Court File and Parties

COURT FILE NO.: FC-12-1750 DATE: 2016/06/29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gary Peter Charles Swain, Applicant AND Paola Marie Montanaro, Respondent

BEFORE: Mr. Justice Patrick Smith

COUNSEL: Loreen Irvine, for the Applicant Timothy N. Sullivan, for the Respondent

HEARD: June 23, 2016

Endorsement

[1] The parties have drafted and signed Minutes of Settlement dated June 23, 2016 dealing with custody and access regarding the child, Brandon Swain, born August 5, 1999. They have also settled the issue of payment of child support arrears that have accumulated to date and the issue of the quantum of child going forward commencing August 1, 2016.

[2] An Order will issue on consent incorporating the terms of the Minutes of Settlement, filed.

[3] As mentioned above, the issue of the quantum of child support the Father will pay commencing August 1, 2016 is not in issue. Paragraph 8 of the Minutes of Settlement provides that the Father shall pay child support in the amount of $236.00 per month based on an annual income of $28,800.

[4] Notwithstanding that there is an agreement with respect to the quantum of child support the parties were unable to resolve the issue of what amount, if any, the father should pay for ongoing support and the issue of costs of a Motion.

[5] The Mother argues that the full amount of support ($236.00 per month) should be paid by the Father and resists the Father’s application to have it reduced. As well, the Mother resists the Father’s request that, going forward, any arrears be permitted to accumulate with no enforcement until such time as his financial circumstances improve.

[6] The Father argues that currently, because of his precarious financial circumstances, he is unable to pay any amount of child support or anything towards arrears that will accumulate after August 1, 2016 until such time as the claw-back of his disability payments ceases and/or he returns to work. The Father alleges that he has demonstrated undue hardship and satisfied the provisions of s. 10 of the Child Support Guidelines, thereby justifying an order for that ongoing child support and payment of any arrears be suspended in view of his financial circumstances.

[7] The Father has been off work on disability since the end of February, 2015 as a result of a minor stroke. He also suffers from clinical depression and is a recovering alcoholic. He has been unable to return to work and is currently waiting to attend Homewood Health Centre in Guelph, Ontario for a therapeutic treatment program funded by his long-term disability benefits provider. He hopes to return to work with Canada Post following completion of the treatment program.

[8] As a result of his inability to work the Father has been on short-term EI and long-term disability, which he alleges is the reason why he has been unable to pay any support to date, thus accumulating a significant amount of child support arrears. As well, during 2015, as a result of errors made by the Father’s employer with respect to his short-term and long-term disability, he is now required to pay back the sum of $230.00 per month in overpayment of benefits. As a result, the Father maintains that, should he be required to pay child support and/or arrears, he will be unable to pay for the necessities of life. The Father argues that he currently runs a deficit of about $160.00 per month and that an examination of his financial statement reveals that he is barely subsisting.

[9] In paragraph 7 of the Minutes of Settlement, commencing September 1st he has agreed to pay the sum of $174.42 towards arrears that have accumulated and maintains that this is the extreme limit of what he can pay at the moment.

[10] Section 10 of the Child Support Guidelines provides a narrow exception to the rule that child support should be paid and only applies if (1) there is undue hardship; and (2) the person seeking the adjustment resides in a household with a lower standard of living than that of the other parent. Even then, case law supports the proposition that the courts have a general discretion not to adjust the amount of child support (see Matthews v. Hancock (1998), 42 RFL (4th) 72 and Van Gool v. Van Gool, 44 RFL (4th) 314 (BCCA)).

[11] Adjustments under s. 10 of the Child Support Guidelines have been rare. In Van Gool, cited above, the court stated that:

Since the basic table amounts were designed to be a “floor” for the amount payable, rather than a ceiling, it is not surprising that the authorities have held that the threshold for a finding of undue hardship is high. Hardship is not sufficient; the hardship must be “undue”, that is, “exceptional”, “excessive” or “disproportionate” in all of the circumstances. The onus on the party applying under s. 10 to establish undue hardship; it will not be presumed simply because the applicant has a legal responsible for another child or children and/or because the standard of living of the applicant’s household is lower than that of the other spouse. The applicant must lead cogent evidence to establish why the table amount would cause undue hardship.

[12] Most of the reported cases in which there has been success in invoking s. 10 of the Child Support Guidelines involved payors with support obligations to second families. This is not the case here.

[13] It should be noted that the circumstances set out in s. 10(2) of the Child Support Guidelines are not exhaustive.

[14] To prove undue hardship the payor must prove something ‘unusual’ in his or her circumstances that makes paying guideline support a greater burden than another payor’s with similar income. (See Connelly v. McGouran, 79 OR (3d) 434, 2006 Carswell Ont 1540.)

Finding

[15] I find that the Father has demonstrated circumstances that are exceptional and “unusual”. The combination of his stroke, depression, alcoholism and claw back of his disability pension are factors that are significant, beyond his control and not of his own choosing.

[16] Hopefully, the financial situation of the applicant Father will improve shortly and he will begin working at Canada Post once he completes his therapeutic program in Guelph, Ontario.

[17] The Father shall provide timely disclosure of any change in his financial circumstances at which time the parties are at liberty to apply for a variation of this order.

[18] As noted above, paragraph 7 of the Minutes of Settlement, provides that the Father will, commencing September 1, 2016, pay a portion of the child support arrears that accumulated from March 1, 2015 to June 30, 2016 in the amount of $174.42 with payments commencing September 1, 2016.

[19] In view of this provision, it is my finding that the Father is unable to pay any additional amount given his current financial circumstances and I therefore order that payment of the table amount of support calculated in the amount of $236.00 per month is to be suspended along with the enforcement of any arrears that may accumulate until such time as the financial circumstances of the Father improve.

[20] To clarify, it is not the intent of this order to forgive ongoing arrears rather to only suspend payment until there is a change in financial circumstances.

[21] Accordingly, the only payment that the Father will be making at this time until his financial circumstances change is as set out in paragraph 7 of the Minutes of Settlement namely, the sum of $174.42 commencing September 1, 2016.

Costs

[22] With respect to the issue of costs, the Mother seeks costs in the amount of $5,000.00. The Father seeks costs in the amount of $3,000.00.

[23] In view of the fact that each party has enjoyed partial success on this motion, no costs shall be awarded.

Mr. Justice Patrick Smith Date: June 29, 2016