ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D-18217-08
DATE: 2014-06-20
CORRECTED DECISION RELEASED: 2014-07-25
BETWEEN:
Donald James Arthur Mark
Applicant
– and –
Theresa Graziella Cirillo-Mark
Respondent
Milena M. Soczka, for the Applicant
Réjean Parisé, for the Respondent
HEARD: May 30, 2014
DECISION ON MOTION
CORRIGENDUM: Paragraph [108] number 7:
The word “Respondent” is changed to “Applicant”
GAUTHIER j.:
The Motion:
[1] The Applicant has brought a Motion to Change the final order made by Justice R.D. Cornell on July 29, 2010 (hereinafter, the “July 2010 Order”). The Respondent advances a claim for extraordinary expenses.
[2] The July 2010 Order, which was based on Minutes of Settlement entered into by the parties, provided, among other things, for child support for the three children of the marriage, Jessica born February 5, 1992, Donald born July 30, 1993, and John born June 1, 1995.
[3] The relevant portions of the July 2010 Order are:
Commencing December 1st, 2010 and payable on the first day of each month thereafter, the Applicant shall pay the Respondent the sum of $1,232.00 per month based upon his estimated income of $63,000.00 per annum and in accordance with the Child Support Guidelines table amount for three children. The foregoing amount of child support is subject to a variation upon a material change in circumstances though the future income of the Applicant may be subject to the Respondent’s claim for imputation of income pursuant to the Child Support Guidelines based upon the Applicant leaving his present employment to pursue a business opportunity out of the jurisdiction. The Applicant shall continue to be responsible for fifty percent of Section 7 expenses.
For so long as child support is paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with Section 24.1 of the Child Support Guidelines.
The Respondent dismisses her claim for retroactive child support.
8.(a) If the Applicant fails to pay the ongoing child support then his registered retirement savings plans or locked in retirement account shall be funds available for enforcement for the purposes of the payment of child support and the Applicant may access these funds to pay the child support. Once the Applicant’s child support obligation has terminated then he can use these funds as he sees fit.
(b) The Applicant shall be permitted to withdraw 8% of the funds in his locked in retirement account in January 2011 to utilize for the payment of his legal bills and other debts related to the marriage.
(c) The Applicant cannot transfer his registered retirement savings plans or locked in retirement account from the present financial institutions without the Respondent’s consent which cannot be unreasonably withheld for so long as he has a child support obligation. A copy of the Statement account presently and annually shall be provided to the Respondent.
[4] The Applicant seeks an order granting him the following relief:
That the child support payable by him for the years 2011 and 2012 be based on imputed income of $25,000.00 per year.
That the obligation to provide child support be terminated based on the Applicant’s actual income of $5,624.22 for 2013.
That the child support obligation for the child Donald be suspended for the period from August 1, 2011, until such time as the child becomes enrolled in a full-time program of education.
That the Applicant not be responsible for certain expenses for Donald, such as Brazilian Jiu-Jitsu, team shredder, hunting license, laptop, gym expenses and Donald’s post-secondary education fees for the year 2013.
That there be a reduction in the proportion in which the Applicant is to have contributed to Donald’s tuition fees to reflect that the child should have also contributed and done so to the extent of a one-third share.
That there be a reduction in the proportion in which the Applicant should have contributed to the child Jessica’s tuition fees to reflect a one-third contribution by Jessica herself.
That Jessica’s parking expenses not be deemed to be extraordinary expenses to which the Applicant is required to contribute.
That the following expenses relating to the child John be determined to not be extraordinary expenses to which the Applicant is required to contribute: driving course, firearm course, suit and shoes, gym expenses, referee course and house league soccer.
[5] The parties were married in April of 1988 and separated in 2006. They are the parents of the three children referred to above.
[6] The matters at issue between them were not resolved on a final basis until July 2010 when the parties entered into the Minutes of Settlement which formed the basis of the July 2010 Order, now sought to be varied.
[7] At the time of the negotiation between the parties leading up to the Minutes of Settlement and the July 2010 Order, the Applicant was employed at the Ministry of Natural Resources as a communications expert earning between $58,000 and $63,000 per year. The child support order was based on the sum of $63,000, but the Applicant indicated that his actual income for 2010 was $58,960.
[8] The material filed by the Applicant in July 2010 makes reference to mental health issues. A note from the Applicant’s physician stated, among other things, that “…recently he has had a recurrence of his mood disorder, which has caused significant anxiety, insomnia, decreased focus, depressed mood, frustration, and decreased concentration. He is having difficulty at work. He is unable to continue working with the Ministry of Natural Resources because of his recurrence.”
[9] The Applicant voluntarily left his employment with the Ministry and relocated to the Kingdom of Tonga in the South Pacific with his new spouse. There, they pursued a business venture called Hakau Adventures Limited, operating as Hakau Adventures Day Cruises.
[10] At the time, the Applicant estimated that he could earn the sum of $40,000 U.S. from that venture once it was established. The Applicant’s position is that he consented to the child support provisions contained in the July 2010 Order with the expectation that he would be able to generate sufficient income to be able to pay the child support incurring a lower cost of living in Tonga than in Canada.
[11] Although it seems as if initially the business was doing well, a series of events, unforeseen by the Applicant and commencing in 2011, have led to the demise of the enterprise.
[12] The Applicant cites certain natural disasters in 2011 which affected Tonga, as well as the global recession having had a negative impact on the business. In addition to that, the Applicant’s eldest son from a prior union died. For approximately six weeks the Applicant was unable, because of his grief, to operate the business. In 2012, vandals damaged the boat used for the day cruises. The business was unable to operate for the two month period it took to repair the craft. Still in 2012, the domestic air carrier, which operated in the kingdom of Tonga, cancelled its service. The replacement air service has been severely and publicly criticized for using an unsafe aircraft, which has had a devastating impact on tourism in Tonga and on the Applicant’s business.
[13] Finally, and more recently, there has been an outbreak of the Chikungunya virus in April 2014, causing fever, aching joints, rash and overall pain, in Tonga. This has also negatively affected the tourism industry.
[14] According to the record, the Applicant’s income was in the amount of $21,941 in 2011. In 2012, his total income was $35,992, of which the sum of $26,083 consisted of RRSP income. For 2013, the Applicant earned $5,624.
[15] The Applicant has decided to shut down the business and leave the Kingdom of Tonga after the current season.
[16] All three children have continued to reside with the Respondent.
[17] Jessica is currently 22 years of age and has completed her third year of study in psychology at Laurentian University. During 2011, Jessica’s studies were reduced as she was having difficulties dealing with the death of her oldest brother (half-brother). Likewise, in 2012, Jessica was forced to withdraw from her studies as a result of emotional issues for which she was under the care of a physician.
[18] Jessica has had part-time work and earned the following sums in the years in question:
2010: $9,221
2011: $6,911
2012: $5,966
2013: $9,762
[19] The child Donald will be 21 years of age on July 30, 2014. Although enrolled in alternative secondary school programs between September 2011 and April 2012, he only earned one credit toward a high school diploma.
[20] Donald neither worked nor attended a full-time program of study for the 2012-2013 academic year. Donald did attend Laurentian University for the 2013-2014 academic year. According to the Respondent, Donald suffers from an undiagnosed illness which causes him to suffer from dizzy spells and blackouts. He has been seeing physicians on an ongoing basis since the summer of 2013. Despite his symptoms, Donald continued his course of study to the end of the current academic year.
[21] Donald earned the modest sum of $835 in the year 2010. The material does not disclose any income earned by him for the years 2011, 2012 or 2013.
[22] The child John graduated from high school in June 2013 and attended a first year electrician program at Cambrian College. His goal is to become an electrical engineer. Unlike his siblings, John was able to secure OSAP assistance. He received $4,605.
[23] John also works part-time. In 2012, he earned $2,127. For the year 2013, John earned $6,881.
Applicant’s Position:
[24] The Applicant has suffered a material change in his income which was not contemplated by the parties at the time of the making of the July 2010 Order. He relocated to Tonga and started a business venture in order to generate and earn an income. He had no way of knowing that the tourism industry in Tonga would deteriorate so rapidly or at all. The rapid decline in the Tongan tourism industry and its negative effect on the Applicant’s income are material changes that were not contemplated by the parties at the time of the making of the July 2010 order.
[25] The drastic reduction in the Applicant’s income is a change in his means and conditions as per section 17 of the Divorce Act and would result in a different child support order in accordance with section 14 of the Federal Child Support Guidelines (the “Guidelines”).
[26] The Applicant says that the Guidelines amount of payable child support should be recalculated using (a) his actual income in 2010, being $58,960.21, (b) imputed income of $25,000 for each of the years 2011 and 2012, and (c) actual income of $5,132.98 for 2013.
[27] The Applicant suggests that Donald’s entitlement to child support terminate as of August 1, 2011, given that he did not attend school on a full-time basis and did not make a serious commitment to any course of study. There is no evidence to indicate that Donald was unable, by reason of illness or otherwise, to either attend school full-time or secure employment, beyond the end of the 2010-2011 academic year.
[28] The Applicant wishes to access his RRSP pension-investment fund so that he can reinvest the money more profitably to generate income and, as well, to use the funds for his own support given his current financial circumstances.
[29] The Applicant also disputes the legitimacy of some of the children’s expenses as not being proper s. 7 expenses. In addition, the Applicant suggests that the children should be and should have been contributing to those expenses properly described as s. 7 expenses.
[30] The Applicant submits that his failure to pay the child support was not a wilful disobedience of the July 2010 Order, but rather the result of the unforeseen and unfortunate circumstances that he found himself in since 2011.
[31] The Applicant is asking the Court to make the following orders:
An order that the Applicant’s child support obligation for December 2010 be recalculated and reduced to $1,158.00 for the support of three children, John Michael Fisher Mark, born June 1, 1995, Donald Jonathan Alexander Mark, born July 30, 1993 and Jessica Joan Maria Mark, born February 5, 1992, based on the Applicant’s actual gross annual income of $59,694.12, minus $733.91 for union dues, for a total of $58,960.21 and the Federal Child Support Guidelines in effect at the time.
An order that the Applicant’s child support obligation for 2011 be reduced to $506.00 per month for the support of three children, John Michael Fisher Mark, born June 1, 1995, Donald Jonathan Alexander Mark, born July 30, 1993 and Jessica Joan Maria Mark, born February 5, 1992, based on an imputed gross annual income of $25,000.00 and the Federal Child Support Guidelines in effect at that time.
An order that the child, Donald Jonathan Alexander Mark (“DJ”), born July 30, 1993, is not a child of the marriage for child support purposes from August 1, 2011 to present.
An order that the Applicant’s child support obligation for 2012 be reduced to $373.00 per month for the support of two children, John Michael Fisher Mark, born June 1, 1995, and Jessica Joan Maria Mark, born February 5, 1992, based on an imputed gross annual income of $25,000.00 and the Federal Child Support Guidelines.
In the alternative, an order that the Applicant’s child support obligation for 2012 be reduced to $511.00 per month for the support of three children, John Michael Fisher Mark, born June 1, 1995, Donald Jonathan Alexander Mark, born July 30, 1993 and Jessica Joan Maria Mark, born February 5, 1992, based on an imputed gross annual income of $25,000.00 and the Federal Child Support Guidelines.
An order that commencing January 1st, 2013 the Applicant’s child support obligation with respect to the children, John Michael Fisher Mark, born June 1, 1995, Donald Jonathan Alexander Mark, born July 30, 1993 and Jessica Joan Maria Mark, born February 5, 1992, shall be terminated based on the Applicant’s gross annual income of $5,624.22 and in accordance with the Federal Child Support Guidelines.
Once the applicant’s child support obligation has been justly determined, an order permitting the Applicant to access the remainder of the funds in his RRSP pension/investment to reinvest and/or support himself.
An order dismissing the Respondent’s claimed extraordinary expenses.
In the alternative, an order that the Applicant and Respondent share the children’s valid extraordinary expenses, excluding all expenses which are not reasonable, necessary or fall under one of the enumerated categories pursuant to section 7 of the Federal Child Support Guidelines, on a pro-rata basis, taking into consideration the children’s contributions to same.
An order that the parties’ adult children shall contribute 1/3 towards any valid extraordinary expenses.
Respondent’s Position:
[32] Firstly, the Respondent suggests that the Applicant’s Motion to Change be dismissed, without determination on the merits, given the Applicant’s failure to obey the July 2010 Order. Rule 1(8) of the Family Law Rules is relied upon.
[33] Secondly, the Respondent submits that even on the merits the Motion must fail given that there has been no material change in circumstance permitting a review and variation of the July 2010 Order.
[34] The Respondent argues that the facts that were known to the parties in July 2010 included the Applicant’s proposed move to the Kingdom of Tonga. The Applicant was “fully aware of the risks that he would be undertaking at the time. The change in his circumstance was a planned and contemplated change that was known to the Applicant and Respondent at the time of the entering into of the Order” (see paragraph 31 of the Respondent’s Factum).
[35] Further, it is the position of the Respondent that assuming the risk of leaving his employment and relocating to the South Pacific was a voluntary act that has led the Applicant to be underemployed and unable to meet his joint financial responsibility for the support of his children.
[36] The Respondent also points out the fact that the Applicant did not provide any business records or bank records in support of his Motion to Change, despite having been ordered to produce financial statements for the business at the case conference held on May 1, 2014. Given that the Applicant’s income was from self-employment, more than a copy of his Income Tax Return would be required to have an accurate and full picture of the Applicant’s finances.
[37] The Respondent further suggests that all three children have been and continue to be entitled to support.
[38] The Respondent seeks the following order:
an order dismissing the Motion to Change;
an order that the child support owing as of June 1, 2014, being $51,439.77, be paid out of the Applicant’s RRSP Pension Fund managed by Martin Wealth Management-Inventia Financial Services Inc. to the Respondent and further that the monthly child support pursuant to paragraph 5 of the July 29, 2010 Order be paid out of the fund commencing on July 1, 2014;
an order for costs on a full recovery basis to be deemed to be a support order pursuant to Section 1(1) of the Family Responsibility and Support Arrears Enforcement Act and to be paid out of the Applicant’s said RRSP Pension Fund.
Issues:
A. Is the Applicant entitled to bring the within Motion to Change, in light of subrule 8(1)?
B. Has there been a material change of circumstances warranting a variation of the Final Order of July 29, 2010?
C. If there has been a change of circumstances, what is a reasonable amount of income to impute to the Applicant for the years 2011, 2012, and 2013?
D. Jessica and Donald’s entitlement to child support.
E. Which of the expenses claimed by the Respondent are proper s. 7 expenses and how should they be shared by the parties and the children.
F. Whether or not the Applicant’s investments should be made available to him for his own support.
(Decision text continues exactly as provided through paragraphs [39] to [108] and the final order.)
The Honourable Madame Justice L.L. Gauthier
Released: July 25, 2014
COURT FILE NO.: D-18217-08
DATE: 2014-06-20
CORRECTED DECISION RELEASED: 2014-07-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Donald James Arthur Mark
Applicant
– and –
Theresa Graziella Cirillo-Mark
Respondent
CORRECTED DECISION ON MOTION
Gauthier J.
Released: July 25, 2014