COURT FILE AND PARTIES
COURT FILE NO.: 05-FL-2527-1
DATE: 2014/07/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARIE LUCIE NICOLE CASAULT, Applicant
AND
JOHN MCNALLY, Respondent
BEFORE: Laliberté J.
COUNSEL: Beverley Johnston, counsel for the Applicant
John McNally, self-represented
HEARD: July 24, 2012 (at Ottawa)
ENDORSEMENT
[1] The applicant brings a motion seeking a final order in relation to the respondent’s support obligations for the child of the marriage, Liam, born September 17, 2004, for the period commencing April 1, 2014. She is also seeking an order fixing arrears owing as of March 31, 2014 and for the payment of same.
[2] The parties are bound by the terms of the final order of Justice Warkentin dated May 30, 2013, which provides for the following terms on the question of child support:
(a) Only employment income is to be considered as income for child support and section 7 expenses (para. 56);
(b) Starting in 2013, child support and section 7 expenses are to be adjusted on April lst of each year; parties are to sign an agreement on the amounts (para. 57);
(c) Parties are to exchange financial information to allow for the adjustment in the amount of child support (paras. 55, 59-60);
(d) Over and above day care expenses, the amount spent by the applicant for section 7 type expenses (sports, music, art) is not to exceed $1,500 per year (para. 58);
(e) The applicant is solely responsible for decisions regarding activities such as sports, day camp (para. 4).
[3] While somewhat difficult for the court to fully grasp the respondent’s position on the issues raised in this motion, the court is left with the following:
(a) He is in agreement with the amounts claimed for section 7 expenses, save and except for the day camp which he qualifies as not being necessary and not in keeping with his means;
(b) He agrees that his income was $62,252 for 2012 and $62,904.64 for 2013 but states that the 2013 income is not reflective of his present 2014 income by reason of work related issues;
(c) He is, in effect, asking the court to vary the terms of the May 30, 2013 order on the question of how his support obligations towards his son are calculated.
[4] The issues for the court are as follows:
(1) Can the court vary the mechanism by which the amount of child support payable by the respondent is determined in the absence of a motion to vary?
(2) Should the respondent be compelled to pay for the day camp expenses claimed by the applicant as section 7 expenses?
[5] Section 37 of the Family Law Act, R.S.O. 1990, c. F.3; section 14 of the Federal Child Support Guidelines, S.O.R./97-175, as am. and Rule 15 of the Family Law Rules, O. Reg. 114-99, govern the variation of support obligations stipulated in court orders. Quite simply, in the absence of a motion to vary based on material circumstances, the court will not vary the terms set out in such orders. So that the payor is bound by the terms therein.
[6] As already noted, the order vests the exclusive decision on the question of activities for Liam with the applicant mother, subject to a $1,500 year cap over and above day care expenses. It would seem to the court that if the respondent wishes to challenge any such expenses within the $1,500 yearly cap, the burden should rests on him to establish, on a balance of probabilities, that such expense falls outside the parameters of section 7 expenses as defined.
[7] In the end, the court makes the following orders:
(1) The parties are found to be bound by the terms set out in the final order of Justice Warkentin of May 30, 2013.
(2) Commencing April 1, 2014, the respondent shall pay the applicant, on the lst day of each month, support for the child Liam Jack McNally, born September 17, 2004, in the amount of $573 based on his 2013 income of $62,904.64.
(3) The respondent shall pay his proportionate share of section 7 expenses which is set at 35.7% starting April 1, 2014, this results in a monthly payment of $103 to be paid by the respondent on the 1st day of each month.
(4) The issue of any arrears shall be addressed by the Director of the Family Responsibility Office.
(5) Unless the support provisions of this order are withdrawn from the Director of the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.
(6) The parties are to provide the Court with brief written submissions on the issue of costs for this motion on or before August 30, 2014.
Laliberté J.
Released: July 29, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MARIE LUCIE NICOLE CASAULT, Applicant
AND
JOHN MCNALLY, Respondent
BEFORE: Laliberté J.
COUNSEL: Beverley Johnston, counsel Applicant
John McNally, Self-Represented
ENDORSEMENT
Laliberté J.
Released: July 29, 2014