ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-15-0151
DATE: 2015-11-17
B E T W E E N:
Lesley Shaw,
No one appearing for the Applicant
Applicant
- and -
Jeffrey Schroeder,
Edward R. Van Voort, for the Respondent
Respondent
HEARD: November 16, 2015,
at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Reasons For Judgment on Uncontested Trial
[1] This motion to change the order of D.R. Timms J. dated September 28, 2009 (the “Order”) came before the court on an uncontested basis.
[2] The applicant (responding party), Lesley Shaw, did not attend this hearing and did not file any responding materials. She was duly served with the materials in this matter in accordance with the order for substitutional service of Newton J. dated September 4, 2015, as evidenced by the affidavit of service of Laura Patterson sworn September 29, 2015.
[3] This matter involves the couple’s one child, Hunter Charles Lee Shaw who was born in August 2008.
[4] The Court accepted the affidavit evidence of the respondent (moving party), Jeffrey Schroeder, as well his vive voce evidence.
[5] Mr. Schroeder seeks to reduce the arrears of support, eliminate his obligation to pay ongoing s. 7 expenses in the absence of proof of same, and fix ongoing support based on his 2014 income.
[6] I had some concerns with Mr. Schroeder’s evidence. First, he has only provided the Court with a copy of the Order. The pleadings or any endorsement regarding the Order were not included in the evidence. Interestingly the Order indicates “the following persons were in court n/a”. From this I took it that the Order was obtained over the counter. Mr. Schroeder testified he was served with the process leading to this order but chose not to attend the Court date or file responding materials. He said he was depressed at the time and was facing a criminal charge relating to a domestic assault on Ms. Shaw, for which he was ultimately convicted. His evidence was not clear as to when he first became aware of the Order.
[7] Despite being made in September 2009, the Order was retroactive to September 1, 2008, and fixed ongoing support at the amount of $462.00 based on a finding that Mr. Schroeder earned $50,000.00 per year. The Order also provided Mr. Schroeder pay fixed monthly s. 7 expenses in the amount of $301 per month commencing August 1, 2009.
[8] The Order did not indicate how the $301 per month for section 7 expenses was arrived at as it made no indication of Ms. Shaw’s income. Perhaps this information was contained in the pleadings or the endorsement leading to the Order.
[9] According to an Family Responsibility Office statement provided to the Court, Mr. Schroeder is in arrears of support as of November 11, 2015 in the amount of $39,889.76.
[10] Mr. Schroeder provided the Court with evidence that from January 1, 2010 to January 1, 2014, his income was never $50,000 and in fact for many of those years it was significantly less. In the course of submissions counsel provided a useful chart of Mr. Schroeder’s income for the period following the Order. It is attached as Schedule “1” to this endorsement.
[11] I am not prepared to take in to consideration periods prior to the making of the Order in 2009 as urged by counsel for Mr. Schroeder. He chose not to attend court at that time. I can see no principled basis to go behind the Order now for any time prior to December 31, 2009.
[12] Periods following the Order are a different matter in my view. Mr. Schroeder’s income was significantly less than $50,000 for 2010 through 2013. I find this reduced income constitutes the material change necessary for me to vary the amount of amount of arrears owing pursuant to the Order.
[13] Accordingly, I find Mr. Schroeder earned the following annual incomes for the purposes of calculating his ongoing child support obligation for Hunter Charles Lee Shaw for the period January 1, 2010 to November 1, 2015:
2010 $34,639 (yields monthly payment of $321/mo)
2011 $11,657 (yields monthly payment of $61/mo)
2012 $24,158 (yields monthly payment of $193/mo)
2013 $24,338 (yields monthly payment of $195/mo)
2014 $41,686 (yields monthly payment of $376/mo)
2015 $52,656 (yields monthly payment of $475/mo).
[14] Counsel has provided a spreadsheet of the corresponding amounts of child support these various levels of income would have required for the period January 1, 2010 to November 1, 2015. These amounts are set out in Schedule 1.
[15] Also, based on my findings of Mr. Schroeder’s annual income for the period 2010 to 2015, I find the amount of ongoing s. 7 expenses owing under the existing order should be varied as well. Mr. Schroeder proposes these amounts be calculated by comparing the percentage his actual annual income was to the imputed amount of $50,000 and then applying that percentage to the amount ordered of $301 per month.
[16] I am prepared to accept this methodology only because Ms. Shaw has chosen not to participate in this hearing. I can only speculate what was the basis for making the s. 7 expenses order in the first place. The child was very young at the time. Mr. Schroeder had no information about him as he testified he has never laid eyes on the child. What is proposed is certainly a rough calculation, but in the circumstances absent any information about the needs of the child, I am prepared to require Mr. Schroeder to have paid something for s. 7 expenses for the periods following January 1, 2010 that has some mathematical correlation to the basis of the amount which was ordered by Timms J.
[17] Accordingly, I adopt the methodology proposed by Mr. Schroeder for s. 7 expenses. The amounts that should have been paid for s. 7 expenses for January 1, 2010 to November 1, 2015, are set out in Schedule 1 and for each year are as follows:
2010 $2,502.32
2011 $842.10
2012 $1,745.17
2013 $1,758.17
2014 $3,011.39
2014 $3,486.88.
[18] I also order that effective December 1, 2015, s. 7 expenses are payable by Mr. Schroeder only upon his being provided proof of the expenditure by Ms. Shaw, and only after she provides him with copies of her previous year’s income tax returns so an appropriate amount may be determined.
[19] Mr. Schroeder has paid $22,968.43 towards the Order. Over that period he should have paid $39,715.03. Accordingly, I find that he owes arrears of support of $16,746.60.
[20] Mr. Schroeder submits that the arrears should be repaid at the amount of $100 per month. As a practical matter this would have the arrears repaid in just about a fourteen year period. After considering this submission, I am not prepared to accept that it is an appropriate rate of repayment. I am of the view that arrears should be collected in an amount of up to $250 per month in addition to the amount of ongoing support being paid.
[21] Mr. Schroeder submits his ongoing support effective November 1, 2015, should be set in the amount of $475 per month. I agree with this submission based on his 2014 income of $52,656.
[22] Therefore for reasons set out above, order to go as follows:
Arrears of child support owed by Jeffery Schroeder to Lesley Shaw in respect of the child Hunter Charles Lee Shaw, d.o.b. August 14, 2008, as of November 30, 2015 shall be fixed in the amount of $16,746.60.
Arrears of support owed shall be collected by the Family Responsibility Office at the rate of up to $250 per month commencing December 1, 2015 until paid in full. Interest on the arrears shall be calculated at 2%, the post judgment s. 127 Courts of Justice Act rate for the third quarter of 2015 commencing January 1, 2016.
The order for payment of ongoing child support of Timms J. dated September 29, 2009 is terminated.
Effective November 1, 2015, Jeffery Schroeder shall pay to Lesley Shaw periodic monthly child support in respect of the child Hunter Charles Lee Shaw, d.o.b. August 14, 2008, in the amount of $475 per month based on his 2014 annual income of $52,656. This obligation shall continue until such time as Hunter Charles Lee Shaw is no longer a dependent or this order is terminated on consent or varied by further court order.
Effective July 1, 2016, and every year thereafter, for so long as Hunter Charles Lee Shaw remains a dependent child, the amount of ongoing child support payable by Jeffery Schroeder shall be capable of review and adjustment based on the previous year’s line 150 annual income of Jeffery Schroeder. The onus of seeking the change shall be upon Jeffery Schroeder.
Effective December 1, 2015, Jeffery Schroeder shall pay his portion of expenses for Hunter Charles Lee Shaw in accordance with the proportions set out in s. 7of the Child Support Guideline upon being provided with proof of such expenditures by Lesley Shaw and proof of her prior years income.
Approval of the form and content of this order by Lesley Shaw is hereby dispensed with.
A copy of this endorsement and the order shall be forthwith served upon the Family Responsibility Office. The Family Responsibility Office is ordered to then serve a copy of this endorsement and this order on Lesley Shaw at her last known address.
A support deduction order shall issue
There are no costs payable for this motion.
_______”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: November 17, 2015
COURT FILE NO.: FS-15-0151
DATE: 2015-11-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lesley Shaw,
Applicant
- and -
Jeffrey Schroeder,
Respondent
REASONS FOR JUDGMENT ON UNCONTESTED TRIAL
Fitzpatrick J.
Released: November 17, 2015
/mls