Bhoi v. Dhanjal, 2015 ONSC 1873

CITATION: Bhoi v. Dhanjal, 2015 ONSC 1873

COURT FILE NO.: 00-FL-3454-2

DATE: 2015/04/09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RUPY BHOI, Applicant

AND

JEANETTE DHANJAL, Respondent

BEFORE: Kane J.

COUNSEL: Martin Diegel, counsel for the Applicant

Jeanette Dhanjal, Self-Represented (did not appear)

HEARD: March 19, 2015 (at Ottawa)

ENDORSEMENT

1The applicant brought a motion in April, 2014, to suspend FRO enforcement and terminate child support for periods during which he was unemployed. He brought a further motion dated October 1, 2014, to retroactively vary child support for the periods of this unemployment and to terminate it in relation to his daughter.

2The applicant in his current motion dated November 20, 2014, seeks an order:

(a) To terminate child support for his daughter, who will be 23 on April 14, 2015, effective July 1, 2011;

(b) To retroactively vary by termination of child support for his two sons, each currently 17 years old during his periods of unemployment;

(c) To eliminate child support arrears;

(d) To eliminate the amount of s. 7 special expenses currently due; and

(e) To eliminate child support for the two boys on June 21, 2015, failing receipt of satisfactory proof of their full time enrollment in school.

BACKGROUND

3The parties have been involved in repetitive family law proceedings with one another for in excessive of 10 years.

4The applicant has not been in communication with his children for lengthy periods of time and currently remains estranged from his daughter, since at least 2010.

5The respondent moved with the children to the Montreal area years ago, apparently works there as a real estate agent, has not complied with numerous disclosure orders as to her income levels, filed nothing in response to the above motions and did not attend this hearing. She instead relied on her daughter to forward some documentation regarding herself and one of the boys to applicant’s counsel who filed the same on this motion. This non-compliance by the respondent limits the information available and impairs the children’s rights as to support from their father.

CHILD SUPPORT AND ARREARS

6According to the statement from FRO, the outstanding arrears of child support owing by the applicant to and including October 1, 2014, is $34,899. Child support for the three children, based on the applicant’s annual income of $82,800, or $84,000 as determined by Métivier J. as of October 12, 2010, is $1,574 per month. At $1,574 child support per month, that increases total arrears and liability until March 31, 2015, to $42,769, less payments received.

7The FRO statement indicates regular recovery of payment from the applicant in 2014 at the level of $1,976 and, commencing in May, 2014, $2,075 per month to and including September, 2014. The applicant states that monthly recovery from him of $2,075 has continued to present. There is no contrary evidence. The applicant did not file a more current FRO statement after October, 2014. I will accept the applicant’s evidence on this point as the respondent elected to file no evidence.

8Applying monthly recovery at $2,075 for six months to the above figures, the adjusted outstanding arrears of child support to March 31, 2015, is $30,319 ($42,769 minus $12,450).

9The contractual evidence filed indicates the termination of the applicant’s employment contract and resulting unemployment during the following periods:

(a) 1 month, from March 31, 2011 until April 30, 2011;

(b) 10.5 months, from August 15, 2012 until July 1, 2013; and

(c) 3 months, from January 1, 2015 to date, or March 31, 2015,

totalling 14.5 months of unemployment.

10The evidence of unemployment is established. It is not voluntary or intentional. The applicant is therefore relieved of the 14.5 months of child support arrears during such periods of unemployment, thereby reducing the above child support arrears to $7,496 ($30,319 minus $22,823 at the rate of $1,574/month) as of March 31, 2015.

DAUGHTER

11On the basis of the order in the decision of Métivier J. in October, 2011, paragraph 62, the applicant seeks a further credit against his child support arrears by the elimination of that obligation regarding his daughter, effective July 1, 2011. That request is denied.

12The daughter provided and the applicant filed documents which indicate that this child has continued to reside with her mother since 2011 and has attended Vanier College in Montreal since 2009 until the end of the fall semester in 2014. The courses annually completed at Vanier in 2011 to 2013, are 4, 3 and 3 courses respectively. No evidence has been produced as to Vanier College enrollment commencing in January, 2015.

13This daughter in addition successfully completed a “make-up” training program at the Académie Édith Serei in April, 2014.

14Like all of us, some children do not always take the most direct path. On the evidence, this daughter remained financially dependent on her parents throughout the years 2009 to December, 2014 during which the applicant remained responsible to pay child support.

15This court terminates the child support obligation as to this daughter as of December 31, 2014, based on the evidence produced, the age of this daughter, the apparent total lack of contact between herself and her father and her completion of the “make-up” course which it is presumed qualifies her for at least some employment. The respondent elected to present no evidence and has ignored past disclosure orders.

16The applicant therefore is entitled to a further arrears credit, being the difference of Guideline child support for two, rather than three children, as to this daughter or $386 per month, for the period January 1 to March 31, 2015. That credit totals $1,158 and reduces the above child support arrears to $6,338.

17Offsetting that credit is evidence of appropriate education expenses for this daughter, including Vanier College fees for 2009 to 2014 totalling $2,373 and tuition for her course and equipment at Académie Édith Serei in 2014, totalling $3,576. The court accepts this combined cost of $5,949 as valid s. 7 education expenses.

18The applicant is responsible for his proportional share of these s. 7 expenses notwithstanding the absence of required notice, as such programs were for the educational advancement of his daughter and there must have been some appropriate s. 7 expenses during this six year period.

19Determination as to the appropriate share of the parties’ obligation towards s. 7 expenses is made difficult by the respondent’s refusal to disclose her income. Her deemed annual income was $40,000 in 2006 and 2008. Her late 2014 email to applicant’s counsel indicates she is a real estate broker in Montreal. The court imputes annual income to the respondent equivalent to that of the applicant, namely $82,800. Most moderately successful real estate agents can earn an annual income at that level.

20The parties’ share of s. 7 expenses remains 50/50, as determined by Métivier J. at paragraph 71 of her 2011 decision.

21The applicant’s share of his daughter’s s. 7 expenses is $2,975, thereby increasing the accumulated arrears of child support owing by the applicant to $9,313.

SONS

22There is evidence that the son, Arman, has been a full time student at Vanier College throughout 2013 and 2014. There is no evidence as to the status of Shaan.

23For clarity, the applicant is liable commencing January 1, 2015, to pay ongoing child support for his two sons, on the first day of each month, in the amount of $1,206, plus 50 percent share of ongoing reasonable s. 7 educational expenses for each son provided he is given current evidence of enrollment, results and proof of expenses as they occur, based on an imputed annual income of $82,800.

24In imputing that level of income to the applicant, the court notes that the applicant’s annual income in the past on occasion exceeded that amount. His Notices of Assessments are lower due to periods of unemployment and because he is entitled for tax purposes, as a self-employed person, to write off expenses regularly employed persons are not entitled to.

25The applicant has been resilient in the past in finding new contracts. Time will tell how long he requires to obtain a new contract and what efforts are made to do so. That is preferable to presuming unemployment until September, 2015, as proposed. It is also noted that the applicant has not been contributing towards s. 7 expenses over the last few years.

26As to other types of s. 7 expenses for these boys, the respondent cannot continue to conceal her income and ignore court ordered disclosure, without assuming greater responsibility for such ongoing expenses.

27The applicant seeks an order that child support for his sons should cease upon them attaining 18 years of age on September 21, 2015, subject to the right of the respondent by new application to seek continuation thereof.

28The evidence is that the applicant as of September, 2014, recently travelled with his sons. These are his children. He has a responsibility to communicate with them. This court will leave the onus on the applicant to communicate with his sons, determine what they are doing and whether they remain financially dependent on the respondent. The presumption should not be the reverse simply because the boys become 18 in September, 2015, especially given the evidence regarding Arman.

COSTS

29The applicant seeks costs herein on a partial indemnity scale in the amount of $9,929, including HST, and disbursements of $403, for a total of $10,332.

30The applicant was partially successful. He was unsuccessful as to termination of support for his daughter back to July, 2011, and his proposed automatic termination as to his sons in September, 2015.

31The applicant’s counsel hourly rate is appropriate.

32The hours claimed include that of a legal assistant. All other work performed was by counsel charging at $400/hour.

33The court does no appreciate the need of three separate notices of motions.

34The applicant is entitled to costs herein fixed at $7,500, including HST and disbursements.

35Payment of this cost award against the respondent is effected by application of it to and in the reduction of the above child support arrears owed to the respondent.

36In conclusions, child support arrears owing by the applicant to the respondent are reduced and fixed at $1,813, as of March 31, 2015, which amount is due and payable as of that date.

37Applicant’s counsel is requested to provide the court with an amended order incorporating the above determinations. That order and this decision are to be served by the applicant on the respondent.

Kane J.