Adam v. Trowsdale, 2015 ONSC 603
COURT FILE NO.: FC-04-717-2
DATE: 2015/01/26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sean Adam, Applicant
AND
Marlene Trowsdale, Respondent
BEFORE: Mr. Justice Patrick Smith
COUNSEL: John E. Summers, for the Applicant
Kevin W. Doyle, for the Respondent
HEARD: January 26, 2014
ENDORSEMENT
[1] The Applicant brings a motion to vary child support based primarily upon the fact that one of the children of the marriage (Jessica) has been living with him since June, 2014. Further, the Applicant seeks an order that he is not in arrears of child support and that for the months of June 2014 to September 2014, both children were residing with him, entitling him to a credit or reduction in the support property payable.
[2] The Respondent has also brought a motion asking for an order retroactively adjusting child support payable by the Applicant to reflect his actual income earned since the order of Pedlar J. dated June 16, 2004.
[3] The following orders shall issue:
The existing child support order is varied retroactive to June 1, 2014 based upon each party having care and control of one of the children of the marriage and calculated pursuant to the provisions of the Child Support Guidelines using the following incomes: for the Applicant – from June to December, 2014, $76,609.00 and from January 1, 2015 going forward, $101,550.00; and for the Respondent – $0.00 (Ostapchuk v. Ostapchuk (2003), 2003 57399 (ON CA), 64 O.R. (3d) 496 (C.A.)).
The Respondent’s motion for a retroactive adjustment of support is dismissed. Firstly, it was brought on short notice and, secondly, case law suggests that courts should be reluctant to grant retroactive relief on an interim motion in view of the limited evidence available such that the issue is best left to a trial judge after a full hearing. (See Walsh v. Walsh (2004), 2004 36110 (ON CA), 69 O.R. (3d) 577. See also S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231.)
Leave is granted to the Respondent to renew her motion should she wish to do so.
No order is made with respect to the Applicant’s request to confirm there are no arrears owing or that he was not obligated to pay child support from June to August, 2014.
In the event that the parties are unable to agree on the terms of an order incorporating the provisions of the endorsement and calculations set out above, they may file written argument with me not to exceed 5 (five) pages in length on or before February 15, 2015.
Costs to the Applicant fixed in the amount of $2,000.00.
Mr. Justice Patrick Smith
Date: January 26, 2014
CITATION: Adam v. Trowsdale, 2015 ONSC 603
COURT FILE NO.: FC-04-717-2
DATE: 2015/01/26
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Sean Adam, Applicant
AND
Marlene Trowsdale, Respondent
BEFORE: Mr. Justice Patrick Smith
COUNSEL: John E. Summers, for the Applicant
Kevin W. Doyle, for the Respondent
ENDORSEMENT
P. Smith J.
Released: January 26, 2015