notices of assessment from 2000 to 2007 are all dated in 2008. He did not file his income tax returns for the period from 2000 to 2007 until 2008. Prior to the separation in 2000 Ms. Fraser had maintained Mr. Fraser’s financial records and ensured that he filed his income tax returns each year.

30Mr. Fraser maintains that his income during the self employment years from 2000 to 2004 is as shown on his notices of assessment. He says that between 2001 and 2005 he was in difficult financial circumstances and was unable to find or retain employment. He lost his home based business when the matrimonial home was sold at the end of May 2001. His shop was in the home and he no longer had his shop. He claimed bankruptcy in 2001 and struggled to get by. Emily stopped living with him and moved in with Ms. Fraser within a year of the separation. Mr. Fraser says he did not handle the separation well and that he lost customers and that his business did not do well. At times Mr. Fraser lived in his car and in his brother’s basement.

31Mr. Fraser’s income was $20,829 in the year of separation and $15,233 in the post-bankruptcy period in 2001. I conclude that Mr. Fraser faced some difficulties and disruptions following the separation in 2000. I accept that Mr. Fraser’s total annual income in 2001 was $15,233 as shown on his 2001 notice of assessment.

32Mr. Fraser’s notices of assessment from 2002 to 2004 show significantly less income than he earned in 2000 and 2001. Mr. Fraser did not provide proof of any job search between 2002 and 2005. Mr. Fraser was entitled to a reasonable period of time following the separation to carry on and succeed in his business or to obtain employment in his area of expertise. Having regard to his child support obligations, I conclude that a period of approximately one and one-half years from the separation, until December 31, 2001, was a reasonable period of time for Mr. Fraser to overcome any dislocating effects from the separation and to resolve his business issues or to find employment as he eventually did in 2005.

33I do not accept that Mr. Fraser was incapable of earning more income in 2002, 2003 and 2004 than he did. He was an able bodied man in his mid thirties with home repair, refinishing and woodworking skills and experience. I find that his efforts to earn income from 2002 to 2004 were minimal and that he failed to take appropriate steps to secure a reasonable income in those years. I find that he was capable of earning more income between 2002 and 2004 either by better organizing and running his business or by finding employment as he eventually did in 2005. His ongoing delay in finding employment was unreasonable in light of his child support obligations.

34I conclude that Mr. Fraser was under-employed from 2002 to 2004 within the meaning of s. 19(1)(a) of the Guidelines. I find that in 2002, 2003 and 2004 Mr. Fraser was capable of earning and I impute to him annual income in the amount of $20,829, the same annual income that he earned in 2000 in the year of separation.

35In 2004 Mr. Fraser met his common law wife and felt he was starting to regain control of his life. In February 2005 Mr. Fraser obtained employment in London with Archibald Leyten Ltd. as a commercial cabinet builder. He completed his GED (high school equivalency) in 2007. Mr. Fraser continued his employment with Archibald Leyten Ltd. until he was terminated in April 2011 when the owners retired and the company closed its doors.

36I accept that Mr. Fraser’s annual income from 2005 to 2010 is as shown on his notices of assessment for those years when he was employed at Archibald Leyten Ltd.

37I find that Mr. Fraser has never earned as much as $40,000 annually. Based on a reasonable assessment of the circumstances, the reduction in Mr. Fraser’s income from the $40,000 originally imputed to him is a change in circumstances under the Family Law Act warranting a reduction in the monthly amount of child support or the accumulated arrears of child support. I find that Mr. Fraser has met the threshold test of establishing a change in circumstances since the order dated July 4, 2001 was made.

Calculation of Arrears

38Having determined that Mr. Fraser has established a change in circumstances since the order dated July 4, 2001 was made, it remains to be determined whether the child support order should be changed retroactively, or whether the arrears which have accumulated under the order should be reduced based on a retroactive downward change to the child support payable.

39Once a party meets the threshold of establishing a change in circumstances, the decision whether to reduce or rescind arrears is discretionary and involves consideration of a variety of factors. Some of the factors that a court may consider are set out in DiFrancesco v. Couto, 2001 8613 (ON CA), 2001 CarswellOnt 3858 (C.A.), at para. 23.

40All of the arrears are child support arrears. Clearly there was a need for child support by Ms. Fraser and the children and an ability by Mr. Fraser to pay child support based on his income as I have determined. There was no delay by Ms. Fraser in filing the child support order with the FRO for enforcement.

41There was delay on Mr. Fraser’s part in bringing this motion to change. He took no steps to change the order which he disagreed with when he received it in 2001. He took no steps to change the order when his driver’s license was suspended in 2005 for non-payment of child support. It wasn’t until 2009 that Mr. Fraser took steps to change the order. He says that he did not understand until 2010 that he had to apply to court to have the matter resolved.

42I note that in 2009 and 2010 when Mr. Fraser earned annual income of $35,338 and $37,272 he paid little in the way of child support to make up for the years when he did not pay enough or any child support at all.

43As a result of my findings with respect to Mr. Fraser’s annual income the arrears that have accumulated under the order dated July 4, 2001 do not realistically reflect Mr. Fraser’s ability to pay child support since the order was made. I find that while the arrears were accumulating Mr. Fraser was unable to pay child support based on an imputed annual income of $40,000 and that it would be unreasonable to require Mr. Fraser to pay arrears of support based on that imputed income. This is not a case where Mr. Fraser had the ability to pay all of the child support ordered while arrears accrued. In this case, a portion of the arrears accumulated due to a change in Mr. Fraser’s circumstances that affected his ability to make the child support payments as they came due.

44A recalculation of the outstanding child support requires a determination of when Mr. Fraser’s obligation to pay child support for the children ended. I find that Mr. Fraser’s obligation to pay child support for the children under the order ended on the following dates:

a) Emily turned age 18 on August 22, 2004 and completed high school in January 2005. Emily was in and out of her mother’s home and was not living with her mother when she completed high school. Mr. Fraser’s obligation to pay child support for Emily ended on January 31, 2005 by which time she was age 18, was not enrolled in a full time program of education and was no longer living with Ms. Fraser;

b) Scott turned age 18 on November 2, 2005 and was no longer in school when he turned 18. Mr. Fraser’s obligation to pay child support for Scott ended on November 2, 2005 when he turned age 18 and was not enrolled in a full time program of education;

c) Erin turned age 18 on October 31, 2007 and was no longer in school when she turned 18. Mr. Fraser’s obligation to pay child support for Erin ended on October 31, 2007 when she turned age 18 and was not enrolled in a full time program of education; and

d) Dean turned age 18 on January 30, 2009. Dean was in and out of school and in and out of his mother’s home. He was in jail from time to time. He was no longer in school when he turned 18 and moved to live with his girlfriend. Mr. Fraser’s obligation to pay child support for Dean ended on January 30, 2009 when he turned age 18 and was not enrolled in a full time program of education.

45I have recalculated the child support arrears in accordance with my findings which recalculation results in child support payments and outstanding child support arrears of $19,573.50 as follows:

Year

2001
2002
2003
2004
2005
2006
2007
2008
2009
2010

Mr. Fraser’s

Income

$15,233

$20,829

$20,829

$20,829

$34,381

$37,466

$36,350

$35,212

$35,338

$37,272

of Eligible

Children

3

4

4

4

4

3

2

2

2

2

1

1

1

Table Amount of Support / Month

$301 x 6 = $1,806

$493 x 12 = $5,916

$493 x 12 = $5,916

$493 x 12 = $5,916

$768 x 1 = $768

$656 x 10 = $6,560

$498 x 1 = $498

$537 x 4 = $2,148

$560 x 8 = $4,480

$543 x 10 = $5,430

$336 x 2 = $672

$327 x 12 = $3,924

$327 x 1 = $327

Support Paid

per FRO Records

$2,187.00

$929.00

$921.50

0.00

$3,300.00

$5,925.00

$5,950.00

$3,600.00

$1,425.00

$550.00

Overpayment / Arrears

381

-$4,987

-$4,994.50

-$5,916

-$4,526

-$703

-$152

-$324

$1,098

$550

Totals:

$44,361

$24,787.50

-$19,573.50

46On considering all of the relevant factors and in looking at the total picture, I find that it is appropriate to cancel the arrears of support in excess of the child support I have calculated.

47For these reasons, I find that Mr. Fraser is entitled to a retroactive reduction in the amount of the child support arrears in accordance with my findings and order that the child support arrears are reduced and fixed in the amount of $19,573.50.

Payment of Arrears

48Mr. Fraser has not found employment since he lost his job at Archibald Leyten Ltd. in February 2011. He says there are no jobs in Ingersoll where he lives with his common law wife and their 5 year old daughter. He has not had a driver’s license since early 2005 when it was suspended through the FRO for non-payment of child support. He says not having a driver’s license hampers his ability to get to and from work and disqualifies him from jobs that require a driver’s license. Mr. Fraser says he has applied for jobs but did not provide proof of any job search.

49Mr. Fraser’s 2011 income was approximately $25,501.92, $14,272.92 of employment income and $11,229 of employment insurance benefits. Mr. Fraser’s employment insurance benefits ended in February 2012.

50Mr. Fraser is presently being supported by his common law wife of eight years who works as a personal support worker in a nursing home. Mr. Fraser is now age 44.

51There is no evidence to suggest that Mr. Fraser is unable to pay off the arrears of child support or will not ever, in the future, be able to pay the arrears. Mr. Fraser has the ability to work and to pay arrears. He is able bodied with home repair, refinishing and woodworking skills and experience. He has his GED. He is now age 44 and has plenty of working years ahead of him. He needs to obtain employment and pay the child support arrears off as quickly as he can.

52There is no reason why Mr. Fraser cannot pay the arrears at the rate of $150 per month at this time. Until the arrears are paid in full Mr. Fraser shall provide ongoing financial disclosure to the Ministry.

Conclusion

53For these reasons, a final order shall issue:

a) The arrears of child support owing by the respondent pursuant to the order of Wood J. dated July 4, 2001 are reduced and fixed in the amount of $19,573.50.

b) The arrears of child support of $19,573.50 shall be paid by the respondent at the rate of $150 per month commencing on April 1, 2013.

c) Until the arrears are paid in full the respondent shall within 30 days of obtaining employment advise the Ministry of Community and Social Services of any changes in his employment, income and contact information and provide copies of his most recent pay statements showing year to date income or other proof of year to date income.

d) Until the arrears are paid in full the respondent shall by June 30 in each year commencing in 2013 provide a complete copy of his prior year’s income tax return and notice of assessment to the Ministry of Community and Social Services.

e) Paragraph c) does not prevent the Ministry of Community and Social Services from seeking a higher monthly payment towards the arrears if warranted.

54I encourage the parties to agree on costs. If they are unable to do so, I will receive brief written submissions from the respondent within 15 days and from the assignee within 30 days.