COURT FILE NO.: 643/92
DATE: 2015/10/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Zena Nvart Tatiossian
Applicant
Hamoody Hassan, for the applicant
- and -
Krikor Greg Tatiossian
Respondent
Self-represented, for the respondent
- and -
Minister of Community and Social Services
Third Party
Salim Khot, for the third party
HEARD: October 19 and 20, 2015
ASTON J.:
[1] This application for child support was started 23 years ago after the parties separated in June 1992. The application was in the Ontario Court (Provincial Division) under the provincial legislation. This court assumed jurisdiction over proceedings in the Ontario Court (Provincial Division) as of August 1, 1995.
[2] The parties had been married less than seven years at the time of their separation. They have two children, Tamara (now 26 years of age) and Christopher (now 24 years of age), both of whom have resided with their mother to this day.
[3] The first order in the proceeding is an order for interim support, September 9, 1992. Genest J. ordered the respondent father to pay interim child support of $250 per month per child. The order was made on consent.
[4] The next significant order, some years later on May 2, 1995, is a final order with respect to custody and access, but at the time it was made Webster J. adjourned the support claim without a fixed date.
[5] Mr. Tatiossian fell behind in his support payments as early as 1994. In the years between then and now there have been various enforcement proceedings with respect to the arrears under the September 9, 1992 order. The enforcement proceedings were ultimately stayed in January of this year pending the final determination of the respondent’s support obligation.
[6] In response to enforcement proceedings the respondent father brought a Motion to Change under Rule 15 in the spring of 2013. He was self-represented and ill-advised of the procedure. Because the order of September 1992 is not a final order the matter should have proceeded as a regular motion under Rule 14. Unfortunately, both sides proceeded up to the commencement of this trial in October 2015 on the assumption that the support order at issue was a final order. At the opening of trial I heard submissions and determined that the procedure that would best reflect the intent of the Family Law Rules and the interests of the parties would be to conduct the trial as a hearing to determine the original support claim advanced by the mother back in 1992. Her application is found at Tab A of the Motion Record filed at the opening of the trial. In addressing procedural issues at the opening of the trial, I also determined that, if necessary, the respondent’s Motion to Change would be treated as a motion to vary the interim order of September 9, 1992, nunc pro tunc and that the three page attachment at the end of his motion to change would be taken as his pleading or Answer in response to the claim for child support.
[7] In 1992, the Family Law Rules were not in effect in this jurisdiction and a person claiming child support could start a proceeding either by a Statement of Claim or an Application. In this case, Mrs. Tatiossian chose an Application which generally invited a summary hearing. It may be that no formal pleading was actually necessary on the part of the respondent. In any event, the parties embarked on this trial without any confusion about the issues to be decided.
[8] As would be expected in a case that goes back 23 years, the quality of the evidence is somewhat problematic. It is hardly surprising that corroborative evidence is lacking in certain respects and that the memories of the parties themselves after so many years are not necessarily reliable.
[9] When the parties separated Mr. Tatiossian was operating a restaurant in a shopping mall as the main source of the family income. Soon after the consent order for $250 per month per child in September 1992he closed the restaurant because it was not as profitable as hoped. The respondent opened a small leather goods store in the same mall.
[10] The respondent paid the child support faithfully from September 1992 to April 1994 through the Family Responsibility Office. As of May 1, 1994, there were no arrears.
[11] In May 1994 the applicant was on Mother’s Allowance. She signed a form for Community and Social Services assigning to the Minister her child support entitlement, so that the child support paid would defray the monthly amount being paid to her as an allowance out of public funds. I will return to that issue in due course.
[12] By 1994 the respondent was unemployed. He enrolled at Westervelt College for a course in Travel and Tourism as an alternative career plan. Exhibit 19 confirms that from 1995 to 1996 he was a full-time student. He incurred an OSAP loan of eight or nine thousand dollars for this full-time attendance at Westervelt, graduating in 1996. Upon graduation there was no work in the industry available to him. He was on social assistance for a month or two while looking for employment in the travel industry. He ultimately decided that the travel industry was not his best future career plan. He started driving a taxi cab and went off social assistance in the summer of 1996.
[13] According to Mr. Tatiossian he resumed paying at least some child support within a few months of graduating from Westervelt but when he found that the Family Responsibility Office had closed or moved its local office he began paying the applicant directly.
[14] He says that he paid her regular amounts in cash from 1996 until 1998 when she went off Mother’s Allowance because of her own full-time employment. She denies any payments from him during that period.
[15] By 1998 or 1999, Mr. Tatiossian was able to expand his taxi operation by renting a second plate from U-Need-A-Cab. He drove one of the taxis and rented shifts to two other drivers for the second plate. A few years later, Mr. Tatiossian got into a dispute with U-Need-A-Cab. They would no longer rent the second taxi plate to him resulting in a reduction of income. According to his testimony, he was having great difficulty making ends meet with just one cab. He testified that when the Family Responsibility Office threatened to suspend his driver’s licence (and hence his livelihood) he gave up his apartment and moved to a room above a garage in order to be able to keep up some child support payments. Sometime not too long after this, he and his daughter Tamara got into a dispute on the telephone, in which Mr. Tatiossian admits he lost control of his temper and his better judgment. One thing led to another. As a consequence he essentially has had no relationship with either of his children for more than 10 years.
[16] In 2012 Mr. Tatiossian moved to the Montreal area. Mr. Tatiossian testified that he decided to move to Montreal, where he had family and friends, after calculating that he was only earning $5.40 per hour for the long hours he was working as a cab driver. He was on welfare for approximately six months in Quebec, but has been working since then. His current salary is based on $13.50 per hour after his latest raise. He has some available overtime and benefits.
[17] As indicated, in the spring of 2013 he brought his motion to terminate the child support and reduce or cancel any arrears that might be payable under the prior order. Mr. Tatiossian’s Motion to Change seeks to terminate child support as of September 19, 2008 (a date that Campbell J. made an order in the enforcement proceedings) or earlier. He suggests in his material that he may have overpaid his child support, whereas, the applicant claims that he is more than $50,000 in arrears.
The Child Support Guidelines
[18] The Child Support Guidelines came into force in May 1997. Subject to certain exceptions, which do not apply in this case, the “presumptive rule” under s. 3(1) of the CSGs is that the amount of child support for any minor child is a table amount. This presumptive rule has been consistently interpreted as a non-discretionary mandate for courts. In determining the support payable in this case, there is no discretion to allow a departure from the applicable table. Even for the period following the eighteenth birthday of each child there is no evidence to justify a “different approach” under s. 3(2)(b): see Lewi v. Lewi, 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (C.A.) at paras 128-130. Nor is any claim advanced by the applicant under s. 3(1)(b) for s.7 expenses. Thus the determination of the amount payable over the years from May 1997 to the present will consist of a finding with respect to the father’s income each year, the eligibility of each child as a dependent under the legislation and the application of the appropriate table.
[19] The interim order of 1992 will govern the amount payable up to and including April 1997, the period that predates the Guidelines, subject to the ruling at the opening of trial whereby Mr. Tatiossian’s motion to change may be treated as a motion to vary the interim order of September 9, 1992.
Eligibility for Child Support
The application for child support in this case is under the provincial legislation not the Divorce Act. The definition of a child support obligation under the statute is the same today as it was in 1992. The support obligation of a parent for a child is for “his or her unmarried child who is a minor or is enrolled in a full-time program of education”. In this case Tamara turned 18 on May 9, 2007. The respondent’s obligation to pay child support for her thereafter is only for any period of time she is “enrolled in a full-time program of education”. Christopher turned 18 on January 8, 2009 and, of course, the same test applies for him.
Tamara
[20] After May 9, 2007, Tamara’s eligibility for child support depends upon whether she is “enrolled in a full time program of education”. She finished high school in June 2007. There is no evidence she continued her education that Fall. Her tax return for 2007 shows that she earned employment income of $5432 that year. No amount was claimed for tuition or educational credits on that tax return. As a consequence, her eligibility as a dependent child ended June 30, 2007.
[21] In 2008, Tamara only reported $3122 as income but there is no evidence she was in school and no tuition or educational credits are claimed on her tax return. She remained ineligible for child support that year.
[22] For 2009, there is no evidence that Tamara was in school. Her tax return for that year was not provided in evidence. There is no evidence that she resumed status as a dependent child.
[23] In 2010, Tamara was a part time student at the University of Western Ontario from January through May, then a full time student for two months. She did not attend University that Fall according to Exhibit 8. She earned employment income of $7246 and also had investment income of $693 that year. Though employed, I find that for two months of 2010 Tamara became eligible once again for child support, specifically the months of May and June.
[24] In 2011, Tamara was a full time student for four months, September through December. Though she earned more than $10,000 that year, I find that she was eligible for child support for that four-month period.
[25] In 2012, Tamara was a full time student at Western for 12 full months. She had a taxable OSAP grant of $6285 and also managed to earn $6131 by part time employment during the year. Notwithstanding her income of more than $12,000, I find she was eligible for child support for the full 12 months of 2012.
[26] In 2013, Tamara continued her full time studies the first six months of the year, but did not attend Western that Fall. She earned employment income of $11,296, presumably most of it earned in the second half of the year. I find she was eligible for child support from January to June of that year.
[27] I note in passing that Tamara transferred a $5000 tuition and educational credit to her mother in 2013 but I ignore that benefit to the mother in quantifying the child support. I also ignore Tamara’s own income in the years she is eligible for support because there is no claim under s. 7 of the Guidelines and the table amount is not demonstrably inappropriate considering that Tamara continued to reside in her mother’s home. Tax benefits to the mother and the income of the child are irrelevant to the table determination. Nor is the mother’s own income relevant.
[28] Tamara did not return to Western until the Fall of 2014 and then only as a part time student. She was not eligible for child support under the provincial legislation in 2014.
[29] In 2015, Tamara returned to Western as a part time student until April but she has been out of school since then. She has worked full time this year.
[30] Tamara is now 26 years of age. Her eligibility for child support under the definition of a dependent in the Family Law Act has ended.
Christopher
[31] Christopher turned 18 in January 2009 but only finished high school in June 2010. He enrolled at Fanshawe College in September of 2010 as a full time student for the remaining four months of the year. Christopher is therefore, an eligible dependent for all of 2009 and all of 2010 even though he was not actually attending school in the summer of 2010. He was simply between semesters for those summer months. I also find that he was eligible for child support throughout all of 2010 notwithstanding his employment earnings of $6812 that year, primarily on the basis that no claim is being advanced for additional child support under s. 7 of the Guidelines, and his income is irrelevant to the table approach.
[32] In 2011, Christopher was a part time student the first four months of the year and then one month full time. He attended full time from September to December. I find that he was eligible for child support for seven months that year consisting of the five months he was in full time enrolment and the summer months of July and August when he was between semesters.
[33] In June 2012, Christopher repeated the same attendance pattern at Fanshawe and is eligible for support for the same seven calendar months.
[34] In 2013, Christopher attended Fanshawe full time in January. He is eligible for support that month. He earned $10,743 in the remaining months of the year when he was not in school.
[35] Christopher continued his employment into 2014 but returned to Fanshawe as a full time student from September to December. Notwithstanding his earnings of $14,529 in 2014, I find he was eligible as a dependent from September to December.
[36] In 2015, Christopher was not in school from January to September but has now returned to Fanshawe for the remaining credits he needs to enter the apprenticeship phase of his Electrical Engineering Technician course. There is no evidence of whether he is enrolled on a full time or part time basis. However, it seems that if it is part time it is because he does not need to be enrolled full time to complete the remaining academic requirements. In my view, this is the equivalent of full time enrolment and I find he is eligible for support from September to December this year at which time his entitlement to child support will end. He will be 25 years old next January.
Summary of Eligibility of the Children
[37] There are cases in which children have been found eligible for child support between school terms, most typically in summer months after the spring term is over while waiting for the Fall term to begin. When the table amount is being used because a child is residing at home with a parent, it is particularly apt to consider these short gaps between terms as not interrupting the pattern of enrolment. However, it is not enough that an adult child has a vague intention of completing his or her studies. In this case, the post-secondary school attendance of each child has been sporadic and with some fairly lengthy gaps, during which time each of them has been gainfully employed. For example, Tamara did not start her University education until years after her high school graduation and there is a 14-month gap in her University attendance between June 2010 and September 2011. Similarly there is a 14-month gap for Christopher between June 2009 and September 2010 and a 20-month gap from January 2013 to September 2014. As indicated, both children have been employed during those gaps and their income is not insignificant. Given these facts, the ages of the children and the slow pace that they are each progressing with their post-secondary school education, I will limit the father’s child support obligation to the months each child was actually enrolled in a full time program of education except for the summer months noted for Christopher in 2010 and 2011 when his full time attendance in the summer months was simply waiting for the new semester to start.
[38] Based on these findings, the eligibility of the children for child support is as follows:
2006 – both children eligible for the full 12 months.
2007 – Tamara is eligible for 6 months – January to June. Christopher is eligible for 12 months.
2008 – Tamara is not eligible. Christopher is eligible the full 12 months.
2009 – Tamara is not eligible. Christopher is eligible the full 12 months.
2010 – Tamara is eligible for May and June. Christopher is eligible the full 12 months.
2011 – Tamara is eligible for four months, September through December. Christopher is eligible for June and for the six-month period, July through December.
2012 – Tamara is eligible for 12 months. Christopher is eligible for June and for six months from July through December.
2013 – Tamara is eligible for 6 months – January through June. Christopher is eligible for one month – January.
2014 – Tamara is not eligible. Christopher is eligible for four months – September through December.
2015 – Tamara is not eligible. Christopher is eligible for four months – September through December.
2016 – Neither child proven to be eligible under the provisions of the Family Law Act.
Respondent’s Income
[39] At the time of the separation in 1992 and for some time thereafter, the respondent was operating a small restaurant in a shopping mall. The applicant was at least peripherally involved in that operation though she had two young children at home. It is reasonable to infer that the applicant had a good idea of how much money was being earned in the restaurant when the parties agreed to an interim child support order of $500 per month on September 9, 1992.
[40] I accept the respondent’s evidence that the restaurant was closed and a new venture opened in the same mall (retail sales of leather goods) in the hope that the new store would be more profitable. Apparently it was not. By 1994, Mr. Tatiossian was rethinking his options. He closed the leather goods business and enrolled at Westervelt College in a Travel and Tourism course from 1995 to 1996: see Exhibit 19. While he was a student he lived primarily on OSAP loans of about eight or nine thousand dollars.
[41] Mr. Tatiossian was unable to keep up the child support payments after April 1994. He admits that he made no child support payments between the April 1994 and the Summer of 1996. When he graduated from Westervelt in 1996 he was briefly on social assistance while unsuccessfully looking for work in the travel industry. To get off social assistance, he started driving a taxi. By 1997, he had abandoned the travel industry plans and made a long term commitment to the cab industry.
[42] From about the summer of 1996 to May 2012, Mr. Tatiossian was a full time cab driver.
[43] By 1998 or thereabouts, the respondent had acquired a second taxi plate and was renting out shifts to two other drivers. That ended by a date I cannot determine from the evidence, but perhaps within a couple of years.
[44] Mr. Tatiossian produced copies of his income tax returns and notices of assessment for the last 14 years but none predating 2001.
[45] Exhibits 15 and 16 are a series of income tax returns and notices of assessment for the respondent for the years 2001 to 2013, summarized as follows for his line 150 income:
| Year | Gross Income | Net Income | Line 150 Income | Line 150 as assessed by CRA May 7, 2012 |
|---|---|---|---|---|
| 2001 | $43,809 | $15,238 | $15,238 | $15,238 |
| 2002 | $45,714 | $16,191 | $16,191 | $16,191 |
| 2003 | $45,714 | $16,191 | $16,191 | $16,191 |
| 2004 | $46,666 | $16,190 | $16,191 | $16,191 |
| 2005 | $47,619 | $17,143 | $17,143 | $17,143 |
| 2006 | $48,571 | $17,143 | $17,143 | $17,143 |
| 2007 | $48,571 | $17,143 | $17,143 | $17,143 |
| 2008 | $49,523 | $17,143 | $17,143 | $17,143 |
| 2009 | $49,523 | $17,143 | $17,143 | $17,143 |
| 2010 | $49,607 | $19,000 | $19,000 | $19,001 |
| 2011 | $47,323 | $16,512 | $16,512 | $16,512 |
| 2012 | $15,128 (part year) | $3,508 | $9,905 | |
| 2013 | Salaried Employee | $27,865 |
[46] Mr. Tatiossian made an assignment in bankruptcy in 2014. Exhibit 17 is a copy of his pre-bankruptcy tax return for the year. His line 150 income is $10,802. According to Exhibit 18 his post-bankruptcy line 150 income for 2014 is $19,787. His 2014 total is $30,589.
[47] Mr. Tatiossian’s tax returns have been assessed and re-assessed by the Canada Revenue Agency for the years 2001 – 2012 when he was a self-employed cab driver. The expenses he claimed have been accepted. The CRA will have examined the tax returns of a great many cab drivers over the years. They no doubt have parameters for an expected level of expenses as a percentage of gross revenue. Mr. Tatiossian apparently falls within their range.
[48] Having said that, it is unlikely the returns are reliable. He completed them years after the fact and without actual receipts. It is not credible that the net income each year from 2005 to 2009 is precisely $17,143 in each of those five years or that from 2002 to 2004 it was precisely $16,191.
[49] The business expenses claimed in each of his tax years are rounded off numbers, obviously not based on exact record keeping. However, it is informative to look at the kinds of expenses he claims against his gross income. For example in 2011, the expenses of almost $31,000 included, fuel - $9800, car maintenance - $2100, licences - $675, concession (plate rental) - $7876, insurance - $5200, interest - $2170, and loan repayment - $3000.
[50] It is difficult to make more than an educated guess about the accuracy of these figures. The loan repayment of $3000 seems to be a capital repayment rather than an operating expense, but the balance of the expenses seem legitimate by category even if the amounts are somewhat exaggerated.
[51] Courts have routinely imputed to cab drivers additional income to recognize the nature of a business that is often a cash transaction or for which drivers do not keep careful records of gratuities.
[52] In this case, it is not necessary to analyze the evidence of Mr. Tatiossian’s actual self-employment income too closely. Mr. Tatiossian agreed that the court could impute to him for his cab driving years the income that would translate to a support obligation of $500 per month for two children under the child support tables. I accept his invitation to do so.
[53] In this case, the long period of time spans three different child support tables; the original tables from May 1997, the first amended tables of May 2006 and the most recent tables amended December 31, 2011. Under the original 1997 tables, an annual income of $35,000 corresponds to a child support payment of $506 monthly for two children. At $34,000 the monthly amount for two children is $493 per month. Using the 2006 tables, an annual income of $34,000 corresponds to a child support obligation of $505 monthly for two children. Using the most recent tables that same annual income of $34,000 corresponds to a monthly payment of $495 for the support of two children.
[54] The applicant has not produced any cogent evidence that the respondent’s cab driving income exceeds $34,000 per year.
[55] Subject to the exception below for the period from May 1994 to July 1996 inclusive, I find that an imputed annual income of about $34,000 while he was operating as a cab driver is appropriate up to and including 2011.
[56] The respondent’s tax return information for 2012 to 2014 and his pay stubs since he gave up the work as a taxi driver in Ontario on moving to Quebec in 2012 provide the evidence for his income from 2012 to the present.
[57] In 2012, Mr. Tatiossian drove a cab for the first four or five months of the year then was on social assistance in Quebec before finding his current employment in November that year. His line 150 income on his tax return is $9905. Even if the net income from cab driving ($3508) is doubled, his income amounts to less than $13,000 for the year and his table child support obligation would be less than $60 monthly for one child and $130 for two children.
[58] His line 150 income for 2013 is $27,865 and for 2014 $30,589. He was a salaried employee in these years and there’s no evidence he had any other income.
[59] Mr. Tatiossian has maintained the same employment since November 2012 with regular raises. I find that his annualized 2015 income will be between $33,000 and $34,000. I will use the mid-point of $33,500 for the table calculation this year and the other income figures noted for 2012, 2013 and 2014. For the period predating that, subject to an exception for 1994 to 1996, the calculation of the child support payable under the tables will assume an income of $34,000 per annum. The amount payable each month can be determined from the tables by reference to the respondent’s income and how many children are eligible for support from time to time.
[60] I accept Mr. Tatiossian’s evidence that for a two-year period from the closing of the leather goods store to his first venture into the cab business in 1996 he had a greatly reduced income. I also accept that his attendance at Westervelt was a reasonable alternative career plan at the time even though it did not pan out for him. Treating his Motion to Change as a motion to vary the interim support payable, I reduce the interim support order for the 26-month period starting May 1994 to July 1996 from $500 per month to $100 per month. Otherwise, I decline to fine tune the $500 per month for the period 1992 – 2006.
[61] I note that the period from May 1, 1994 to June 30, 1996 is covered by the assignment of support to the Minister. This reduction of $400 per month for 26 months reduces the amount covered by the assignment by $10,400.
Payments made
[62] The applicant testified that from the separation in 1992 until the end of 1999, the respondent made no direct payments to her. She testified that the only support payments for that six-and-a-half-year period are the payments that he made through the Family Responsibility Office. She does now acknowledge, though earlier she denied it, that there were direct payments starting in 2000 as evidenced by cheques the respondent was able to produce; see Exhibit 2. Ms. Tatiossian testified that she “can’t recall” if she informed the Family Responsibility Office about those payments, then testified that she thought it was up to the respondent to inform them. She does now acknowledge the following direct payments as evidenced by the cheques in Exhibit 2.
2000 - $7750
2001 - $9500
2002 - $8000
2003 - $7150
[63] Exhibit 2 in this proceeding includes a letter from an official with TD Canada Trust stating that the respondent came to the bank branch to say the court required him to provide copies of his support payments for the last 10 years. This information reflects the order of Harper J. October 16, 2007 requiring Mr. Tatiossian to produce copies of support payments he had made for the past 10 years. The bank’s letter states that it only keeps seven years’ worth of the records and could not go back beyond the year 2000.
[64] Mrs. Tatiossian claims that the respondent should only get credit for $6000 a year notwithstanding these cheques for more. She contends the “extra” payments were for extra expenses for the children, such as vacations and clothing and other personal expenses. Mr. Tatiossian testified that the reason the cheques in each of those years from 2000 - 2003 exceeded the $500 per month payable throughout the period was because he was trying to catch up on arrears that had accumulated while he was unemployed or struggling financially. He routinely wrote “child support” on the face of the cheques. I prefer the evidence of Mr. Tatiossian on this point and credit him as having paid as child support for the full amounts noted.
[65] In my view, this issue also undermines Mrs. Tatiossian’s testimony that the respondent did not make any direct payments to her between 1996 and 2000.
[66] When Mr. Tatiossian was finally able to produce cheques for the payments he made between 2000 and 2003, contradicting Ms. Tatiossian’s denial of any child support payments during that time, she simply said “I made a mistake”. I suspect it was more than a “mistake”. At best, it leads me to believe that her evidence is often unreliable. As another example of the reliability of her evidence, the applicant’s recollection of when her children have been attending post-secondary school is markedly different from the independent evidence in Exhibits 8 and 10.
[67] When the applicant says that there were no child support payments directly to her from 1996 to 2000, I simply do not believe her. The respondent had a track record of regular payments from September 1992 until April 1994. There were no arrears when Ms. Tatiossian went on mother’s allowance in the Spring of 1994; see FRO records. The cheques for the period 2000 to 2003 also show an established pattern of regular payments. Between 1994 and 2000, Mr. Tatiossian was still actively involved with the children. The family even went on vacation together in 1999. I am convinced he was paying some child support, though he himself acknowledges that it was not the full $500 per month and that there were no payments from the Spring of 1994 to the Spring of 1996. Mr. Tatiossian has proven his attempt to recover cheques from his bank for the period 1996 to 2000 as ordered by Harper J. in October 2007. Unfortunately, the bank only keeps records for seven years as evidenced by the letter from the bank and Mr. Tatiossian could not obtain proof of payments before 2000. There is therefore no reliable evidence upon which to quantify what he paid during the four years pre-dating December 31, 1999. However, I have no doubt he made some payments during that period. Ms. Tatiossian helped the respondent finance a new vehicle in 1999 (a vehicle which ultimately became hers) and it seems very unlikely she would have assisted him financially if he had not been paying child support since completing the Westervelt course and beginning his work as a cab driver in 1996.
[68] I am satisfied that on a balance of probabilities Mr. Tatiossian has proven that he made payments between June of 1996 and December of 1999. However, he has failed to prove how much he paid. The fact that he was making extra payments between 2000 and 2003 leads to the inference that he had paid less than the $500 per month, though I do recognize that he was also still catching up perhaps from the period 1994 to 1996 when he made no payments.
[69] As the best estimate I can make about the minimum he paid from the summer of 1996 to December 1999, I will credit Mr. Tatiossian with payments averaging $250 per month, a total of $10,500 for that 42-month period.
Disposition
[70] In closing submissions the applicant’s counsel filed a helpful summary to support her calculation of the $53,891 claimed for arrears, marked as trial Exhibit A. The calculated amount needs to be reduced to reflect a reduction in the amount payable from 1994-1996, credit for payments made from 1996-1999 and the time periods during which one or both children were not eligible dependents. Based upon the findings in these reasons, the child support payable is calculated (by reference to that trial Exhibit A) in the attached Schedule A. Total outstanding child support is fixed at $1072 as of this date with two more payments of $287 per month November 1 and December 1, 2015.
[71] The original claim for spousal support has been dormant for 23 years and was not pursued at trial. That claim is dismissed.
[72] The companion enforcement proceedings related to the child support claim were stayed last January. That stay is now lifted. The Family Responsibility Office records will be amended to reflect these reasons and to show the amount now due is $1072 with payments of $287 per month due on November 1 and December 1 at which time child support is terminated.
[73] The Minister of Community and Social Services is identified as a Third Party in the title of the proceeding and participated in the trial, though it is not clear to me it actually has formal party status. As noted in paragraph 61 of these reasons, the amount the Ministry claims in trial Exhibit B is to be reduced by $10,400 for the period 1994 to 1996. It was not clear to me what order, if any, the Ministry is seeking, other than the determination of the support payable during the assignment period.
[74] Mr. Tatiossian’s uncontested application for divorce was adjourned to the trial of the child support claim. The necessary paperwork has been completed and the evidence at trial satisfies the grounds and preconditions in the Divorce Act. The divorce is granted and a separate order is to issue in the form of the draft order filed, including the customary 30 day delay before it is final.
“Justice D. R. Aston”
Justice D. R. Aston
Released: October 26, 2015
Schedule A
Calculation of the amount payable by adjustments to trial Exhibit A
May 1, 1994 – June 30, 1996 reduce amount payable from $500 per month to $100 per month. Credit of $400 per month x 26 months = $10,400
July 1996 – December 1999 credit for direct payments of $250 per month $250 per month x 42 months = $10,500
Credit all payments by cheque 2000 – 2003 – (paragraphs 63 of Reasons) use red figures on Exhibit “A”
2007 Adjust amount payable (a) both children for 6 months @ $505 per month = $3030 (b) Christopher for 6 months @ $316 per month = $1896 $4926 Credit: $6000 – $4926 = $1074
2008 Adjust amount payable (a) Christopher for 6 months @ $316 per month = $3792 Credit: $6000 - $3792 = $2208
2009 Adjust amount payable (a) Christopher for 12 months @ $316 per month = $1896 Credit: $6000 - $1896 = $4104
2010 Adjust amount payable (a) both children 2 months @ $565 per month = $1010 (b) Christopher for 10 months @ $316 per month = $3160 $4170 Credit: $6000 - $4170 = $1830
2011 Adjust amount payable (a) both children 4 months @ $505per month = $2020 (b) Christopher 3 months @ $316 per month = $ 948 $2968 Credit: $6000 - $2968 = $3032
2012 Adjust amount payable (a) both children 7 months @ $130 per month = $910 (b) Tamara 5 months @ $59 per month = $295 $1205 Credit: $6000 - $1205 = $4795
2013 Adjust amount payable (a) both children 1 month @ $407 per month = $ 407 (b) Tamara 5 months @ $227 per month = $1135 $1542 Credit $6000 - $1542 = $4458
2014 Adjust amount payable (a) Christopher 4 months @ $252 per month = $1008 Credit: $6000 - $1008 = $4992
2015 (projected to December 31, 2015) Adjust amount payable (a) Christopher 4 months @ $287 per month - $1148 Credit: $6000 - $1148 = $4852
Amount payable Exhibit A total (red) $53717 Add amount payable for Christopher November and December 2015 2 months @ $287 per month $ 574 $53891 Less Credits above $52245 Adjusted balance due $ 1646