SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: FS-03-48499-0002
DATE: 2014-04-28
RE: Gordon James Deane v. Tara Lee Deane
BEFORE: Van Melle J
COUNSEL: James Kay, for the Applicant
Respondent in person
HEARD: April 28, 2014
E N D O R S E M E N T
[1] Gordon Deane brings this Motion to Change the Final Order of Justice Herold dated December 1, 2006. That Order was made on consent and provided, among other things, that Mr. Deane was to pay child support to Ms. Deane in the monthly amount of $1,100.00 commencing September 1, 2006 for Katherine born January 11, 1998 and for Matthew born April 29, 2003 based on an imputed income of $67,000.00. The $1,100.00 included Mr. Deane’s contribution of $100.00 per month to the children’s special and extra-ordinary expenses.
[2] Mr. Deane brought a Motion to Change on a prior occasion which was heard by Justice Price. On August 15, 2013 Justice Price stated:
This motion by Mr. Deane to suspend his child support obligation and to fix his arrears of support since 2009 at nil was adjourned to today to give him an opportunity to present a viable plan for his restoring his income to a level that reflects his ability. No evidence of this kind has been presented.
I have explained to Mr. Deane that I have no power to change the Order of Herold J dated December 1/06 on the ground that it was improvident of him to have signed the Minutes of Settlement of September 19, 2006 on which it was based, and that I have no power to change the order based on a material change in circumstances unless there is evidence of some change that would have caused a different outcome in 2006.
While I accept that Mr. Deane’s current financial circumstances do not support the level of child support obligation that he has, I am not satisfied that he is not capable of earning income at the level that would support them.
It appears to me based on the evidence, that Mr. Deane is persisting in his effort at self-employment without an adequate means of assessing periodically the viability of that business. The alternative of putting his skills to work in arm’s length employment is apparently open to him but he has not chosen to apply his significant energy and talents in that direction. He cannot reasonably expect his children to subsidise his persistent pursuit of self-employment without an adequate survival plan to demonstrate its viability while the alternative of arm’s length employment is available and is not being pursued.
Based on the foregoing, I dismiss Mr. Deane’s motion without prejudice to his right to bring a similar motion in the future based on further and better evidence.
[3] Mr. Deane brought the present motion before the court in December 2013 and Justice Ricchetti ordered the trial of the issue.
[4] No mention was made of Justice Price’s August 2013 endorsement in the trial of the issue before me. No attempt was made to separate out the further and better evidence from what was available before Justice Price. From my review of the Continuing Record it appears that the motion before me today was a rehearing (with viva voce evidence) of the motion before Justice Price in August. On that basis alone, the motion to change must be dismissed.
[5] There are however, several other troubling aspects to this litigation. Mr. Deane swore his most recent Financial Statement on November 20, 2013 wherein he deposed to income from Pay, Wages, Salary of $2,800.00 per month. He included rental income of $2,400.00, although he testified that he now receives rental income of $3,050.00 per month producing an annual income of $65,400. He lives in Port Credit in a house worth at least $800,000.00. He has two mortgages on his house – a first mortgage of $455,000 and a second mortgage of $225,000. His mortgage payments total $5,359.00 per month.
[6] He continues to try to make his Design/Construction business into a paying enterprise despite the fact that he does not seem to be doing well at it over the last few years. Despite Justice Price’s strong recommendation that he seek arm’s length employment he has not done so.
[7] Mr. Deane’s last Income Tax Return produced in these proceedings is for 2012. He has no adduced evidence regarding his 2013 income or his 2014 income to date.
[8] Mr. Deane testified that he has a daughter from another relationship born in 2003. Charlotte is the same age as Matthew. He testified that it was psychologically difficult to have two children from two different mothers born around the same time.
[9] Ms. Deane testified that she has had to incur debt in the amount of $18,996.97 because she has not received the child support to which she was entitled. She financed this debt through a Line of Credit and through Visa. After the separation Ms. Deane moved to Barrie where she purchased a house. Subsequently she was able to move to a better house but later she had to downsize because she was not receiving the child support payments that she was supposed to receive. As of April 25, 2014 Mr. Deane owes child support arrears of $23,059.69.
[10] Mr. Kay, Mr. Deane’s lawyer, submitted that the material change in circumstances supporting the Motion to Change, is that Mr. Deane has never earned the income that was imputed to him by Justice Herold. I am of the view, however, that Mr. Deane is capable of earning the income that was imputed to him, indeed that he agreed to at the time.
[11] In support of this motion, Mr. Deane also points to his third child Charlotte, however acknowledges that this information was known to Justice Herold in 2006. (It was certainly known to Mr. Deane who consented to Justice Herold’s Order).
[12] Mr. Deane testified that he had some health issues arising from a hockey injury – he shattered his cheekbone and subsequently it was discovered that he had an aneurysm. He testified that psychologically this affected his ability to earn income, yet did not produce a medical report or hospital records to enable me to make an assessment in this regard. In any event, this information would have been available to him at the time he argued the motion before Justice Price.
[13] Mr. Deane is also in default of his obligation to contribute to RESPs for Katherine and Matthew. However, Ms. Deane is not pursuing any relief in this regard.
[14] An order will issue dismissing Mr. Deane’s Motion to Change. Costs to Ms. Deane in the amount of $1,500.00.
Van Melle, J
DATE: April 28, 2014
COURT FILE NO.: FS-03-48499-0002
DATE: 2014-04-28
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Gordon James Deane v. Tara Lee Deane
BEFORE: Van Melle, J.
COUNSEL: James Kay, for the Applicant
Respondent in person
ENDORSEMENT
Van Melle, J.
DATE: April 28, 2014