SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 01-FA-9834

DATE: 20150715

RE: PETER ADELBERT HOPPE, Applicant

AND:

ONA MARGARET JARDINE, Respondent

BEFORE: McWatt J.

COUNSEL:
Stephen P. Fleury, for the Applicant

Ona Margaret Jardine, In Person

HEARD: July 2, 2015

endorsement

re: APPLICANT’S motion TO TERMINATE CHILD SUPPORT

FOR NICHOLAS MARTIN JARDINE HOPPE

[1] The Applicant (Father) brings a motion for an Order that the child support currently being paid by him for the child, Nicholas Martin Jardine Hoppe, be terminated retroactive to January 1, 2010.

[2] The Respondent (Mother) brings a cross-motion for a review of all the support payments made in the past, after full financial disclosure by the Applicant, in order that an accurate set off amount in the support payments can be made. She maintains the Applicant has, in fact, underpaid and owes her money.

THE FACTS

[3] The parties were married on May 2, 1981 and separated in May of 1994. There are two children of the marriage being Laura Erika Jardine Hoppe, born December 12, 1987 and Nicholas Martin Jardine Hoppe, born January 20, 1992.

[4] The parties initially entered into a Separation Agreement dated July 13, 1999 which provided that the two of them would have joint shared custody of the children who would alternate their time equally between the parents.

[5] The Applicant paid child support to the Respondent pursuant to the Order of Madam Justice Croll dated August 13, 2004 for the two children in the sum of $450.00 per month.

[6] Starting in the summer of 2003, Laura went to live solely with the Applicant, Nicholas continuing to split his time equally between the parties. Notwithstanding that Laura was no longer residing with the Respondent, the Applicant continued to pay the ordered child support.

[7] Child support for Laura was terminated pursuant to the Order of Justice Macdonald dated December 11, 2009 and support for Nicholas was reduced to $225.00 per month. At that time, the Applicant received a $2,700 credit toward support payments for Nicholas because he had overpaid with respect to Laura.

[8] Starting in January, 2010, Nicholas started to stay mostly at the Applicant’s residence. He ceased all overnight visits with the Respondent, except for a few nights in 2011.

[9] Nicholas graduated from High School and proceeded to Durham College where he graduated as of June, 2012 with a diploma in “Motive Power Technician Service and Management”. Since graduation from College, Nicholas has become a member of the Ontario College of Trades and has been working full-time for various automotive related companies and is part of the Automotive Technology Apprenticeship Program where he attends school one day a week to become a licenced mechanic.

[10] In 2014, Nicholas earned $21,152.65 and he is currently employed full-time at Oakville Nissan working 40 hours a week.

[11] The Applicant has continued to pay to the Respondent child support of $225.00 per month although Nicholas receives no financial assistance from his mother other than one meal a week that he shares with her.

[12] At the December 11, 2009 motion, Justice Macdonald heard and granted Mr. Hoppe’s motion to terminate his child support payments with respect to Laura. Her Honour dismissed the Applicant’s motion to terminate child support payments to the Respondent for Nicholas until Ms. Jardine’s cross-motion to review and increase those payments was filed so that both motions could he heard together. It is only now, in response to the Applicant’s motion to terminate Nicholas’ child support, that the Respondent brings that cross-motion she told Justice Macdonald she wanted to bring in December, 2009.

[13] The Applicant claims that unspecified personal reasons and financial constraints have prevented him from bringing back this motion regarding Nicholas’ support until now – five and a half years after it was first commenced. His lawyer sent a letter to the Respondent dated November 18, 2014 to request that she consent to the termination of the support. The mother refused based on her position that it is the Applicant who has underpaid and she is, in fact, owed tens of thousands of dollars.

[14] The mother has filed a letter dated April 3, 2012 sent to Mr. Fleury outlining payments received and setting out an amount of $72,030.60 as outstanding arrears at that time.

Disposition

[15] The Applicant’s motion is granted in part. The child support payments in the amount of $225.00 per month for Nicholas shall be terminated as of July 1, 2015. The reasons are as follows:

(i) The evidence before me from Nicholas’ affidavits of June 2, 2015 sets out that he ceased all overnight visits with the Respondent by January, 2010;

(ii) Nicholas is clearly independent according to the parties’ July 13, 1999 Separation Agreement and Divorce Judgment of June 14, 2000;

(iii) retroactive termination of support is not automatic, but is a discretionary matter. I am reluctant to order that the Applicant pay the retroactive amount of approximately $15,000 from January 1, 2010 to the present. The money has been paid without any complaint from the Applicant since 2009 until November, 2014. His failure to re-apply to vary the order in a timely manner, when Nicholas ceased to be entitled to support, and the fact the money has presumably been spent by the Respondent, makes such an Order impractical (see Pink v. Pink (1991), 1991 11957 (MB CA), 31 R.F.L. (3d) 233 (Man. C.A.); Cote v. Dixon, [2007] O.J. No. 1237 (S.C.J.)];

(iv) it is also clear from the mother’s evidence that she would be hard-pressed to pay back funds she has received since even December 1, 2014 (7 months x $225 = $1575) when the Applicant asked her for consent to terminate the payment. [See Pink v. Pink, supra].

(v) in spite of the fact that the Applicant has regularly paid the support and would argue that he should be reimbursed because the mother ought to have known she had an obligation not to accept the payments as of January 1, 2010, the evidence of that proposition is not convincing. The mother maintains she has been underpaid. She could hardly be expected, then, to concede that she should have agreed to terminate the support in 2010.

[16] The mother’s motion is dismissed for the following reasons.

[17] The mother had counsel from 1999 – 2004 when Justice Croll set child support payment amounts the parties have adhered to since. She did not seek further disclosure from the Applicant nor enforcement of Ferrier J.’s 2004 Order for disclosure until now. In 2009, she told Justice E. Macdonald she was bringing this motion and, as a result, the Applicant’s motion, dealt with by me today, was adjourned so the two motions could be heard together.

[18] This motion has been set to be heard by this court for five and a half years and the delay, based on the evidence before me today, may have benefitted the mother with overpayment of child support for Nicholas.

[19] I am not prepared to order the Applicant to disclose his finances from April 1, 1999 to January 12, 2012 as requested by the mother. Child support is terminated. She should have brought this motion years ago if she truly believed she was owed support for the two children above that which was ordered in 2004.

Costs

[20] The Respondent shall pay costs to the Applicant on a partial indemnity basis due to the Applicant’s partial success on the motion and the fact that he has matched the offer he made to the Respondent, through counsel, on November 18, 2014.

[21] The Respondent has 150 days to pay $2,000 in costs, including HST.

McWatt J.

Date: July 15, 2015