ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: F1571/11
Date: 2014-12-15
BETWEEN:
KEITH RICHARD JOHNSON
Monique Rae Bennett – Counsel for the Applicant
Applicant
- and -
MARY ERIN O’NEIL
Self-Represented
Respondent
HEARD: December 15, 2014
THE HONOURABLE MR. JUSTICE PAZARATZ
[1] In this historically high conflict file, the parties could not agree whether today’s motion was for a temporary or final variation of a final order.
[2] The parties have three children, Alexa age 22, Michael age 20, and Olivia age 18.
[3] On November 26, 2013 Justice Arrell granted a final order based on comprehensive minutes of settlement negotiated after a trial had commenced and some evidence had been called. The issues were financial, including specifically an issue as to whether income should be imputed to the Applicant father as a result of his owning and operating an incorporated business.
[4] Both parties were represented by counsel at the time. The Applicant had the same counsel on this motion. The Respondent is now self-represented.
[5] The minutes and resulting order were quite thorough. Among the components:
The Applicant would pay support to the Respondent for the oldest child Alexa until June 30, 2014.
The Respondent would pay support to the Applicant for Michael and Olivia.
The Applicant’s income for child support purposes was imputed at $114,750.00.
The Respondent’s income for child support purposes was $67,000.00 through her employment as a teacher.
Paragraph 4 of the order stated that “provided that the children Michael and Olivia are either residing in the home of the Applicant father, or in a home to which he holds title, the Respondent mother shall pay child support…in the sum of $996.00 per month.”
Paragraph 5 specified so long as the support quantification in paragraph 4 remained in effect, the parties would share the cost of the children’s tuition 60% to the father and 40% to the mother. There were other provisions about who would be responsible for what, and the father would not charge the children rent or utilities.
Paragraph 8 of the order specified that “in the event that child ceases to reside primarily with the Applicant father, or in a home to which he holds title, or withdraws from full-time post-secondary studies, table support shall be suspended immediately for that child, and child support shall be reviewed.”
[6] The Respondent brought a motion to change the order because of changed circumstances. Olivia is no longer living with the Applicant. She is not living in a home to which he holds title. She is now living in a home in London Ontario which the Respondent purchased, to facilitate the child’s attendance in her first year at university.
[7] The Applicant complains the Respondent deliberately frustrated the intention of the order. He argues the clear expectation was that Olivia would be attending school living at a condo owned by the Applicant in London, Ontario, just as Michael does. He says he made compromises in the minutes of settlement based on this understanding and the Respondent is now abusing the court process.
[8] The Respondent says there was never any commitment as to where Olivia was going to attend school or reside. When the minutes and order arose she was still in grade 12. She applied for post-secondary education in a number of different communities in Ontario. She elected to attend school in London, but she elected not to live with the Applicant (or in a home owned by him).
[9] However it happened, both parties agree Olivia is no longer living within the Applicant’s household. She is a student living away from home but based at the Respondent’s residence.
[10] When the motion was called today, the Respondent was under the impression that this was to be a final hearing of the motion to change, based upon the extensive affidavits and facta filed by the parties. I have reviewed all of that material.
[11] The Applicant’s counsel took the position that the format of the Respondent’s materials suggests she was only asking for a temporary variation based on affidavit materials. She said the Applicant wishes to have an oral hearing with cross-examinations, and expert evidence will likely be required in relation to the Applicant’s income.
[12] While motions to change are typically dealt with based on affidavit materials, I agree with Applicant’s counsel that oral evidence will be required here to deal with issues of credibility relating, among other things, to income. However, it is regrettable that Applicant’s counsel didn’t previously identify that she would be requesting an oral hearing.
[13] There is controversy as to whether courts should make temporary orders changing final orders. But given the fact that the parties both asked me to at least address this matter on a temporary basis, I proceeded.
[14] While the Applicant’s materials focus heavily on his perception that the Respondent manipulated Olivia into transferring custody, the reality is that Olivia is 18 years old; the original order didn’t require that Olivia reside with either parent or in either parent’s home; the original order simply specified arrangements if Michael and Olivia were both living with the Applicant or in a home he owned; and paragraph 8 of the order specifically contemplated that if either of these children didn’t live with the Applicant or in his home, specified table support would be suspended immediately for that child, and child support would be reviewed.
[15] So after all the needlessly inflammatory materials filed by both parties, the simple facts of this case are that Olivia is now living under the Respondent’s care and control. The Respondent wants to stop paying support for Olivia. She wants to receive support for Olivia.
[16] The Respondent’s income from employment is relatively straightforward.
[17] The real issue on this motion is the Applicant’s income. As stated, he operates a business. His income was in dispute at the trial last fall. The order of November 26, 2013 very specifically imputed income at the level of $114,750.00.
[18] The Applicant’s counsel now argues that level of income wasn’t really imputed to the Applicant. She submits this was merely a compromise figure the Applicant agreed to when he expected he was going to be on the receiving end of child support for the youngest two children. Now that he is being asked to pay support for the youngest child, the Applicant wants to revert to calculating his income based on his line 150 numbers – which would put him very close to the Respondent’s level of income. The Applicant says each party will have one child with a similar income, so no child support should be exchanged.
[19] The Respondent says she also made compromises in the minutes, and the $114,750.00 was a stand-alone determination imputing income to the Applicant. She says the Applicant continues to earn significantly more than she does, and she should be the recipient of a net child support payment.
[20] The Applicant’s counsel acknowledges there is no specific evidence before the court today to suggest a material change in circumstances relating to the Applicant’s income. She basically disavows the $114,750.00 figure, and expressed confidence that when an oral hearing is held, there will be professional evidence to confirm that this is not the Applicant’s income.
[21] While the court should be cautious about imputing income at a temporary motion in the first instance, where courts are dealing with a variation of a previous support determination, there is a presumption that the previously imputed income was correct. Once the court finds it necessary or appropriate to impute income, the onus is on the party proposing a different amount (or a different approach to the calculation of income) to establish a material change in circumstances. Evidence must be presented to satisfy the court that the rationale and calculations which led to the original imputation of income are no longer appropriate. Trang v. Trang 2013 ONSC 1980 (SCJ).
[22] Parties cannot switch back and forth between “imputed income” and “reported income” whenever it suits them.
[23] In this case, the Applicant has not established a material change. The Applicant has not established any basis for presuming – even at a motion for a temporary variation – why the imputation of income which was specifically agreed to and ordered one year ago should not continue.
[24] For purposes of this motion, the Applicant’s income continues to be imputed at $114,750.00, and the Respondent’s income is $67,345.58.
[25] The Applicant shall pay support to the Respondent for Olivia and the Respondent shall pay support to the Applicant for Michael, retroactive to August 1, 2014. Insofar as paragraph 9 of the existing order dealt with a credit extending until November 1, 2014, that credit will also have to be readjusted at trial.
[26] The motion to change is adjourned to March 2, 2014 10 a.m. to be spoken to on the issue of the scheduling of an oral hearing for a final determination.
[27] If the parties are not able to reach agreement as to the specific support calculations which flow from my income determinations, they are to attend before me on December 19, 2014 at 10 a.m. However, if the parties are able to resolve this issue, and if they both submit written notice to our trial co-ordinator by 10 a.m. on December 18, 2014 that they are settled on the temporary support quantification, then the matter will be removed from the December 19 list. If settled, minutes of settlement, a draft approved order and SDO should be filed.
Pazaratz, J.
Released: December 15, 2014
COURT FILE NO.: F1571/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KEITH RICHARD JOHNSON
Applicant
- and -
MARY ERIN O’NEIL
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: December 15, 2014