Court File and Parties

Court File No.: 244/15 Date: 2016-06-24 Superior Court of Justice – Ontario

Re: Jennifer Rebecca Clark, Applicant And: Marcus Trevor Stephen, Respondent

Before: Mr Justice Ramsay

Counsel: Both parties self-represented

Heard: June 24, 2016 at St Catharines

Endorsement

[1] The parties divorced in 2004 having had one child, a daughter who will soon turn 14. On November 26, 2004 Mesbur J. ordered the Respondent in uncontested proceedings to pay child support based on an imputed income of $50,000 a year, plus extraordinary expenses according to the Guidelines. Support was quantified at $429 a month. Extraordinary expenses were not quantified. Both parties now move to vary the order.

[2] The order was withdrawn from the Family Responsibility Office, but then returned there by the Applicant after the Respondent fell into serious arrears. The Respondent deposes that he found out about his responsibility when FRO began enforcement proceedings against him recently. That may be true in a sense, but he had the opportunity to be present at the original proceedings, and he knew that an order had been made against him. That is why he got the Applicant to agree to withdraw enforcement from FRO in the first place. I think the true state of affairs is that when FRO recommenced enforcement the Respondent realized that his legal obligation had not been forgotten.

[3] Over the years the Respondent has paid $2,250 informally. FRO has got $8,777 from him. Arrears stand at $22,040 as of May 26, 2015.

[4] The evidence of the Respondent is that shortly after the divorce he became a permanent resident of Canada and began his earning career. His tax records show that in 2003 he made next to nothing. In 2004 he made about $18,000. He had a high school diploma from St Lucia but no work experience there, as he came to Canada right after graduating. In Canada he has earned money at construction jobs and other jobs here and there. In 2005 he spent three months in gaol for a criminal charge. I do not know whether a conviction resulted. On the Applicant’s evidence it appears that it was pretrial custody, because the Respondent asked her to bail him out, a request she understandably declined. In 2009 the Respondent was charged with a drug trafficking offence. That charge resulted in an 18-month conditional sentence in 2012. Since then the Respondent has been successful at getting temporary employment, but never permanent employment. His criminal record hinders him in that regard. The respondent remarried and in 2012 his wife had a baby son. The arrangement that they have found most practical is for the wife to work, for $34,000 a year while the Respondent stays home with the child. The child will be going to school in September. The Respondent’s position is that arrears should be reduced to zero and ongoing child support should be fixed at zero based on his lack of any income.

[5] The Applicant deposes that the Respondent should be able to earn $50,000 a year as a carpenter. The evidence suggests that today a carpenter could earn more like $54,000 a year. As a result she asks for an increase to the Respondent’s imputed income and a corresponding increase in child support. She also asks me to set payments for actual extraordinary expenses incurred by her. She has paid $26,000 for things such as orthodontics ($4,300 by itself), skating lessons and piano lessons. Jennifer is a bright, athletic child who has been raised by her mother alone. The Applicant’s submission that this child deserves more from her father is both moving and correct. The Respondent’s access has been sporadic, a fact that I attribute to him, not the Applicant. The Respondent asked for increased access in his motion to change, but does not wish to pursue that aspect of the motion.

[6] I have great sympathy for the Applicant and her position on this motion. She has good reason to feel cheated. It may be some comfort to know that when her daughter is grown, she will well know who was there for her and who was not. That is scant comfort at this point but the court process has to be realistic. Driving the Respondent into ruin will not be in the interest of justice or the parties. That is not to say that the Respondent has no obligation to contribute to this child’s upbringing, only that it must be in accordance with his actual income or ability to earn income.

[7] The Respondent would have me find fault with the imputation of income made by Mesbur J. This argument is not open to him. He had the opportunity to present his side in 2004, and I have no appeal jurisdiction in any event. All I can do is say whether there has been a material change in circumstance.

[8] I think that the criminal charge in 2005 and the proceedings from 2009 to 2012 were unforeseen and that they materially affected and continue to affect the Respondent’s ability to earn income. I do not think that he is in a position to earn $54,000 a year as a carpenter.

[9] The Respondent’s tax records show line 150 income of $2,326 for 2010, $9,700 for 2011, $5,103 for 2012 and NIL for 2013 and 2014. His sworn financial statement attests to income of about $5,000 in 2015 and no income after May 2015. I do not ignore the possibility that he could have earned some money under the table, but I am not satisfied that such a thing has occurred.

[10] With his new child going to school the Respondent should be able to work part-time. He may have to hire babysitting at some point, but that should be his responsibility. I order the Respondent to pay ongoing child support fixed at $100 a month based on an imputed annual income of $15,150 commencing September 1, 2016.

[11] As to extraordinary expenses, the Applicant earns about $50,000 a year. The Respondent’s proportionate share of extraordinary expenses will necessarily be relatively small. I think it better to fix a readily enforceable amount. I order the Respondent to pay $25 a month for extraordinary expenses commencing September 1, 2016.

[12] As to past extraordinary expenses, I do not think the extracurricular sports and music are within the Respondent’s means. He should, however, make a reasonable contribution to the child’s orthodontics and a modest contribution to her future extracurricular activities.

[13] As a result I fix arrears of child support and extraordinary expenses at $1,000 and order the Respondent to pay this amount in monthly instalments of $50, or on such other basis as he may arrange with FRO, commencing July 1, 2016.

[14] The Respondent’s motion to change the terms of access is dismissed.

[15] The Respondent asks me to order the restoration of his driver’s licence. This motion was brought more than 30 days after the Respondent was notified of the suspension. Accordingly I have no jurisdiction to make the order sought: Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, s. 38; McLarty v. Ontario, [2001] O.J. No. 707 (CA). The motion to change is dismissed in that respect.

[16] The Applicant’s motion to change is dismissed.

[17] The Applicant filed the trial record. She was successful in that the Respondent has been found liable to pay some ongoing and past support. There were no offers to settle. I order the Respondent to pay $100 costs forthwith.

[18] In summary, I order as follows:

a. The Applicant’s motion to change is dismissed. b. The Respondent’s motion to change access, motion for a refraining order and motion to restore his driver’s licence are dismissed. c. The order of Mesbur J. dated November 26, 2004 is varied as follows: i. The Respondent is ordered to pay child support for Jennifer Clark, born August 28, 2002, at a rate of $100 a month based on an imputed annual income of $15,150, commencing September 1, 2016, and extraordinary expenses fixed at $25 a month commencing September 1, 2016; ii. The Respondent’s arrears of child support and extraordinary expenses are fixed at $1,000 and shall be paid at a rate of $50 a month commencing July 1, 2016, or at such other rate as may be agreed between the Respondent and the Director of the Family Responsibility Office; iii. The Respondent shall pay costs to the Applicant fixed at $100 forthwith; these costs are enforceable as child support; iv. A support deduction order will issue.

J.A. Ramsay J. Date: 2016-06-24