CITATION: Hussey v. Anderson, 2016 ONSC 3670
COURT FILE NO.: 177/14
DATE: 2016-06-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Chad Thomas Hussey
Applicant
- and –
Jennifer Ann Anderson
Respondent
Self-represented Applicant
Self-represented Respondent
HEARD: June 1, 2016
The Honourable Mr. Justice P.B. Hambly
JUDGMENT
[1] These are applications to vary to an old order.
Background
[2] Chad Thomas Hussey (“Chad”) and Jennifer Ann Pollard (“Jennifer”) commenced a relationship when he was 19 and she was 16 in 1993. The relationship was one of some permanence. They were never married. They had two children as follows:
Colton Alexander Hussey, Date of Birth: May 10, 1998 – age 18
Dawson Thomas Hussey, Date of Birth: July 5, 1999 – age 16
They separated in 2001.
[3] Jennifer is presently living with Chuck Csercsics. He has two children whom he sees. He does not pay support for them. Jennifer was subsequently married and divorced to a man named Anderson and hence her surname Anderson in the title of proceedings.
[4] Jennifer has worked for some years as a laborer at Fleetwood Metal in Tilsonberg where she resides. In 2014 she had an income of $46,516. She has had an income in excess of $40,000 for the last few years. Mr. Csercsics works laying sod and earns an income of about $15,000. Jennifer assists him in this work, when she is able, which can generate income for her of up to $200 per month.
[5] Chad commenced living with Vicky Hussey (“Vicky”) shortly after he separated from Jennifer. They married. They have two children as follows:
Emily Hussey, Date of Birth: September 21, 2003 – age 12
Caleb Hussey, Date of Birth: January 15, 2006 – age 10
They reside in Baden Ontario.
[6] Chad purchased a home inspection franchise called Pillar to Post. He operates this business through his company called C. Hussey Investments Inc. which he runs from his house. He employs in that business another home inspector and Vicky. He pays himself and Vicky a salary from his company. They own a home at 57 Roth Avenue in Baden. He estimates that home has a value of $400,000. It has a mortgage on it of $300,000. He and Vicky purchased and sold a home in Florida. He took equity out of the house in Baden to purchase it. They purchased it with a view to having it generate income through renting it. This was not successful. The home has been sold and the net proceeds reinvested in their house in Baden.
[7] Vicky has worked in the home inspection business for several years. She has recently acquired a real estate license and plans to devote her time to selling real estate and to cease working in the home inspection business.
[8] Chad commenced an application against Jennifer shortly after they separated. Justice Kennedy made an order dated August 15, 2001 that Chad have interim custody of the children and that Jennifer have reasonable access to them. He ordered that Jennifer pay support to Chad for the children in the amount of $260 per month based on her income of $18,000 per year. Justice Heeney made an order dated October 17, 2005 which provided that the parties were to have joint custody of the children, the children were to have their primary residence with Chad and Jennifer was to have substantial access to the children. He ordered that Jennifer pay support to Chad for the two children in the amount of $252 per month based on her income of $17,367. Jennifer’s income when these orders were made was from unemployment insurance.
[9] The two boys moved in 2014 from their father’s residence to their mother’s residence – Colton in June and Dawson in December. The relationship between Chad and his sons has been strained since that time and he has seen little of them. Chad alleges that Jennifer has alienated the boys from him. Jennifer denies this. She states that she would welcome Chad having more involvement with the boys. Chad wants more involvement with his sons. He states that when they resided with him, which was for most of their childhood, he was very actively involved with them including coaching their sports teams. I expect that when the court proceedings are over that Chad will again have greater involvement with the boys.
[10] Each party has moved to vary the order of Justice Heeney. Jennifer seeks an order giving her sole custody of the boys. Chad seeks to continue to have joint custody of them but agrees that the primary residence of the boys should be with Jennifer. Jennifer seeks to have the child support order against her terminated and an order that Chad pay child support to her.
[11] I heard this matter in a trial on June 1, 2016. I reviewed with the parties the affidavits and other documents that they filed. Jennifer testified. She also called Chad’s mother, Pamela Weinberger. She sought to call the two boys to testify. I would not permit her to do so.
[12] Chad testified. He called Tracey Harper who is working in his business and will replace Vicky. He also called Tom Harper, who is Vicky’s father, his own father Jeff Hussey who worked in the business for a period of time. Jeff and Pamela lived with Chad and Vicky for some time. They are now separated. He also called Vicky.
[13] Jennifer paid support for the boys to Chad pursuant to Justice Kennedy’s order and then pursuant to Justice Heeney’s order, continuously in the amounts ordered until January 2015. At that time FRO ceased to enforce Justice Heeney’s order.
[14] Jennifer states that Chad should pay support to her for Colton from June 2014 and for both children from December 2014. Chad agrees that he should pay support to Jennifer for the children. He states that the commencement date should be now. He submits that the child support should not be retroactive. They both had an obligation to support the child in the other’s care in the second half of 2014. Chad seeks retroactive support from Jennifer from 2013 based on the difference between what she should have been paying based on her income and what she actually paid, which was based on a smaller income than she had in these years. He states that she has long had an income which is greater than his. He is prepared to forego retroactive support if the support that he is to pay Jennifer can commence now. He submits that the amount that she should have been paying for some years, less what she paid, more than balances what he should have paid from January 2015.
[15] Chad did not move to vary Justice Heeney’s order earlier to seek increased support from Jennifer based on her income which was substantially more than the income from unemployment insurance on which that order was based. He states the reason is that he feared Jennifer would take revenge on him by making false allegations against him to the police and to the CAS. He alleges that she has made false allegations against him to the CAS in the past. He refers to letters from the CAS which confirms this. He said that she made a false allegation against him to the police on one occasion that he had made death threats against her. This resulted in the police arresting him, his spending a night in jail and the police charging him with making death threats to Jennifer. The crown withdrew the charges against him after about 1 year during which he appeared in court many times. It took him a further 4 years to get back his fingerprints taken by the police upon his arrest. This whole incident caused him much embarrassment. Jennifer states that the allegations that she made against him were true.
[16] Jennifer states that in the years when the boys resided with Chad that she had extensive access to them. She supported them when they were with her. She frequently bought necessities for them. She gave money to them for expenses which they could not get from Chad. To now require her to pay retroactive support would result in her paying twice.
[17] Chad reported income on his income tax returns for 2011 of $34,299, for 2012 of $39,377 and for 2014 of $28,918. His T4 for 2015 shows an income of $35,200. Jennifer states that Chad has undisclosed income, substantially in excess of this. She points to his house and the house that he purchased in Florida. She refers to the financial statements of his company and the financial statements attached to his income tax returns. They show that he is paying penalties and interest - $36,025 in 2013, $25,011 in 2014 and $12,631 in 2015. Chad explains this as being the result of his failing to remit to the government income tax, which he withheld from employees and HST from home inspections. He states that he needed this money to pay for family expenses. This was the result of Jennifer not paying him the child support that she should have been paying, based on her income. She points out that there are two incomes flowing into his family from his business.
Result
[18] Both parties have struggled to comply with their child support obligations on modest incomes over many years. They are both much to be commended for this. They are both hardworking people of integrity who love their children
[19] In my view Chad must pay child support to Jennifer based on his true income from January 1, 2015, in accordance with the guidelines. I suspect that his actual income is somewhat greater than he has reported on his income tax returns. It is impossible for me to determine with precision what this amount is. It is not greatly more than he has reported. The tax returns and the financial statements of his company that he filed have been prepared by his accountants. They, of course, only know of the income that he reports to them.
[20] I impute an income to Chad for child support purposes of $45,000 per year. I accept his position that joint custody should continue. Chad has great interest and concern for his sons, notwithstanding the strained relationship that he has had with them for the past 2 years. I expect that his relationship with them will improve now that the court proceedings have concluded.
[21] There will be an order as follows:
The order of Justice Heeney dated October 17, 2005 is terminated.
The applicant, Chad Thomas Hussey, and the respondent Jennifer Anderson, shall have joint custody of the children, Colton Alexander Hussey, born May 10, 1998 and Dawson Thomas Hussey, born July 5, 1999.
The primary residence of the children shall be with the respondent.
The applicant, Chad Thomas Hussey, shall pay to the respondent Jennifer Anderson, child support on an imputed income of $45,000 per year, in the amount of $680 per month in accordance with the Child Support Guidelines, commencing June 1, 2015. He shall pay the arrears generated by this order at the rate of $100 per month for a total payment of $780 per month.
[22] There will be no order as to costs.
P.B. Hambly J.
Released: June 2, 2016
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ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
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