Winger v. Popovich, 2015 ONSC 656
COURT FILE NO.: FS-02-31
DATE: 2015-03-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tammy Dawn Winger
Applicant
– and –
William Edward Popovich
Respondent
Self-Represented
M. Kenneth Douglas, for the Respondent
HEARD: January 22, 2015
the honourable mr. justice r. j. nigtingale
[1] The respondent father commenced this motion in May 2012 to change, among other things, the terms of the Order of Dandie J. of February 21st, 2003 granting custody of the parties’ two children, Brianna presently age 17, and William, 16, to the applicant mother.
[2] Brianna had moved back with the father commencing November 23, 2011 and William subsequently commenced residing with the father on a shared custody 50-50 time sharing basis with the mother in September 2012. Brianna then returned to her mother’s custody in March 2013 and William resided with the father on a full-time basis in his custody from April 2013 until March 2014 when he also returned to the mother’s custody.
[3] The parties resolved the issues of shared parenting and visits with the children on consent resulting in the Order of Turnbull J. of November 29, 2013. That Order also provided that the parties’ child support obligations for the children would continue to be paid based on the primary residence of the child and on the parties’ respective incomes.
[4] The parties are content that the children continue to reside primarily with the applicant mother with father’s visits being arranged directly with the children in accordance with their wishes.
[5] The remaining issue in this motion for change is the calculation of the proper amount of child support payable by the parties since the Order of Matheson J. of November 13, 2007. Paragraph 3 of that Order required the father commencing June 1, 2007 and monthly thereafter to pay the mother for the support of the two children the sum of $1413 per month based on his income of $100,826 for the year 2006 and in accordance with Child Support Guidelines (“CSG”).
[6] The Order further provided that the child support payable by the father to the mother shall be varied on consent each year on June 1 commencing June 1, 2008 based on the father’s income as required to be disclosed by the earlier court Order of Walters J. of May 3, 2006.
[7] That earlier Order required both parties to each provide to the other a copy of his or her income tax returns and notices of assessment on an annual basis by June 15 of each year or as soon as available.
[8] The Order of Matheson J., after a motion, significantly increased the amount of child support payable by the father to the mother from the Order of Walters J. which had stipulated that he would only pay $454 per month commencing June 1, 2006 based on his 2004 income of $30,754.
[9] There is no question that after that, the father was fully aware of his obligations in the future to pay child support to the mother in accordance with the CSG based on his income earned the previous year as he had already gone through two child support motions to change since the original Order of Dandie J. back in 2003. Hence, he would have been totally familiar with the requirement of the CSG and in particular the Orders of Matheson J. and Walters J. that he disclose and provide his tax returns annually to the mother so that his child support automatically increased if his income increased from the previous year.
[10] There is a long history of animosity between these two parents to the point where they are not able to speak to each other and have not been for some time and are barely able to communicate by text. It was clear that they have continued to have a toxic relationship at best, as described by the father, which was quite clear during their evidence at trial.
[11] With that background, it is not surprising to hear the evidence of the father and his mother Lynda Popovich that after the Order of Matheson J. in 2007, they stated they left a copy of the respondent father’s 2008, 2009 and 2010 income tax returns annually in an envelope which they put in the 10-year-old Brianna’s backpack when they returned her to the applicant’s home. They both say this was disclosure of his tax returns but the mother adamantly denies they were ever received by her at any time until he filed copies of his 2009, 2010 and 2011 returns as part of this motion in May 2012.
[12] The mother’s evidence is that she asked for the tax returns each year but the father declined to provide them and simply stating that his income wasn’t significantly higher than the year before. Consequently, he neither offered nor paid any increased child support.
[13] His tax returns for 2009, 2010 and 2011 initially filed with his court documents showed significantly increased income for those years compared to 2006. She then insisted on compliance with the Order of Matheson J. and the consequent increased child support payments retroactively because of that significantly increased income in her response.
[14] In the meantime, however it appears from the evidence of the father and his mother Lynda Popovich, who took care of his finances as he was still residing with her until 2010, that they both knew that his child support obligations had increased perhaps in 2008 but no later than 2009 because his income had gone up $128,366 in 2008. There was no evidence at trial regarding his actual income earned in 2007 including any tax return for that year.
[15] The father and his mother both indicated they called the Family Responsibility Office (“FRO”) to try to get them to increase the deduction or garnishment amounts to it so that he could keep ahead of the game. FRO declined as there was no formal order increasing the support.
[16] However, the respondent father and his mother never notified the mother that he was prepared to pay increased child support. Rather, the respondent’s mother put aside in a separate bank account approximately $92 per week from his pay for likely no less than two or three years to cover that increased child support obligation which account he took with him when he left her residence in 2010. They didn’t tell the children’s mother of that either.
[17] No doubt the parties had significant trouble communicating with each other at the time because of issues of access involving the children and this may perhaps explain why they did not disclose it.
[18] When asked at trial why he didn’t voluntarily increase his child support payments notwithstanding the clear provisions of Matheson J.’s Order, his curt and rather arrogant response was that it wasn’t his responsibility to increase the support but rather it was up to the applicant to “file” the order. In other words, if she wanted more support, it was up to her to incur the time and expense to get a variation order. This was even though he was fully aware of his obligations to increase his child support and actually had set aside the money for doing so in a separate account. He had not volunteered this information when he was giving his evidence initially at trial (that came from his mother after he testified) and offered no explanation at trial as to whether he still retains this account with the increased child support obligations amount in it since he left his mother’s residence in 2010. He did not say that he spent this accumulated money on his other expenses.
[19] I am not satisfied, notwithstanding their evidence, that the respondent has established that the applicant actually received his tax returns for the years 2007, 2008, and 2009 while he resided with his mother or any returns after that until he filed this court motion. A simple letter from him or his lawyer with a copy of the return could easily have been provided by registered or ordinary mail or personal service. A simple letter from him or his lawyer outlining what he thought he should be paying on each anniversary date for increased child support would no doubt have resolved this issue at minimal or no expense to either party.
[20] The respondent father seems to have lost sight of the fact that what was ordered to be paid was child support with the children being entitled to receive the benefit of the increased income of their father even though the mother was now residing in a common-law relationship. This was not spousal support.
[21] Although the father made the payments on a timely basis under Matheson J.’s Order, this is not a case where he can be said to have honoured his obligations faithfully or that he had a reasonable belief that his support obligations were being fulfilled. In fact, he knew he should be paying increased support and actually set the money aside in a separate bank account for that purpose but in effect declined or refused to pay it to the mother or even acknowledge that he was prepared to do so. The significant increases in his income certainly became clear when he brought this motion himself to reduce his child support obligations because of the change in the custody arrangements of Brianna in November 2011.
[22] Given these circumstances, that a good portion of the increased child support obligations were and may still be set aside somewhere, and that the father has not alleged any financial hardship to pay on-going support if he was required to pay the increased amount of child support back to 2009, he shall be required to pay his child support in accordance with paragraph 3 of the Order of Matheson J. of November 13, 2007 based on his income (after deduction of his union dues) indicated in his tax returns. The commencement date of the increased support will be June 1, 2009 based on his 2008 income as there is no evidence of his actual 2007 income and the time frame for increased support is approximately 3 years prior to the claim of the mother in her response in this motion.
[23] The respondent complained that the applicant failed and even refused to provide copies of her income tax returns necessary to calculate the child support obligations of both parties based on their respective incomes from November 2011 (when Brianna changed to the residence and custody of her father) and thereafter when William also changed his residence until Brianna moved back to her mother in March 2013 and William returned to her custody in March 2014. The applicant’s statement that she didn’t give him her returns because she didn’t get his is an excuse, not a valid reason as she didn’t comply with the Order of Justice Matheson either.
[24] His income after union dues deductions was as follows:
2008 $123,577
2009 $122,281
2010 $130,996
2011 $151,395
2012 $159,260
2013 $103,331
[25] Her relevant tax returns after deduction of union dues confirmed she had the following income:
2010 $20,697
2011 $26,390
2012 $31,497
2013 $30,465
[26] However, the applicant did not disclose in her financial statements that she received in September 2013 as part of her settlement with her common-law spouse from whom she separated in 2012, a lump sum payment of spousal support of $70,000. She said this payment covered approximately 8 years’ worth of spousal support that she was entitled to on separation. This money was received tax-free and hence the reason for it not showing up in her tax return.
[27] However, as her total income may be relevant for the purposes of some issues of calculating child support, it is appropriate that some of these funds be included in her 2013 and 2014 income and subsequent years. There should be a gross up in the lump sum tax-free $70,000 amount to $90,000 to account for the income tax equivalent income. It would be appropriate to allocate the income over 5 to 8 years and add her receipt of between $11,000 to $18,000 for her 2013 and 2014 incomes.
[28] Adding the sum of $15,000 into her each of 2013, 2014 and subsequent years incomes for a total of 6 years for child support purposes would be reasonable.
[29] This results in her income for 2013 of $45,465 for child support purposes commencing June 1, 2014 and $31,000 for 2014 income for child support purposes commencing June 1, 2015.
[30] However, as the adjustment date for child support under Matheson J.’s order is June 1, 2014 based on her 2013 income, the increase in her 2013 income is irrelevant as by that time, both children were residing with her and the father’s child support obligations then are based solely on his income.
[31] Accordingly, the respondent’s child support obligations since June 1, 2009 are as follows: a) Commencing June 1, 2009, the respondent’s monthly child support payments shall be $1686 based on his 2008 income of $123,577.
b) Commencing June 1, 2010, his monthly child support payments shall be $1671 based on his 2009 income of $122,281.
c) Commencing June 1, 2011, his monthly child support payments shall be $1772 based on his 2010 income of $130,996. d) Commencing December 1, 2011, his monthly child support payments shall be $935 based on his 2010 income of $130,996 and the applicant’s 2010 income of $20,697.
e) Commencing June 1, 2012, his monthly child support obligation shall be $1060 based on his 2011 income of $151,395 and the applicant’s 2011 income of $26,390.
f) Commencing September 1, 2012, his monthly child support obligation shall be $883 based on his 2011 income of $151,395 and the applicant’s 2011 income of $26,390.
g) Commencing March 1, 2013, his monthly child support payment shall be $1060 based on his 2011 income of $151,395 and the applicant’s 2011 income of $26,390.
h) Commencing June 1, 2013, his monthly child support payment shall be $1069 based on his 2012 income of $159,260 and the applicant’s 2012 income of $31,497.
i) Commencing March 1, 2014, his monthly child support payments shall be $2118 based on his 2012 income of $159,260.
j) Commencing June 1, 2014, his monthly child support payments shall be $1456 based on his 2013 income of $103,331.
Father’s 2014 Income
[32] The next adjustment date for child support under Matheson J.’s order is June 1, 2015 based on the respondent’s income for 2014. He produced an earnings statement from his employer Link Line Contractors for the pay period ending December 4, 2014. That document confirmed his gross pay of $107,499.34. However, it shows that included a payment for a lodging allowance of $37,975 and mileage of $1218.11.
[33] Apparently, the respondent father was working in the Arnprior and Kingston areas during the week and was given this money tax-free as an allowance towards his accommodation, meals and mileage expenses while residing there. However, he produced no documentation or details of what his actual living expenses actually incurred were while being away from home that were paid from this allowance. He simply stated, without any documentary proof, that he would net out between $50 to $100 per week from the allowance after payment of his expenses. The respondent has the obligation to establish his expenses incurred to reduce the amount to be included in his income from this allowance for child support purposes but he has not done so.
[34] Given that he obviously incurred some extra living expenses during that time, a reasonable estimated net amount to include from that allowance into his income is $15,000 for child support purposes. Accordingly, his 2014 income for child support purposes is $90,000 which includes his Link Line income which I find to be approximately $83,000, his Strabag income of $3200 after union dues deductions and his EI benefits of $4000.
[35] Commencing June 1, 2015, based on his 2014 income of $90,000, the respondent’s monthly child support payable to the applicant for both children Brianna Lynn Popovich, born June 18,1997 and William Edward Popovich ,born November 16,1998 is $1293 and in accordance with the Child Support Guidelines.
[36] The respondent’s child support obligations to the Applicant shall be varied on consent each year on August 1st, commencing August 1, 2016, based on the respondent’s income for the previous year.
[37] The Applicant and the Respondent shall promptly provide updated income disclosure as to their financial circumstances to the other party at the time of any change in the primary care of the children for the purpose of determining ongoing child support.
[38] In addition, the Applicant and Respondent shall provide to the other, a copy of their respective income tax returns and Notices of Assessment on an annual basis, by June 15th of each year, or earlier if available, for the purpose of determining the respondent’s ongoing child support obligations in this order.
[39] The respondent shall be given credit against his support obligations in this Order for all child support payments made by him since June 1, 2009.
[40] The respondent has not established that he is unable to pay the resulting arrears arising from this order as a lump sum nor has he asked that they be paid on a monthly basis over time. If there is any issue with respect to the calculation of the actual outstanding arrears based on this order and the payments made by the respondent since June 1, 2009, the parties can make further submissions in writing to me through the trial coordinator’s office in St. Catharines.
[41] A support deduction Order shall issue with respect to the arrears and all ongoing child support obligations of the respondent under this order.
Section 7 expenses
[42] The Order of Matheson J. required the respondent to pay 85% of any extraordinary expenses for the children upon receipt of proof of payment. This obviously was based on his 2006 income of $100,826 and her 2006 income, details of which I do not have but which appear to be the area of $18,000.
[43] The respondent suggests a sharing now of the extraordinary expenses on a two thirds /one third basis because of their respective incomes in 2014.
[44] I have determined that his 2014 income is $90,000 and the applicant’s is $31,000. The proportionate difference in income is now 75%- 25% compared to the parties’ incomes used in Matheson J.’s Order. As of June 1, 2015, the respondent shall be responsible for 75% of the extraordinary expenses of the children.
[45] The Respondent said in 2013 he incurred $2400 of net expenses for braces for Brianna and $420 for counseling sessions for William. The applicant mother indicated she did not want to contribute towards those expenses as she had paid other expenses herself for the children for their sports and other activities which she alleges should offset her obligation to contribute towards these expenses. However, she offered no proof or details of those expenses incurred or how much was paid by her. Accordingly, she is required to contribute towards these expenses claimed by the father in the 15% amount or $423 which is based on the provisions of Matheson J’s order and the percentage amount used for that time period.
Costs
[46] If either party wishes to make a claim for costs, he or she may do so within 10 days of this decision of no more than three pages in length plus a bill of costs and any relevant offers to settle. The other party can then make similar submissions within seven days thereafter. If no submissions are made, each party will be responsible for their own costs.
Nightingale, J
Released: March 3, 2015
CITATION: Winger v. Popovich, 2015 ONSC 656
COURT FILE NO.: FS-02-31
DATE: 2015-03-03
Tammy Dawn Winger
Applicant
– and –
William Edward Popovich
Respondent
Released: March 3, 2015