Court File and Parties

COURT FILE NO.: FS-60/2000 DATE: 2016/06/20

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Stephen James Roloson Self-represented Applicant

- and -

Melanie Alayne Roloson Self-represented Respondent

HEARD at CAYUGA, ONTARIO: May 31, 2016

The Honourable Justice P. R. Sweeny

ENDORSEMENT

Introduction

[1] This is a motion to change brought by the applicant, Stephen James Roloson, to vary the child support payable in accordance with the order of Henderson J. dated November 3, 2003 (“the Order”). The respondent, Melanie Alayne Roloson, seeks payment of arrears and the imputation of income to the applicant.

Background

[2] The parties were married in 1991 and separated in 1999. There are three children of the marriage: Mathew James Roloson, date of birth July 21, 1991; Victoria Arlene Roloson, date of birth November 11, 1993; and Tyler Cole Roloson, date of birth June 29, 1998. The Order was based upon minutes of settlement agreed to by the parties. Custody of the children was granted to the respondent. Access was set out in the order. There was a provision for spousal support, which has terminated. The provision for child support required the applicant to pay $860 per month for the three children based on income of $46,827. The parties were to exchange copies of income tax returns on or before the 15th day of May annually, and there would be a recalculation of the guideline amount of support payable. The parties were also to pay pro rata for extraordinary expenses in accordance with their incomes. The order was to be enforced by the Family Responsibility Office (“FRO”) with respect to the guidelines support, but not for extraordinary expenses.

[3] There has been no yearly disclosure of income by either party. The child support amount was never varied on consent or by court order.

[4] In 2009, the applicant lost his job at John Deere. He attended a retraining course and in 2010 started a new business, cabinet making, using the corporation Creekside Cabinets Inc. (“Creekside”). The applicant is the sole shareholder of Creekside.

[5] In 2009, the applicant approached the respondent and requested that the child support be withdrawn from FRO. The respondent says that the applicant advised her that it would be better for her. At the time, the parties were aware the applicant had lost his job and was starting a new business. The respondent agreed to withdraw from FRO. The applicant failed to make consistent child support payments and in 2013 the respondent re-registered with FRO. In October 2015, FRO took steps to have the applicant’s license suspended for arrears in payment. The statement of arrears from FRO shows the arrears as at March 8, 2016, $12,141.74 (Exhibit 9).

[6] On October 5, 2015, the applicant’s motion for a refraining order was granted by Nightingale J. On October 23, 2015, this motion to change was commenced.

Issues

[7] The applicant seeks to vary the Order on the basis of material change in circumstances. In determining the appropriate child support, I must examine the applicant’s income and also the status of each child as a “child” of the marriage. The issues, as I define them, are as follows:

(1) How far back should the child support review go? (2) What is the income of the applicant for the relevant periods? (3) Who are the children of the marriage for the relevant periods?

How Far Back to Go?

[8] In 2009, the applicant lost his job. He spoke with the respondent and asked to have enforcement of the Order withdrawn from FRO because the circumstances had changed. He did not make an application to the court to vary the Order. It is clear that the loss of his job was a material change in circumstances which may have warranted a variation of the Order. There is no evidence provided of the amounts paid for child support prior to October 1, 2013. Exhibit 9 shows arrears and payments received from October 1, 2013.

[9] The respondent, in her evidence, indicated that she has requested FRO to calculate the arrears prior to October 1, 2013 but no such calculation has been provided to me. Therefore, in the circumstances, it is appropriate for me to make findings of fact with respect to income of the applicant and the children of the marriage back to January 1, 2010.

Income of the Applicant

[10] The applicant produced evidence of his income from 2011 forward. No information was provided with respect to 2010 income. The applicant has the onus of establishing a change in circumstances and also his income. In the absence of any evidence, the applicant’s income for 2010 remains at $46,870 as set in the Order.

[11] The applicant is self-employed and carries on business through a solely-owned corporation. The applicant’s income, as shown on his T1 general income tax returns, is as follows:

2011 $22,067 2012 $17,142 2013 $33,022 2014 $ 6,290

No income tax returns have been provided for 2015.

[12] The corporate income tax returns for Creekside have been provided for the corporate years ending March 31, 2012, 2013, 2014 and 2015. The corporation shows a loss in all those years. The corporate income tax returns show certain operating expenses. The respondent reviewed the general ledger statement and pointed out there were personal expenses paid from the corporate account. This includes payment for fast food, groceries and the LCBO. The applicant says that the matters were all reviewed by a bookkeeper and accountant and are all accounted for in the financial statements.

[13] The corporate tax returns show operating expenses identified as “supplies”, “utilities” and “other expenses”. The business is carried on at the residence. There is clearly personal benefit associated with supplies and utilities. The supplies and utilities are not related to cost of material with respect to the business as those are separately shown as costs of sale. The “other expenses” are not explained. The applicant has not produced actual financial statements or any backup documentation to support the expenses claimed.

[14] In determining the amount of income of a spouse for the purpose of the Federal Child Support Guidelines, I am entitled to examine the pattern of income (s. 17). In addition, I may impute income under s. 19 of the Guidelines. I may also consider the unreasonable deduction of expenses from income.

[15] I was not provided with personal income tax returns for 2015 or corporate tax returns for the year ended March 31, 2016. In my view, it is appropriate to add in supplies, utilities and other expenses in determining the income of the applicant.

[16] The amounts deducted on the corporate income tax returns for supplies, utilities and other expenses are as follows:

Year	Supplies	Utilities	Other
2012	1,586	629	8,608
2013	1,116	731	8,397
2014	5,228	4,461	7,722
2015	3,587	4,636	11,692

[17] Based on the personal income tax returns and adding back in the expenses above which are personal, I determine and impute income to the applicant as follows:

(a) 2011 – personal income is $22,067. There were no financial statements provided. For the purposes of determining the applicant’s income, I will use the total expenses for 2012 of $10,823. Therefore, I impute an income of $32,890 to the applicant for 2011. (b) 2012 – personal income is $17,142. The total expenses are $10,823. I impute an income of $27,965 to the applicant. (c) 2013 – personal income is $33,022 and total expenses are $10,244 I impute an income of $43,266. (d) 2014 – personal income is $6,290 and total expenses are $17,411. I impute an income of $23,701. (e) 2015 – no personal income tax return has been provided. The average of personal income for the three years prior is $18,818. For the purposes of imputing income, I will use the average personal income over the past three years. The total expenses are $19,915. Therefore, I impute income of $38,733 to the applicant for 2015. (f) 2016 – the applicant has failed to produce financial statements for the year ending March 31, 2016. In addition, I note he has failed to provide the 2015 income tax returns. Under the circumstances, I impute income of $38,733 to the applicant for 2016.

Who are Children of the Marriage?

[18] The definition of “child of marriage” under s. 2 of the Divorce Act reads as follows:

“child of marriage” means a child of two spouses or former spouses, who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessities of life.

[19] I shall address the status of each of the children individually.

Mathew

[20] Mathew was born July 21, 1991. He finished high school in June 2010 and started university in September of 2010. He has not returned to live with either of his parents since he left for university in September 2010. He has paid his own way through university. Each party has shown certain payments by way of e-transfers made to Mathew in recent years. He has applied for, and received, OSAP – both grants and loans. He has earned income of $14,581 in 2011; $20,439 in 2012; and $21,082 in 2013. The applicant says he assisted Mathew in moving on many occasions. Mathew is presently involved in making short films. He is studying anthropology at university.

[21] The respondent and applicant both suggest that the Order requires that child support be paid for the child while the child continues in full-time attendance at school or until he or she attains the age of 25, whichever is earlier. However, I was unable to locate any provision in the order to that effect.

[22] Based on the information provided to me, I am satisfied that Mathew was no longer a child of the marriage after he left for university in September 2010. He was no longer under the charge of his parents. To his credit, he has been self-sufficient. He is supporting himself and putting himself through university. In the circumstances, the last child support for Mathew would have been payable September 1, 2010.

Victoria

[23] Victoria was born November 11, 1993. The respondent acknowledges that Victoria was no longer a child of the marriage as at May 2013. The applicant says that in December 2011, Victoria withdrew from parental control. She moved out of her mother’s home. There is evidence from Victoria, by way of affidavit, that in December 2011 she left her mother’s home and moved in with her boyfriend. This was past her 18th birthday. She was working fulltime at that point. In November 2012, she had a child. She received maternity leave benefits from November 2012 to November 2013. She did move back in to live with her mother. The applicant assisted in putting in hardwood floors and other improvements to a bedroom in the respondent’s house.

[24] Based on the evidence, I am satisfied that as at January 1, 2012, Victoria was no longer a child of the marriage, having withdrawn from parental charge in December 2011. Therefore, the last child support for Victoria would be payable December 1, 2011.

Tyler

[25] Tyler was born June 29, 1998. He will finish high school in June of this year. Tyler plans to attend Niagara College for an electrical engineering technician course. He will be living with his mother while he attends Niagara College. The child support will continue to be payable for Tyler while he is in fulltime attendance at Niagara College in accordance with the Child Support Guidelines.

[26] In accordance with the Order, the s. 7 expenses associated with education, which include tuition, a computer, and books, are to be shared between the parties in accordance with their incomes. I have no details with respect to the respondent’s 2015 income. However, the respondent’s income for 2012 was $43,194; 2013 - $42,906; and 2014 - $40,015. The parties are to contribute to the s. 7 expenses associated with Tyler in accordance with their incomes, the applicant’s income being imputed at $38,733 for 2016.

[27] In summary:

(1) The applicant’s annual income up to December 2010 is $46,827 in accordance with the Order of Henderson J. dated November 3, 2003. (2) Paragraph 1(h) of the Order is varied effective January 1, 2010 such that the child support payable by the applicant is as follows: (i) For 2010, based on income of $46,827 for 3 children, $860 X 9 months ($7,740), and 2 children, $693 X 3 months ($2,079) = $9,819; (ii) For 2011, based on income of $32,890 for 2 children, $468 X 12 = $5,616; (iii) For 2012, based on income of $27,965 for 1 child, $228 X 12 = $2,736; (iv) For 2013, based on income of $43,266 for 1 child, $391 X 12 = $4,692; (v) For 2014, based on income of $23,701 for 1 child, $190 X 12 = $2,280; (vi) For 2015, based on income of $38,733 for 1 child, $344 X 12 = $4,128; (vii) For 2016, up to May 31, 2016, based on income of $38,733 for one child, $344 X 5 = $1,720; (viii) Commencing June 1, 2016, and on the first day of each month thereafter, child support for 1 child shall be payable in the amount of $344 per month based on income of $38,733. (3) The parties shall each year exchange two copies of income tax returns on or before the 15th day of May. The guideline amount of support shall then be calculated and if and only if the income of the applicant is more than $38,733, the recalculated amount will be payable on the 1st of June. For further clarity, at no time shall the income of the applicant be less than the imputed amount of $38,733. (4) Support deduction order to issue.

[28] In the circumstances, there will be no order as to costs.

Sweeny J. Released: June 20, 2016