COURT FILE NO.: FC-03-2904-4
DATE: 2014/01/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Laura Lea McPherson, Applicant
AND
Morgan McPherson-Hull, Respondent
BEFORE: Justice M. Z. Charbonneau
COUNSEL: Rodney B. Cross for the Applicant
Jennifer M. (Wood) Reynolds for the Respondent
HEARD: December 17, 2013
ENDORSEMENT
[1] The respondent Morgan McPherson-Hull brings a motion to vary the child support order made by Justice Beaudoin on January 13, 2011. The motion was initiated in December 2012 and sought a change of the monthly support retroactive to January 1st, 2012. He seeks a refund for the overpayment of child support and asks that it be applied to arrears found to be due.
[2] The respondent submits the variations are necessary as a result of the following two changes in circumstances:
a) He has retired on July 1st, 2012 and
b) The parties’ eldest son Conor has turned 18 on November 8, 2012 and is not pursuing post-secondary education.
[3] In her response the applicant Laura Lea McPherson strongly opposes the respondent’s motion. She also made a claim for the following relief:
i) An increase of child support for the year 2011 in view of the respondent’s income being $91,226 instead of $88,000 on which the support order was based.
ii) A stay of the motion until the respondent has fully complied with the order of January 13, 2011.
iii) The payment of $4,778 in special expenses owed to her by the respondent.
THE FACTS
[4] The parties were married on August 26, 1996, separated on July 1st, 2003 and were divorced on January 16, 2012. They have 3 children: Conor 19, Liam 17 and Landon 15.
[5] The parties entered into a separation agreement in 2004. The agreement provided that the respondent would pay child support and special expenses.
[6] His gross annual income in 2010 was $88,574 and $91,226 in 2011. In 2012, he states that he earned a total of $68,187.75.
[7] Sometime in late 2010, the respondent brought a motion to reduce his child support obligations. Issues relating to arrears of child support, arrears of section 7 expenses and ongoing section 7 expenses also were brought forward at that time by the applicant. At a settlement conference, the parties agreed to settle all the issues and as a result the consent order of Justice Beaudoin came into effect. It provides as follows:
a) Payment of child support was set at the amount of $1652 per month starting January 1st, 2011.
b) Child support arrears were fixed at $6,600 and were to be repaid at $248 per month effective February 1st, 2011.
c) The parties were to submit their affidavits in support of their respective portions regarding arrears of section 7 expenses and ongoing section 7 expenses.
[9] On November 8, 2012 Conor, the eldest child, turned 18. He worked at different jobs in 2013. He has recently applied for admission to Algonquin College in the Paramedic program.
[10] The respondent retired from teaching on July 1st, 2012. He is 59 years old and was entitled to full retirement having attained the required 85 factor. He has filed medical notes from his doctor and a psychiatrist indicating that he has been on and off work for stress and depression in the last year and a half.
[12] On February 14, 2013, Master MacLeod made a disclosure order. On September 9, 2013 the applicant brought a motion to strike the respondent’s pleading for failure to abide by the disclosure order. The motion resulted in a consent order which included an order that the respondent pay costs of $1500 on or before December 31, 2013.
[13] There is some contradictory evidence as to exactly what amount is left to be paid on the arrears of $6,600 fixed in the order of Justice Beaudoin. The calculation of same is best left to FRO.
ISSUES
Has there been a change in the circumstances of the parties since the order of January 13, 2011.
If a variation is ordered as of what date should it take effect?
What is the income of the respondent on which should be based on the new quantum of support?
Should support be ordered for Conor?
Should special expenses be ordered?
ANALYSIS
[14] I am satisfied that there has been a change of circumstances as a result of the father’s retirement. The issue of whether the respondent’s decision to retire was reasonable should be dealt when deciding the issue of whether any income should be imputed to him. The fact is that his salary has substantially decreased in 2013. This is a real change in circumstances.
[15] The change in circumstances warrants a variation effective January 1st, 2013. This is in accordance with the fact that 2013 is the first full year when the respondent’s only income comes from his retirement pension plan and that the motion was initiated in December 2012.
[16] The husband’s retirement income is $44,893.56. The applicant asks the court to impute a higher income to the respondent on the following basis:
The applicant alleges the respondent’s decision to retirement was made entirely to avoid his support obligations.
The medical evidence supporting his claim is insufficient. The respondent talked about retiring before but only in January 2013 did he file new medical evidence in support of his claim.
The court should require the respondent to provide better medical evidence together with a full work capacity assessment. As such, the motion is premature and should be dismissed.
It is a strange coincidence that the medical evidence is provided at the same time as he has reached a factor 85 entitling him to retirement.
Throughout the years, the applicant has had the full burden of the care of the children because the respondent barely sees the children.
[17] On the one hand, the respondent was certainly entitled to retire. On the other hand, he knew he had a responsibility to continue supporting his children. The medical evidence he has provided falls way short of establishing on a balance of probabilities that he had to retire for medical reasons. On this evidence, I can only find that he voluntarily retired. He cannot use that personal decision to avoid providing reasonable support to his children.
[18] The respondent is still young and he is a well-educated man and there is no evidence that he could not be in position to supplement his retirement if he took reasonable steps to do so. I find the respondent has an earning capacity well beyond his retirement pension allowance. I therefore impute a gross annual income of $68,000 to the respondent as of January lst, 2013.
[19] It is very frequent that there is a transition period between the end of high school and post-secondary education when a child is not attending school. In such circumstances the custodial parent continues to financially support the child. The reasonable period should not exceed one year in normal circumstances. There is evidence Conor will attend college in 2014. Unfortunately there is no clear indication that his application into the paramedic course has been accepted. Therefore support will terminate for Conor as of January 1st, 2014 unless the applicant provides clear proof of Conor’s attendance at school as of February 2014.
[20] For some unknown reason, the applicant did not pursue her special expenses claim as she was allowed to do by virtue of the order of January 13, 2011. She has now re-initiated her claim for special expenses for 2005 to May 2011 for a total claim of $4,772.28. However, once again there is little if any evidence in support of this claim. All she has provided is a typed list of items and amounts paid through the years. That list is not supported by any affidavit or other evidence. As a result I am not prepared to allow the applicant’s claim for special and/or extraordinary expenses.
[21] There is no reason however, why the respondent should not be liable for his proportionate share of such expenses as of January 1st, 2013 on presentation of receipts or other proof of payment.
[22] For all these reasons I order accordingly as follows:
- The order of Beaudoin, J. is varied effective January 1st, 2013 as follows:
a) Child support is fixed at $1,010.00 based on the respondent’s imputed annual income of $68,000.
b) The child support will be reduced to $621 effective January lst, 2014, unless the applicant provides proof that Conor is in full attendance in school no later than February lst, 2014.
c) The Director of FRO will provide each party a revision of the statement of moneys owed or moneys overpaid as a result of this variation.
d) The respondent shall pay, within 30 days of receiving from the applicant proof of payment of extraordinary or special expenses, his proportional share of such expenses. The respondent’s proportion shall be 65% for 2013. That share will be adjusted for future years in accordance with the parties’ annual income.
e) Each year, no later than June lst, the parties shall provide to each other a copy of their income tax return and notice of assessment.
[23] If they cannot agree on costs, counsel may provide me with brief written submissions as follows: respondent to provide his submissions within 20 days and applicant to respond within 15 days thereafter.
Charbonneau, J.
Date: January 9, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Laura Lea McPherson, Applicant
AND
Morgan McPherson-Hull, Respondent
BEFORE: The Honourable Justice M. Z. Charbonneau
COUNSEL: Rodney B. Cross for the Applicant
Jennifer M. (Wood) Reynolds for the Respondent
ENDORSEMENT
Charbonneau, J.
Released: January 9, 2014