CITATION: Knowles v. Green, 2015 ONSC 6110
COURT FILE NO.: 10/15
DATE: 2015-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wendy Margaret Knowles
Applicant
– and –
Michael Scott Green
Respondents
Not Present
Self-represented Respondent
HEARD: July 31 and September 18, 2015
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] Wendy Margaret Knowles caused a Notice of Variation Application to be filed in the Supreme Court of Nova Scotia (Family Division) on December 20, 2012. Ms. Knowles and the children resided in Nova Scotia. Accordingly, the application proceeded under section 18 (2), Divorce Act. After considerable delay, a provisional order was granted on July 30, 2014.
[2] The order, and other documents, were subsequently forwarded to Ontario for a confirmation hearing pursuant to section 19 of the Act. Mr. Green was served with a Notice of Hearing dated January 21, 2015, along with copies of the relevant documents. He served and filed an answer and financial statement on March 10, 2015. Pursuant to the order of Arrell J., granted April 7, 2015 in chambers, Mr. Green also served and filed his income tax returns and notices of assessment for 2011, 2012 and 2013. On June 5, 2015, I directed Mr. Green to provide the same documentation for 2014. He complied.
[3] The hearing commenced on July 31, 2015. Mr.Green testified. The hearing was adjourned to September 18, 2015 for further evidence and submissions. It was completed on that date.
[4] By way of preliminary comment, I feel obliged to point out the inherent and unacceptable delay in the procedure established in the Act and the manner documents are delivered between provinces. Almost three years have been required to address a relatively routine support issue. Litigants deserve better treatment. Given the technology available to the court system in Canada, it is expected the legislation will be amended to allow videoconferencing so that both parties can participate in only one hearing without delay.
Background
[5] The parties married on May 9, 1992 in Ontario. Two children were born to their relationship. Chelsea, on October 6, 1993 and Shanna, on November 10, 2000.
[6] At some point, the family moved to Nova Scotia. Separation occurred on January 1, 2009. The parties resolved the outstanding issues resulting from their separation. A joint application for divorce was filed in the Supreme Court of Nova Scotia (Family Division) in 2010. Ultimately, two final orders were granted by Gass J. on November 10, 2010, namely:
(i) divorce judgment; and
(ii) corollary relief judgment.
[7] Ms. Knowles now seeks to vary the corollary relief judgment. The essential terms of that judgment, granted on consent, as are follows:
(a) finding Mr. Green’s income to be $12,000;
(b) custody of the children to Ms. Knowles with reasonable access to Mr. Green;
(c) Mr. Green to pay guideline child support of $144 monthly, commencing April 2010; and
(d) Mr. Green to provide annual disclosure of his income by delivering copies of his income tax returns.
[8] Mr. Green returned to Ontario in 2010. He obtained employment in 2011 and has been working since, presently at Fowler Metal in Burford, Ontario.
[9] Mr. Green advised Ms. Knowles as to his initial employment. Pursuant to her request, the support payments were increased to $200 monthly. According to Ms. Knowles, this occurred in December 2012 and continues to the present. Mr. Green also provided some income documentation in late 2012, such as a recent pay stub. Unfortunately, he did not comply with the order requiring disclosure by way of delivering his income tax returns.
[10] At the hearing, Mr. Green explained his neglect in this regard by saying he did not file any income tax returns with Canada Revenue Agency until 2014.
Provisional Order
[11] As previously mentioned, there was delay in pursuing the variation application. Court appearances commenced in late 2013. The hearing was completed on May 6, 2014, with written submissions from Ms. Knowles’ counsel delivered on June 9, 2014. Those submissions were not included in the package of documents forwarded to Ontario.
[12] On July 30, 2014, Jollimore J. released her reasons. A provisional order was granted and issued that day. The essential terms are as follows:
(a) Mr. Green to pay guideline child support for two children in the monthly amount of $609.37, commencing September 1, 2014, on income found to be at $41,736.34;
(b) Mr. Green to pay extraordinary expenses of Shanna in the monthly amount of $196.93, commencing September 1, 2014, being seventy per cent of the total after tax expenses (Ms. Knowles’ income being $18,000) for ringette, soccer, paddling, summer child care for art and cooking class, and private school (the total annual expense being $3,376.08);
(c) Mr. Green to pay retroactive guideline child support of $8,792, to cover the shortfall from January 2011 to August 2014;
(d) Mr. Green to pay retroactive extraordinary expenses for Shanna in 2012, 2013 and to August 2014, in the amount of $4,742.81 (same items as above); and
(e) all other claims were dismissed;
Confirmation Hearing
[13] As mentioned previously, the case came before me on a confirmation hearing. Pursuant to section 19 (7) of the Act, I am now required to grant an order:
(a) confirming the provisional order without variation;
(b) confirming the provisional order with variation; or
(c) refusing confirmation of the provisional order.
[14] Section 19 (6) allows for the case to be returned to the court that granted the provisional order for further evidence. I have considered doing so given the evidentiary dispute and matters not fully canvassed in the provisional hearing but raised in the confirmation hearing. However, I decline to return the case for that purpose given the likelihood of delay, probably another year. The parties need a decision. For the reasons that follow, an order will be granted confirming the provisional order with variation, pursuant to section 19 (7) (b).
[15] Further, Mr. Green reported of changes pertaining to Ms. Knowles and the children that have recently occurred. As I am only addressing the provisional order of July 31, 2014, it may well be that a further variation application will be presented by one of the parties. Hopefully, before that event occurs the parties will engage in meaningful discussion.
Issues
[16] Having regard to the evidence, oral and documentary, presented at the provisional hearing, the comprehensive reasons of Jollimore J. and the evidence of Mr. Green, oral and documentary, tendered at the confirmation hearing, the issues requiring determination are:
(a) calculation of prospective guideline child support having regard to the actual income of Mr. Green;
(b) consideration of section 7 expenses, both prospectively and retroactively; and
(c) whether hardship is a relevant factor regarding a retroactive award.
[17] The calculation of guideline child support is a relatively straightforward exercise. Issues pertaining to extraordinary expenses are more challenging. The statutory procedure makes it difficult for either court to arrive at a fair and reasonable decision. Evidence is not tested by cross-examination. For example, Mr. Green questions the employment efforts of Ms. Knowles, saying she has earned significant income in the past but now has become a “career student”.
[18] It is particularly difficult to assess the reasonableness of certain expenses, such as private school. The necessity of expenses was not fully canvassed as the incomes of the parties may be insufficient to finance this activity.
Incomes of the Parties
[19] The annual incomes of the parties is set out in the chart that follows. Income for Ms. Knowles is extracted from the reasons of Jollimore J. and the evidence at the hearing, while for Mr. Green, it is as reported in line 150 of his income tax returns.
| Year | Ms. Knowles | Mr. Green |
|---|---|---|
| 2010 | $11,260 | $12,000 |
| 2011 | $ 9,861 | $29,000 |
| 2012 | $12,990 | $38,304 |
| 2013 | $18,000 | $35,379 |
| 2014 | $18,000 | $41,705 |
[20] Mr. Green reports his current base income to be $38,064, from 40 hours weekly at $18.30 per hour. Overtime hours are possible, he says, but not a certainly.
Prospective Guideline Child Support
[21] As Jollimore J. correctly stated, there has been a material change in circumstances resulting from the increase in the income of Mr. Green.
[22] The provisional order directs guideline child support for Chelsea and Shanna. Whether there continues to be entitlement regarding Chelsea, as raised by Mr. Green, is a matter for a future variation. I am addressing the situation as it existed on July 30, 2014 when the provisional order was granted.
[23] The provisional order directs Mr. Green to pay guideline child support of $609.37 monthly, commencing September 1, 2014 on income of $41,736.34. His actual income in 2014 was $41.705. The difference in the table amount is minor. Accordingly, this term of the order is confirmed without variation.
Retroactive Guideline Child Support
[24] The provisional order directed Mr. Green to pay $8,792 as retroactive guideline child support to cover the shortfall between the table amount and the amount initially ordered from January 2011 to August 2014. This time period is appropriate given the failure of Mr. Green to provide financial disclosure as required by the order.
[25] The retroactive award only pertains to Shanna as Jollimore J. determined that Chelsea was not a dependant child at the time the variation application was filed.
[26] As I understand the reasons of Jollimore J., the retroactive award was calculated in the following manner:
| Year | Income of Mr. Green | Monthly Table Amount | Monthly Amount as Ordered | Monthly Shortfall |
|---|---|---|---|---|
| 2011 | $29,000 | $258 | $144 | $114 |
| 2012 | $41,736 | $376 | $144 | $232 |
| 2013 | $41,736 | $376 | $144 | $232 |
| 2014 | $41,736 | $376 | $144 | $232 |
[27] The calculations must be reconsidered having regard to the actual income of Mr. Green and to account for the amount paid, namely $200 monthly since December 2012, as stated by Ms. Knowles in her testimony at the provisional hearing. Mr. Green also reported having delivered other voluntary support payments in an unknown amount. The hearing was adjourned to allow him to obtain copies of the banking records. On the return date, Mr. Green reported the bank fees to be cost prohibitive. He still says there were additional funds received. The evidence is unclear.
[28] I will start with the re-calculation based on Mr. Green’s actual income and following the methodology used by Jollimore J.
| Year | Income of Mr. Green | Monthly Table Amount | Monthly Amount as Ordered | Monthly Shortfall |
|---|---|---|---|---|
| 2011 | $29,000 | $237 | $144 | $ 93 |
| 2012 | $38,304 | $339 | $144 | $195 |
| 2013 | $35,379 | $308 | $144 | $164 |
| 2014 | $41,705 | $376 | $144 | $232 |
In result, the shortfall from January 2011 to August 2014, calculated in this manner, is $7,280.
[29] Credit must also be given for the payments at $200 monthly, not $144, since December 2012, being $1,176, thus reducing the shortfall to $6,104. Mr. Green is entitled to some credit for voluntary payments. In the circumstances, I will allow a further amount of $404, and, hence, find the shortfall to be $5,700. I will address hardship and payment later in these reasons.
Extraordinary Expenses
[30] The provisional order requires Mr. Green to contribute to Shanna’s extraordinary expenses pursuant to section 7 of the Guidelines, both prospectively and retroactively. Mr. Green is to pay seventy per cent of the after tax cost for ringette, soccer and paddling, art and cooking classes and the Halifax Grammar School.
[31] In her reasons, Jollimore J. concluded these expenses, but not others claimed by Ms.Knowles, were necessary and reasonable. The only evidence available at the provisional hearing was from Ms. Knowles. I have a more complete evidentiary record, having listened to Mr. Green testify and reviewing his answer and other documents. The record is still incomplete as none of the evidence was tested by cross-examination, a shortcoming in the procedure created in sections 18 and 19 of the Act.
[32] The provisionally approved expenses in 2014 were said to cost $3,376.08, as follows:
(a) sports $1,048.08;
(b) art and cooking classes $ 51.00; and
(c) private school tuition $2,280.00.
On a prospective basis, Mr. Green was directed to pay $196.93 monthly, commencing September 1, 2014. On a retroactive basis, the required payment from January 2012 to August 2014 was $4,742.81
[33] At the provisional hearing, Ms. Knowles testified as to the various activities for Shanna and the benefit her daughter derived from participation in them. Ms. Knowles was then asked about the family’s spending pattern regarding the children prior to separation. In response, she made reference to various sports activities, such as soccer and swimming, Girl Guides, summer camp and private school for two years. These activities occurred when the family resided in Ontario. It appears separation occurred shortly after the move to Nova Scotia.
[34] Ms. Knowles was not asked about the family income prior to separation, nor did she disclose such on her own. The only comment made by Ms. Knowles was that she made more money in Ontario when the private school expense was incurred. She did not refer to the income of Mr. Green at that time.
[35] According to Ms. Knowles, the current expense of private school for Shanna in 2014 was $14,310. She reported entitlement to bursaries in the past, leaving a net cost of $2,280 per annum. For the upcoming school year, presumably 2014-2015, Ms. Knowles indicated Shanna would receive a full scholarship.
[36] Mr. Green is supportive of the children’s involvement in various activities in general but emphasized the expense must be affordable. He briefly made reference to the parties’ disagreement on parenting and the control of Ms. Knowles in decisions made regarding the children’s activities.
[37] The private school tuition when the family lived in Ontario was paid from Ms. Knowles’ income, according to Mr. Green. He reported Ms. Knowles’ employment income at that time to be in excess of $100,000 per annum. He was essentially a stay at home father. Mr. Green made reference to helping at the school to reduce the expense.
[38] On their move to Nova Scotia, Mr. Green said Shanna attended public school and was involved in soccer. This was all they could afford, he reported, given their income level. Mr. Green testified as to subsequent activities being arranged by Ms. Knowles. He was not consulted. In Mr. Green’s view, private school and some of the other activities are items that are beyond their financial ability to pay. He opposes contribution to the expenses incurred by Ms. Knowles for those reasons.
[39] In general terms, I have no difficulty in seeing the benefit to Shanna of the various activities. Sports and summer camp, for example, are items recognized as being appropriate. Children need to be active and participate in programs with other children. Private school may also qualify, although there can be no complaint, in my view, with the public school system. Affordability is a critical factor. While the spending pattern of the family prior to separation is a relevant consideration, the reasonableness of the expense must take into account the incomes of the parties at the time it is incurred.
[40] The family income declined after moving to Nova Scotia. Shanna was enrolled in public school and participated in some sports. In 2010, the year after separation, Ms. Knowles had an income of $11,260, while Mr. Green earned $12,000. In 2011, Ms. Knowles reported an income of $9,861. Mr. Green had returned to Ontario to find employment.
[41] Ms. Knowles enrolled Shanna in private school despite her modest income and receiving only $144 monthly in child support from Mr. Green. She was then unaware of his income and it was not until late 2012 that she was informed Mr. Green had earned $29,000 in 2011. Although Shanna received significant bursaries, the private school expense was well beyond being affordable. It did not meet the standard of reasonableness at the time, nor does it now. These parties simply cannot afford the luxury of private school.
[42] I had considered returning the case to Nova Scotia for further evidence on this issue. However, although the pre-separation pattern of the family is less than clear, there can be no dispute the incomes of the parties cannot support the expenses claimed by Ms. Knowles.
[43] Accordingly, I reject the claim for the private school expense and decline to confirm the provisional order in this regard.
[44] The other activities are affordable with proper budgeting and are confirmed.
[45] In result, I find the extraordinary expense for Shanna in 2014 to be $1,096.08. Ms. Knowles’ income was $18,000 and Mr. Green’s income was $41,705. His share is 70 per cent, or $63.94 monthly. From January to August, Mr. Green’s retroactive contribution would be $511.52.
[46] I have recalculated the retroactive award for 2012 and 2013. In 2012, the extraordinary expense was $857. Ms. Knowles’ income was $12,990 and Mr. Green’s income was $38,304. His share was 75 per cent or $642.75. In 2013, the extraordinary expense was $1,120.08, after deleting private school tuition. Ms. Knowles’ income was $18,000 and Mr. Green’s income was $35,379. His share was 66 per cent or $739.25
[47] Accordingly, the retroactive award for 2012, 2013 and January to August of 2014 is $1,893.52.
Hardship – Payment of Arrears
[48] As Jollimore J. recognized in her reasons, there was no evidence from Mr. Green at the provisional hearing to asses any claim for hardship. The issue can only be determined at the confirmation hearing. Every retroactive award will result in some hardship to the support payor as he is immediately in arrears. Here, the retroactive award is $7,593.52, being guideline child support of $5,700 and extraordinary expense of $1,893.52.
[49] The test, however, is whether the support payor would suffer “undue hardship” as defined in section 10 of the Guidelines. It is to be noted that this applies only to the guideline child support award. Hardship could be considered within the analysis of the section 7 extraordinary expenses. For the sake of convenience, I will address the issue regarding both retroactive awards together.
[50] There can be little sympathy for a support payor who does not voluntarily increase the amount paid when there is an increase in income. Mr. Green should have known of his obligation to pay child support in a greater amount when he obtained employment in Ontario. He had to know that Ms. Knowles was seeking a higher amount when inquiry was made in 2012 as to his income.
[51] Section 10 (2) of the Guidelines sets out circumstances that may be considered in the test of undue hardship. The list is not exhaustive. Other matters relevant to the issue, in my view, may be addressed.
[52] In terms of the stated items in section 10 (2), the only circumstance for Mr. Green for consideration is the expense of exercising access. There is an evidentiary dispute as to who incurred the expense for travel for access. Regardless, the expense is not significant when compared to the additional cost to Ms. Knowles in supporting the children exclusively where there were no traditional access periods.
[53] Mr. Green’s income is appropriate for his qualifications. He accepts overtime when offered. There can be no criticism of his employment efforts or income level. Mr. Green’s expenses, as set out in his financial statement, are reasonable. He is frugal. There is some debt, but it is not excessive. Mr. Green does not have a surplus and his support obligation will now increase.
[54] I am not persuaded Mr. Green will suffer an undue hardship with respect to a retroactive award. In fairness, this is not a matter he aggressively pursued.
[55] It must also be remembered that child support is the right of the child, not the support recipient. Child support takes priority given the parental obligation in this regard.
[56] In result, I conclude that Mr. Green has not met the test for undue hardship. The retroactive award is not reduced.
[57] As a result of the retroactive award, Mr. Green is in automatic arrears in the amount of $7,593.52 as of August 31, 2014. Arrears will also have accumulated since September 1, 2014. There may be some prior arrears although the evidence was not clear and Jollimore J. calculated the award on the basis prior support payments had been made. In any event, I leave the calculation of all arrears to the Family Responsibility Office in Ontario and the Maintenance Enforcement Program in Nova Scotia.
[58] In the circumstances, and to save the parties further expense, it is appropriate to address the arrears resulting from the retroactive award and otherwise as noted above. In result, a further term is added to the order directing Mr. Green to pay $100 monthly on all arrears, commencing January 1, 2016.
Summary
[59] For these reasons, a final order shall issue confirming the provisional order of Jollimore J. of the Supreme Court of Nova Scotia (Family Division), granted July 30, 2014, with variation as follows:
Commencing on September 1, 2014 and continuing on each and every month thereafter until further order of a court of competent jurisdiction or agreement of the parties, Michael Green shall pay monthly child support of $609.37 for Shanna and Chelsea pursuant to section 3 of the Federal Child Support Guidelines, on his 2014 income of $41,705.00;
Commencing on September 1, 2014 and continuing on each and every month thereafter until further order of a court of competent jurisdiction or agreement of the parties, Michael Green shall pay a monthly contribution of $63.94, which is equal to seventy percent of the after-tax cost of Shanna Green’s after-tax expense for extraordinary extra-curricular activities (ringette, soccer and paddling) and summer child-care (an art and cooking class).
Wendy Knowles’ claims for a contribution to Shanna Green’s expenses for the purchase of a trumpet, future braces, future driver training and future post-secondary education are dismissed.
Wendy Knowles’ claims for contribution to Chelsea Green’s expenses for future braces, future driver training and post-secondary education are dismissed.
Retroactively, Michael Green shall pay child support of $5,700.00, pursuant to section 3 of the Federal Child Support Guidelines to cover the shortfall between the child support he was ordered to pay in the Corollary Relief Order, presuming he has paid this amount in full, and the amount he ought to have paid for the period from January 2011 to and including August 2014.
Retroactively, Michael Green shall contribute $1,893.52 to Shanna Green’s expenses in 2012, 2013 and from January to and including August 2014 for extra-curricular activities (ringette, soccer and paddling) and summer child-care (an art and cooking class).
Wendy Knowles’ claims for an order compelling Michael Green: to take at least one week off work each year to spend with Shanna Green and Chelsea Green; to pay the travel costs for at least one annual visit by Shanna Green and Chelsea Green to Ontario; to pay one-quarter of Chelsea Green’s post-secondary student loans and related costs; and to pay one-quarter of Shanna Green’s future post-secondary education expenses are dismissed.
Commencing on January 1, 2016 and continuing on each and every month thereafter, Mr. Green shall pay $100.00 on the arrears resulting from the retroactive award in paragraphs 5 and 6 above, the arrears accumulated as a result of the award in paragraphs 1 and 2 above, since September 1, 2014 and any arrears outstanding from the order granted November 24, 2010, until fully paid.
A support deduction order shall issue.
D.J. Gordon J.
Released: October 2, 2015
CITATION: Knowles v. Green, 2015 ONSC 6110
COURT FILE NO.: 10/15
DATE: 2015-10-02
BETWEEN:
Wendy Margaret Knowles
Applicant
– and –
Michael Scott Green
Respondents
REASONS FOR DECISION
D.J. Gordon J.
Released: October 2, 2015
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