CITATION: De Angelis v. De Angelis, 2015 ONSC 2330
COURT FILE NO.: 04-FL-1064-3
DATE: 2015/04/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GIUSEPPE DE ANGELIS
Applicant
– and –
AMANY DE ANGELIS
Respondent
Self‑represented
Self‑represented
HEARD: April 7, 2015 at Ottawa
REASONS FOR Decision
[1] This is a motion to change brought by the Applicant to vary the Order of Justice Cosgrove dated January 18, 2007, which ordered him to pay $600 per month for two children plus $50 per month towards outstanding arrears of $3000.
[2] The Applicant has now accumulated arrears of $19,992.43 and is seeking to rescind the same. He is also submitting that, given his financial circumstances, he can only pay $400 per month.
[3] For reasons set out below, I make the following Order:
Commencing May 1, 2015, the Respondent will pay child support payable for the two children in the amount of $320 per month based on an imputed income of $21,000 per year;
Child support is payable so long as the children are “children of the marriage” as defined in the Divorce Act;
The arrears are fixed at $13,272.43 and the Applicant shall repay this amount at the rate of $85 per month commencing May 1, 2015.
Background
[4] The parties separated in 2001. Their two children reside with the Respondent.
[5] The Applicant was working at the Ottawa Citizen newspaper at the time of the separation. He was earning approximately $65,000 per annum. He had commenced doing some part‑time tile jobs before he was dismissed in 2006.
[6] At the time of Justice Cosgrove’s Order (which was entered into on consent), he was running his tile business and his 2007 income shows a gross income of $20,050 with a net income of $10,674.
[7] The Applicant has worked in the tile business since that time and his income has varied with the maximum income of $25,604 earned in 2010.
[8] The Applicant’s net income for 2012 was $11,112; 2013: $5146 and 2014: $13,715. He states that he requires a change of support due to the following reasons:
i) He has had to deal with the Family Responsibility Office and the suspension of his driver’s licence due to non‑payment of support. These suspensions cause a hardship for him as he cannot work without a licence and he incurs costs to arrange for the reinstatement of his licence.
ii) He had the children for half the time in 2010 and the arrears accumulated during that time should be rescinded.
iii) He has a 25‑year‑old daughter from another relationship and is paying $50 per month.
iv) He owes approximately $20,000 to HST and Revenue Canada.
v) He is 52 years old and he is having medical issues with his knees and back. No medical evidence was produced regarding these issues.
[9] On an interim without prejudice basis, Justice Labrosse ordered the Applicant to pay $320 per month commencing January 1, 2015 based on an imputed income of $21,000 per year.
[10] The Applicant has accumulated arrears of $293.75 pursuant to Justice Labrosse’s Order.
Child Support
[11] Parents have a joint responsibility to financially provide for their children. The Applicant must prioritize his budget to ensure that the children’s financial needs are a priority in his budget and planning.
[12] The Applicant has been in default of support payments on three occasions. He failed to make payments pursuant to Justice Rutherford’s Order, which led to a setting of arrears of $3000 in Justice Cosgrove’s Order, and he is currently in default of payments for both Justice Cosgrove’s Order and Justice Labrosse’s Order.
[13] The Applicant certainly does not have a good record of meeting his obligations.
[14] In order for this Court to change a court order, the Applicant must show a material change of circumstances since the last court order.
[15] There has not been a significant change of income earned from his tile business. In 2007, his net income was declared as $10,674 and, in 2014, his declared income is $13,715.
[16] The evidence before me indicates that he lives with his mother and brother. The Respondent alleges that he has been living with his girlfriend in Manotick for two years but there is no evidence of this before me.
[17] The Court finds that there has been a material change of circumstances due to the accumulation of taxes owed to Revenue Canada and to HST of approximately $20,000. Child support takes a priority to these debts but the Court can consider these debts in determining if the Applicant’s financial situation has changed to justify a change in support.
[18] Given the worsening of the Applicant’s financial situation and what he had hoped would be a viable business in 2007 has not proved to be fruitful. It has now been eight years and the pattern of his income shows that he is not able to meet his financial obligations and make ends meet with his current job situation. Nevertheless, he has a duty to support the children.
[19] Pursuant to s. 19 of the Child Support Guidelines, the Court intends to impute income to the Applicant.
[20] There is no evidence before me as to what a tile installer can make in the industry or what job opportunities are available for people in this trade.
[21] The Ontario minimum wage is $11 per hour, which translates to approximately $21,000 per year. Therefore, it is reasonable for the Applicant to pay support at least on this income. Therefore, the amount payable of $320 per month will continue.
Arrears
[22] Regarding the nine months that the children lived with him half time, I have contradictory evidence on this issue and I do not have a copy of any written agreement that the parties may have signed pertaining to this time period of 2010. Therefore, I am not prepared to consider rescinding arrears accumulated during that period of time.
[23] Retroactively, I am prepared to review the last two years of support and deduct $280 per month difference ($600 - $320) x 24 months = $6720. Therefore, the arrears are set at $13,272.43.
[24] The arrears must be paid at $85 per month commencing May 1, 2015.
Termination Date
[25] The legislation is quite clear that child support should be payable so long as the child is attending school on a full‑time basis.
[26] Therefore child support will be payable until a child completes their first post‑secondary degree/diploma.
Madam Justice Adriana Doyle
Released: April 10, 2015
CITATION: De Angelis v. De Angelis, 2015 ONSC 2330
COURT FILE NO.: 04-FL-1064-3
DATE: 2015/04/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GIUSEPPE DE ANGELIS
Applicant
– and –
AMANY DE ANGELIS
Respondent
REASONS FOR DECISION
Doyle J.
Released: April 10, 2015