SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-09-0796-00
DATE: 20140915
RE: ROBERT L. KOCINS – and – DARLENE E. KOCINS and MINISTRY OF COMMUNITY AND SOCIAL SERVICES
BEFORE: Fragomeni J.
COUNSEL:
Robert L. Kocins, on his own behalf
Darlene E. Kocins, on her own behalf
Stephen L. Beck, on behalf of the defendant, Ministry of Community and Social Services
HEARD: August 22, 2014
E N D O R S E M E N T
[1] The applicant father seeks the following relief:
to discontinue support payments for Kayla, and to credit support payments to Kayla from 2012 to present against the arrears owing to the respondent mother.
to suspend the support payments for a five month period due to unemployment
to have Family Responsibility Office (FRO) garnishments applied to the ongoing support payments instead of the arrears owing
a restraining order against the respondent mother
[2] In her notice of motion the respondent mother seeks the following relief:
an adjustment of arrears owed by the applicant to the respondent
an order to reinstate child support for Krystal
an order for spousal support
an order for ongoing financial disclosure
a restraining order
BACKGROUND AND OVERVIEW
[3] The parties married on September 9, 1989. They were divorced on October 30, 1997. There are three children of the marriage, namely, Krystal Lynn Kocins, born February 15, 1990; Kayla Ann Kocins, born November 24, 1992; and Kara Lee Ashley Kocins, born April 13, 1994.
CHRONOLOGY OF EVENTS
• September 29, 1997: The parties obtained a Divorce Judgment from Browne J. in the Ontario Court (General Division). Justice Browne ordered the applicant father to pay child support to the respondent mother in the amount of $200 per month commencing February 1, 1996, and an additional $500 per month commencing February 1, 1997, for a total of $700 per month commencing February 1, 1997. The payments were to be allocated equally between the children.
• February 1, 1996: The respondent mother assigned this child support order to the Minister of Community and Social Services (the “Ministry”). The Assignment ended on February 29, 2000.
• February 23, 2009: The applicant fell into significant arrears on his child support payments. He filed a Motion to Change in respect of the order of Browne J. The applicant requested an order that child support for all three children be set at $797 per month, effective June 1, 2009. He also requested that the child support owed to the respondent as of January 1, 2009 be fixed at $40,961.50, and that all child support owed to Ontario Works be annulled.
• August 19, 2010: A case conference was held at the Superior Court of Justice in Brampton before Van Melle R.S.J. Regional Senior Justice Van Melle ordered that Browne J.’s judgment of September 29, 1997 be amended to mandate that the applicant be required to pay child support to the respondent mother in the amount of $618 per month for daughters Kayla and Kara only, commencing August 1, 2010. This support payment was based on the guideline amount for the applicant’s annual income, which was accepted to be $41,000. The total amount of arrears owing to the Ministry was set at $40,000, but was reduced to $5,000 due to the non-appearance of the Ministry. The applicant was also ordered to pay $382 per month towards these arrears.
• September 9, 2010: The Ministry filed a motion requesting that the order of Van Melle R.S.J. be set aside on the basis that the Ministry had not received notice of the August 19 case conference.
• September 16, 2010: The Ministry’s motion was heard in the Superior Court of Justice in Brampton. The order of Van Melle R.S.J. was set aside by Miller J.
• January 4, 2011: The applicant father’s Motion to Change was heard and dismissed by Baltman J. Justice Baltman’s ordered the applicant to bring a new Motion to Change with respect to the amounts owing to the Ministry as well as the respondent mother, and naming both parties as respondents.
• December 27, 2013: The applicant father filed a new motion seeking six forms of relief.
• January 16, 2014: The respondent mother filed a motion requesting eleven forms of relief.
• January 31, 2014: The motion was heard by Trimble J., though no resolution was reached. A case conference combined with a trial management conference was set for May 14, 2014.
• July 15, 2014: On the order of Murray J. the case was set down for a long motion to be heard on August 22, 2014. In his order, Murray J. stipulated that the long motion should deal with the two issues outlined below.
[4] In his July 15, 2014 endorsement Justice Murray set out the following:
This case should be set down for a long motion. The long motion should deal with 2 issues:
Should the applicant father pay child support for 2 children or for one child. One child is special needs child and there is no dispute about child support for her (Kara Lee, born April 13, 1994). The dispute is with respect to Krystal Lynn (born February 15, 1990) and her entitlement to child support.
The amount of the obligation, if any, owed by the applicant father to the Ministry of Community and Social Services i.e. calculation of arrears of child support owed from February 1, 1996 to February 29, 2000, during a period where support payments were assigned by the support recipient to COMSOC.
Issue 1 – Child Support
[5] The mother agrees that Krystal is no longer entitled to support.
[6] The mother also agrees that support for Kayla should cease effective July 1, 2014.
[7] As set out in Justice Murray’s endorsement of July 15, 2014 there is no dispute about child support for Kara Lee, born April 13, 1994.
[8] The mother seeks child support for Kara Lee in the sum of $574 per month based on the husband’s 2013 income of $63,000. She also seeks a monthly payment toward the $34,365 arrears owed to her.
[9] The husband argues that his 2013 income was $63,000 as a result of 1,000 hours of overtime he worked. At this time however, he is only earning $20 per hour for a 40 hour week with a staffing agency. It is necessary for him to renew his welding licence.
[10] In his unsworn Financial Statement filed with the court July 3, 2013, the husband notes that he receives $2,056 per month from Employment Insurance Benefits and $66.91 per month from Worker’s Compensation Benefits.
[11] The husband does not provide any particulars or documentary evidence to substantiate what he is earning from this staffing agency or what efforts he has made or is required to make to regain his welding licence. He advises that he commenced work with the staffing agency August 19, 2014. The evidence provided by the husband is not clear. As such I am prepared to continue the amount of support for Kara Lee, based on the husband’s gross income of $43,600 ($20/hour x 40 hours per week). The husband is required to continue to provide confirmation of his employment status to the wife and whether he has renewed and obtained his welding licence. The husband is required to take the necessary steps to renew and obtain his welding licence.
Issue 2 – Arrears owing to the Ministry
[12] Rosa DeLira, an employee with the Ministry sets out the following with respect to the arrears:
The Assignment applies to the Divorce Judgment of the Honourable Mr. Justice Browne, dated September 29, 1997, which ordered child support payable by Robert Kocins to Darlene Kocins in the amount of $200 per month (from February 1, 1996 to January 1, 1997) increasing to $700 per month effective February 1, 1997 for their three children.
The Ministry was served with the motion materials on August 4, 2009 with no return date set. The Ministry served its Notice of Financial Interest on August 6, 2009 and on August 20, 2009 the Ministry served its responding affidavit outlining the amount owed to the Ministry as of August 2009: $25,253.28.
The total amount of arrears that Robert Kocins owes the Minister pursuant to the Assignment is $25,253.28 as of January 17, 2014. I obtained this information from the payment/arrears records of the Ministry and the Director, Family Responsibility Office (FRO), and I believe that it is true.
The arrears owing to the Minister are the amounts claimed by the Minister to recover the monies that are due pursuant to the Assignment. They may not be the total arrears owing as Mrs. Kocins may have monies due to her in her own right.
[13] Mr. Beck, counsel for the Ministry, submits that the $25,253.28 owing to the Ministry is over and above the amount of arrears owing to the wife in the sum of $34,365.
[14] The Ministry submits that all of the arrears should be paid and that the husband can and should pay $1,000 per month in total with the table amount for one child being paid first and the balance of the $1,000 applied toward the arrears.
[15] The husband submits he cannot afford that amount. The husband submits further that the arrears to the Ministry ought to be wiped out in their entirety. The husband questions why it has taken the Ministry 14 to 17 years to enforce those arrears.
[16] The husband also submits that during the relevant time period he was not in a position to make the support payments as he was on Social Assistance.
[17] The husband sets out his income for the relevant years as follows in the Continuing Record Vol 1 Tab 7:
1997 - Total Gross Income $5,924
comprised of Ontario Works $4,569
Workers Compensation $1,261
1998 - Total Gross Income $12,165
comprised of Social Assistance $2,793
Workers Compensation $1,279
Work pay $9,372
1999 - Gross Income $19,059
2000 - Gross Income $34,375
[18] The decision to rescind arrears involves consideration of a variety of other factors. In DiFrancesco v. Couto, 2001 8613 (ON CA), [2001] O.J. No. 4307 the Court noted the following facts ought to be considered:
the nature of the obligation to support, whether contractual, statutory or judicial;
the ongoing financial capacity of the payor;
the on-going need of the custodial parent and the dependent child;
unreasonable and unexplained delay on the part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support obligation exists for the child's benefit, is charged with a corresponding obligation to be used by the custodial parent for the child's benefit and cannot be bargained away to the prejudice of the child;
unreasonable and unexplained delay on the part of the payor in seeking appropriate relief from his obligation; and
where the payment of substantial arrears will cause undue hardship, the exercise of the court's discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of the payor, to grant a measure of relief, where deemed appropriate.
[19] In Devitt v. Devitt, 2000 22574 (ON SC), 6 R.F.L. (5th) 117 (Ont. SCJ) the court set out the following at paras. 22 to 25:
In the case before me it is my view that there is an obligation on the part of the Ministry to whom an assignment in support is made to follow up with enforcement against the payor spouse and certainly to ensure promptly that the payor spouse is aware of the continuing obligation. To do nothing does lull the payor into a false sense of security that may be set off totally or in some part measure by the obligation of a payor to apply for a variation of support where circumstances have changed. A payor cannot, with impunity, simply sit on his or her hands and do nothing in the forlorn hope that the obligation will disappear. There is also an obligation of the Ministry to the tax paying public to ensure that appropriate steps are taken promptly to recover payments due by reason of assignments such as is the case here. Something more than one letter in a 15-year period is required.
Notwithstanding the dilatory action or inaction of the Ministry, there remains a responsibility on a payor under a court order to make the required payments or seek some kind of relief.
Although the applicant has gone though a number of financial ups and downs and may have very little in the way of assets, he appears now to have ability to pay, notwithstanding that his financial statement discloses only a very slight monthly surplus.
In all the circumstances of this case, having determined at the maximum amount of arrears is $16,150, there shall be an order expunging arrears to the extent of $10,000, leaving a balance of arrears in the amount of $6,150 to be paid at the rate of not less than $100 per month commencing April 1, 2000.
In the circumstances of this case it is my preliminary view that there should be no order as to costs but counsel may address the issue of costs if necessary, within 15 days of this date, in writing.
[20] In 1996 the three children were 6, 4 and 2 years of age. At this time only Kara Lee will continue to be supported by the husband in accordance with the court order being made herein.
[21] I have considered the husband’s present financial circumstances. I have also considered the delay in processing the request for payment of the arrears by the Ministry. I have taken into account the present obligations of the husband to continue to support Kara Lee. I have also taken into account that the husband is paying a sum toward the arrears owing to the wife.
[22] It is my view that ordering payment of all of the Ministry arrears in all of the circumstances would result in an undue hardship to the respondent and create an unreasonable debt obligation on the part of the respondent. I am satisfied that the arrears to the Ministry ought to be fixed at $5,000.00.
Restraining Order Issue
[23] I have listened to the two phone calls on the recording provided to the Court and I am not satisfied that a restraining order is warranted on the basis of those calls. I am not satisfied that the evidentiary record in its entirely warrants a restraining order to issue on either side.
[24] Further, the order of Justice Murray sets out the two issues that were to be dealt with at the motion. The issue of restraining orders was not one of them.
[25] The parties are not prohibited from proceeding with separate motions requesting a restraining order if they deem it necessary to do so, on notice, however, at this time I am not prepared to issue those orders on the material that has been filed.
[26] Order to issue as follows:
Child support for Kara Lee, only, born April 13, 1994, shall continue at the rate of $394 per month based on a gross annual income of $43,600.
The applicant husband shall continue to provide confirmation, in writing, of his employment status to the respondent wife and whether he has renewed and obtained his welding licence. The husband shall take the necessary steps required to renew and obtain his welding licence.
The applicant husband shall pay $250 per month firstly toward the arrears owed to the wife fixed in the amount of $34,365 and upon those arrears being paid in full the $250 shall apply to the $5,000.00 arrears fixed owing to the Ministry of Community and Social Services.
The arrears in the amount of $25,253.28 owing to the Ministry of Community and Social Services are hereby fixed in the sum of $5,000.00.
The parties shall file written submissions on costs within 10 days.
Fragomeni J.
DATE: September 15, 2014
COURT FILE NO.: FS-09-0796-00
DATE: 20140915
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROBERT L. KOCINS – and – DARLENE E. KOCINS and MINISTRY OF COMMUNITY AND SOCIAL SERVICES
BEFORE: Fragomeni J.
COUNSEL: Robert L. Kocins, on his own behalf
Darlene E. Kocins, on her own behalf
Stephen L. Beck, on behalf of the defendant, Ministry of Community and Social Services
ENDORSEMENT
Fragomeni J.
DATE: September 15, 2014