Hillier v. Green, 2015 ONSC 3071
COURT FILE NO.: FC-04-134-4
DATE: 2015/05/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shannon Hillier
Applicant
– and –
Tyler Green
Respondent
Self-Represented
Sarah L. Coristine
HEARD: April 16, 2015 (at Ottawa)
Doyle J.
REASONS FOR JUDGMENT
[1] This is a motion to change brought by the Respondent (“Mr. Green”) to vary the Order of Justice Ray dated September 27, 2012 for a termination of child support retroactive to January 1, 2013.
[2] Mr. Green submits that there has been a material change of circumstances on the following basis:
(i) Ms. Hillier, the Applicant, is repartnered with Don Brennan who is living with her;
(ii) Ms. Hillier is underemployed; and
(iii) Mr. Green has a new family to support.
[3] Ms. Hillier’s position is that child support payable by the Mr. Green in the amount of $629 per month based on the set-off Guideline amount should continue as there has not been a material change of circumstances.
[4] For reasons set out below, I find that there has been a material change of circumstances and hence the Order of Justice Ray is varied so that child support payable by Mr. Green to Ms. Hillier is set at $347 per month commencing October 1, 2013.
Background
[5] The parties cohabited from 2002 to 2009 and they have shared custody of the two children, Hayden, born March 28, 2003 and Bryson, born October 8, 2005.
[6] In June 2012, the parties signed Minutes of Settlement (“Minutes”) which were incorporated into an Order dated September 27, 2012. The Order provides for joint custody and equal shared parenting of the children.
[7] Paragraph 66 of the Order stipulates that child support payable by Mr. Green to Ms. Hillier was based on the set-off amount based on the previous year’s income. Paragraph 75 stipulated that: “[i]n addition to a yearly review, either party may seek a variation of child support if there is a material change in the condition, means, needs or other circumstances of Shannon Hillier, Tyler Green or one or both of the children that would affect child support.”
[8] Mr. Green’s Line 150 income shown in his 2012 Notice of Assessment was $67,165 and Ms. Hillier’s Line 150 income in her 2012 Notice of Assessment was $24,948.
[9] Mr. Green works full-time at the Natural Science and Engineering Research with the federal government and receives rental income from rental property he owns with his brother. Mr. Green’s employment position was reclassified in September 2013 and hence he pursued and obtained his real estate license. He worked at Keller Williams and reported a loss for income purposes in 2014 and has decided to discontinue this work. He has completed some volunteer firefighting which he hopes may lead to paid remuneration. He states that his job with the federal government is in jeopardy as of July 2015. Mr. Green’s income in 2013 was $65,024 and in 2014 it was $58,475. This includes the amount of $6,612 net loss on real estate commissions and net rental income of $2,864.
[10] At the time of Justice Ray’s Order, Mr. Green was remarried to Liane Green who was unemployed. Her recent temporary government contract has ended and she is now operating a hair salon in their home and earns approximately $500 to $600 per month. She earned $24,000 in 2013 and her 2014 income was $2,000. They recently had a child born September 15, 2013.
[11] Since 2010, Ms. Hillier has been working part-time as a laboratory assistant with Gamma Dynacare. Her 2012 income was $24,910, her 2013 income was $22,244 and her 2014 income was $24,948. There have been some but not extensive evidence of job searches for full-time work.
[12] Ms. Hillier provided a list of medications which she takes for her recently diagnosed arthritis. Absent a medical report, the court cannot confirm her medical illness or the extent it may impede her employability.
[13] There is a dispute as to when Don Brennan commenced living with Ms. Hillier and whether he continues to live with her. Ms. Hillier indicates that Mr. Brennan resided with her from September 2012 to October 2013. Mr. Green’s position is that Mr. Brennan resided with her at the time of the signing of the Minutes and concealed this fact from her and that Mr. Brennan continues to reside with her.
[14] Mr. Green is currently paying $629 per month for child support based on the set-off amount.
Material Change of Circumstances
[15] As per Justice Ray’s Order, before a court can vary the amount of child support, there must be a finding of a material change of circumstances “in the condition, means, needs or other circumstances of Shannon Hillier, Tyler Green or one or both of the children that would affect child support.”
Cohabitation of Ms. Hillier
[16] After the execution of the Minutes, Mr. Green came to learn that Ms. Hillier was living with someone through a posting on Ms. Hillier’s Facebook page and from speaking with the children.
[17] Consequently, on September 28, 2008, he wrote to Ms. Hillier in an email requesting disclosure and a change of child support. Since there was no agreement, he commenced this motion to change in September 2013.
[18] In order to establish Ms. Hillier’s cohabitation with Don Brennan, Mr. Green relies on the following evidence contained in his affidavit sworn April 9, 2015 which includes, but not limited to, the following:
On June 26, 2012, Ms. Hillier’s Facebook page wherein she states that Don just moved in;
In July 2013, as a radio broadcaster, during an interview, Mr. Brennan alluded to two children 7 and 10 and the trailer that they use during the summer months;
On January 31, 2014, Hayden listed Mr. Brennan partner in a school assignment as part of the family;
Youtube video where on February 1, 2015, Hayden states “I think my parents are coming home soon” i.e. referring to Mr. Brennan;
Ms. Hillier and Mr. Brennan owned a joint account as of April 10, 2013;
The presence of Mr. Brennan’s truck at Ms. Hillier’s home viewed by Shawn Blais from February 10, 2014 to March 1, 2014 (except February 15 until February 21 while the couple were in Mexico) and April 29, 2014 and May 30, 2014 and December 15 to December 19, 2014 and December 30, 2014 to January 15, 2015;
In a radio interview on January 28, 2014, Mr. Brennan states on radio that they have been living together for two years;
In his school notes dated January 31, 2014, Hayden refers to Mr. Brennan as his stepfather; and
In Hayden’s February 26, 2015 email to Mr. Brennan: “Hi Doni!! I miss you so much I want you to come home.”
[19] Ms. Hillier admits that she lived with Mr. Brennan from September 2012 to October 2013. However, she states that Mr. Brennan took “a step back from the relationship” as he has his own child support obligations and does not want to assume responsibility for other children.
[20] Mr. Brennan is a sportswriter following the Ottawa Senators hockey team and accompanies the team when it plays out of town.
[21] Ms. Hillier admits that Mr. Brennan spends a lot of time at her home but he has his own place which he rents and as far as the children are concerned he is part of the family. He spends a lot of time with the family in the summer months. They did share a bank account but no longer do so and he is the trustee of her life insurance policy. She has never discouraged the children from calling him “stepfather”.
[22] She states that they are trying to rebuild the relationship and this litigation has caused some stress. Details of this stress have not been shared with the children and that due to Hayden’s own anxiety issues for which he sees a social worker, she did not want to tell him that Mr. Brennan had moved out.
[23] She submits that Shawn Blais, who observed Mr. Brennan’s truck at her home, is Mr. Green’s friend and therefore not impartial. He did not provide photos and the dates that he provided are impossible as the Senators’ hockey schedule is demanding and he could not have been at her house on those days.
[24] Ms. Hillier has filed a letter from Stephen Courtland, a friend of Mr. Brennan’s, which indicates that “Sometime last fall, Don started spending more time here again. We talked and he indicated that the relationship was becoming difficult as a result of issues with Shannon’s ex. He told that his plan was to take a step back while continuing to work on the relationship. My thoughts at the time were that he was questioning whether the effort was worth it. He spends more time here for awhile during the rough patch. Things seem better now.” This was not a sworn affidavit and contains hearsay. The court accords little or no weight to this letter.
[25] There is no affidavit filed from Mr. Brennan which would be the best evidence.
[26] The court finds that on a balance of probabilities on the evidence provided that Ms. Hillier has repartnered with Mr. Brennan and that he resides with her. He may be away for Senators’ hockey games but it is clear from the evidence that his “home” is with Ms. Hillier.
Mr. Green’s Financial Situation
[27] From the date of the Order, Mr. Green has been living with his wife. They now have a child. At this time, his wife has a modest income from her home hair salon but it is noted that she has had full-time employment outside the home in the past.
[28] His wife has had checkered employment in the past three years and there has been significant change with the birth of their new child. His income was $58,500 in 2014 which includes $6,600 from self-employment income.
[29] Therefore, Mr. Green’s financial situation has changed materially since the date of the Order and he now has a new family unit to support.
[30] Based on the above, the court finds that there has been a material change of circumstances which would warrant a change in child support.
Shared Custody – s. 9
Introduction
[31] Section 9 of the Guidelines reads as follows:
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account,
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[32] Section 9 provides a regime by which the court is guided in determining an amount of child support. It allows for a fair and flexible approach. The court is guided by the objectives of the Guidelines, section 1, which include the establishment of a fair standard of support for children so that they continue to benefit from the financial means from both spouses after separation.
Tables
[33] The starting point under s. 9(a) requires a review of the Guideline amounts. Before determining the amounts, the court must determine Ms. Hillier’s income for the purposes of determining child support.
Ms. Hillier’s Income
[34] Mr. Green states that Ms. Hillier is underemployed and that she has not made a concerted and a reasonable effort to find full-time employment.
[35] Ms. Hillier states that after separation she could not maintain full-time employment. When she was hired by Gamma Dynacare in 2010 she was considered “full time, permanent float” and guaranteed 35 hours per week. Due to her week on/week off shared parenting schedule with Mr. Green, she had difficulty finding subsidized daycare and asked her own father to care for the children in the morning before school. Her evidence is that her employer changed her position to “Casual on call float” when she advised them that she would have to leave work at 3 p.m. to care for the children after school.
[36] She then took a contract with Gamma Dynacare in Rockland which would guarantee her 25 hours per week and provide benefits. She now has subsidized daycare for the children.
[37] Mr. Green’s position is that Ms. Hillier should be earning $53,500 based on the average salary of a microbiologist/laboratory technician. However, that is not her job title.
[38] The Guidelines recognize that parents have a joint financial obligation to maintain their children in accordance with their relative abilities.
[39] Section 19 (a) of the Ontario Child Support Guidelines, O. Reg. 391/97 [the “Guidelines”] provides that the court may impute income to a party who is intentionally underemployed, or unemployed, other than where underemployment or unemployment is required by the needs of the child of the marriage.
[40] The leading case of Drygali v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), requires the court to consider the following as set out at para. 23:
Is the spouse intentionally under-employed or unemployed?
Is this under-employment or unemployed required due to educational needs?
If not, then what income is appropriately imputed in the circumstances?
[41] At para. 38 of Drygali, the court states:
There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.
[42] In determining whether to impute income, the court should take into account Ms. Hillier’s personal circumstances including age, education, experience, skills and health.
[43] In considering the availability of job opportunities, the court notes that little information has been provided by Ms. Hillier to demonstrate her efforts to secure full-time employment.
[44] As the Court of Appeal stated in Drygali, at para. 46; “[w]hen imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing a reasonable educational objective.” She has had a few years to look for full-time employment. She failed to produce a letter from her employer as setting out the available hours, other full-time jobs available, and overtime hours available as ordered.
[45] Regarding her efforts to acquire full-time employment, Ms. Hillier’s evidence outlines that she had an opportunity to work at the Montfort hospital but did not accept the position as it required working until 11 p.m. and this job would affect caregiving of the children. This is not an unreasonable decision in light of the ages of the children.
[46] Currently, Ms. Hillier works 25 hours per week. Her paystub filed dated September 2013 shows a rate of $16.45 plus $1.50 (bilingual rate) for a total of $17.95 per hour. There is a discretionary “float” differential as well of $1.25 per hour. If she worked full time at her current job, she would earn approximately $36,000 per year as evidenced by a colleague that works full time.
[47] Given Ms. Hillier’s experience, age and education, there is no reason that she should not be working full time. The court acknowledges that, initially, she had challenges with daycare issues and loss of a position which was in part due to Mr. Green’s behaviour. But that was five years ago. It has now been three years since the Order of Justice Ray.
[48] There is no evidence of educational needs and no evidence of health issues that limit her employability and childcare options are available through childcare providers and her father. In addition, the court takes into account Ms. Hillier’s failure to provide disclosure regarding her job applications and information from her present employer regarding further available hours.
[49] Therefore, the court imputes an income of $36,000 per year to Ms. Hillier.
Child Support Tables
[50] Based on Ms. Hillier’s imputed income of $36,000, the table amount would be $522. Therefore, the set-off amount is $347 per month.
[51] The set-off method was the formula provided for in the Minutes. It is a simple calculation that parties and/or counsel use to resolve support in shared parenting arrangements.
[52] However, the court is mandated to review the other factors set out in s.9 of the Guidelines.
Increased Cost of Shared Custody and Child Expense Budgets
[53] In exercising its discretion, the court is mindful that the parties are continuing a shared custody arrangement whereby they agreed to a set-off amount.
[54] Mr. Green’s budget for children’s expenses is $3,600 per month. The court finds that includes inflated figures, for example, it attributed 40% of the carrying costs of the home to the two children when they only live there half-time.
[55] Mr. Green’s net worth is minus $25,000 according to his April 9, 2015 financial statement and he has a debt load of $2,700 per month. He states that the children often speak of the lifestyle that they enjoy at their mother’s home including TV’s, play-station, activities, dining out.
[56] However, the court notes that Mr. Green’s financial statement and child budget demonstrates the increased cost of transportation for the children. He has more housing costs but he has a larger home. Mr. Green has increased time travelling from Limoges of 30 minutes to drive the children to school at Convent Glen School.
[57] Ms. Hillier’s last financial statement sworn February 28, 2014 shows her in a negative net worth of $4,543 and approximately $1,600 per month payment on debts. Although no child budget was provided as ordered, her financial statement does provide payments she makes on children activities, clothing, school fees and supplies, daycare expenses and sets out her carrying costs for her home.
[58] The evidence demonstrates that both parties have similar lifestyles. The parties provide the children with a comfortable nice home, TV’s, electronic gadgets, activities, etc. Both parties enjoy vacations. Ms. Hillier takes the children to a trailer in the summer. Mr. Green has taken vacations including Disneyworld in Florida, skiing in Vermont, and Utah and vacationed in Dominican Republic. The children participate in activities while with him, including hockey baseball, soccer and drumming.
[59] Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 (S.C.C.) directs the examination of budgetary evidence regarding increased costs. The parties have fixed costs such as mortgage, taxes, house insurance, cable and phone. The children are effectively being given two homes. Based on the evidence, the parties have been able to provide a similar standard of living for the children.
[60] Mr. Green has a single home in Limoges and more room but then he has more distance to travel to take the children to school. Ms. Hillier has a home in town and closer to the children’s school.
[61] Both parents have technology in their home including televisions and take vacations and enrol the children in activities.
Means and Needs and Conditions of the Parties
[62] In determining this issue, the court must review what evidence has been provided despite Ms. Hillier’s failure to comply with the financial disclosure ordered including what contribution Mr. Brennan makes to the household.
[63] Ms. Hillier’s affidavit of August 26, 2014 attaches statements (redacted) showing her payment of household bills including gas, hydro, Rogers, mortgage. No other up-to-date information has been provided by Ms. Hillier although ordered to do so. This information would have been helpful to the court in determining and assessing the factors and means and needs of the parties pursuant to s. 9 of the Guidelines.
[64] The Order of Justice Sheffield dated September 3, 2014 required, among other things, an updated financial statement from Ms. Hillier which included the joint accounts with Don Brennan and this has not been completed.
[65] Justice Sheffield also ordered unredacted monthly account statements for her bank account and visa for 2014, unredacted monthly bank account statements for the account held with Don Brennan for 2013 and 2014, monthly household telephone bills and Roger’s cable and internet bill for 2014 for her residence, and a letter from Ms. Hillier regarding hours that are available from her employer, whether any additional hours or overtime hours have been offered to her since 2013 and if any other full-time or part-time positions have become available since 2010.
[66] Family Rule 13(12) requires that parties must update their financial statement within 30 days before a court hearing so that the court can review their most up-to-date financial information when determining support. Nevertheless, the court will rely on Ms. Hillier’s financial statement sworn February 28, 2014.
[67] Justice Sheffield also ordered that Mr. Don Brennan produce his Line 150 of his most recent tax return within 10 days of the order. Mr. Brennan was served with the motion. He did not file materials but was present at the motion.
[68] Mr. Brennan has not complied with the Order. The court has no evidence that he received a copy of the order but Ms. Hillier submits that Mr. Brennan does not wish to disclose any further financial information.
[69] Mr. Brennan did not file his 2013 tax information as ordered. Nevertheless, the court can assume that he earns at least $67,000 per year as he did in 2012. Although, the financial responsibility for providing for the children is with the parents and not with their respective partners, the court can consider the means available to both parents through their respective partners.
[70] Since Mr. Brennan lives with Ms. Hillier, he should be contributing to the household and his financial contribution, (despite his own child support obligations) would reduce Ms. Hillier’s needs.
[71] The same can be said about Mr. Green’s household. His wife is expected to financially contribute to the household and their family needs.
[72] There is no disparity in the parties’ respective lifestyles that would suggest that the children live in poverty in one household and in a luxurious home in the other.
[73] Given the above factors and that both parties have partners and reasonable lifestyles, child support is ordered to be paid by Mr. Green to Ms. Hillier in the amount of $347 per month.
[74] Although the parties’ did not provide the child support calculations, it is incumbent on the court to review the household ratios. It should be noted that upon payment of $347 per month along with the parties’ government eligible credits and deductions, the parties will have approximately the same Net Disposable Incomes.
Retroactivity Variation of Child Support
[75] Section 37 (2.1) of the Family Law Act, R.S.O. 1990, c. F. 3 [“FLA”] provides that:
In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under s. 33.
[76] The case of S. (D.B.) v. G (S.R.), 2006 SCC 37, 2 S.C.R. 231, stipulates that in exercising the court’s discretion in ordering retroactive support, it must balance the need for certainty with the need for fairness and flexibility and sets out the factors a court must consider in retroactively adjusting child support. The court must strive for “a holistic view of the matter and decide each case on the basis of its particular factual matrix.”
[77] In S. (D.B.) v. G (S.R.), the Supreme Court of Canada stated at paras. 96-97:
Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. Prospective awards serve to define a new and predictable status quo; retroactive awards serve to supplant it.
Lest I be interpreted as discouraging retroactive awards, I also want to emphasize that they need not be seen as exceptional. It cannot only be exceptional that children are returned the support they were rightly due. Retroactive awards may result in unpredictability, but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.
Reasonable Excuse for Why Support Was Not Sought Earlier
[78] There was no delay on the part of Mr. Green. Immediately after the Minutes were signed and upon finding out that Mr. Brennan was living with Ms. Hillier, he advised her that he was seeking a change in support.
[79] He gave notice to Ms. Hillier in September 2012 of his intention to seek a variation in child support. When he did not receive a response to his offer to negotiate, he commenced an action in September 2013.
Conduct of the Payor Parent
[80] Is there blameworthy conduct on behalf of the payor? This is described as “anything that privileges the payor parent’s own interests over his or her own children. The payor parent did not hide his income nor was there any evidence of intimidation.”
[81] There is no blameworthy conduct that negatively impacts Mr. Green’s claim for retroactivity.
[82] On the other hand, Ms. Hillier did not become engaged in the process of reviewing support until the present motion was commenced. Once the action was started, she did participate in the litigation and provided the initial disclosure required under the Rules but failed to comply with ordered disclosure as described above.
Circumstances of the Children and Hardships Occasioned By a Retroactive Award
[83] A retroactive adjustment to January 2013 would result in a significant overpayment from Ms. Hillier to Mr. Green. She has a negative net worth and has debts and few assets that can be liquidated. This could significantly impact the children.
[84] On the other hand, the court notes the increase of Mr. Green’s negative debt situation in his financial statement and the high amount of monthly debt payments he pays per month. A retroactive adjustment of child support will assist him in redressing the past inequities.
[85] Notice was provided for in September 2012 and retroactive adjustment is being requested from January 2013 which is less than six months from the date of the Court Order of Justice Ray.
[86] Both parties are in negative net worth positions but have managed to provide a comfortable lifestyle for their children. The court is guided by principles set out in the S. (D.B.) v. G. (S.R.) case. It also needs to ensure that there is no hardship to the children and no windfall for either party. As stated above, “retroactivity can be avoided by appropriate action at the time…”
[87] The court orders a retroactive adjustment of child support to October 2013 which coincides with the date of the issuance of the motion to change and the time when Ms. Hillier’s family unit changed.
[88] Therefore, Justice Ray’s Order dated September 27, 2012 is varied so that commencing October 1, 2013, Mr. Green will pay $347 per month as child support. In order to minimize any hardship this retroactive adjustment may cause to Ms. Hillier and consequently, the children, she will have three years to repay the overpayment amount to Mr. Green.
[89] Mr. Green will provide his costs’ submission (maximum of 2 pages) by June 22, 2015 and Ms. Hillier will provide her response (maximum of 2 pages) by July 13, 2015. Mr. Green may file a Reply by July 27, 2015.
Madam Justice Adriana Doyle
Released: May 15, 2015
CITATION: Hillier v. Green, 2015 ONSC 3071
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shannon Hillier
Applicant
– and –
Tyler Green
Respondent
REASONS FOR JUDGMENT
Doyle J.
Released: May 15, 2015