CITATION: Dutrizac v. Roberts, 2015 ONSC 4017

COURT FILE NO.: F921/13

DATE: 2015/06/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Desmond Charles Dutrizac

Self-represented, for the applicant

Applicant

- and -

Nancy Jane Roberts

Self-represented, for the respondent

Respondent

HEARD: June 19, 2015

Aston J.:

Introduction and Issues

[1] In August 2013, Mr. Dutrizac brought a motion to change asking for termination of his child support obligation for three adult children as of May 2013. Ms. Roberts brought her own motion to change in response asking for a retroactive increase in the child support going all the way back to 1997.

[2] Though the parties have staked out more extreme positions in the past, their positions in the closing submissions at this trial reflected what they had heard at a series of settlement conferences and at least one trial management conference over the last two years.

[3] The father still seeks to terminate child support as of May 13, 2013 but is amenable to a recalculation of his obligation for the period May 2010 to May 2013. The mother seeks a recalculation for one additional year, that is to say, from May 2009 to May 2013 but she also claims that two of the children remained dependents for the purposes of child support after May 2013.

Background and Factual Findings

[4] The parties separated in or about 1993 and were divorced on February 6, 1996. They have three children, Rosalind born December 21, 1986, Kaitland born December 26, 1987 and Desiree born July 10, 1989. The divorce judgment granted custody to Ms. Roberts with specified access in favour of Mr. Dutrizac. The order also incorporated their verbal agreement for child support in the amount of $500 monthly for all three children. The divorce judgment predates the implementation of the Child Support Guidelines in 1997. Though Ms. Roberts takes exception to the fact 20 years later that Mr. Dutrizac pestered her for receipts for the child support from 1993 forward, I infer that it was because the original amount was tax deductible for him and he needed a receipt for tax purposes.

[5] Just before the Child Support Guidelines came into effect, the original child support order of 1996 was increased by an order of Desotti, J. April 16, 1997. That order increased the child support to $1380 monthly, retroactive to September 1996. Mr. Dutrizac had earned $55,366 in 1996.

[6] Soon after the order of Justice Desotti in the spring of 1997, Mr. Dutrizac left or lost his employment and he applied to reduce the child support. On September 17, 1997, Kerr, J. varied the child support to $425.36 per month, the table amount under the new Child Support Guidelines, based on annualized income of $22,260. That order also required Mr. Dutrizac to provide copies of his T4 slips and tax returns on an annual basis.

[7] The present motions to change are motions to vary the order of September 17, 1997. Mr. Dutrizac did not provide T4 slips or tax returns as required by that order, nor was there any real effort by Ms. Roberts to seek compliance. The original child support was assigned to the Ministry and it is not clear from the evidence when Ms. Roberts herself would have started to receive the child support. I draw the inference that in the early years of the order at least there was little or no incentive for her to pursue an increase in the child support ordered.

[8] Though Mr. Dutrizac did not provide income disclosure, he did pay the child support regularly. According to the FRO records filed he was not in arrears and often had a temporary credit balance over the years. If the child support in the current order is terminated as of May 2013 he will have a credit of approximately $12,500, subject to any additional amount he is ordered to pay for the period between 2009 and May 2013. Ms. Roberts claims that with such an adjustment, he would owe her approximately $39,000.

[9] Mr. Dutrizac has produced copies of his income tax returns and notices of assessment going all the way back to 1997, but given that Ms. Roberts now is only seeking an adjustment from May 2009 forward I will not set out the particulars of his income from 1997 to 2008 except to observe that he earned more than $22,260 in each of those years and in three of them he earned more than double that amount.

[10] The respective incomes of the parties from 2009 to the present are as follows:

Year	Husband’s Income	Wife’s income
2009	$69,094	$81,742
2010	$37,250	$85,094
2011	$48,719	$87,114
2012	$54,096	$86,628
2013	$52,578	$84,494
2014	$63,144	$87,032

[11] It is necessary as a first step to look at the eligibility of each child as a dependent for support purposes under the Divorce Act.

[12] The oldest child, Rosalind, turned 18 years of age in December 2004. Rosalind has struggled since at least her teen age years with drug problems and mental health issues. She did not finish her high school studies until 2006 at the age of 19 and even then did not have enough courses to actually graduate. From 2013 to 2015, she took some high school equivalency courses but there is no evidence as to her success with that, and in any event it does not seem particularly relevant because the medical evidence is the real foundation of her ongoing dependency as an adult. Rosalind was in and out of hospital for years before 2009 and undertook a residential drug rehab program in 2008. Rosalind resided with her mother on and off until August 2013 when she was not in hospital or some other facility. In August 2013, Rosalind obtained ODSP benefits and moved to a residential facility in Exeter.

[13] As an adult Rosalind remained a dependent within the meaning of the Divorce Act but the evidence is sketchy respecting whether and when she lived with her mother. In 2008 and 2009 she was still using her mother’s address as her own but by February 2012 her hospital admission record notes her home address as 2-425 Elizabeth Street and a certificate of her mental incapacity dated October 12, 2012 lists her residence as 12-203 Dundas Street East. A letter from St. Joseph’s Health Care dated July 3 2013 states that she “has been in and out of the hospital for the past couple of years with her current admission date being October 23, 2012”. By October 2012 she was 24 years old and no longer living with her mother. She was cared for through government resources while hospitalized and through ODSP benefits and independent living on her discharge in the summer of 2013. I conclude the father’s child support obligation for her ought to terminate October 2012.

[14] The middle child, Kaitland, finished high school and attended Fanshawe College from 2007 until April of 2012. Though she lived with her mother thereafter until just this past February, she has been working full-time and the parties agreed during the course of one of the settlement conferences, that child support for her should terminate as of May 1, 2012.

[15] The youngest child, Desiree, finished high school in June 2008 at that age of 19 and subsequently attended York University, obtaining a degree in Kinesiology in April of 2014. In January 2015, she began a course at George Brown College which will lead to credentials as a registered nurse. She has accumulated substantial student loans, $52,580 as of now. She has been approved for “re-payment assistance” but the evidence is not clear on what that means. It seems she is following in her mother’s footsteps in her nursing career and that her current educational endeavour is an “investment” that will lead to a substantial income. She will be 26 years of age this summer. Although the current program at George Brown seems a sensible career path, I agree with Mr. Dutrizac that he should not have to finance more than one post-secondary school degree. Child support for Desiree will be terminated as of May 1, 2014.

[16] Given the apparent underpayment of child support for the period 1998 to 2008, I accept Ms. Roberts’ submission that there should be a retroactive adjustment by increasing the support payable back to May 1, 2009.

[17] From May 2009 to the present, Ms. Roberts’ income has been significantly higher than Mr. Dutrizac’s. She has averaged more than $85,000 per year and Mr. Dutrizac less than $55,000. A proper determination of the child support payable would require evidence of the expenses incurred for the three adult children and an apportionment of those expenses between the parents based on their incomes. The onus is on Ms. Roberts as the person making the claim to adduce that evidence. That onus is not met.

[18] I am not able to conclude from the mother’s evidence that a pro rating of the living expenses and educational expenses for the children, net of their own contributions from grants and part time employment, would result in a child support claim exceeding the table amount on the father’s income.

[19] Mr. Durtrizac submits the retrospective recalculation of his child support obligation should not be based solely on his income (and hence the tables) because Ms. Roberts has an income higher than his own. However, he too has failed to adduce other evidence that would displace the presumptive table amount. The incomes of the children are very modest. For the most part, the girls have resided in their mother’s home and she has helped them financially when they lived elsewhere. I am also mindful that Mr. Dutrizac “underpaid” his child support for many years before 2009. Even though he complied with the 1997 court order for support he did not provide the tax returns which would have invited an increase in the amount payable.

[20] I will therefore use the table amounts to recalculate the amount he should have paid, together with the findings as to the termination date for each child noted alone.

[21] The re-calculation will go back four years from the time the motion to change was initiated, to May 1, 2009. The calculation is as follows:

Calculation of Amount Payable

Period	Father’s Income	Table Amount	Total Payable	Notes
5/1/2009 – 12/31/2009	$69,094	$1343	$10,744	Father’s income includes RRSP: $
2010	$37,250	$718	$8,616
2011	$48, 719	$960	$11,520
1/1/2012 – 5/31/2012	$54, 096	$1,048	$5,240	3 dependents for 5 months
6/1/2012 – 10/31/2012	$54, 096	$803	$4,015	2 dependents for 5 months
11/1/2012 – 12/31/2012	$54, 096	$489	$978	1 dependent for 2 months
2013	$52,578	$475	$5,700
1/1/2014 – 5/31/2014	$63,144	$575	$2,875
Total Payable			$49,688
Amount Paid 5/1/2009 – 6/30/2015; 74 months at $425.36			$31,476.64
Balance Due			$18,211.36

[22] An order is granted as follows: the ongoing child support ordered September 17, 1997 is terminated. The applicant shall pay $18,211.36 for recalculated child support at the rate of $425 per month. No costs.

“Justice D. R. Aston” Justice D. R. Aston

Released: June 24, 2015

CITATION: Dutrizac v. Roberts, 2015 ONSC 4017

COURT FILE NO.: F921/13

DATE: 2015/06/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Desmond Charles Dutrizac

Applicant

- and -

Nancy Jane Roberts

Respondent

REASONS FOR JUDGMENT

Aston, J.

Released: June 24, 2015