CITATION: Scherr v. Scherr, 2015 ONSC 7438
OTTAWA COURT FILE NO.: 03-FL-1610
DATE: 2015/11/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jana Scherr
Applicant
– and –
Steven Scherr
Respondent
Self Represented
Self Represented
HEARD AT OTTAWA: November 9, 2015
ENDORSEMENT
KERSHMAN J.
[1] The Father brings an application under the Divorce Act to vary the order of Linhares de Sousa J. dated January 2, 2008, for child support to reflect that the following children are no longer the children of the marriage so that:
(a) support be terminated for Marina Anne Scherr, effective February 1, 2008, the month after the original child support order;
(b) support be terminated for Andrew Joachim Scherr, effective February 2009; and
(c) support be terminated for James Anthony Scherr, effective July 1, 2011
[2] Mr. Scherr (the Father) resides in Morden, Manitoba.
[3] Jana Kolysher (the Mother, formally Scherr) resides in Ottawa, Ontario.
Background
[4] The parties were married on July 28, 1984, and separated on June 9, 2003. A divorce was granted on January 2, 2008, by de Sousa J. Pursuant to the divorce order, the Mother had sole custody of all 5 children and child support was ordered to be paid by the Father in the amount of $122 a month for 3 children, namely Marina, Andrew and James. The child support amount was based on the Father’s income of $955 per month from CPP disability benefits.
[5] In late 2012 or early 2013 Mr. Scherr applied to vary Justice de Sousa’s child support order.
[6] On May 14, 2013, Aquila J. of the Manitoba Court of Queen’s Bench ordered the Mother to provide financial information concerning whether Marina, Andrew and/or James were still under her care and control. That information was subsequently provided.
[7] A provisional variation order was granted by the Honourable Madame Justice Hatch on December 2, 2014, which provided the following:
(1) The obligation of the Father to pay child support for James Anthony Scherr terminated on June 30, 2012, and commenced again on August 1, 2013, and terminated on June 30, 2014;
(2) The obligation of the Father to pay child support for Andrew Joachim Scherr terminated on December 31, 2012;
(3) The obligation of the Father to pay child support for Marina Anne Scherr terminated on March 30, 2011; and
(4) The total arrears of penalties and cost recovery fees assessed by the designated officer, Maintenance Enforcement Program owed by the Father to the Mother were cancelled.
The Law
[8] The parties are subject to a support order made under the Divorce Act. The Mother lives in Ontario while the Father lives in Manitoba. The Father wishes to vary the existing support order.
[9] The provisional order has already been made by Justice Hatch in Manitoba. This Court’s options are as follows:
(1) confirm the Provisional Order without variations;
(2) confirm the Provisional Order with variations; or
(3) refuse confirmation of the Provisional Order.
[10] In accordance with the appropriate legislation, if the Court refuses to confirm the Provisional Order or confirms it with variation, written reasons must be provided and delivered to the Attorney General of Ontario and to the Court that made the Provisional Order.
Position of the Parties
Father
[11] At the time of separation, the Father worked as a computer programmer. He suffers from a kidney condition, which materialized in the spring of 2006 and continues to the present time. That condition led to numerous health complications and largely inhibits him from working. Since December 2006 and continuing to the present, he receives monthly CPP Disability Pension payments. The Respondent initially received 955.48 per month. This amount has been increased to 1068.38 per month.
[12] It is the Respondent’s position that all the children are adults and are no longer “children of the marriage.” Marina moved out of the Mother’s home in 2011. The youngest, James, is 19 years old and moved out of the Mother’s house for a period of time. He has since moved back in to take advantage of a lower rent and is attending Algonquin College. As of May 2013, Andrew was living with the Mother and paying her $200.00 a month in rent. He would be entering into his last year of post-secondary education in the Fall of 2013. The Father states that he is not otherwise informed with respect to the circumstances of the children as the Mother prevents him from obtaining the information.
Mother
[13] The Mother is currently employed at the Queensway Carleton Hospital as a registered practical nurse on a casual employment basis. From September 2011 to April 2014, she completed her Bachelor of Science in Nursing degree at the University of Ottawa.
[14] Her own education has placed her in debt of excess of $30,000 for an OSAP loan.
[15] It is the Mother’s position that the Father has not provided full frank financial disclosure, and that he earns income from a business which he operates. The Mother argues that the Respondent has a history of using his companies to conceal his income. Further, it is her position that the Father is capable of earning more money than he currently does.
[16] The Mother argues that the Provisional Order should not be confirmed based on the findings made by Hatch J. set out previously
James
[17] The Mother argues that support for James should be terminated on June 30, 2014, and it should not be terminated on June 30, 2012, and restarted again on August 1, 2013. According to her, James has been diagnosed with ADHD and has numerous behavioural issues. He has been seeing a counselor. He was in attendance at school part-time in order to complete his education. She argues that the Father did not take into account the sacrifices required to account for the disabilities of the children. She acknowledges that James left school in June 2012 and was not in full-time attendance, but that he returned to school in September 2013 and ended school in June 2014.
[18] The evidence is that in 2012 he earned $14,312 based on his Notice of Assessment and $7,900 in 2013 based on his T4.
Andrew
[19] The Mother argues that Andrew was living at home the whole time and he was still in full-time attendance at school after December 31, 2012, until June 2013 at Carleton University when he graduated.
Marina
[20] According to Hatch J., Marina’s child support should terminate as at March 30, 2011. According to the Mother, Marina completed a Bachelor of Arts degree at Carleton University in June 2012. She earned a Bachelor of Arts in Psychology and Socialization. She is dyslexic.
[21] The Mother stated that Marina finished school on May 1, 2012, but went back to school because she was unable to find work from September 2013 to May 2014. She attended Algonquin College from which she graduated with a Social Services Diploma.
General
[22] Child support has been terminated as of June 30, 2014, based on Hatch J.’s Order on December 2, 2014.
[23] The Mother is now concerned that if child support terminates as at the dates determined by the Manitoba court she will have to repay substantial amounts of child support to the Father.
[24] She argues that notwithstanding the fact that the children have turned 18, they were either in full-time attendance at school or were living at home and in full-time attendance at school during the period in question, thus qualifying as children of the marriage.
[25] The Mother also argued that the Father has not provided evidence of his additional income. The Court notes that the Father acknowledged at the Provisional Hearing that he had additional income in 2011 of $300, additional income of 2012 of $500 and additional income in 2013 of $500, on account of editing services that he provided to outside businesses.
[26] The Mother argues that according to the Family Responsibility Office she was entitled to receive the $122 as a global amount whether one, two, or three children were at school or under 18.
[27] In addition, the Mother is seeking costs of $672.50 because that is what it costs her to retain counsel to deal with the issue of going to court in Winnipeg at the initial return of this motion.
Analysis
[28] I do not agree with the Mother’s argument that she was entitled to receive $122 as a global amount of child support whether one, two or three children were children of the marriage. I have reviewed the Order of de Sousa J. and believe that the Order contemplates that this amount is only appropriate while all three of the children in question remain children of the marriage.
[29] However, I do not find that the Mother should be required to repay any of the child support overpayment received by her. The Order of de Sousa J. contemplates recalculation of the support payments to account for any increase in the Father’s income. Since 2011, his reported annual income has consistently exceeded the $11,470 annual income on which the original amount of child support of $122 was based using the Manitoba tables. Using the Father’s reported income and the appropriate Tables, this court finds that there is no overpayment: indeed, the Father would have been required to pay more child support had his obligations been adjusted to account both for the number of children to be supported in any given month and for the Father’s annual income at the time.
[30] This is based on the evidence provided by the Father in his T1 forms set out below. According to the Tables, his child support based on these means should have been as set out below.
YEAR
AMOUNT
CHILD SUPPORT FOR 3 CHILDREN
2011
$17,282.28
$339.00
2012
$16,157.19
$212.00
2013
$13,314.32
$125.00
2014
$12,280.08
$116.00
[31] Furthermore his obligations would have been adjusted to account for s.7 expenses for the children, as set out at paragraph 7 of the de Sousa J. Order. There was no evidence that the Father paid any s. 7 expenses. Even though there was no evidence that s.7 has to be agreed on in writing, the Court finds that the Father would have been liable for s.7 expense in relation for the tuition of each child for post-secondary education.
[32] This Court finds that neither party shall be entitled to any arrears for child support that may have accumulated.
[33] Based on page 29 of the December 2, 2014, transcript the Ontario Court will not consider the issue of the arrears of penalties or the cost recovery fees as set out in para 7.4 of the Hatch J. Order.
[34] While the Court understands the Mother’s position in relation to the issue of costs, the Court declines to award the costs claimed by her of $672.50.
[35] Therefore, the Court confirms the Provisional Order of Hatch J. dated December 2, 2014, with variation, as follows:
(1) The obligation of the Father to pay child support for James Anthony Scherr terminated on June 30, 2012, and commenced again on August 1, 2013, and terminated on June 30, 2014;
(2) The obligation of the Father to pay child support for Andrew Joachim Scherr terminated on December 31, 2012;
(3) The obligation of the Father to pay child support for Marina Anne Scherr terminated on March 30, 2011;
(4) The total arrears of penalties and cost recovery fees assessed by the designated officer, Maintenance Enforcement Program owed by the Father to the Mother are cancelled;
(5) None of the children, James Anthony Scherr, Andrew Joachim Scherr or Marina Anne Scherr, are entitled to support after June 30, 2014; and
(6) There will be no repayment of any arrears of child support.
[36] Order accordingly.
Mr. Justice Stanley Kershman
Released: November 30, 2015
CITATION: Scherr v. Scherr, 2015 ONSC 7438
OTTAWA COURT FILE NO.: 03-FL-1610
DATE: 2015/11/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jana Scherr
Applicant
– and –
Steven Scherr
Respondent
ENDORSEMENT
Mr. Justice Stanley Kershman
Released: November 30, 2015