Shwe v. Htoo, 2015 ONSC 213

COURT FILE NO.: F1257/12

DATE: January 12, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: NYEIN SHWE, applicant

AND:

YEE MWAY HTOO, respondent

BEFORE: VOGELSANG J.

COUNSEL: Nyein Shwe in person

Carol A. Murphy for the respondent

HEARD: September 19, 2014

ENDORSEMENT

[1] Ms. Shwe immigrated to Canada as a refugee in early August, 2007. Mr. Htoo, a relative of hers, had recently arrived in London and invited her to stay with him until she could reunite with her family. After two or three months together, she did not want to continue to stay with him, knowing that he had two children and a wife in Winnipeg. She said he “kind of forced [her] to be with him.” He left after she became pregnant.

[2] Daniel Nyein was born February 15, 2009. Only in August, 2012 did Ms. Shwe commence an application for child support, serving Mr. Htoo in Manitoba. She concedes that she advanced no demand for support before that date, and agrees to the time of her application as the commencement date for child support.

[3] Mr. Htoo’s financial disclosure was anything but “full, frank and continuing.” Notwithstanding r. 13(12.2) of the Family Law Rules, he failed to deliver a fresh financial statement before trial. Even with this, Ms. Murphy was able to produce notes (Exhibit 4A) of income with which Ms. Shwe could agree. Mr. Htoo’s income for child support purposes was $41,938 (2012), $30,530 (2013) and $40,845.95 (2014).

[4] Applying the Manitoba Child Support Guidelines, Mr. Htoo is ordered to pay support commencing August 1, 2012 in the monthly amount of $340, decreasing to $309 on January 1, 2013 and increasing to $331 effective January 1, 2014.

[5] Ms. Murphy contends in her written submissions that the fact that Mr. Htoo supports his wife and now four children in Winnipeg militates against any “retroactive” support. That term may be inappropriate since the obligation to pay is not imposed retroactively; it simply enforces the existent right of the child to receive support. Similarly, there is little merit to the argument that because Ms. Shwe receives (and had received) public funds to assist her family, there will be no direct benefit to Daniel from the payments.

[6] Courts are directed to “… strive for a holistic view of the matter and decide each case on the basis of its particular facts.”: D.B.S. v. S.R.G. , 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.) at para. 99. It seems to me that any potential hardship occasioned to Mr. Htoo can be obviated by an order requiring payment of the arrears of (approximately) $9,400 by equal monthly payments of $75 in addition to the table amount.

[7] The written submissions delivered by Ms. Shwe inquired about the disposition of her claim for special or extraordinary expenses under s. 7 of the Child Support Guidelines, O. Reg. 391/97 [as amended]. No material was introduced at the trial to support the claim and nothing was said during the hearing. I have reviewed Ms. Shwe’s financial statements, sworn August 9, 2012 and May 21, 2014 respectively. Neither sets out any expenses which could properly fall within the statutory ambit of s. 7 and not be subsumed in the table amount. Accordingly, the claim will have to be dismissed now although, if such expenses are incurred in the future, Ms. Shwe is quite entitled to move for a variation of the support order under s. 14(2) of the Guidelines.

[8] Ms. Murphy included an undue hardship defence under s. 10 of the Guidelines in Mr. Htoo’s Answer. She conceded at the outset of trial that she had no evidence available to support that position but wished to somehow “preserve the claim until a later time.” In my view, Mr. Htoo is in a situation similar to that of Ms. Shwe. If circumstances change in a material way, he can avail himself of s. 14(1) by way of the usual motion to vary.

[9] In the result, an order will go consistent with these reasons. The ongoing table amount of support, obviously, must be adjusted annually and the order should contain the following terms.

a) The applicant, Nyein Shwe, shall advise the respondent, Yee Mway Htoo, by letter to the address Ms. Murphy provides for him, in writing in the Karen language or in English, of any change in the members of her household, and of any change in her income such as obtaining employment, or change in her household income if there are other household members, with all of the documentary evidence of such changes, within 45 days of the change occurring.

b) Each party shall send to the other of them a complete copy of his or her income tax return and Notice of Assessment for the immediately preceding taxation year, by July 1st of each year.

[10] This is not a case for costs.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: January 12, 2015