ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D2286/02-01
DATE: 2015-June-11
BETWEEN:
Terry Lynn Veres
Applicant
– and –
Donald J. Ellison
Respondent
Howard E. Staats, for the Applicant
Self-represented
HEARD: June 9, 2015
Justice J.C.KenT
Background
[1] This matter which was commenced on 18 July 2013 is before the court as a Motion to Change a Final Order made by Milanetti, J. on the 23rd of January 2004. That order provided, in part:
“(1)This Court Orders that the Plaintiff, Terry Lynn Veres, shall have sole custody of the children, namely Meagan Brittany Ellison, born September 22, 1998, and Erin Brianna Ellison, born November 22, 1999.
(5)This Court Further Orders that the Defendant shall pay child support to the Plaintiff in the amount of $211.00 per month commencing February 2, 20014, in accordance with the Child Support Guidelines for Ontario and based on the Defendant’s annual income of $14,000.00.
(6)This Court Further Orders that the Defendant shall serve the Plaintiff with annual copies of his income tax return and notice of assessment on or before August 31st of each year.”
[2] On 22 January 2014, an Order was made by Nightingale, J. that ongoing support would be increased from $211.00 per month, to $743.00 per month based on the Respondent’s annual income being determined to be $50,000.00. The Order of Nightingale, J. provided further for payment of child support arrears owing back to 1 January 2008. Most significantly, the Order of Nightingale, J. provided that it was “without prejudice to the right of the Applicant to continue to trial with respect to her claim for further retrospective child support for the time period before January 1, 2008.”
[3] In her Motion to Change, the Applicant also sought to require the Respondent to pay his proportionate share of special or extraordinary expenses.
[4] This trial was held to determine the quantum of child support arrears for the calendar years, 2005, 2006 and 2007 as well as the special and extraordinary expenses for 2012, 2013 and 2014 and the extent to which the Respondent could be required to pay that quantum or a portion thereof.
FACTS
[5] The uncontradicted evidence at trial and the record established a number of facts.
[6] The parties, who separated in 2001, have two children, namely, Meaghan Brittany Ellison, born September 22, 1998 and Erin Brianna Ellison, born November 22, 1999. As of the date of trial, Meaghan is 16 years of age and Erin is 15.
[7] The income of the Respondent father for the years in question was: 2005- $52,081.00; 2006 - $72,980.00; 2007 - $29,186.00.
[8] For the years in question, the Child Support Guidelines required the Respondent to pay a total of $26,312.00, but he paid only $7,596.00 pursuant to the Order of Milanetti, J., leaving a net obligation, if ordered, in the amount of $18,716.00.
[9] The income of the Applicant for the years that she claims reimbursement for special and extraordinary expenses was 2012 - $48,296.51; 2013 - $50,363.20; 2014 - $47,600.59.
[10] For 2012, the income of the Respondent was $64,501.57.
[11] For 2013, Nightingale, J. imputed income of $50,000.00 to the Respondent. On the evidence before the Court, that appears to be an appropriate figure to use for both 2013 and 2014.
[12] A proportionate share calculation for the years in question would make the Respondent’s share of special and extraordinary expenses over 50%. The Applicant, however, asks for a determination limited to 50%.
[13] For the years in question, the special and extraordinary expenses were as follows:
Orthodontic treatment for Meaghan - $ 6,500.00
Orthodontic treatment for Brianna - $ 6,200.00
Periodontics treatment for Brianna - $ 626.00
Aquatic club membership and related costs for Brianna - $ 2,814.44
Aquatic club membership and related costs for Brianna - $ 1,381.89
School trip for Meaghan - $ 3,358.00
Total: $20,880.33
[14] The Respondent has paid no portion of the special and extraordinary expenses. His proportionate share based on a 50% calculation was $10,440.17.
POSITION OF THE APPLICANT
[15] The Court should award retrospective child support fixed in the amount of $18,716.00 to be paid by the Respondent to the Applicant.
[16] The Court should also award special and extraordinary expenses fixed in the amount of $10,440.17 payable by the Respondent to the Applicant.
POSITION OF THE RESPONDENT
[17] Any amount awarded should be placed in trust for the children to be used at a later point in their lives because it would be of no real benefit now.
[18] There is a law in Canada that prohibits some retroactive support orders. This would seem to be a reference by the Respondent to the decision of the Supreme Court of Canada in D.B.S. v. S.R.G. et al, 2006 SCC 37, [2006] 2 S.C.R. 231.
ANALYSIS
[19] The Respondent did not testify or present evidence. In his submissions to the Court, he did provide some “evidence”, but it was not cross-examined upon. His most troubling point was an assertion that the decision of Nightingale, J. created an apprehension of bias because of a connection that the judge had to the Applicant’s family through membership in an organization. There is no evidence to support any finding of such a connection and certainly, therefore, no basis for any apprehension of bias.
[20] While placing funds in trusts for the girls for their later use may appear to be a good start on a saving program, it is more necessary that the girls, now 15 and 16 years of age, be better provided for currently and in the near future. This may compensate them for some of the deprivation they have suffered in earlier years when support that should have been paid was not forthcoming.
APPLICATION OF THE LAW
[21] As I advised the Respondent that I would, I have reviewed the D.B.S. decision of the Supreme Court of Canada. The case is often relied upon to limit retroactively ordered child support to 3 years from the date the subject was first broached by an Applicant or notice of legal action being taken was provided to the Respondent.
[22] There is, however, where there has been blameworthy conduct on the part of the payor an exception that can be made. There is evidence of such conduct in this case. It is implicit in the Order of Nightingale, J. when he provided that the Applicant would be able to go to trial on her claim for “further retrospective child support for the time period before January 1, 2008.” He must have considered this to be a case that could be an exception to the norm.
[23] On this same issue, the Applicant testified that she still fears the Respondent and even 14 years after their separation, she will not reveal her address. She told the Court that only after relocating did she feel sufficiently safe to commence her Motion to Change.
[24] The record itself indicates the mental state of the Respondent was clearly an issue when the matter was before Milanetti, J. She ordered:
“The Court Further Orders that until the Defendant completes a psychiatric assessment and the access opinions of the psychiatrist can be considered the Defendant shall have supervised therapeutic access to the children with dates and times as arranged by the therapeutic counselor.
This Court Further Orders that the Defendant shall be responsible for the entire cost of exercising therapeutic access.”
[25] The Respondent himself told the Court during his submissions that he had been diagnosed as schizophrenic.
[26] It may well be that the Respondent presents no risk to anyone, but it must be noted that he has never been permitted to have any access to the children that was unsupervised.
[27] In addition to all of the foregoing, the Respondent made it difficult for the Applicant to consider whether or not a Motion to Change the child support order should be brought before the court by failing to serve the Applicant with annual copies of his Income Tax Return and Notice of Assessments.
[28] For all of the above reasons, this Court is satisfied that retroactive child support order sought should be granted even though it reaches well beyond a 3 year period.
RESULT
[29] The Respondent is ordered to pay to the Applicant, in addition to the retrospective child support payments ordered by Nightingale, J. on 22 January 2014, the sum of $18,716.00.
[30] The Respondent is further ordered to pay his proportionate share of the special and extraordinary expenses for the years 2012, 2013 and 2014, fixed in the amount of $10,440.17.
[31] The Respondent is further ordered to pay his proportionate share of special and extraordinary expenses for Meaghan and Erin fixed at 50% for 2015 and succeeding years unless otherwise ordered by the Court.
COSTS
[32] The Applicant has been entirely successful in this matter and is entitled to her costs. A submission as to the appropriate quantum of those costs may be made by counsel for the Applicant within 14 days from the date of the release of these reasons. The Respondent may make a responding submission within 14 days thereafter and the Applicant may make reply within 7 days of that response, if so advised.
Kent, J.
Released: June 11, 2015
COURT FILE NO.: D2286/02-01
DATE: 2015-June-
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Terry Lynn Veres
Applicant
– and –
Donald J. Ellison
Respondent
REASONS FOR JUDGMENT
Kent, J.
Released: June 2015