SUPERIOR COURT OF JUSTICE – ONTARIO
DATE: 2015 10 26
RE: ANDREA SHARLENE DALEY v. JOHN MCCALLA
BEFORE: LEMON J.
COUNSEL:
Ms. Daley, In Person
Mr. McCalla, In Person
HEARD: October 6, 2015
E N D O R S E M E N T
The Issue
[1] Mr. McCalla moves to change his final child support order.
Background
[2] On August 1, 2013, Mr. McCalla was ordered, on consent, to pay child support for two children in the amount of $707.41. This was on an acknowledged income of $47,585. At that time, Mr. McCalla’s income tax return disclosed an income of $21,791.
[3] Mr. McCalla is a self-employed hairdresser. He acknowledges a significant cash income related to tips.
Positions of the Parties
[4] Mr. McCalla says that support should now be based on his 2014 Income Tax Return which reported an income of $27,331.78. He accepts that ten percent should be added to that income for tips; that would produce a total income of $30,064.00. That would then result in a reduction of his child support to $438.92. He seeks a reduction of his arrears and time to pay what is outstanding.
[5] Ms. Daley denies that there has been a change in Mr. McCalla’s circumstances and submits that, based on the material filed by Mr. McCalla, I should not accept that there has been a reduction in his income sufficient to change the child support.
[6] Ms. Daley points out that if I do accept that he has had a reduction in his income, Mr. McCalla’s arrears arising before the date of this application should not be reduced.
Analysis
[7] The parties have filed affidavits and both specifically declined to have a trial of an issue or to call witnesses and have them cross-examined.
[8] In Ms. Daley’s affidavit, she sets out a variety of conversations she had with other individuals. Without affidavits from those individuals, those statements are inadmissible hearsay. I have not relied upon those statements.
[9] On a motion to change, the initial order is presumed to be correct; I cannot go behind it.
[10] The onus is upon Mr. McCalla to show that he has had a material change in circumstances since that order and, if so, what his income is at the present time.
[11] I cannot determine who is telling the truth in their respective affidavits but I must consider all of the admissible evidence to make my determination.
[12] Based on his reported income, Mr. McCalla’s income has gone up; from $21,791.00 to $27,331.78. In 2013, he acknowledged that his real income was more than twice what he had reported to Revenue Canada. One of the advantages of a cash income is that it is difficult to enforce the tax on it. One of the downsides of a cash income is that it is hard to prove a decline. Given the conflicting affidavits, I am left to rely on Mr. McCalla’s income tax returns. They show no material change. Accordingly Mr. McCalla’s application is dismissed.
[13] In his application, Mr. McCalla only sought a reduction in his support payments. He made no reference to special or extraordinary expenses, or terms of access. Although his affidavit referred to those issues, without a proper application, I can make no order to vary those terms.
Costs
[14] If the parties cannot agree on costs, written submissions may be made to me. Ms. Daley shall make her submissions within the next 15 days and Mr. McCalla shall respond 15 days thereafter. Each submission shall be no more than three pages.
Lemon J.
DATE: October 26, 2015
DATE: 2015 10 26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Andrea Sharlene Daley v.
John Warren McCalla
BEFORE: Lemon, J.
COUNSEL: Ms. Daley, In Person
Mr. McCalla, In Person
ENDORSEMENT
Lemon J.
DATE: October 26, 2015