ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-1169-01(3)
DATE: 2014/02/27
BETWEEN:
MICHAEL JAMES CRABBE
Applicant
– and –
JANE CRABBE
Respondent
Melanie A. Larock, for the Applicant
Respondent in person
HEARD: February 18, 2014
Justice C. Lafreniere
Introduction
[1] This is the Applicant’s motion to change (“MTC”) the final order of Justice Hambly, dated October 22, 2007 (“the final order”). The Applicant seeks to change the child support provision in the order. The Respondent filed a Response to Motion to Change.
[2] The Respondent did not attend court on the hearing date of the MTC. The matter was scheduled for three days. The Respondent was paged several times between 10:00 a.m. and 11:00 a.m. I am satisfied that the Respondent was aware of the hearing date. The trial coordinator telephoned the Respondent on Friday February 14, 2014.
[3] There is an endorsement in the file dated February 3, 2014. This matter was to be spoken to on that date in assignment court. Justice Glithero endorsed that the Respondent attended on that date and advised that “she will not be appearing for a trial regardless of when it is”.
[4] I am advised by the trial coordinator that the Respondent stated she would not be attending, when telephoned on February 14, 2014.
[5] For ease of reference I will identify the Applicant as the father and the Respondent as the mother.
Background Facts
[6] I find the background facts are as follows:
a. The father was born on December 2, 1962;
b. The mother was born on April 4, 1967;
c. The parties were married on June 8, 1991;
d. The parties were divorced on September 16, 2002;
e. There are two children of the marriage: Spencer Michael Crabbe, born January 24, 1996, and, Simon Andrew Crabbe, born July 12, 1998;
f. The children reside primarily with their mother; and,
g. The monthly child support of $900.00 in the final order is based on the father’s income of $59,988.00.
Material before the Court
[7] At the hearing, counsel for the father filed his affidavits sworn April 12, 2013 and August 28, 2013 as his evidence in chief. The father gave oral evidence to provide information with respect to his current circumstances.
[8] The father filed Financial Statements sworn April 12, 2013, August 28, 2013, and January 27, 2014. As well, the father filed updating affidavits sworn June 25, 2013 and January 3, 2014, with respect to his financial statements.
[9] The mother filed a Response to Motion to Change (Form 15B) and a Financial Statement. She represented herself. She did not file any further material. In her Response, the mother asked that the child support be changed to $550.00, based on the father’s annual income of $30,000.00, with payments to start on July 1, 2013.
[10] The mother completed paragraph 15 of Form 15B indicating that the parties had agreed to an amount of child support that is different than the amount proscribed by the Federal Child Support Guidelines (“FCSG”). She further indicated she had attached a sheet explaining why this different amount is appropriate.
[11] At paragraph 16, the mother indicated she sought an order that the outstanding child support be fixed in the sum of $550.00 as of July 1, 2013 and paid in monthly instalments of $550.00 beginning on July 1, 2013 until paid in full.
[12] Finally, she checked the last box in paragraph 16 in which child support owed to an agency or other person is to be set out. In that section, the mother indicated she sought an order that child support was owed to her fixed in the sum of $3,650.00 as of July 1, 2013 and be paid in monthly instalments of $50.00 beginning on July 1, 2013, until paid in full.
[13] In the attached page referenced in paragraph 16, the mother stated that the father was in arrears of $3,610.00 as of May 28, 2013. She stated further,
The payor has grossly underpaid child support in 2007, 2008, 2009 and now as well in 2010 and 2012. The first 3 years have total $15,012.00 and have a figure attached. (sic)
[14] The mother continued that she is asking for $500.00 monthly for the children plus $50.00 to go towards arrears for a total of $550.00. It is not clear whether the arrears to which she refers are the $3,610.00 or the $15,012.00.
[15] On the second attached page the mother sets out this calculation:
Year 2007 received $900.00 x 12 months = $10,800.00
Should have been $1151.00 x 12 months = $ 13,812.00
DIFFERENCE OF $3,012.00 underpaid child support
Year 2008 received $900.00 x 12 = $10,800.00
Should have been $1281.00 x 12 months = $15,372.00
DIFFERENCE OF $4,572.00 underpaid child support
Year 2009 should have been $1519.00 x 12 months = $18,228.00
DIFFERENCE OF $7428.00
TOTAL UNDERPAID CHILD SUPPORT OWING IS $ 15,012.00.
[16] On September 19, 2013, Justice Arrell made an order in this matter. He reduced the child support to $438.00 on a temporary basis based on the father’s 2013 disability income of $30,000.00 per year. He also ordered at paragraph 3 of that order:
This Order is without prejudice to the Respondent bringing any motion she wishes for calculation and payment of child support based on the Applicant’s income for years prior to 2013.
[17] The mother did not file a cross-motion to change child support based on the father’s incomes for years prior to 2013 after Justice Arrell’s order. The only material before the court from the mother is her responding material to the father’s MTC and her financial statement sworn July 8, 2013.
[18] I have reviewed the mother’s material in detail because child support is the right of the children and they should not be penalized because the mother chose not to attend the hearing.
[19] I am satisfied there is no cross-motion before the court from the mother seeking to increase the child support retroactively for any year prior to 2013. The mother was in attendance before Justice Arrell. It is clear his order provided the opportunity to her to bring a cross-motion to seek adjustment to the child support for the years prior to 2013.
Father’s position
[20] The father’s MTC seeks to change the child support to $438.00 based on annual income of $30,000.00 with the lower payments to begin June 1, 2013. He also seeks an order suspending enforcement of any arrears and that any overpayment of child support be credited against his future obligation to pay child support, if any.
[21] In his MTC material, the father states his income in 2013 will be $30,000.00; was $71,211.00 in 2012 and was $27,679.00 in 2011.
[22] The father sets out the history of the litigation between the parties from their separation until the current MTC, in his affidavit sworn April 12, 2013, at paragraphs 5 through 13. I accept his evidence.
[23] The father submits his income has been drastically reduced because his significant health issues have resulted in him receiving short term disability and currently long term disability. The father sets out his medical and employment history in his affidavit sworn April 12, 2013 at paragraphs 14 through 29. The father’s affidavit is supported by clinical notes and records of Dr. Paul Mathew, his Orthopaedic Surgeon, and, Dr. Mary Beth Vallieres, his General Practioner. The father also provided the lay-off letter from his employer and confirmation of his short term and long term disability payments from Manulife Financial.
[24] I accept the father’s evidence with respect to his health; employment status and receipt of disability payments.
[25] The father’s current income is $800.00 per month or $9,600.00 annually made up only of long term disability benefits.
[26] As noted above, the father filed three financial statements. His financial situation has deteriorated with each financial statement. His debt load has increased from about $30,000.00 in April 2013 to about $60,000.00 in January 2014.
[27] The father has had a material change in his circumstances, I find. He was earning nearly $60,000.00 annually at the date of the final order. Currently, his income of $9,600.00 is below the threshold set by the FCSG. His short term disability of $30,000.00 ended in December 2013 and his long term disability of $9,600.00 began.
[28] The father filed a statement of arrears from the Family Responsibility Office (“FRO”). As of February 12, 2014 the arrears were $449.98. The father testified he accepts the FRO statement as an accurate reflection of what he has paid.
[29] I accept the FRO statement as an accurate record of what has been paid by the father.
[30] I find the father’s income during the relevant period is as follows:
a. 2011 $27,680.00
b. 2012 $71,211.00
c. 2013 $30,000.00
d. 2014 $ 9,600.00
[31] The father filed a Brief of Child Support Calculations. The father relies on s. 17 of the FCSG and submits the court should average his income for the 2012, 2013, and 2014 years to determine his income for support purposes rather than rely on s. 16 of the FCSG.
[32] The objectives of the FCSG are set out at s. 1 and include the objective to establish a fair standard of child support for children and the objective to ensure consistent treatment of spouses and children who are in similar circumstances.
[33] S. 16 of the FCSG provides that a spouse’s annual income is determined by reference to his or her Income Tax Return (“ITR”) subject to s. 17 through 20. The court is to look to the considerations set out at these sections, when it considers determining income pursuant to s. 16 would be unfair.
[34] The father submitted two calculations of child support. In the first scenario the average income of $36,937.00 is used to calculate what the father should have paid in 2012 and 2013. This calculation results in an overpayment of $5,256.02.
[35] In the second scenario, the child support obligation for 2012 and 2013 is calculated using the father’s actual income and this calculation results in an underpayment of $995.98.
[36] The father submits that the first scenario is the appropriate calculation because of the fluctuation in income and his lack of assets to satisfy any arrears.
[37] The father also points out that his income in 2011 was $27,680.00 yet he paid the child support set out in the order based on nearly $60,000.00 annual income. The father submits he overpaid child support for the 2011 year by $5,940.00. The father is not seeking any adjustment for 2011.
[38] I accept the father’s evidence that his current income is $9,600.00. At that level of income no child support is payable.
[39] I do not agree that it is appropriate to average the father’s income for 2012, 2013 and 2014. If I am using the average of $36,937.00 for that three year period, the father would have to pay $533.00 monthly for each month of 2014. Such a result would not be appropriate, I find.
[40] The father has submitted that the three year average be used to determine the child support for 2012 and 2013 only and that no support be paid for 2014 when the father’s income was reduced from $30,000.00 to $9,600.00.
[41] I find it is appropriate to determine the child support by using the father’s line 150 income in the 2012 and 2013 years. There is no reason to average the father’s incomes during the prior years. Averaging may be appropriate when dealing with self-employed payors whose incomes fluctuate significantly year to year. The father, in this case, is not expecting any further fluctuations in his income.
[42] The court should only consider past income when the income amount determined under s. 16 would be unfair and to consider a parent’s pattern of income or fluctuations in income resulting from the receipt of non-recurring amounts when determining the income amount for child support purposes.
[43] The onus is on the payor to establish why the court should look to s. 17 to calculate his or her income for child support purposes rather than to s. 16.
[44] I find it is appropriate to calculate the father’s income based on his ITR as provided in s.16.
[45] I accept the calculation in scenario 2 and find that the father should have paid support in 2012 based on income of $71,211.00 in the total amount of $12,648.00 and for 2013 he should have paid $5,256.00 based on income of $30,000.00. The father paid a total of $16,908.02 and the result is an underpayment of $995.98.
[46] Given the father’s current financial circumstances, I will allow him to pay the arrears of $995.98 at the rate of $50.00 per month until paid in full (about 20 months).
[47] The father is presumptively entitled to costs as he is the successful party on this MTC. I will allow the parties to make submissions in writing with respect to costs. The father’s counsel filed a Bill of Costs setting out a full indemnity amount of nearly $49,176.00 inclusive of disbursements and H.S.T. Counsel advised the father would seek only 10% of that amount or $5,000.00. The mother should be given an opportunity to respond to the costs claim.
[48] Therefore my order is as follows:
The Final Order of Hambly, J. dated October 22, 2007 is changed to provide that the Applicant’s obligation to pay child support is reduced to zero based on his current annual income of $9,600.00, effective January 1, 2014.
Child support arrears as of December 31, 2013 are fixed in the sum of $995.98 and payable in monthly instalments of $50.00 commencing March 1, 2014 until paid in full.
Commencing June 30, 2014 and on or before June 30th of each subsequent year in which the children remain dependents pursuant to the Divorce Act the Applicant will provide to the Respondent complete copies of his Income Tax Returns, Notices of Assessment and Re-Assessment and all supporting documentation.
If the Respondent seeks a sharing of s. 7 expenses, she will produce to the Applicant the disclosure set out in paragraph 3 above for the calendar year in which the expense was incurred.
A Support Deduction Order will issue in the usual form.
If the parties cannot resolve the issue of costs of this motion to change, they may make submissions in writing as follows:
a. The Applicant by March 7, 2014;
b. The Respondent by March 21, 2014;
c. Any reply by the Applicant by March 28, 2014.
- The costs submissions will include any Offers of Settlement.
JUSTICE C. LAFRENIERE
Released: February 27, 2014
COURT FILE NO.: FS-1169-0002
DATE: 2014/02/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL JAMES CRABBE
Applicant
- and -
JANE CRABBE
Respondent
REASONS FOR JUDGMENT
JUSTICE C. LAFRENIERE
Released: February 27, 2014