Citation: Carvalho v. Carvalho, 2016 ONSC 1641

Court File No.: FC-14-1107 Date: 2016-03-07 Superior Court of Justice - Ontario

Re: Krista Lee Carvalho, Applicant And: Joseph Carvalho, Respondent

Before: The Hon. Madam Justice M.E. Vallee

Counsel: Ms. A. Pengelley, for the Applicant Ms. D. Nikolova, for the Respondent

Heard: February 25, 2016

Endorsement

Introduction

[1] The respondent, Mr. Carvalho, brings this motion to reduce the amount of child support and s. 7 expenses that he is paying based on an alleged material change in circumstances. Pursuant to s. 24(1) of the Child Support Guidelines, child support can be reviewed within one year. The applicable temporary order is dated January 7, 2015. It requires Mr. Carvalho to pay $750 per month for his two children based on the Guidelines and his income of $51,000. It also requires him to pay 50 percent of the s. 7 expenses.

[2] Mr. Carvalho was involved in a motor vehicle accident on September 10, 2015. He states that this has left him with some physical restrictions. As a result, his income has dropped. He was a passenger in the accident. He suffered whiplash and soft tissue injuries. Mr. Carvalho is not in arrears with respect to child support or s. 7 expenses.

Issue

Has Mr. Carvalho established on a balance of probabilities the existence of a material change in circumstances that give rise to the making of a variation order with respect to his child support obligations as set out the January 7, 2015 temporary order?

The Test

[3] Both of the parties provided several cases each. I will review them in chronological order.

[4] In Lipson v. Lipson, 1972 CanLII 470 (ON CA), [1972] 3 O.R. 403 (C.A.), the court stated that these types of applications are not be encouraged. A substantial change of circumstances would be required before such an application would be permitted.

[5] In Cook v. Burton, 2005 CanLII 1063 (ON SC), [2005] O.J. No. 190 (S.C.J.), the court stated that cogent evidence is required with respect to a material change in circumstances.

[6] In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, the court commented in para. 35 that, "In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances."

[7] In Cole v. Freiwald, 2011 ONCJ 395, the court stated in para. 85 that in determining whether a change of circumstances has occurred to support a motion to vary, the court must consider whether the alleged change was significant and long lasting; whether it was real and not one of choice.

[8] In Sullivan v. Sullivan, [2014] O.J. No. 1220, the court noted that a material change in circumstances would be an event that was unforeseeable when the first order was made and would likely have resulted in different terms had it been known at the time.

[9] In Innocente v. Innocente, [2014] O.J. No. 5842 (S.C.J.) the court referred to Hayes v. Hayes, 2010 CarswellOnt. 4796 (S.C.J.) as follows:

...an interim variation of the underlying support order is the most drastic intervention a court could make pending a final hearing of a motion to change. The cases are not clear on what is required to show that continuation of the order would be "incongruous and absurd." The plain meaning of these terms would suggest the order is inappropriate, unreasonable or ridiculous.

The Defendant's Position

[10] At the time of the accident, Mr. Carvalho was employed by Schmidt Aluminum. This is a family held business. Mr. Carvalho is an engineering technologist; however, he has worked for the family business for a number of years.

[11] Schmidt completed a disability report shortly after the accident. It shows that his average income in the four weeks preceding the accident was $923.89 per week or $48,042 per year. Mr. Carvalho's doctor completed a disability certificate dated October 10, 2015. In that certificate, he stated that Mr. Carvalho's disability was estimated to last between nine and twelve weeks.

[12] Mr. Carvalho's chiropractor wrote a letter dated January 20, 2016, stating that Mr. Carvalho could carry out only modified duties. He could not climb ladders or do repetitive stair climbing.

[13] Mr. Carvalho's Notices of Assessment for the years 2010 to 2014 together with income tax returns show that he was earning between $41,000 and $48,000 during that period.

[14] In addition, Mr. Carvalho also operated a company known as Safe Bild. Mr. Carvalho designed a certain type of post that was for use in the construction industry and sold them through this company.

[15] The current order requires Mr. Carvalho to pay $750 per month of child support based on an income of $51,000. He consented to this amount. Counsel advised that the $51,000 included an additional $10,000 as likely income from Safe Bild.

[16] Mr. Carvalho was off work for 5.5 months, from January to May 13, 2015. Counsel stated that he wanted to do different work although this is not included in either of his affidavits. He undertook a job search, the details of which were included.

[17] Schmidt wrote a letter dated August 5, 2015 which states that Mr. Carvalho currently earns $878 a week or $45,656 per year.

Analysis

[18] Mr. Carvalho is noted to the Vice-President of Schmidt. Although his evidence is that Safe Bild is not active, in his financial statement he shows the same value for the company of $100 at the date of marriage, date of separation and current date. The applicant provided a photograph of a large truck with the Mattamy logo on the side which appears to have backed up to the Safe Bild premises to take a supply of products. This photograph was taken on January 15, 2016.

[19] There is no evidence that Mr. Carvalho lost his job at Schmidt or could not do it for the 5.5 months that he was unemployed. If he wanted to do a different job, he could reasonably have searched for a job while still working at Schmidt.

[20] With respect to the motor vehicle accident, he received income replacement benefits of approximately 50 percent of his earnings. To Mr. Carvalho's credit, he returned to work on November 12, 2015 so he was off for only two months.

[21] Mr. Carvalho's injury does not meet the test of being significant or long-lasting. The disability certificate stated that his disability was expected to last between nine and twelve weeks. At the most, he might have been unable to work for three months. Cogent evidence of disability with some degree of continuity is required. A temporary set of circumstances, such as these does not satisfy the legal test. I also note that although this is not determinitive, there is no physician's letter stating that Mr. Carvalho can perform only modified duties. Rather, the evidence on this point is from a chiropractor.

Conclusion

[22] Based on the case law above, applications of this type are not to be encouraged. Requests to vary interim orders should be rare. A substantial change in circumstances is required. I am not satisfied that Mr. Carvalho has established on a balance of probabilities the existence of a material change in circumstances to justify varying the order dated January 7, 2015 with respect to his child support obligations. Accordingly, the motion is denied.

Costs

[23] The respondent father made an offer to settle this motion on the basis that he would pay support of $599 per month and would pay 32 per cent of s. 7 expenses. Each party would bear his and her own costs.

[24] The applicant mother's offer was that the respondent father's cross-motion would be dismissed with costs payable to the applicant mother of $5,000.

[25] The respondent father has been unsuccessful on his motion. The applicant mother is presumptively entitled to costs. She requests fees of $11,175. The rate of the applicant mother's counsel is reasonable as is the time spent. The respondent father shall pay costs to the applicant mother on a partial indemnity recovery basis of $7,375 plus tax of $958.82 totalling $8,333.82 within 30 days.

VALLEE J.

Date: March 7, 2016