CITATION: Gorska v. Gorski, 2015 ONSC 7522
COURT FILE NO.: FC-14-2852
DATE: 2015/12/02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anna Gorska, Applicant
AND
Zbigniew (Ziggy) Gorski, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: Andrew McMurray, Counsel for the Applicant
Zbigniew (Ziggy) Gorski , Self-represented
HEARD: November 24, 2015 at Ottawa
ENDORSEMENT
[1] This is a motion brought by the applicant mother seeking the following relief :
a. A temporary order for the payment of retroactive and ongoing child support as per the Federal Child Support Guidelines;
b. A temporary order for the retroactive and ongoing payment of section 7 expenses which consist of tutoring expenses for the children;
c. An order that the Respondent name the Applicant as the irrevocable beneficiary of his life insurance policy through his employment with proof of such designation to be provided within 30 days of this Endorsement;
d. An order that the applicant and children be named on the respondent’s medical and dental insurance through his employer with proof of such designation within 30 days of this Endorsement;
e. A temporary Order restraining the respondent from depleting any property under his care or control;
f. Costs.
Background
[2] The applicant is 40 years of age and the respondent is 44 years of age. They were married on June 28, 1997 and separated on November 1, 2013.
[3] There are two children of the marriage: Jakub Gorski, born August 13, 2000 and Sandra Gorska, born August 11, 2003.
[4] The applicant mother is employed at Joe’s Barber Shop with an annual income of $25,658.78 as per her 2014 Notice of Assessment.
[5] The respondent father is employed at the Royal Canadian Mint with an annual income of $65,245 as per his 2014 Notice of Assessment. The respondent indicated during the motion that this amount will decrease in 2015 due to a reduction in overtime, however this was not establish through proper evidence.
[6] When considering the Federal Child Support Guidelines, (SOR/97-175) (“Guidelines”), since separation on November 1, 2013, the applicant states that the respondent has incurred arrears of child support in the amount of $13,468. The respondent has not challenged this figure. The current amount of child support payable by the respondent pursuant to the Guidelines is $970 per month.
[7] Both children are in need of tutoring. Since April 2014, the applicant has incurred $6206 in tutoring expenses. The applicant has provided a budget for future tutoring expenses in the amount of $10,670 per annum with the respondent’s pro rata share being $629 per month.
[8] In terms of property, the parties’ main assets are the jointly owned house, the applicant’s vehicle, the respondent’s pension and a property in Poland of a value of approximately $50,000. As of the separation date and excluding the mortgage on the jointly owned matrimonial home, the applicant retained credit card debts of $5109.96 and the respondent retained credit card debts of $18,929. The respondent also claims debts of $6250 owing to members of his family, which are related to the purchase of the matrimonial home. The legitimacy of these family debts is in dispute.
Incomplete Financial Evidence
[9] As will be detailed below, the evidence provided in the affidavits filed in support of this motion is quite limited. The issues of retroactive child support and claims for undue hardship require an evidentiary record which will allow the Court to evaluate matters such as the conduct of the parties, the circumstances of the children, the parties’ standard of living, capacity to pay and detail of financial hardship, which goes beyond simply having a DivorceMate calculation which provides a figure for Net Disposable Income. The evidence on such matters is insufficient.
[10] Further, I have significant issue with the father’s contention that he cannot pay child support or support arrears because of the burden of paying of the debts of the marriage that he inherited. When considering the debts shown on the respondent’s January 2015 Financial Statement (as of November 1, 2013) and his November 16, 2015 affidavit, the figures remain the same. This suggests that during the past two years, the respondent has made no payments on the principal portion of these debts during a period where he has underpaid child support by $13,468.
[11] Clearly, there is information which is missing for the Court to do a complete analysis of the parties’ financial picture.
Retroactive Child Support
[12] The Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 SCR 231 [D.B.S.] outlined the factors that a court should take into account in determining retroactive support applications. Briefly, there are four points that the court raised:
Reasonable excuse for why support not considered earlier.
Conduct of the payor parent.
Circumstances of the child.
Hardship occasioned by the retroactive order.
[13] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S. para. 5).
[14] As previously stated, there is insufficient evidence before me to complete the analysis that is required of me where a claim is being made for retroactive child support. I have not been provided with a date for effective notice, I do not have details of the applicant’s current debts or the circumstances of the children during the period that Guideline support was not paid.
[15] The parties’ affidavit do not allow me to evaluate each of the criteria set out in D.B.S. and as such, I decline to make an award of retroactive child support or section 7 expenses. This item will be left to the trial judge.
Undue Hardship
[16] Undue hardship claims are governed by section 10 of the Guidelines which reads as follows:
Undue hardship
- (1) On the application of either spouse or an mother under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,
(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;
(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;
(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;
(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;
(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
Standards of living must be considered
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse.
Standards of living test
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
Reasonable time
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
Reasons
(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so.
[17] It is very difficult to make out a successful undue hardship claim under section 10 of the Guidelines. There are three parts to the test:
The person making this claim must show that there are circumstances that could create undue hardship.
If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party’s.
If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.
See: Matthews v. Matthews, 2001 28118 (ON SC), 14 R.F.L. (5th) 129, [2001] O.J. No. 876 (SCJ) [Matthews].
[18] The respondent makes his undue hardship claim pursuant to section 10(2)(d) of the Guidelines. He relies on the amount of the marriage debt that he was required to assume and states that once those debts are paid from the family assets, he is prepared to pay Guideline support.
[19] The respondent has not provided an evidentiary basis for a claim for undue hardship. As previously stated, his financial circumstances raise many questions given that the debts of the marriage do not seem to have decreased since the date of separation. This is the case despite the fact that the respondent has underpaid his child support as per the Guidelines. I am left to question what the respondent has done with his money since the date of separation.
[20] When considering the three part analysis in Matthews, the respondent has failed to properly explain his own financial circumstances and has not demonstrated that his standard of living is below that of the applicant.
[21] I have reviewed the DivorceMate calculation provided by the applicant and after payment of the tutoring expenses, the applicant and respondent seem to have very similar Net Disposable Income. Net Disposable Income is not determinative of the issue, however, given the absence of any other relevant evidence, I can only conclude that after the payment of support and tutoring costs, the parties have similar Net Disposable income.
[22] In the end, the respondent has not satisfied the high burden to establish that an award of child support in accordance with the Guidelines will cause him undue hardship.
Ongoing Child Support and Section 7 Expenses
[23] As the respondent has failed to make out his claim of undue hardship, I confirm that based on the respondent’s 2014 income of $65,245, the respondent will pay ongoing child support commencing December 1, 2015 in the amount of $970 per month.
[24] In addition, it is clear that the tutoring expenses are proper expenses pursuant to section 7 of the Guidelines. However, I question if the amount, being $10,670 per annum, is within the financial capacity of the parties. I appreciate that the applicant has obtained a quote for tutoring expenses based on an hourly rate of $48.50 per hour; however, this hourly rate may be beyond the financial abilities of the parties.
[25] The analysis of section 7 expenses rests on if they are necessary, affordable and reasonable.
[26] I have no difficulty accepting the applicant’s evidence that the tutoring is both necessary and reasonable. I am concerned that given the ongoing debts and the questions I have about the respondent’s finances, that the amounts proposed are not affordable. This will require further determination by the trial judge.
[27] In the meantime, I am prepared to authorize a sum equivalent to three hours per week at $48.50 per hour for a total weekly amount of $145.50. There may also be opportunities for less costly tutoring, if available. The applicant may pursue her claim for the full five hours per week when this matter proceeds to trial.
Obligation to Maintain Insurance
[28] The authority for the Court to require that support payor maintain insurance and designate the support recipient as beneficiary, in trust for the children, is well established in our courts. (see Katz v. Katz, 2014 ONCA 606). The authority exists pursuant to claims under the Family Law Act, R.S.O. 1990, c. F.3 and the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
[29] This is not a situation where the respondent does not have an existing policy; he does. He simply seeks to name a member of his family as beneficiary, in trust for the children. The respondent has provided no reason why the applicant should not be the named beneficiary. I surmise that it is only due to the conflict between the parties.
[30] I see no valid reason why the applicant should not be the named beneficiary, in trust for the children, of the existing life insurance policy. The applicant’s request is therefore granted.
Obligation to Maintain Medical and Health Benefits for the Applicant
[31] The evidence before me is that the respondent has medical and dental benefits purchased for the children. He has removed the applicant as a beneficiary under these benefit plans. He has provided no valid reason for doing so.
[32] The applicant submits that such benefit plans would provide for either individual or family coverage and that to include the applicant under the family coverage would not cause any additional costs to the respondent. Once again, I surmise that the respondent has removed the applicant from his benefit plans as a result of the dispute between the parties.
[33] If there is a specific cost attributable to the inclusion of the applicant to the benefit plans or if the applicant does not otherwise qualify, I am prepared to have the parties re-appear before me to hear further submissions on this issue.
[34] I am left to conclude that it is a family plan and that while the applicant continues to be a spouse, she qualifies. I order that while the applicant continues to qualify for coverage under the respondent’s family medical and dental benefit plans through the respondent’s employer, he should continue to include the applicant as a beneficiary, subject to further order of the Court.
Non-depletion Order
[35] Regarding the request for a non-depletion order, section 40 of the Family Law Act allows orders in a situation where it is proven that there is danger that one party might deplete assets just to defeat a support obligation.
[36] While the applicant has expressed a concern that the respondent may choose to move back to Poland rather than pay the required child support, she has not otherwise provided evidence of the assets which may be depleted.
[37] There is a lack of evidentiary basis for a non-depletion order and as such the applicant’s request is denied.
Disposition
[38] For the reasons stated above, I hereby order:
a. The respondent father shall pay child support for Jakub Gorski, born August 13, 2000 and Sandra Gorska, born August 11, 2003 in accordance with the Guidelines based on the respondent’s 2014 annual income of $65,245 in the amount of $970 per month commencing on December 1, 2015;
b. The claims of the parties for retroactive child support and undue hardship are referred to the trial judge;
c. The respondent shall name the applicant as the irrevocable beneficiary of his life insurance policy through his employment with proof of such designation to be provided within 30 days of this Endorsement; and
d. The applicant and children be named on the respondent’s medical and dental insurance through his employer with proof of such designation within 30 days of this Endorsement as per the terms set out herein.
Costs
[39] Respondent has been substantially successful on this motion. If the parties are unable to agree on the issue of costs, they may write to me. The applicant shall provide written costs submissions within 15 days of the date of release of this Endorsement. Thereafter, the respondent shall provide written costs submissions within 15 days. Thereafter, the Applicant shall have a right of reply within 7 days. Each costs submission shall be no longer than two pages in length, excluding the Costs Outline. The parties shall comply with Rule 4.01 of the Rules of Civil Procedure.
Mr. Justice Marc R. Labrosse
Date: December 2, 2015
CITATION: Gorska v. Gorski, 2015 ONSC 7522
COURT FILE NO.: FC-14-2852
DATE: 2015/12/02
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Anna Gorska, Applicant
AND
Zbigniew (Ziggy) Gorski, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: Andrew McMurray, Counsel for the Applicant
Zbigniew (Ziggy) Gorski , Self-represented
ENDORSEMENT
Labrosse J.
Released: December 2, 2015