ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-0057
DATE: 2014-03-25
B E T W E E N:
Thomas David Gray,
Shannon Burkinshaw appearing as duty counsel for Thomas David Gray
Applicant
- and -
Lee Anne Marie Gray,
Unrepresented
Respondent
HEARD: March 10, 2014,
at Thunder Bay, Ontario
J. dep. Wright, J.
Reasons For Judgment
[1] This matter comes before me on a reference from Mdm. Justice HM Pierce.
[2] The applicant is the father of two children, Toni Lynn gray born November 22, 1986 and Jesse William gray born April 5, 1988.
[3] At a relatively young age the father became disabled with chronic pulmonary disease. His only means of subsistence was a Canada Pension Plan Disability Benefit amounting to approximately $14,000 per year. Based on this income he has been paying the mother the sum of $211 per month for the support of these two children under an order dated 2 February 1999.
[4] Like the sorcerer’s apprentice, once the flow began he has found it impossible to stop it.
[5] On 10 February 2014 Madam Justice Pierce made an order terminating child support subject to confirmation by the Manitoba Queen's Bench and directed a reference to determine whether the mother should be ordered to reimburse the father for over payment of support.
[6] On the evidence before me it appears that by November 2006 both children had ceased to be eligible for support. The father asked the mother to consent to a termination of the order but she did not do so although as of April 1, 2013 she opted out of the Manitoba child support enforcement program.
[7] The father appeared before me with some difficulty. With income of little more than $1000 a month his financial resources are limited. He resides in the isolated community of Manitouwadge which is some 4 1/2 hours drive from Thunder Bay. Although he was able to ask that a legal aid duty counsel attend in court he has been essentially without legal representation other than that rendered to him pro bono.
[8] The mother is apparently gainfully employed with the Boeing Aircraft Company in Winnipeg but notwithstanding this she has been content to continue to receive a substantial portion of this man's income over the years.
[9] The law of child support has evolved to the point where it is presumed that a parent knows when he or she is obligated to support his children and the amount of that support.. Thus it is incumbent upon the parent who has knowledge of the facts to act upon that knowledge. The usual case involves a father whose income has increased since the date of the order. A mother is entitled to have the amount of the support increased retroactively based upon the actual facts when she learns of the truth of the situation.
[10] It would appear that "what is sauce for the goose is also sauce for the gander." A mother who is aware that her children no longer qualify for support should act upon that knowledge. There appears to be no reason in this case why the effective date of termination for both children should not be November 22, 2006, a date when the boy had been out of school for some time and the daughter had ended her post-secondary education.
[11] At $211 per month the father has overpaid $2532 a year. I understand that the mother's withdrawal from the enforcement program in April 2013 effectively terminated payment of support by the father and that any overpayment after that date will be reimbursed by that plan.
[12] November 2006 to April 2013 encompasses 76 months. This amounts to $16,036 of unwarranted payments.
[13] There appears to be no reason why the mother should not be ordered to repay this overpayment.
[14] An order provisional upon confirmation by the appropriate court in Manitoba will go:
Terminating child support for both children with the payment made for October 2006.
Declaring that the father has made an overpayment between November 2006 and April of 2013 of $16,036.
Directing the Family Responsibility Office to amend its records to show that as of 1 April 2013 the father had a credit of $16,036.
Directing the Family Responsibility Office to recover that overpayment on behalf of the father from the mother, Lee Anne Marie Gray who is employed at the Boeing Aircraft Company in Manitoba and who lives at 705 Muriel St., Winnipeg Manitoba R2Y 0Y1 phone number 204 – 885 – 1705
The Hon. Mr. Justice J. deP. Wright
Released: March 25, 2014
COURT FILE NO.: FS-13-0057
DATE: 2014-03-__
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Thomas David Gray,
Applicant
- and -
Lee Anne Marie Gray,
Respondent
REASONS FOR JUDGMENT
J. deP. Wright J.
Released: March 25, 2014
/mls