ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-14-0412-00
DATE: 2015, December 17
BETWEEN:
SHARON EILEEN REID
Applicant
– and –
ROBERT ANTHONY REID
Respondent
WENDY ELLIOTT, for the Applicant
SCOTT McMAHON, for the Respondent
HEARD: in Belleville December 14, 2015
Tausendfreund, J.
REASONS
[1] The Respondent Father brings this motion for both retroactive and current child support obligations. He also requests that the obligation for special or extraordinary expenses under section 7 of the Child Support Guidelines (Ontario) (“s. 7 expenses”) be addressed. As well, he requests that the Applicant Mother maintain a life insurance policy of $50,000.00 to secure her child support obligations.
[2] These parties were married June 23, 2006 and separated July 16, 2009. They have one child of their marriage, Robert Nash Douglas Reid (“Nash”), born June 21, 2007.
[3] On December 3, 2009, Justice Malcolm of the Ontario Court of Justice granted an Order which included the following:
The now Respondent Father is to have custody of Nash.
The now Applicant Mother is granted access in a supervised setting each Tuesday and Thursday from 5:00 p.m. until 7:00 p.m.
The Mother is to notify Father upon obtaining employment or other source of income for purposes of determining her child support obligation.
The order did not make any provision for child support.
[4] Shortly after these parties separated, Mother moved from the Belleville area to Ottawa where she continues to reside. Father and son have continued to reside in the Belleville area.
[5] It is common ground that at the time these parties separated the Applicant Mother was addicted to the consumption of illegal drugs. That continued until June of 2012 following the Applicant’s stay for six months in a drug rehabilitation centre. She states that she has abstained since then from the consumption of illegal drugs. As a result of her addiction, the Applicant then had limited employment opportunities. Fortunately that changed following the completion of her drug rehabilitation program. She agrees that her taxable income for the years 2011 to 2015 was as follows:
TAXATION YEAR
INCOME LEVEL
2011
$15,051.00
2012
$24,087.00
2013
$41,785.00
2014
$45,953.00
2015
$45,953.00
[6] Despite the obligation the Order of Justice Malcolm of December 3, 2009 imposed on the Applicant, namely to provide details of her income immediately upon obtaining employment, for the purposes of determining her child support obligation, she failed to do so. Also, she has not paid any child support to date. That lead to this motion initiated by the Respondent and first returnable on November 17, 2015.
[7] Following the Applicant’s move to Ottawa, these parties arrived at an informal arrangement for the Applicant to exercise access. There was no definitive pattern of access. The parties made their arrangements as the Applicant requested. On average, it was about once a month. The Applicant would travel from Ottawa to the Belleville area and spend time with Nash at the home of a family member. The parties recently agreed to formalize the access arrangements. These were incorporated into a consent Order of December 10th, 2015. It provides that the Applicant have access on the following terms:
a) Any weekend that the Applicant advises the Respondent in advance, provided that access occurs in Hastings County;
b) Commencing March 4, 2016, one weekend per month from Friday at 7:00 p.m. to Sunday at 7:00 p.m. which access shall occur at her home in Ottawa;
c) Access extended to Monday at 7:00 p.m. if it is a holiday; and
d) The parties shall meet at the Pizza Hut parking lot at the Division Street exit in Kingston for purpose of the exchanges commencing on or after March 4, 2016.
Analysis
[8] With respect to the claim for retroactive child support, I am guided by the principles enunciated by the Supreme Court of Canada in S.(D.B.) v G.(S.R.) 2006 SCC 37:
• child support is the right of the child: para 60
• the payor’s obligation for child support is commensurate with his/her income: para 68
• courts have the power to order original retroactive child support awards in appropriate circumstances: para 84
• unreasonable delay militates against retroactive child support: para 104
• courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award. Included in any blameworthy conduct is anything that “privileges” the payor parent’s own interests over his/her children’s right to an appropriate amount of support: para 106
• “No level of blameworthy behaviour by the payor should be encouraged . . . a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct”: para 107
[9] In my view, the Malcolm J. Order of December 3, 2009, unambiguously imposed an obligation on the Applicant to immediately notify the Respondent “upon obtaining any employment or other source of income for the purpose of determining her child support obligations”. The Applicant did not. In fact, it was not until the Respondent brought this motion in October 2015, that he first received information from the Applicant about her income, both past and present.
[10] Based on her current represented income of $45,953.00, I find that the Applicant shall pay child support to the Respondent for the child Nash in the amount of $415.00 on the first of each month commencing December 1, 2015.
[11] Based on the Applicant’s past addiction struggles, that she has been drug free as of June 2012 and that she was able to obtain and has maintained full time employment as of July 2012, I find that her child support obligation should have started as of July 1, 2012. I so order.
[12] Based on her unchallenged income amounts for the years 2012 to 2015, I find that the arrears of her child support obligation from July 1, 2012 to November 1, 2015 are as follows:
TAXATION YEAR
INCOME LEVEL
CORRESPONDING TABLE AMOUNT OBLIGATION
ARREARS
2012
$24,087.00
$193.00/month
$1,158.00
(6 months)
2013
$41,785.00
$377.00/month
$4,524.00
(12 months)
2014
$45,953.00
$415.00/month
$4,980.00
(12 months)
2015
$45,953.00
$415.00/month
$4,565.00
(11 months)
TOTAL:
$15,227.00
Accordingly, I find that the Applicant’s obligation for child support arrears for the child Nash from July 2012 to and including November 2015 is $15,227.00. The Applicant shall pay on account of these arrears the sum $150.00 on the first of each month commencing December 1, 2015 until paid. Provided the Applicant remains current on this obligation for payment on account of arrears, the principal outstanding from time to time will not carry any interest.
[13] The Applicant makes reference in her material that she has another daughter age 16. There is nothing in the evidence to indicate that the Applicant pays any child support for that daughter. Accordingly, I have declined to consider that information to arrive at my order for the appropriate amount of child support for Nash.
[14] The Respondent seeks an order for contribution by the Applicant to s. 7 expenses paid by the Respondent for Nash. As the Applicant is employed and has an income, she has an obligation to contribute to s. 7 expenses incurred by the Respondent for the benefit of Nash. The Respondent is self-employed. His latest income information in the material is for 2013. It indicates that he had an income that year of $50,224.00. He seeks an order of contribution from the Applicant of 30%. I find that to be reasonable based on the financial circumstances of these parties. I order that the Applicant reimburse the Respondent 30% of the amount of any invoice paid by the Respondent with proof of payment for any s. 7 expenses he incurred and paid for Nash, effective December 1, 2015. Such reimbursement is to be paid by the Applicant to the Respondent within 60 days of receipt by the Applicant of such invoices paid by the Respondent.
[15] I also order that the Applicant maintain, or obtain if not already available to her, an insurance policy on her life naming the Respondent as Trustee beneficiary for the benefit of Nash. The Applicant is to provide proof of such a policy in 90 days and proof by January 1 each year commencing January 1, 2017 that such policy is in good standing. The Applicant is to maintain such policy so long as her obligation for child support for Nash continues. In the event that the Applicant should not have made the necessary arrangements for such a policy on her life, the Respondent, if so advised, may arrange to have a policy issued on the life of the Applicant, with the premiums to be a charge against the Applicant as child support obligation and to be enforceable as such.
[16] In the normal course and absent any submissions, costs would be to the Respondent, as the successful party on this motion. If the parties are unable to resolve costs within 30 days, they may provide a short written position with respect to costs not later than January 15, 2016.
Honourable Mr. Justice Wolf Tausendfreund
Released: December 17, 2015
COURT FILE NO.: FS-14-0412-00
DATE: 2015, December 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHARON EILEEN REID
Applicant
– and –
ROBERT ANTHONY REID
Respondent
REASONS
Tausendfreund, J.
Released: December 17, 2015