Court File and Parties

Citation: Backshall v. Nelson, 2015 ONSC 4057 Court File No.: D23156/11 Date: 2015-06-24 Superior Court of Justice – Ontario

Re: James Russell Backshall, Applicant And: Renée Nelson

Before: Mr Justice Ramsay Counsel: both parties self-represented Heard: June 23, 2014

Endorsement

[1] On November 15, 2013 Reid J. ordered the Applicant to pay child support for Nicolas Backshall, the son of the marriage who resided with the Respondent at the time, as well as spousal support for the Respondent. The daughter of the marriage resided with and still resides with the Applicant.

[2] The Applicant asks me to do the following:

a. Reduce his arrears of child support on the ground that he has not made as much income as was imputed to him;

b. Cancel child support for Nicolas for the 10-month period (February to November 2014) when Nicolas lived with him;

c. Impute income to the Respondent from June 2014 or shortly thereafter, given her graduation from university;

d. Order the Respondent to set off child support and extraordinary expenses for Nicolas against child support and extraordinary expenses for Ashley, the daughter of the marriage who lives with the Applicant;

e. Terminate spousal support payable to the Respondent; and

f. Order the Respondent to re-establish the RESP for the children, plus the penalty she incurred when she converted the RESP from an account under the Applicant’s control to an account under the Respondent’s mother’s control.

[3] There is no dispute that Nicolas went to live with his father for the 10 months in question. I give the father credit by eliminating 10 months’ child support payments from his arrears.

[4] The Respondent finished school in June 2014. Since then she has made extensive but unsuccessful efforts to find employment in her field. She has taken what employment she can as a waitress. She estimates that she will earn about $18,000 a year. I think $15,000 is more likely.

[5] The Respondent has filed a well-documented dossier of her job search. She is far from under-employed. She has demonstrated ambition in getting her education, and flexibility in temporarily settling out of necessity for employment for which she is over-qualified. She is owed significant compensatory spousal support in any event. She gave up a $50,000 a year income to marry the Applicant and raise their children. She has accumulated substantial student debt since separation. Spousal support should continue indefinitely, whatever income the Respondent ends up earning.

[6] For now, the Respondent’s table amount of child support for Ashley is $97, which, when set off against the Applicant’s, results in his paying $251 a month.

[7] The Applicant should be responsible for 70% of both children’s necessary extraordinary expenses until the Respondent starts earning significantly more money. No extraordinary expenses have been identified for Ashley. She does not need to go to private school, but fortunately she can do this for $125 month because of bursaries. The Applicant should continue to cover this. This family does not have enough money for travel hockey, other sports or school trips and they should not be considered under this head, in my view. However, Nicolas needs medicine for multiple allergies, including a peanut allergy, and neither parent has a benefits plan that would pay for this. The Applicant should pay 70% of these expenses. I quantify his share at $50 a month.

[8] There is no reason to impute less income to the Applicant than did Reid J. Nothing has changed. A figure of $39,000 is still a reasonable estimate of what the Applicant could earn, although not necessarily in his chosen field. He is a qualified school teacher. In contrast to the Respondent, the Applicant has shown little inclination to put himself out to earn the money his family needs.

[9] Finally, Reid J. found in 2013 that shortly before or after the separation the Applicant maxed out the joint line of credit to deprive the Respondent of the means to live. Given that state of affairs, the Respondent can hardly be blamed for taking control of the RESP, even at the price of forgoing the government grant. The RESP is now in good hands. No relief in favour of the Applicant is warranted. None in favour of the Respondent is sought.

[10] A final order will go in the following terms:

The order of Reid J. dated November 13, 2013 is varied as follows:

a. Paragraph 2 is varied to provide that commencing July 1, 2015 the Applicant shall pay child support for Nicolas at a rate of $251 a month, plus $50 a month for extraordinary expenses, based on an imputed income of $39,000, after setting off under s.8 of the Child Support Guidelines the Respondent’s obligation for Ashley based on her annual income of $15,000;

b. Arrears of child and spousal support to June 15, 2015 are fixed at $9404.34.

c. A support deduction order will issue.

[11] There will be no order as to costs.

J.A. Ramsay J.

Date: 2015-06-24