COURT FILE AND PARTIES
COURT FILE NO.: 01-FL-81-2
DATE: 2015/10/27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LISA SHIRLEY DAHER, Applicant
AND
MICHEL BURROWES, Respondent
BEFORE: Kane J.
COUNSEL: Lisa Shirley Daher, Self-Represented
Michel Burrowes, Self-Represented
HEARD: October 7, 2015 (at Ottawa)
ENDORSEMENT
[1] This is a variation motion by the mother for a variation of the order of Polowin J. dated June 1, 2005 (the “Order”) to amend child support and for retroactive child support and s. 7 expenses.
[2] In her first motion to vary dated May 6, 2014, the mother seeks:
(a) retroactive child support to April 1, 2011 in the amount of $2,468 per month based on the father’s alleged annual income of $170,000; and
(b) retroactive s. 7 expenses since March 1, 2011 totalling $7,511 of which the father should pay 50%.
[3] In her May 11, 2015 motion, the mother seeks:
(a) variation of the Order;
(b) child support for one child only commencing January 2, 2015 in the amount of $965 per month less child support received;
(c) retroactive child support totalling $29,873 consisting of:
(i) October 1, 2012 to December 31, 2012 - $2,322;
(ii) 2013 - $17,172;
(iii) January 1, 2014 to June 30, 2014 - $7,586;
(iv) July 1, 2014 to December 31, 2014 - $2,793 for one child.
(d) arrears of s. 7 expenses since 2000 totalling $59,438 and consisting of:
(i) 2000 to 2005 - $15,000;
(ii) 2006 to 2009 - $17,600;
(iii) 2010 to 2014 - $26,838.
[4] In her July 23, 2015 motion, the mother seeks variation of the Order, namely:
(a) retroactive child support consisting of:
(i) 2012 - $5,400;
(ii) 2013 - $15,612;
(iii) January 1 to June 30, 2014 - $3,684;
(iv) July 1 to December 31, 2014 - $1,350;
January 1 to June 30, 2015 - $1,350
(b) retroactive s. 7 expenses consisting of:
(i) 2000 to 2005 - $15,000; and
(ii) 2006 to 2015 - $15,000.
[5] Proceeding without counsel has led to gaps in the information filed in evidence by each party.
[6] The mother’s three motions to vary create some confusion however it is clear that she seeks retroactive: (a) child support back to 2011; and (b) s. 7 expenses back to 2000.
HISTORY
[7] The parties:
(a) were married and are originally from Winnipeg;
(b) separated in 2000;
(c) according to the Order and Endorsement of de Sousa J. dated August 20, 2009 (the “Endorsement”), have since separation shared custody and alternating residency of their two sons who are currently 21 and 19 years of age.
[8] The youngest son works as a military reservist and is finishing his high school part time. Due to the status of this child, the mother acknowledges child support should be limited to support for one child effective July 1, 2014.
[9] The oldest son is studying at university and is expected to graduate in May 2016.
[10] The mother left Ottawa and moved to live in Winnipeg in July 2015.
[11] The two sons since their mother’s departure in July 2015 have resided with their father.
[12] Both parents worked for the Federal Government or agencies thereof until the mother was injured in a bicycle accident on October 22, 2012. She states that her injuries from this accident forced her to take early medical retirement; that she has been unemployed since then and currently receives long term disability benefits in addition to her employment pension.
[13] The father has been employed by the Federal Government since 2000. It is not disputed that the annual income of the father has always exceeded that of the mother.
[14] The mother commenced an application in 2001 for custody, access and support.
[15] There has been considerable litigation since 2001 regarding custody, access, time sharing involving the children, child support, s. 7 expenses, schooling and property division claims.
[16] The parties settled some of their issues pursuant to Minutes of Settlement dated May 5, 2005, the terms of which were incorporated on consent into and constitute the Order dated June 1, 2005.
JUNE 1, 2005 ORDER
[17] The Order provides:
(a) The parties will have joint custody and share parenting time during the academic year. During summer holidays, the children were to spend 4 weeks with the maternal grandparents in Manitoba and an almost equal amount of time with the father or the paternal grandparents.
(b) The father was to pay child support to the mother in the amount of $400 per month commencing May 1, 2005, and increasing to $500 per month commencing May 1, 2006, based on the then respective annual income of the mother of $63,000 and $89,000 for the father.
(c) Commencing May 1, 2005, the parties were required to pay their proportionate share of s. 7 expenses.
(d) As to s. 7 expenses between the year 2001 and April 2005, the parties were required to do an accounting of such expenses during that period, which would include daycare, medical and dental care, camps, sports fees, recreation fees, school fees and airfare to Winnipeg each summer in lieu of summer camp. The parties were to retain a mediator who would mediate that issue and if necessary, render a binding decision as to such s. 7 accounting by the parties and their entitlement.
[18] The mother alleges a mediator was engaged, a mediation date was set however the father failed to attend thereby preventing the mediator’s ruling regarding the 2001-2005 s. 7 expense claim.
SECTION 7 EXPENSE CLAIM
[19] The mother in her 2005 amended application alleges that the 2000 to 2004 s. 7 expenses totalled $31,111 which are broken down by category and include $12,696 for private school tuition and $14,819 for daycare and summer vacation programs in the years 2000, 2001, 2002, 2003 and 2004.
[20] The father in his Answer simply alleges that he paid his share of s. 7 expenses but provides no detail as to what were the s. 7 expenses, what portion thereof he paid and the dates of his payments.
[21] The mother in her May 6, 2014, Notice of Motion alleges that the s. 7 expenses between March 1, 2011, and May 6, 2014, total $7,511.
[22] The mother in her May 6, 2014 Form 15 A, Change of Information, states that the s. 7 expenses from April 1, 2011 to that date, total $13,362.
[23] The mother’s July 17, 2014 Financial Statement provides a list of s. 7 expenses which total $13,562.
[24] The mother’s May 11, 2015 Notice of Motion, without particulars, lists s. 7 expense totals of:
(a) $15,000 between 2000 and 2005;
(b) $17,600 between 2006 and 2009; and
(c) $26,838 between 2010 and 2014.
[25] The mother’s July 23, 2015 Notice of Motion in this proceeding lists, without details, s. 7 expenses of:
(a) $15,000 between 2000 and 2005; and
(b) $15,000 between 2005 and 2015.
[26] The mother’s October 5, 2015 Financial Statement lists categories of s. 7 expenses totalling $7,042 for an unspecified period without indicating who paid what portions thereof.
[27] The mother sent correspondence to another judge of this court who conducted a conference prior to argument of this variation motion. The mother includes therein an annual list of s. 7 expenses for the years 2002, 2003, 2005, 2006, 2007 and 2008.
[28] The s. 7 documentation lists referred to in the above amended application, prior notices of motion and financial statements by the mother and enclosed in the correspondence to the above case conference judge, were not articulated and explained in an affidavit on this variation motion.
[29] No accounting of s. 7 expenses and who paid what portion thereof has been filed on this variation motion for the years 2009 to 2015.
[30] The mother’s affidavits on this motion do not disclose:
(a) what the parties respective annual incomes were in order to proportion responsibility for s. 7 expenses; and
(b) what portion of the s. 7 expenses being claimed, were paid by her versus the father.
[31] The father’s response to this variation motion is that the mother’s s. 7 retroactive claim back to 2000 should be denied as she has presented no evidence as to the amounts of such s. 7 expenses. The father again provides no evidence what s. 7 expenses since 2000 have been incurred nor what portion of those expenses, if any, he has paid.
[32] This s. 7 retroactive claim based on the lack of evidence is adjourned on the following terms.
[33] If the mother wishes to pursue this retroactive s. 7 claim, she must:
(a) Within 30 days from the date hereof, serve the father and file in court a detailed affidavit listing: (i) the nature, categories and the amounts of the s. 7 expenses incurred by each party per year (“Annual Totals”); (ii) what portion of the Annual Totals she is claiming; (iii) what was the annual Line 150 income of the parties in each year claimed; and (iv) which of the parties paid what portion of each Annual Total; and
(b) Attach a copy of any proof of such expenses such as invoices and any proof of payment by her in relation thereto.
[34] If the mother does not serve and file the above affidavit within the said 30 days, her retroactive claim for s. 7 expenses is dismissed.
[35] If the mother within 30 days files the above affidavit, the father shall have 30 days thereafter to file a responding affidavit using the same structure and level of detail as required in paragraph 31 above, including proof of his payment of s. 7 expenses listed by the mother or other s. 7 expenses not disclosed by the mother which he has paid and his proof of income levels if those are disputed.
[36] The mother will then have 15 days after receiving the father’s affidavit to serve and file a second affidavit responding to the father’s affidavit allegations.
[37] If the father fails to file an affidavit within days 31 to 60 from the date of this decision, or if the mother fails to file a responding affidavit between days 61 to 75 from the date of this decision, the court will then decide this s. 7 retroactive claim based solely on the material filed within the above time periods.
RETROACTIVE CHILD SUPPORT 2011 TO 2014
IMPUTING INCOME TO THE MOTHER
[38] The father submits the mother voluntarily resigned from her employment. He requests the court impute current annual income to the mother of some $92,000. He does not deny however that:
(a) the mother was injured in an accident in 2012, or
(b) she is in receipt of long term disability insurance benefit payments.
[39] Insurance companies do not pay long term disability benefits unless the recipient through injury and disability qualifies for the same.
[40] The father’s request that this court impute income to the mother because she has voluntarily depressed her income is denied.
[41] Using the Child Support Guidelines levels for Ontario in the case of the mother and for Quebec in the case of the father, the evidence establishes that:
(a) the parties’ respective annual Line 150 incomes are as set out on Schedule A; and
(b) The Child Support Guidelines amounts owed by each party, the difference between those amounts, the resulting credit to the father in 2011 and his liability for increased child support for the years 2012 until July 31, 2015, are as recorded in Schedule B.
[42] The Order of Polowin J. is varied in:
(a) terminating the father’s obligation to pay child support effective July 31, 2015; and
(b) reducing the father’s obligation for such support to one child effective July 1, 2014.
[43] Based on the above factors, the father owes the mother total retroactive child support to July 31, 2015, payable and enforceable within 30 days from today, in the amount of:
(a) $21,911, if he continued to pay child support of $500 per month to and including July 31, 2015; or
(b) $25,161, if he reduced child support to $250 per month on and after July 1, 2014.
[44] The above liabilities are further reduced by the amount of Manitoba child support payable for one child by the mother to the father for nine months, namely August 1, 2015, until April 30, 2016, being the completion date of the child’s university’s first degree. It is preferable to incorporate that issue now and save the parties new litigation as to that point. That Manitoba monthly support of $469 per month is calculated based on the mother’s Line 150 income of $56,358. The total thereof for nine months is $3,283.
[45] That reduction of $3,283 decreases the father’s above total liability:
(a) in the case of $21,911, to $18,628; or
(b) in the case of $25,161, to $21,878.
[46] The assistance of the Ontario Family Responsibility Office is hereby requested to recover payment from the father.
COSTS
[47] Any party seeking costs on this variation motion shall within 30 days from the date hereof, send to the other party and this court brief written argument not exceeding 4 pages of the nature and details of any claim for costs.
Kane J.
Released: October 27, 2015
SCHEDULE A
Year
Mother’s Annual Income
(Ontario until August 2015, then Manitoba)
Father’s Annual Income (Quebec)
Off-Set Amount 2 children
Paid by Father
2011
$89,420
$135,951
$488
$6,000
2012
$88,825
$142,392
$566
$6,000
2013
$16,074
$149,487
$1,700
$6,000
2014
$55,000
(admitted)
Jan 1 to June 30 – 2 children
July 1 to Dec 31 – 1 child
$152,150
$1,139
$740
$3,000
$3,000
2015
$56,358
Jan 1 to July 30 – 1 child
$152,150
$727
$3,500
SCHEDULE B
OFF-SET CHILD SUPPORT CALCULATIONS
YEAR
MOTHER
FATHER
DIFFERENCE
2011
$1,285
$1,773
$488 x 12 = $5,856
minus $6,000 = -$144
2012
$1,279
$1,845
$566 x 12 = $6,792
minus $6,000 = +$792
2013
$225
$1,925
$1,700 x 12 = $20,400
minus $6,000 = +$14,400
2014
6 months
(2 children)
6 months
(1 child)
$817
$498
$1,956
$1,238
$1,139 x 6 = $6,834
minus $3,000 = +$3,884
$740 x 6 = $$4,440
minus $3,000 = +$1,440
2015
7 months
(1 child)
$511
$1,238
$727 x 7 = $5,089
minus $3,500 = +$1,589
Total Owing: $21,911
presumes child support paid of $500/month to
July 31, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: LISA SHIRLEY DAHER, Applicant
AND
MICHEL BURROWES, Respondent
BEFORE: Kane J.
COUNSEL: Lisa Shirley Daher, Self-Represented
Michel Burrowes, Self-Represented
ENDORSEMENT
Kane J.
Released: October 27, 2015