ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Reid v. Aiello, 2015 ONSC 31
COURT FILE NO.: 7567/13
DATE: 2015/01/05
B E T W E E N:
Barbara Anne Reid (Aiello)
Michael S. L. Roberts, for the Applicant
Applicant
- and -
Philip Aiello
Virginia L. Workman, for the Respondent
Respondent
HEARD: December 19, 2014
The Honourable Justice C. A. Tucker
ENDORSEMENT ON MOTION
Issues
[1] The issues are:
(I) What is the amount owing, if any, for Adam for child support, retroactive child support and s.7 expenses?
(II) What is the amount owing, if any, for Alex for child support, retroactive child support and s.7 expenses?
(III) What is the income of the support payor for child support purposes?
It was agreed at the outset of the motion that I would make the findings of entitlement, then the parties would do their calculations of amounts to be paid.
Background
[2] The applicant and respondent were married in August 1989. Two children were born of their union, Adam in April 1991 and Alex in December 1996. The parties separated and their original support order was made in 1997 and last varied in October of 2000. The respondent brought a motion to change child support in July of 2013 which was responded to and countered with a motion to change by the applicant in August 2013 with the applicant seeking retroactive child support for the children of the marriage. Tragically, in December 2013 Adam died.
Positions of the Parties
[3] The mother submits that both children are entitled to retroactive child support back to 2000, as well as ongoing support for Alex, support for Adam until his untimely death, and s.7 expenses for both of the boys arising from their first year of post-secondary school education. She also wants to include certain registered savings plans (RSPs) in Mr. Aiello’s income for child support purposes.
[4] Mr. Aiello’s position is that his son Adam was no longer a child of the marriage at the time the motion was made for retroactive support and s.7 expenses and, as such, the applicant has no standing to make such a claim. Further, he points out that no demand was ever made for production of reports of his yearly income nor was he obligated to do so under the 2000 child support order.
[5] Ms. Reid asserted that she was intimidated by the children’s father and as a result made no claim. She also indicated that she was told that Mr. Aiello’s income was not her business.
[6] The respondent suggests that retroactive support, if any, should be limited to the period for the three years prior to the applicant bringing forth her claim in August 2013. The respondent submits that Adam’s support should have been terminated when he completed school in May of 2013 and began employment on a fulltime basis in June of that year. In terms of Alex, the position taken is that he is no longer in school and has not been since May 2014 and is working fulltime and thus no longer a child of the marriage entitled to support.
[7] Finally, the respondent argues that his RSP income should not be included in his income in calculating child support on the basis that the cashing in of the RSPs was done to pay expenses of the “children” and legal fees, that to do so would amount to double dipping, and that these withdrawals were not a regular part of his income, but rather two distinct, unusual and non-recurring transactions.
Preliminary Issue
[8] The applicant in a “new” motion sought “interlocutory review of the answers contained in the Form 22A Response to Request to Admit provided by Mr. Aiello dated August 20, 2014” citing that the conduct of the respondent by providing an inadequate response resulted in a failure to provide financial information upon which to resolve this matter. This, she asserts, in addition to his failure over the years to provide up-to-date income information, amounts to blameworthy conduct making the respondent liable for retroactive child support back to the year 2000. The applicant filed a 365-paragraph affidavit in support of this contention full of argument, conclusions, and submissions.
[9] I am unable to find on the facts relevant to my decision “blameworthy conduct” on the part of Mr. Aiello that such gives rise in itself to a right to a retroactive claim. The respondent points out that even if the response was inadequate, which he does not acknowledge, there never was any confusion as to his income, pointing out that the applicant had complete income tax returns and notices of assessments in relation to the motions. He also points out that the purpose of a Request to Admit and Response is to put on the record admissions that are not otherwise part of the record, and not simply to facilitate settlement or to expedite the process. The alleged failure to adequately provide a response to a Request to Admit, if such occurred, and upon which I have made no determination, I find at most amounts to a possible claim for costs.
(I) What is the Amount Owing, if any, for Adam for Child Support, Retroactive Child Support and S.7 Expenses?
[10] Upon completing high school Adam went to Lambton College from September 2010 until April 2011. He worked fulltime from May until December 2011 and then returned to school completing his firefighting courses in April 2013. He began to work fulltime in June 2013 and he was a general labourer in Alberta working fulltime at the time of his death. There was some suggestion by his mother that he hoped and/or planned to get into an apprenticeship program in the West but no evidence was put forward as to his enrolment in any apprenticeship program. At best, it may have been his hope to become involved in such a program, but there is no evidence that he was so engaged or registered to serve an apprenticeship at the time of his death. I find that Adam ceased being a child of the marriage under the Divorce Act, which is the operative legislation here, when he finished school and began to work fulltime. Accordingly, child support for Adam would terminate at the end of May 2013.
[11] The onus is on the applicant to prove that Adam was a child of the marriage at the time she sought retroactive support for him. Given that I have found Adam not to be a “child” so entitled by June of 2013, and that Mr. Aiello’s application was launched in June of 2013, and Ms. Reid’s in August 2013, I find there is no entitlement to make a claim for retroactive support or s.7 expenses for Adam.
(II) What is the Amount Owing, if any, for Alex for Child Support, Retroactive Child Support and S.7 Expenses?
[12] Alex is now 20 years old and was unfortunately dragged into the litigation by his parents, with his father arguing that the child resided with him from July 2012 until September 2013, and his mother denying that the child ever left her home. He was even cross-examined on an affidavit he filed in support of his mother’s position. Alex’s affidavit was, at best, ambivalent about his residence during the relevant time period indicating that he never moved his stuff out of his mother’s house. On cross-examination he suggests that he slept mainly at his girlfriend’s, then with a college friend, and spent some time with his mother and father with most of his waking time at school.
[13] His father asserts that the child wished to live with him so he prepared a bedroom and obtained a car for his use. Mr. Aiello points out that his home was closer to both the school where Alex attended, being Niagara College, and the location of his part-time work which was part of his son’s motivation for the move. Alex does state that a final blowup occurred with his father in September 2013 and he was “kicked out” by him resulting in him leaving his father’s home permanently. This terminology would be indicative of the fact that prior to that date his residence was with the respondent. The mother suggests that Alex remained resident at her home during the relevant period, but lived for the most part with his girlfriend at that time. Child support was paid during that period by the respondent for the child. The respondent argues that the mother was not financially responsible for Alex during the time, even if I accept the mother’s testimony, and, accordingly, was not entitled to support. It is clear that Alex does not want to be in the middle in this battle, but I find based on all the evidence on a balance of probabilities that Alex’s residence was with his father during the time period in question and that, as such, monthly child support should not have been paid for him by the father until he returned to his mother’s home in mid-September 2013. Accordingly, child support made by the father should have ended in August 2012 until the end of August 2013 being the first full months after he began and ended living with his father. In his evidence Alex said he paid for most of his “stuff” himself and, I find, accordingly there is no obligation for the mother during this time period to pay child support for her son Alex.
[14] Alex attended Niagara College until April 2014 when he graduated. He is no longer in school, is working fulltime, and is 20 years old. Accordingly, I find that he is entitled to child support to and including August 2014 when he became employed fulltime. In all the circumstances of this sad case, I have extended the time period until he began to work fulltime. Accordingly monthly support for him will terminate as at August 31, 2014 although technically his entitlement ended on leaving school in May of 2014.
[15] I acknowledge Alex has expressed an interest in returning to school, however he has not acted upon it. I also recognize that the loss of his brother and the ongoing issues between his parents must be a daily struggle for him. However, I must make my findings upon the law and not sympathy, and by definition at this point in time Alex is not a child of the marriage and no longer entitled to child support.
[16] The respondent concedes that if Alex returns to school no later than September 2016, his entitlement to child support could be revived without issue.
[17] In terms of the retroactive claim for Alex, I cannot find “blameworthy conduct” to order a readjustment back to the year 2000. I find Mr. Aiello never produced information about his income to Ms. Reid, but neither was he asked and ordered to do so. Ms. Reid indicated that she was fearful of Mr. Aiello and was told that his income was not her business, but no demand was ever made for the same until Mr. Aiello brought his motion to change. I find this is indicative of an attempt to maintain an income source rather than the actions of a mother who is no longer afraid to pursue the claim.
[18] I agree that child support is for the child and that the mother’s failure to pursue greater child support and the father’s failure to step up to the plate and ensure that a child receives the benefit of greater income should not deprive the child of this resource. However, to try to revisit a claim that should have been asserted 14 years ago is not appropriate on the facts of this case. Mr. Aiello did make all the child support payments that he was required to since the separation of the parties, albeit pursuant to a dated court order. The proper balance, I find, is to allow the mother to reach back for the three years prior to the issuance of her motion and to provide retroactive support for that time period based on the appropriate amount of income of the payor for Alex.
[19] The father acknowledges that he is required to contribute to Alex’s s.7 expenses and I find he should do so proportionate to his income and after taking into account the contribution that Alex is also required to make to such costs. The amount apparently claimed for Alex by his mother is $1,886.91. If, in fact, it is a different amount, I find that the parties shall use the principles as set out herein to determine the father’s liability. Alex’s contribution is unknown, and Alex did not provide his income tax return. Rather than spend more time on this issue, I find that the equitable way to deal with it would be to assess Alex as responsible for one quarter of the claimed amount and his father the balance, and I do so order.
(III) What is the Father’s Income for Child Support Purposes?
[20] Although originally disputed, the applicant now agrees that the union dues of the respondent are appropriately deducted from his total income. What remains in dispute is whether or not two RSP withdrawals should also be deducted for child support purposes. The applicant asserts, given that it occurred twice, it cannot be found to be a “onetime non-recurring” source of income and should be included in his income for child support purposes.
[21] The respondent argues that the funds were used to benefit the children and to pay for his lawyer in dealing with the issue of child support and “twice” does not make these funds part of his general stream of revenue. There is case law relating to the issue that provides some guidance but does not provide absolute answer. I find that Mr. Aiello would have been penalized by having to pay the tax on such withdrawals and, as such, would not receive the whole benefit of the total amount cashed in. He has also depleted an asset to receive income. I find that he did, however, enjoy the benefit of a greater income in these years as a result of his cashing in of the RSPs. This amount he was entitled to spend at his discretion and may have used to assist his sons. In all the circumstances, I find that one-third of the cashed in RSPs shall be included in his income in the relevant years, and that the quantum of child support therefore shall be based upon his total income less his union dues, plus one-third his RSP monies in the relevant years.
Costs
[22] If the parties are unable to agree upon costs, I may be given written submissions to be received no later than January 8, 2015.
Tucker J.
Released: January 5, 2015
CITATION: Reid v. Aiello, 2015 ONSC 31
COURT FILE NO.: 7567/13
DATE: 2015/01/05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Barbara Anne Reid (Aiello)
Applicant
- and –
Philip Aiello
Respondent
ENDORSEMENT ON MOTION
Tucker J.
Released: January 5, 2015