CITATION: Clark v. Clark, 2016 ONSC 2381
COURT FILE NO.: FS-01-10418-00
DATE: 2016-04-08
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: GORDON CLARK v. NICOLE JEANNETTE CLARK
BEFORE: Van Melle J
COUNSEL: R.D. ALLISON, for the Applicant
F. M. WOOD, for the Respondent
HEARD: March 30 and 31, 2016
E N D O R S E M E N T
[1] Gordon and Nicole Clark moved in together in 1972 and married on July 9, 1977. There were two children of the marriage, Suzanne born February 1, 1973 and Thomas born November 6, 1974. Gordon and Nicole separated in 1980. They were divorced by Decree Absolute in December 1985.
[2] On March 16, 1982 Justice Morrissey ordered Gordon to pay interim support to Nicole for herself and the two children in the amount of $350.00 per month. This amount was finalized by way of Decree Nisi by Justice Kent on August 27, 1985.
[3] Gordon brings this Motion to Change seeking a retroactive termination of the support order and repayment from Nicole. At the outset of the hearing, he took the position that he was owed $78,229.87, being the amount paid from October 20, 1996, when Gordon says that his obligation to pay support terminated, and 2014 when the support payments were terminated on consent by Justice Donohue at a settlement conference. Mr. Allison, Gordon’s counsel, during submissions, amended the claim somewhat. He acknowledged that as a result of Gordon’s delay in bringing the Motion to Change, the alleged overpayment should be reduced and he suggests by a 5 year period ($21,000) which would bring the overpayment to $57,229.00. Mr. Allison then acknowledged that the amount should be further reduced to take into account the fact that Nicole paid tax on the support received (and Gordon received a tax deduction) and suggested a reduction of 25 percent which would reduce any overpayment to $39,379.00. Mr. Allison acknowledged that the case law regarding retroactive variation allows one to go back three years from notice, but takes the position that as this request is for a termination of support, not a variation and therefore I am not bound by the case law dealing with variation.
BACKGROUND
[4] After Gordon left the family, he did not pay support right away. He says that he tried to pay support directly to Nicole but that she refused to give him receipts. On one occasion he paid her $350, only to get a receipt for $25. Nicole acknowledges that she did this, but says that this was on one occasion only and in any event, prior to a court order.
[5] Gordon did not see much of the children, which he blames on Nicole not letting him see the children. Nicole testified that as there was a restraining order he could not make arrangements with her directly. Instead he made arrangements with a friend of Nicole’s and saw the children two or three times. This is corroborated by the Report of the Official Guardian dated March 1985. On page 2 of the Report the following appears:
The petitioner states that the respondent last visited with the children during Easter 1984 and told them that he was living on the streets. As a result of this the children became quite upset. The petitioner states the respondent has telephoned the children but she refused telephone contact as she felt the respondent may only confuse the children further. She adds that she is concerned about the children’s well-being and would only allow visitation privileges to the respondent on the conditions that there be no overnight visits and any access be supervised. The respondent admits that he told the children he was living on the streets because he wanted the children to know the truth and did not wish to hurt them in any way. He advises that he would like to visit the children but would leave it up to the children’s wishes.
[6] When Thomas was 13 or 14 he asked to live with his father and subsequently went to live with Gordon. According to Gordon he stayed with him for a couple of months, but refused to go to school and was out all hours of the night. This arrangement ended when Gordon had Thomas call Nicole to pick him up.
[7] According to Nicole, when Thomas was 13 he asked if he could go to live with his father. After one month Gordon had Thomas call Nicole to pick Thomas up. After he returned from his father’s house he was very difficult to handle. He was violent and verbally abusive toward Nicole and Suzanne and toward his classmates. He stopped going to school.
[8] As a result of Thomas’ behaviour, he, Nicole and Suzanne were evicted from their apartment. Nicole arranged for Thomas and Suzanne each to have their own apartment nearby but she paid all of Thomas’ rent and most of Suzanne’s. Although it appears that Thomas was unable to withdraw from Suzanne’s control for many years, it would be appropriate to fix a termination date for support for Thomas at 1997 when Thomas was 18.
[9] In large part as a result of Thomas’ behaviour, Suzanne took 7 years to complete high school, graduating when she was 21. She subsequently attended Sheridan College completing a two-year diploma course when she was 23.
ENFORCEMENT PROCEEDINGS
[10] Gordon testified that he paid his support from the outset, but was challenged on cross-examination and admitted that the support was not paid regularly until a garnishment was issued some years later. In fact, on April 9, 1984, in response to a Notice of Enforcement that Nicole brought to the Provincial Court (Family Division) as it then was, Justice Stauth ordered that Gordon be committed to jail for 40 days unless arrears of $1,350.00 were paid by July 15, 1984. Gordon acknowledged that despite earning $34,000 to $40,000 at that time, he spent 30 days in jail rather than pay the arrears.
[11] In November of 1984 Gordon was served with a Notice of Default. By October 1986 the arrears had increased to $19,600. Nicole made a Request for Garnishment which was granted.
[12] In October of 1993 another Request for Garnishment was issued. Subsequently, in November of 1993 there was a Notice of Garnishment Hearing because Gordon filed a Dispute. In his Dispute, he wrote that the children were about 18 and living independently and that the $350 per month was for the combined support of Nicole and the two children. He wrote that the spousal support should be 1/3 of the amount.
[13] The hearing of November 16, 1993 was adjourned to December 1993. Justice Stauth endorsed the Record to say that the debtor would be investigating to see if his son was still going to school. If he wasn’t, the Debtor would proceed to General Division for a variation and return to the Provincial Court with proof that he had started an Action.
[14] On December 20 the following endorsement was made:
Parties not appearing having been paged. Dispute having been filed by Gordon Clark who advised this court Tues am that he did not wish to pursue his Dispute. Dispute herein dismissed.
[15] Gordon’s Motion to Change was issued April 11, 2013. It was served on Nicole in May of 2014. On April 17, 2014 Justice Barnes made an Order on a Motion without Notice, staying the garnishment until June 13, 2014. On June 13, 2014 Justice Trimble made an Order staying the garnishment pending further court order.
[16] At the Settlement Conference on September 17, 2014 Justice Donohue made an Order on consent that spousal and child support be terminated and that the issue of the overpayment of support if any would proceed to Trial.
ANALYSIS
[17] Mr. Allison submits that as this is a termination request and not a variation, the law applying to variation might not apply. While I agree that the portion of the order relating to child support must indeed be terminated, I find that the portion dealing with spousal support is a variation and not a termination. Had the order only dealt with child support, there would have been an obligation on Nicole to advise the Family Responsibility Office, when Suzanne completed her diploma at Sheridan College, that Gordon’s support obligation had terminated.
[18] Because of the unusual circumstances in the case at bar, namely the combined nature of the child and spousal support order and the length of time that support was paid, counsel were unable to refer me to a case directly on point.
[19] I was referred to the Ontario Court of Appeal decision of Gray v. Rizzi, [2016] O.J. No. 958, 2016 ONCA 152. Brown, J.A. for the Ontario Court of Appeal, states that the Supreme Court of Canada factors identified in D.B.S. v. SRG., 2006 SCC 37, [2006] 2 S.C.R. 231 apply to requests to reduce child support. However, in the case at bar the request is termination of child support, not variation.
[20] If this were simply a request for termination of child support, I do not believe that a court would only be able to go back three years. That would be because the recipient would have realized that he or she should not be continuing to receive child support once a terminating event had occurred. In this case, the fact that the order was combined spousal and child support makes all the difference.
[21] Both parties are agreed that Gordon must explain the reason for the delay in applying to vary the court order. They are also agreed that given the delay any variation should not go back more than five years. (Mr. Allison says five years, Ms. Wood acknowledges three years).
[22] Gordon’s sole excuse for the delay was that he wanted to change the order but was unable to do so because he did not know Nicole’s address. He testified that he attended at the Brampton Courthouse regularly (every Friday) and was advised by Duty Counsel that he could not bring a Motion to Change without the address. He acknowledged however, that the parties were in court together several times during the 1980s and in 1993. Updated addresses were included on the materials that had been served on Gordon. When asked about that during cross-examination, Gordon’s response was that he had put all of those documents in a bag, moved several times and was unable to find them.
[23] Gordon testified that the children refused to give him the address. Suzanne, who testified at trial, said that he only asked twice. Once while she was still attending Sheridan College and she told him that she used the funds for school, and secondly around 2013. When he asked her in 2013 she passed the request on to her mother. In any event, Nicole’s address was available. She owned a house. The court and the Family Responsibility Office had her address. In fact, the court had on one occasion served documents on Nicole on Gordon’s behalf.
[24] Nicole testified that she preferred that Gordon not have her address. When the parties separated she had a restraining order and according to Nicole, after the separation, he continued to harass her.
[25] In 1993 Justice Stauth of the Ontario Court of Justice in Brampton outlined to Gordon the steps that he needed to take to vary the order. Gordon chose not to do so.
[26] Between 1993 and 2005 Gordon took no steps. In 2007 the parties were in court again and again Gordon was advised to proceed with a variation. He did not do so.
[27] When Gordon retained Mr. Allison in this proceeding, Mr. Allison was able to locate Nicole through her real estate solicitor. Nicole testified that she called Mr. Allison but he did not return her call so she went to his office.
[28] I find that Gordon’s explanation of the delay in this matter is without merit and that the failure to commence a Motion to Change is entirely his own doing.
[29] Ms. Wood, on behalf of Nicole, submits that in deciding this matter I must look at the entire situation. I agree that where a payor comes to court in circumstances such as these a holistic approach is entirely reasonable.
[30] Even though Gordon was ordered to pay a very modest amount of support, he was often in arrears. At the time of separation, Gordon was probably earning $25,000 and then lost his job for a while, but at the date that the decree nisi was granted, was earning $35,000 to $40,000. Although the Child Support Guidelines were not in effect, they are still instructive. Throughout the time that child support would have been payable, he should have been paying more than he was paying (which does not even take into account spousal support). As well, Nicole was paying $100.00 per week for daycare for the children and $500 to $600 per year for summer camps, activities to which Gordon made no contribution. She also covered that part of their dental and prescription costs that was not covered by her health plan. Gordon also did not contribute to Suzanne’s post-secondary education.
[31] Assuming that Gordon’s average income during the years that the children were entitled to child support was approximately $30,000 (as he was self-employed for part of this time, that estimate would be low); and that child support was payable for two children until Thomas was 18 and for one child until Suzanne was 23, his total child support obligation pursuant to the 1997 Child Support Guidelines would be $76,992. Gordon submitted that he paid total child and spousal support of $112,517. He acknowledged receiving a tax deduction for these payments. Applying a marginal tax rate of 25 percent, his payments to Nicole would have been $84,400 net. Using an average income of $40,000 his child support obligation would have been more than $100,000. If one attributes a portion of the payment to spousal support, this calculation demonstrates that even without taking extraordinary expenses into account, his total payments were what they should have been and definitely not more. If anything Gordon was allowed to pay support on an installment plan.
[32] Given the amount of time that has passed, Nicole is not and would not be entitled to ask for a retroactive variation of child support. However in assessing Gordon’s request for a repayment, a court can take into account what he should have paid. A court can also take into account his failure to exercise regular access which would have relieved Nicole’s financial burden somewhat and his failure to contribute to what we now call extraordinary expenses. A court can take into account the fact that until the garnishment went into effect, Gordon failed to make payments in a timely fashion.
[33] Nicole likely felt she was entitled to continue to receive the $350 per month because of these factors. She continued to rely on the receipt of these payments. It is probable that had Gordon brought a Motion to Change years ago, Nicole would have asked for an increase in the child support payments and for a contribution to extraordinary expenses.
[34] Nicole, who has a grade 8 education, worked hard throughout, usually for minimum wage. She testified that when she and Gordon separated, she took over much, if not all of his debt and ended up having to declare bankruptcy in 1984. She testified as well, that as a result of Thomas’ emotional issues, she ended up being financial responsible for him for a long time. Suzanne testified that her mother helped her out financially all the way through school and then when she finished school and was unable to find a job right away continued to give her money.
[35] I accept Nicole’s testimony that the money received from Gordon went directly to supporting the children, even that portion which would have been spousal support. She did not save any of the money. She has a net worth today of $27,000, in large part due to the fact that she was able to buy a house which she subsequently sold, and reinvested the money in another house which was also sold. Today she lives on her own in a condominium worth $170,000 with a mortgage of $140,000. Her annual income now is $47,655.
[36] Gordon submits that it would be no hardship for Nicole to repay to him the alleged overpayment. He says that he earns minimal income and needs the money. However, from at least 2009 Gordon earned $60,000 per year, sometimes more. In 2015 he received a severance payment of $27,000. Until recently, despite suffering from chronic obstructive pulmonary disease, he was spending $500 a month on alcohol and tobacco. I accept that his current financial circumstances are a result of his own poor planning and not as a result of having paid $350 a month (before tax) to Nicole.
[37] In the result I find that there has been no overpayment of support. Gordon’s claim is dismissed.
[38] I will entertain brief (2 pages double-spaced) costs submissions. Nicole’s to be received by me within 15 days, Gordon to reply within 10 days.
Van Melle, J
DATE: April 8, 2016
CITATION: Clark v. Clark, 2016 ONSC 2381
COURT FILE NO.: FS-01-10418-00
DATE: 2016-04-08
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: GORDON CLARK v. NICOLE JEANNETTE CLARK
BEFORE: Van Melle, J.
COUNSEL: R.D. Allison, for the for the Applicant
F.M. Wood, for the for the Respondent
ENDORSEMENT
Van Melle, J.
DATE: April 8, 2016