Gilby v. Crosby, 2014 ONSC 5495
COURT FILE NO.: 134/97
DATE: 2014-09-22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Jennifer Lynn Gilby, Applicant
AND: Eric Daryl Richard Crosby, Respondent
BEFORE: Mr Justice Ramsay
COUNSEL: Mr David M. Kerr for Applicant
Respondent self-represented
HEARD: 2014-09-22 at St Catharines
ENDORSEMENT
[1] The parties never married or lived together. On October 17, 1995 their daughter was born. On April 28, 1997 Scott J. made an order on consent finding the Respondent to be the father of the child. She also ordered:
Due to inability there shall be no support payable by the respondent for the child. The respondent shall notify the applicant in writing of any significant change his financial situation within ten days of same.
[2] The mother was given custody. Access was not mentioned.
[3] At the time of the order the parties were 19 and 21 years old, respectively. In the years between the order of Scott J. and the present motion to vary it, the Respondent finished college, began employment, had more children and went bankrupt. He never paid child support and he never exercised access. He never notified the Applicant of changes in his financial situation.
[4] The child is now 18 years old and the Applicant seeks an order varying the order of Scott J. to require child support retroactive to November 28, 2010, which is three years before the motion was brought. The child enrolled in college in September 2013. She is now is in the second year of a three-year college programme. She will therefore be dependent until some time in April 2016.
[5] In 2011 the Respondent was ordered to pay $402 a month child support to the mother of his three young sons based on an annual income of $19,200. The Respondent went bankrupt in 2012. At present, the Family Responsibility Office and the Canada Revenue Agency are garnishing 50% of his pay between them.
[6] The Applicant raises legitimate concerns as to whether the Respondent is understating his income. Essentially, however, the Applicant accepts the Respondent’s figures, except for 2014. The Respondent testified that he will likely earn $32,000 or $33,000 in 2014. His pay rate is $22 an hour, but he is laid off every year from some time in October until the following March. Based on that, Mr Kerr points out that the Respondent should earn closer to $38,000 in 2014, even without EI. I think Mr Kerr is right. Certainly $38,000 is not an over-estimate for 2014 and thereafter.
[7] The Applicant’s income was $94,908 in 2013. It is likely to be about $101,000 in 2014 and thereafter.
[8] The Applicant’s position is that the Respondent should pay table child support for one child based on his income from December 1, 2010, plus a contribution to the child’s post-secondary expenses based on the parties’ respective incomes. The Respondent’s position has been that he is not in a position to pay child support or make any contribution to post-secondary education. However, he offers that Métis status would entitle the child to grants for tuition and so on. At trial, he offered to pay retroactive child support to the commencement of the motion, but at an amount less than the table amount. He maintains that his contribution to post-secondary education should not be in the form of money.
[9] The child does not have Métis status. Neither does the Respondent. He only applied for recognition of his status a month ago. According to his documents, the process takes a year. If he is recognized, his daughter could apply for status. It is therefore uncertain whether the daughter will ever get help with tuition on this basis, and if she does, it will not be any time soon.
[10] The order of Scott J. makes it clear that the parties contemplated the Respondent paying child support when he was able. The Respondent had a positive duty to inform the Applicant of his income without being asked. The Applicant delayed asking for child support until 2013, but she is not claiming more than the usual three years of retroactivity. In fact, the Respondent knew for some months before the motion was filed that the Applicant wanted child support, because they began discussing the matter.
[11] I see no reason why the Respondent should not pay child support commencing December 1, 2010, terminating April 30, 2016. In addition, he should pay a contribution toward tuition and book expenses, which is all the Applicant is asking.
[12] As to child support, I do not think that I should order the table amount for one child. From 2011 on, the Respondent has been paying for three other children. From April 2014, he is obliged to pay for a fourth. The table amounts are such that it is not practicable to pay the full table amount to three households for a total of five children, and to maintain his own household. It would cause legitimate hardship to the payer, as contemplated in s.10 (2) (c) and s.10 (2) (d) (i) of the Guidelines.
[13] I therefore award the Applicant about one quarter of the table amount for four children from December 2010 to April 2014 and about one fifth of the table amount for five children thereafter, based on the Respondent’s income or imputed income for each year. Apart from 2014, which I dealt with in paragraph 6 of this endorsement, I base my conclusion as to each year’s income on documents provided by the Respondent, and in the case of 2013, his own estimate given at trial under oath.
[14] As to post-secondary expenses, they are about $5,000 a year. The child should be able to earn $1,500 a year. The remaining $3,500 should be split between the Applicant and the Respondent 75/25 based on their respective incomes. Accordingly, I order the Respondent to pay $875 for each of three years. The amounts will be payable $1,750 forthwith and $875 on July 1, 2015.
[15] After hearing from the parties I heard submissions as to costs in the event that one party or the other was successful. In my view the Applicant was successful and should have partial indemnity costs, based on an amount that might reasonably have been anticipated, reduced somewhat taking into consideration the Respondent’s ability to pay.
[16] The Applicant may take out an order in the following terms without the Respondent’s approval:
a. The Respondent is ordered to pay to the Applicant post-secondary expenses for their child Alexis Janeen Crosby, born October 17, 1995 in the amount of $1,750 forthwith, plus $875 on July 1, 2015;
b. The Respondent is ordered to pay to the Applicant child support for the said child from December 1, 2010 to April 30, 2016 on the following basis:
Period
Monthly payment
Annual income of payer
December 1, 2010 to December 31, 2010
$155
$24,825
January 1, 2011 to December 31, 2011
$50
$13,708
January 1, 2012 to December 31, 2012
$166
$27,000
January 1, 2013 to December 31, 2013
$170
$28,000
January 1, 2014 to March 31, 2014
$220
$38,000
April 1, 2014 to April 30, 2016
$200
$38,000
c. The Respondent is ordered to pay costs to the Applicant forthwith fixed at $4,000. These costs shall be enforced as child support.
d. A support deduction order will issue.
J.A. Ramsay J.
Date: 2014-09-22