ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. Davidson v. Davidson, 2015 ONSC 788
COURT FILE NO.: FS-12-0009-0001
DATE: 2015-02-03
B E T W E E N:
DARREN CRAIG DAVIDSON
Self-Represented,
Applicant(s)
- and -
RACHELLE MHAIRI DAVIDSON
Claudia C. Belda for the Respondent(s)
Respondent(s)
HEARD: January 23, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion
[1] This is a motion by the respondent mother to change the final Order of Justice Fitzpatrick dated November 7, 2013 (final Order) with respect to access, child support and payment of spousal support arrears. There are two children who are now 12 and 9. They reside primarily with their mother in Thunder Bay.
[2] At the time the final Order was granted, the father was unemployed and receiving employment insurance.
[3] The applicant father is employed at present and has been employed, although not continuously, since 2013. Commencing June 2014, the father has been employed full-time with Boart Longyear, a contractor at the Goldcorp mine at Red Lake.
Access
[4] Paragraph 3 of the final Order provides:
- For the present time the Applicant shall have generous and liberal time with the children, including, but not limited to, the following times:
(a) every second weekend from Friday after school until Sunday at 8:00 p.m.
(b) every Tuesday and Thursday from after school until 8:00 p.m., and
(c) such other reasonable times, including vacations, special occasions, and other times as the parties may agree from time to time in the best interests of the children.
[5] The father is required to work 14 days and then has the next 7 days off. While working he is away from the City of Thunder Bay and returns to Thunder Bay on his days off.
[6] What is sought by the mother is a change in the Order that simply reflects the current circumstances. The father acknowledges the current circumstances and questions what the access provisions will be if his employment status changes. Paragraph 4 of the final Order already provides that the father may seek variation in the access without having to prove a material change in circumstances.
[7] Therefore, as a result of the father’s change in work schedule, I order that subparagraphs 3 (a) and (b) are deleted and the following substituted:
(a) while the applicant father is employed outside the City of Thunder Bay, up to one week of every three weeks to coincide with the applicant's time off work,
(b) reasonable telephone and computer access,
[8] All other provisions with respect to access shall continue.
Child Support
[9] The mother claims for a change in child support under the final Order and a claim for special and extraordinary expenses. She also seeks retroactive child support to reflect the father's actual income. Child support going forward is sought on the basis of the father's reasonably anticipated earnings.
[10] Paragraph 18 of the final Order provides:[^1]
- Commencing April 1, 2013, the Applicant shall pay to the Respondent child support in the amount of $386.00 per month in accordance with the Federal Child Support Guidelines for his weekly income of $501.00 from Employment Insurance.
[11] The applicant father was under a positive duty to notify the respondent wife of any change in employment status. Paragraph 26 of the final Order provides:
- The Applicant shall notify the Respondent immediately upon any change in his employment status, including securing employment. Immediately thereafter, the parties shall calculate the corrected amount of child support in accordance with the Applicant’s income calculated pursuant to the provisions of the Child Support Guidelines, shall notify the Director of the Family Responsibility Office with respect to the change, and the Director shall enforce the corrected amount of support until varied hereunder.
[12] The uncontradicted evidence of the mother is that the father did not do so.
[13] The mother deposed that she did not become aware of the fact that the father was working until May 2014 when he advised her that he was seeking to have child support reduced further because he had been laid off recently. That disclosure led to an investigation of the father's actual earnings and supporting documentation was produced.
[14] The documentation disclosed 2013 income at $54,908.15; projected average annual income of $35,266.44 from January 1, 2014 to March 1, 2014; and employment insurance income of $500 per week from April 1, 2014 to June 30, 2014.
[15] Commencing June 2014, the father has been employed full-time with Boart Longyear, a contractor at the Goldcorp mine at Red Lake. The documentation confirming income from this employment is not complete. There is a paystub for one week for the period ending June 30, 2014 which shows total earnings at $1670.13. This is equivalent to $86,846.76 annually. There is a second paystub for the pay period ending October 31, 2014 showing earnings in a two-week period totaling $4394.57. This is equivalent to $114,259.34 annually. That paystub shows year to date earnings totaling $29,636.28. Prorated, this would be equivalent to $81,109.81 annually. During submissions the father advised that there were some shutdowns during this period.
[16] On November 21, 2014, Pierce J. ordered the applicant father to file any responding material to this motion and a sworn financial statement. The record contains an unsigned financial statement from the father and an unsigned Response to Motion to Change. Ms. Belda advised that she was served with a sworn financial statement. Counsel reviewed the document filed with the Court and verified that the information contained in the two documents was the same. The father estimated his monthly income at $5,927.17 for an annual income of $71,126. No other supporting documentation was provided.
[17] The best evidence of the father's income from June 30, 2014 going forward is the paystub for the pay period ending October 31, 2014 which projects annual income equivalent to $81,109.81. The Child Support Guideline payment would then be $1,185 per month.
[18] The father submitted that, since he had the children 33% of the time, he should be entitled to an "offset". The Guidelines provide that physical custody must be for not less than 40% of the time for the shared custody "offset" to apply. "Undue Hardship" was not put forward by the father as an argument, nor was any evidence offered to support such an argument.
[19] Therefore, I order that paragraph 18 of the final Order is deleted and the following substituted:
18.(a) commencing April 1, 2013 to December 31, 2013 the applicant shall pay to the respondent child support in the amount of $817 per month in accordance with the Federal Child Support Guidelines based on 2013 income tax return amount of $54,990.15.
(b) commencing January 1, 2014 to March 31, 2014 the applicant shall pay to the respondent child support in the amount of $512 per month in accordance with the Federal Child Support Guidelines based on projected annual earnings of $35,266.44.
(c) commencing April 1, 2014 to June 30, 2014 the applicant shall pay to the respondent child support in the amount of $386 per month in accordance with the Federal Child Support Guidelines based on estimated employment insurance of $500 per week ($26,000 annually).
(d) commencing July 1, 2014 and ongoing the applicant shall pay to the respondent child support in the amount of $1,185 per month in accordance with the Federal Child Support Guidelines based on projected annual income of $81,109.81.
[20] All other provisions with respect to child support shall remain including the requirement in paragraph 23 to exchange with the other the prior year’s personal income tax returns with all attachments and schedules and notices of assessment by May 1 of each year.
[21] It should not have to be repeated but, for emphasis I do, that the applicant father's obligation to notify the respondent immediately of any change in employment status remains. That includes, of course, improvements in employment status and earnings.
[22] Unpaid special and extraordinary expenses pursuant to section 7 of the Guidelines were claimed in the amount totaling $2,301.28. This included amounts for football, skiing and tennis. No issue was taken by the husband with whether these special expenses were reasonable and necessary. This shall be apportioned 66% to the father and 34% to the mother based on the father's income of $81,109.81 and the mother's income of 41,397.00 as disclosed on her financial statement sworn August 28, 2014. Therefore, it is ordered that the father pay to the mother $1,518.84 for these unpaid expenses.
Arrears of Spousal Support
[23] Paragraph 29 of the final Order suspended the applicant's liability to pay spousal support and suspended enforcement of spousal support until further "Court Order or Agreement between the parties." Paragraph 30 provided that spousal support arrears shall be deemed to be $6,300.
[24] Given the change in the husband's financial circumstances, paragraph 29 of the final Order shall be amended by adding the following sentence: “Effective January 30, 2015 the respondent may enforce payment of spousal support arrears.”
Costs
[25] The respondent seeks $1,500 in costs arguing that, had the applicant complied with his disclosure obligations clearly set out in the final Order, this motion would not be necessary. I agree.
[26] I am mindful that a cost award detracts from the ability of the father to pay child support and the arrears of spousal support. Nevertheless, the failure to comply with clear disclosure obligations should, in most circumstances, result in an adverse cost award. I, therefore, award the respondent her costs of this motion fixed in the amount of $1,500. I further order that these costs are enforceable as an incident of support.
”original signed by________
The Hon. Mr. Justice W.D. Newton
Released: February 3, 2015
COURT FILE NO.: FS-12-0009-0001
DATE: 2015-02-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DARREN CRAIG DAVIDSON
Applicant(s)
- and -
RACHELLE MHAIRI DAVIDSON
Respondent(s)
DECISION ON MOTION
Newton J.
Released: February 3, 2015
/cs
[^1]: The final Order was based on Minutes of Settlement signed May 2013.