Court File and Parties
Court File No.: FC-15-427-1 Date: 2016/05/10 Ontario Superior Court of Justice
Between: Cornelius Huig Kapteyn, Applicant And: Patricia Onelia Kapteyn, Respondent
Before: Corthorn J.
Counsel: Applicant personally (unrepresented) No one appearing for the respondent
Heard: Continuation of uncontested trial – in writing
Reasons for Decision
CORTHORN J.
[1] This matter first proceeded before me in August 2015 as an uncontested trial with respect to the applicant’s motion to change child support payable pursuant to the terms of a 2007 separation agreement. The applicant gave oral evidence at trial. I reserved my decision.
[2] Upon completion of my review of the Continuing Record I noted that:
a) The applicant had not complied with Family Law Rule 13(4.2) in that he had not served and filed a financial statement; and
b) The change information form, which the applicant served and filed, was deficient because he had not included as attachments to the form copies of his income tax returns and notices of assessment for the three most recent years.
[3] I was concerned that the respondent may not have responded in any way to the motion to change because she was aware of the deficiencies in the materials filed by the applicant. Given that the matter involves child support, and out of an abundance of caution, I ordered the applicant serve on the respondent, by way of special service in accordance with the Family Law Rules:
a) A financial statement (Form 13 or 13.1 as required);
b) A fully complete change information form (Form 15A);
c) A response to motion to change form (Form 15B) in blank;
d) A consent motion to change form (Form 15C) in blank; and
e) A copy of my August 2015 endorsement.
[4] The respondent was given 30 days from the date of service of the documents listed in paragraphs (a) and (b) above within which to deliver responding materials pursuant to rule 15(9) of the Family Law Rules. My original endorsement provided that if the respondent did not deliver responding materials within that 30-day period, the applicant was to take the steps necessary to have the file returned to me to: a) review the additional documents; and b) determine whether the applicant is required to return before me to continue his evidence or the matter may be completed without the requirement for the applicant to do so.
[5] The applicant has complied with the endorsement, having served the requisite documents on the respondent. The respondent did not deliver any responding materials. In accordance with my earlier endorsement, the applicant arranged for the matter to come before me again, this time in writing.
[6] I have reviewed the additional documents served and filed by the applicant. I am satisfied that the respondent has been served with all of the documents required for the motion to change. This is the second time that the respondent has been given notice that the applicant is seeking to change, in particular to terminate, the child support payable. The respondent did not respond on either occasion. I am satisfied that: a) the respondent was given notice of the motion to change; and b) it is procedurally fair to the respondent for this matter to proceed in writing before me at this time.
Background
[7] The parties entered into a separation agreement in January 2007 (“the Separation Agreement”). A copy of the Separation Agreement is attached as an exhibit to the applicant’s affidavit sworn in February 2015 and to the applicant’s change information sworn in March 2016.
[8] Pursuant to the Separation Agreement:
- The respondent was to have custody of the parties’ two children:
- Jonathan Robert Kapteyn (born April 17, 1992 – “Jonathan”); and
- Brendan James Kapteyn (born August 18, 1993 – “Brendan”).
- The applicant was to be given liberal access to Jonathan and Brendan.
- The applicant was to pay child support on the basis of his stated annual income of $30,432. The monthly child support payment was $386.
- In addition, the applicant was to pay $53.86 per month towards the scholarship funds for the children. That amount was said to represent the applicant’s 50 per cent share of the contributions being made by the parties to the scholarship funds.
- The total of the child support and scholarship fund contribution was to be paid on a bi-weekly basis in the amount of $219.93.
- Terminating events for child support were identified. Those events include: ➢ The child no longer resides with the custodial parent, (“resides” includes the child living away from home for school, summer employment or vacation); and ➢ The child turns 18, unless he is unable to become self-supporting due to illness, disability, education or other cause.
- There was no terminating event identified specifically for the obligation to contribute towards the scholarship funds for the children.
- The parties had the option of an annual review of the child support arrangements. The review would be carried out if either party requested same.
- If such a review was requested and the parties were unable to reach an agreement as to a change in child support requested, they were to proceed by way of a specific dispute resolution mechanism. The mechanism requires the parties to attempt to resolve the dispute through negotiation, failing which either party may apply to court for a determination of the dispute.
[9] The evidence given by the applicant in August 2015 is summarized below.
[10] Jonathan and Brendan are now each over the age of 18. Jonathan had dropped out of post-secondary education as of January 1, 2013. The applicant was aware of same on the basis of a letter dated March 1, 2013 which the respondent sent to the Ministry of Community and Social Services (“MCSS”). A copy of that letter was made exhibit 2 at trial. Exhibit 2 is in the form of hand-written note from the respondent to MCSS stating that:
- There was a “terminating event” as of January 1, 2013;
- Jonathan might return to school in the fall of 2013; and
- Support was still payable for Brendan.
[11] In response, MCSS (Family Responsibility Office – “FRO”) sent a letter to the applicant dated March 26, 2013 (exhibit 3 at trial). FRO advised the applicant that although there was a terminating event, it was not possible to make any adjustment to child support deductions because the amount being paid by the applicant for child support was not in keeping with the Child Support Guidelines. FRO directed the applicant to bring the matter before the Court for a determination as to whether the child support obligation is at an end. FRO advised the applicant that it would continue to deduct child support until such time as they receive a court order terminating child support obligations.
[12] The applicant has not had contact with his sons since the end of 2011. The applicant does not know whether Brendan has continued his education beyond high school.
[13] The applicant does not know where either of Jonathan and Brendan lives. The applicant has tried to contact the respondent through letters and by telephone. Every time he attempts to reach the respondent by telephone the voice mail is said to be full and does not accept voicemail messages. The applicant has not received any return mail in response to his inquiries as to what is happening with his sons.
[14] The applicant was continuing to pay support as of August 2015. FRO was continuing to deduct child support from his pay cheque.
Analysis
[15] The applicant requests an order that child support for both of his sons terminates effective December 31, 2012. If there has been an overpayment of child support, the applicant is not seeking reimbursement of the overpayment.
[16] It appears that from 2007, when the Separation Agreement was signed, forward neither party requested a review of child support payable. The first request for a change in the amount of child support payable is that of the applicant on this motion to change.
[17] I reviewed the Guidelines in force for the years 2006 to 2011. In those years monthly child support in the amount of $386 for two children is the Table amount for a support payor who earned $25,800 per year. As set out above, in the Separation Agreement it was stated that the applicant’s income was, for the purpose of child support, $30,432. The Table amount for two children based on that annual income was approximately $450 in the years 2006 to 2011.
[18] There is no evidence as to the applicant’s annual income for the years 2007 through 2011. The applicant’s Line 150 income in 2012 was $30,734. For the purpose of this analysis, I have assumed that the applicant’s income remained at $30,432 per year for 2007 through 2011. On that basis, had either of the parties sought a review of the child support payable in those years and it been determined that the Table amount was payable, the applicant’s child support obligation as of January 1, 2008 through December 31, 2011 would have been $450 per month. That figure does not take into consideration the additional $53.86 to be paid per month towards the scholarship funds.
[19] Assuming Table amount of support had been claimed and found to be payable in the years 2008 through 2011, the applicant has underpaid child support in those years by $768 per year (($450 - $386) x 12). The underpayment over that four-year period would amount $3,072.
[20] The ‘Tax Return Information – Regular’ documents for the years 2012 through 2014 and the T4 slips for 2015 indicate that the applicant’s annual income during those years was as set out below. Also included in the table set out below is the Table amount of child support payable based on the Federal Child Support Guidelines. The figure for 2012 is for two children. The figure for the years 2013, 2014, and 2015 is for one child.
| Year | Annual Income | Line on Tax Return | Child Support payment |
|---|---|---|---|
| 2012 | $30,734 | (Line 150) | $448 |
| 2013 | $33,717 | (Line 150) | $289 |
| 2014 | $28,143 | (Line 150) | $229 |
| 2015 | $21,592 | (Box 101 on two T4 slips) | $173 |
[21] In 2015, the applicant earned employment income with the Ottawa Catholic School Board and an organisation called Christian Horizons. The income information included in the Chart is based on T4 slips filed by the applicant with his financial statement.
[22] For 2012, the potential underpayment of child support is $744 (($448 - $386) x 12). In summary, for the years 2008 through 2012, the potential underpayment – had Table amount support for two children been sought – would be $3,816.
[23] It is of significance that the respondent identified a terminating event to FRO with respect to Jonathan. When doing so, she confirmed that child support remained payable for Brendan. From that notification I draw an inference that the respondent recognized and accepted that child support for the boys is not payable beyond a terminating event. I also draw an inference that by reason of her failure to respond to the motion to change, the terminating event with respect to Jonathan remains in effect and that he did not return to school or otherwise once again become a “child” within the meaning of the Separation Agreement for whom child support is payable.
[24] The younger son turned 18 in August 2011. There is no specific evidence as to when a terminating event occurred for Brendan. For the applicant’s child support obligation to end with respect to Brendan a terminating event must be identified. In his change information form, the applicant said that Brendan is no longer living with his mother. That form is dated February 2015. The form was served on the respondent on April 14, 2015. The respondent did not dispute the information set out in the form.
[25] Again, I draw an inference that the respondent accepts that a terminating event has occurred with respect to Brendan and she does not dispute the termination of child support with respect to Brendan.
[26] There is no specific evidence as to when Brenda stopped residing with his mother – the terminating event upon which the applicant relies with respect to child support for Brendan. I therefore rely on the date and contents of the change information form and find that: a) by no later than February 2015, Brendan had stopped residing with the respondent; and b) the applicant’s obligation to pay child support with respect to Brendan terminated on January 31, 2015.
[27] The child support payable in 2013, 2014, and January 2015 – based on the Table amount had it been sought – would have been as set out in the chart below. With the applicant having continued to pay child support in the amount of $386 per month, there has been an overpayment during that 25 month period. The overpayment is calculated as follows:
| Year | Amount | Overpayment Calculation |
|---|---|---|
| 2013 | $1,164 | (($386 - $289) x 12) |
| 2014 | $1,884 | (($386 - $229) x 12) |
| 2015 (1 mo.) | $ 213 | ($386 – 173) |
| Total | $ 3,261 |
[28] There is also the matter of the potential, if not actual, overpayment of the applicant’s contribution to the scholarship funds for the two boys ($53.86 per month). When the continued payment of the scholarship fund contribution is taken into consideration, it is clear that the potential underpayment of child support – based on the Table amount had it been enforced in the years 2008 through 2011 – is exceeded by the amount of the overpayment as calculated herein with respect to the years 2012 through 2015 and including January through May 2016.
[29] The applicant is not seeking reimbursement of an overpayment, if any. Therefore I have not calculated the potential overpayment with respect to the contribution towards the scholarship fund.
[30] I am satisfied in all of the circumstances that the termination of child support for Jonathan effective January 1, 2013 and for Brendan effective January 31, 2015 is fair and reasonable. I am also satisfied that there is no prejudice to the respondent or to either of the children by reason of my determination in that regard.
[31] For the reasons set out above, I find as follows:
a) There was a terminating event for child support payable with respect to Jonathan – effective January 1, 2013;
b) There was a terminating event for child support payable with respect to Brendan – effective no later than January 31, 2015; and
c) There is no longer any basis for the payment of a contribution towards a scholarship fund for the two children.
Order
- The applicant’s obligation to pay child support terminated: a) With respect to Jonathan effective December 31, 2012; and b) With respect to Brendan effective January 31, 2015.
Costs
[32] If the applicant intends to seek costs of the motion to change, he may do so as follows:
a) The submissions shall be limited to a maximum of three pages, exclusive of a bill of costs;
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;
c) Hard copies of any case law or other authorities relied on shall be provided with the submissions;
d) The written submissions and authorities shall be single-sided pages; and
e) Written submissions shall be delivered by 5:00 p.m. on the tenth business day following the date on which this decision is released.
Madam Justice Sylvia Corthorn Date: May 10, 2016 Released: May 10, 2016