COURT FILE NO.: FS-014195-03 DATE: 2016-09-23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Terry Edward Korczynski, Shannon Burkinshaw, for the Applicant Applicant

• and -

Elfreida Rose Korczynski, Barbara Morgan, for the Respondent Respondent

HEARD: June 1 and 2, 2016, at Thunder Bay, Ontario

Regional Senior Justice D. C. Shaw

Decision On Motion To Change a Final Order

[1] Terry Korczynski brings a motion to vary the child support order granted by Justice Pierce on March 21, 2007. The variation sought is both retroactive and prospective.

[2] Following a trial, Justice Pierce ordered Mr. Korczynski to pay support to Elfreida Korczynski (Garofalo) for the parties’ two children in the sum of $433 per month, plus a contribution to s. 7 Child Support Guidelines expenses in the sum of $43.44 per month.

[3] The support amounts were based on income for Mr. Korczynski found by the court to be $29,200.

[4] Mr. Korczynski was also ordered to pay arrears of child support in the sum of $2,229, arising out of a Separation Agreement signed in 2004 which required him to pay child support of $310 per month based on imputed income of $22,000.

[5] The order of Justice Pierce provided that the parties were to exchange their income tax returns and notices of assessment on June 1 of each year and that child support was to be adjusted on July 1 of each year.

[6] The parties married in 1986 and separated in 2004. They were divorced in 2005.

[7] There are two children of the marriage – Sierra Nicole Korczynski, born July 7, 1998, and Luke Alexander Korczynski, born March 6, 2001.

[8] Mr. Korczynski paid the arrears of $2,229 ordered by Justice Pierce. He paid the periodic support payments ordered by Justice Pierce, in full, through 2010. In 2011, Mr. Korczynski’s support payments began to fall into arrears. After 2013, Mr. Korczynski made no support payments.

[9] Based on the payments required under the order of March 21, 2007, the arrears owed by Mr. Korczynski for periodic child support and extraordinary expenses total $26,909.77 as of June 1, 2016.

[10] The following sets out Mr. Korczynski’s total income under line 150 of his income tax returns from 2003 through 2016 to the date of trial:

2003 $324 2004 $3,129 2005 ($368) 2006 $15,247 2007 $23,322 2008 $9,824 2009 $22,114 2010 $13,947 2011 $11,865 2012 $9,400 2013 $1,830 2014 00 2015 00 2016, to June 1 00.

[11] Mr. Korczynski submits that from 2010 through to June 1, 2016, if his child support obligations had been based on the Child Support Guidelines Table amounts for his actual income during those years, there would be no arrears and he would have in fact overpaid child support by $13,095.77.

[12] Mr. Korczynski does not seek repayment of any alleged overpayment. What he requests is an order that rescinds his arrears and sets his future child support payments at zero. He submits that upon obtaining employment he is willing to resume child support payments, based on his employment income.

[13] Mr. Korczynski is 54 years of age. He has his Grade 12 and a Hotel and Restaurant Management diploma.

[14] Mr. Korczynski worked with his father for approximately 20 years in a restaurant business in Thunder Bay. Mr. Korczynski managed the staff at the restaurant, did payroll and remittances, organized banquets and did minor repairs. In or about 2003, the business was sold. The Reasons released on March 21, 2007 by Justice Pierce state that the Separation Agreement between the parties, dated September 14, 2004, recites that Mr. Korczynski received $176,352.06, largely from the sale of the restaurant business. Although Mr. Korczynski’s income in 2003 was $3,129, he agreed for the purposes of calculating child support under the Separation Agreement to an imputed income of $22,000. Between 2003 and 2005, Mr. Korczynski had modest earnings from a consulting business.

[15] In May 2006, Mr. Korczynski took employment at the Prince Arthur Hotel as a Food and Beverage Manager at an annual income of $27,000. That position was cut and Mr. Korczynski became Catering Manager at a lower income. In August 2007, Mr. Korczynski left the Prince Arthur Hotel after the position of Catering Manager was terminated. He received employment insurance benefits. In December 2008, he obtained employment at Supreme Cleaners in Thunder Bay. In 2009 he earned $21,186.23 from Supreme Cleaners. However, his hours were reduced during the next years. He left Supreme Cleaners in 2012 because of mental health issues.

[16] In 2004, Mr. Korczynski purchased a home at 223 McVicar Street in Thunder Bay from the proceeds of sale of the business. Initially he lived in the home, but then between 2006 and 2010 he rented the home, receiving net rental income in each of those years of $130, $1,458, $1,347, $928 and $3,171, respectively.

[17] In January 2007, a charge was registered on title at 223 McVicar Street in favour of Citi Financial in the amount of $25,979.

[18] In 2008, Mr. Korczynski purchased a home at 238 Heron Street for $35,000 cash from the proceeds of sale of the business. In 2008, he transferred a half interest in the home at 223 McVicar Street to his sister, Rita Korczynski. Mr. Korczynski testified that he transferred the half interest to his sister because she gave him money to do renovations on the two houses. His sister shared equally in the rent received from the house.

[19] As of May 2016, the balance due on the Citi Financial charge on 223 McVicar Street was $3,952. There is no charge against 238 Heron Street.

[20] In 2011, the home at 223 McVicar Street was badly damaged by tenants who bred dogs in the home. Police investigated and the tenants left the home about two weeks later.

[21] Mr. Korczynski had been living at 238 Heron Street. However, that home was severely flooded in or about 2012 or 2013 and became uninhabitable. There was no insurance on 238 Heron Street. Mr. Korczynski moved to 223 McVicar Street. Although some repairs were done to 223 McVicar Street after the dog breeding tenants left, considerable work remains to be done. The home at 238 Heron Street remains unrepaired from the flooding and is uninhabited. Mr. Korczynski testified that he had not been inside 238 Heron for a year. He occasionally does a visual check of the exterior of the home.

[22] The Municipal Property Assessment Corporation has issued Property Assessment Notices for each of the two houses, assessing 238 Heron Street at $114,000 and 223 McVicar Street at $132,000. Mr. Korczynski notes that assessors have not seen the inside of either house.

[23] Approximately six years ago, Mr. Korczynski began a relationship with Renata Szunko. Ms. Szunko moved into 223 McVicar Street with Mr. Korczynski in 2013. They reside as common law partners.

[24] Ms. Szunko is employed at Supreme Cleaners at approximately $25,000 per year. She also works at Kangas Sauna, earning $22,000 to $24,000 per year. Ms. Szunko pays all the household expenses for herself and Mr. Korczynski, including the costs related to both houses. She and Mr. Korczynski have agreed that he owes her $10,000 because of her payment of the expenses.

[25] Mr. Korczynski testified that in 2012 he saw his family doctor, Dr. Gillen about his mental health issues. Dr. Gillen had been prescribing anti-depressant medication for Mr. Korczynski for several years. In 2013, Dr. Gillen referred Mr. Korczynski to Mental Health Outpatients, St. Joseph’s Health Centre, Thunder Bay.

[26] Pursuant to the referral, Mr. Korczynski was seen on July 23, 2014, by Dr. Kyle Hampe, a psychiatrist with St. Joseph’s Health Centre. Dr. Hampe saw Mr. Korczynski on approximately 15 further occasions until May 18, 2016, when Dr. Hampe left St. Joseph’s.

[27] Dr. Hampe testified at trial. His practice is predominantly concerned with persons who suffer from serious mental illness. For approximately 20 years Dr. Hampe has provided opinions linking ability to work with mental illness. At trial, Dr. Hampe gave his opinion, as a psychiatrist, as to the mental health of Mr. Korczynski and the effect of Mr. Korczynski’s mental health on his employability.

[28] Dr. Hampe testified that Mr. Korczynski presented as someone who was profoundly and demonstrably depressed. He said that when he first saw Mr. Korczynski, Mr. Korczynski suffered from cognitive impairment of such a degree that it was almost akin to dementia. Dr. Hampe stated that on his first visit, Mr. Korczynski definitely met the criteria of someone who was profoundly unwell. Dr. Hampe subsequently diagnosed Mr. Korczynski as having bipolar affective disorder, Type II, as defined by the Diagnostic Statistical Manual of Mental Disorders, IV.

[29] In Dr. Hampe’s opinion, Mr. Korczynski “was absolutely not able to work.”

[30] When asked if he could comment on Mr. Korczynski’s employability prior to his first visit on July 23, 2014, Dr. Hampe acknowledged that his opinion was limited by the fact that he did not observe Mr. Korczynski prior to that date. Dr. Hampe testified that he could not say, from direct observation, how long prior to July 23, 2014, Mr. Korczynski had been mentally unwell. He said that from Mr. Korczynski’s self-reporting, he had been suffering from mental illness of fluctuating severity for about 10 years. He said that he had no reason to doubt Mr. Korczynski’s self-reporting. Dr. Hampe said that the severity of illness that he saw in Mr. Korczynski did not happen overnight. He noted that Dr. Gillen had prescribed anti-depressant medication for Mr. Korczynski before she referred Mr. Korczynski for psychiatric help.

[31] Dr. Hampe stated that bipolar affective disorder is extremely difficult to treat.

[32] Dr. Hampe initially made small changes in Mr. Korczynski’s medication. This did not result in any dramatic improvement. Mr. Korczynski agreed to take the risk of increasing the dose of an anti-depressant that had been prescribed by Dr. Gillen, beyond its normal amount. Dr. Hampe testified that over the past three or four months, he has been shocked how well Mr. Korczynski has done.

[33] Dr. Hampe testified that Mr. Korczynski has been compliant with treatment and has engaged in a self-care program of exercise and participating in outside events.

[34] Dr. Hampe said that he is cautiously optimistic that Mr. Korczynski’s dramatic improvement will continue. He said that Mr. Korczynski needs to maintain a course of self-care, counselling and support, as well as maintain his medication.

[35] Dr. Hampe said that he would not at this time ask Mr. Korczynski to go back to work. Rather, a gradual return to work for an hour or two every second day, in the nature of work hardening, would be in order. Dr. Hampe testified that a return to work full-time at this stage could be very deleterious to Mr. Korczynski’s health. Dr. Hampe acknowledged in cross-examination that a gradual return to employment might be quite beneficial.

[36] Dr. Hampe testified that he has never been concerned that Mr. Korczynski was feigning his symptoms.

[37] In her evidence, Ms. Szunko said that from 2012 or 2013 Mr. Korczynski has been very sick, very depressed, that he did not want to eat or get out of bed, that he had lost 40 lbs. She said she has seen improvement but that he still needs time and needs to talk to someone.

[38] Mr. Korczynski testified that in 2008, he tried to have his child support payments varied, by agreement. He said he sent Ms. Garofalo his income tax return and requested a copy of hers. He said that when she did not respond, he followed up two weeks later. He testified that Ms. Garofalo then terminated his telephone access and visits with the children. He said he wrote her a third letter to which she responded by writing that he would have no access and that the children had another father figure. He said that Ms. Garofalo and the children then disappeared. He contacted the police and the Children’s Aid Society but they would not tell him where the children were, other than that they were safe.

[39] In July 2013, Mr. Korczynski brought the within motion to change the March 21, 2007 order of Justice Pierce.

[40] Ms. Garofalo opposes Mr. Korczynski’s request to rescind the arrears of support. She submits that there is no evidence that Mr.czynski was completely unable to work before he saw Dr. Hampe in July 2014. She criticizes Dr. Hampe’s evidence as failing to address Mr. Korczynski’s ability to return to work in light of the fact that Dr. Hampe is impressed by Mr. Korczynski’s recovery.

[41] Ms. Garofalo submits that Mr. Korczynski is able to complete executive tasks, such as preparing court documents, at a high, normal level.

[42] Ms. Garofalo contends that Mr. Korczynski could have applied for relief in 2010, rather than waiting until 2013. She submits that if arrears are to be rescinded, that the court should only do so from July 23, 2014 forward, when Mr. Korczynski first saw Mr. Hampe.

[43] Ms. Garofalo submits that the house at 238 Heron Street should be transferred into her name to satisfy any arrears and future support payments. If the house were transferred to her, she states that her family would be willing to fix it up.

[44] Ms. Garofalo testified that since Mr. Korczynski stopped making support payments she has been solely responsible for the children’s expenses, including special and extraordinary expenses.

[45] Sierra enters Lakehead University in September 2016. She has received a scholarship of $10,000, payable over the four years of her program.

[46] Ms. Garofalo said that during the marriage, Mr. Korczynski was always employed, managing the restaurant business. She described his ability to frame houses, drywall, paint, do plumbing and electrical work, install tile and do maintenance work on vehicles. He assisted with cooking at the restaurant.

[47] On separation, Ms. Garofalo received $140,000 from the sale of the matrimonial home. She purchased a home but was unable to afford to keep it and sold it. With the proceeds of sale she paid down debt and purchased a car. She presently lives with a Mr. Galati, who is not her partner. Once this court action is over, she plans to move with the children from Mr. Galati’s home.

[48] Ms. Garofalo was injured in a motor vehicle accident in May 2013, suffering neck and back injuries. She has not worked since the accident. Prior to the accident, she worked at Staples, for minimum wage. She and the children continue to be covered under the extended health benefits from Staples.

[49] Ms. Garofalo presently receives $1,180 per month in accident benefits. Her lawsuit arising out of the accident, in which the other driver is alleged to have been intoxicated and to have run a red light, is close to being settled.

[50] Ms. Garofalo intends to return to work at Staples in accordance with a modified work plan submitted to Staples by Dr. Gillen.

Discussion

[51] The principles governing a retroactive variation order under s. 17 of the Divorce Act are comprehensively discussed by Brown J.A. in the recent Court of Appeal decision of Gray v. Rizzi, 2016 ONCA 152.

I Did Mr. Korczynski Experience a Material Change in Circumstances?

[52] The first step is to determine whether there has been a “material” change in circumstances, meaning a change that, “if known at the time, would likely have resulted in different terms” – and a change with some degree of continuity, and not merely a temporary set of circumstances. See L.M.P. v. L.S., 2011 SCC 64, 2011 S.C.C. 64, at paras. 32 and 35, as cited in Gray v. Rizzi at para. 39. “A material change in the financial means or circumstances of a payor can constitute a change in circumstances for the purposes of a motion to change child or spousal support. Federal Child Support Guidelines, s. 14(a); Divorce Act, s. 17(4.1)”. See Gray v. Rissi at para. 39.

[53] In my view, Mr. Korczynski experienced a significant and sustained reduction in his annual income compared with the income of $29,200 imputed to him in the March 212, 2007 order. His income for the years in which arrears accrued never approached even one-half of the income that was imputed to him. Over the last three years, there has been no income at all.

II Should There Be a Retroactive Adjustment to Mr. Korczynski’s Child Support Obligations?

[54] Having determined that there has been a material change in circumstances adversely affecting the financial means or circumstances of Mr. Korczynski, the next step is how to approach the retroactive variation requested by Mr. Korczynski.

A. The General Principles

[55] The general principles that a court should consider are set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, 2006 S.C.C. 37:

(i) the reason why a variation in support was not sought earlier; (ii) the conduct of the payor parent; (iii) the circumstances of the child; and (iv) any hardship occasioned by a retroactive reward.

[56] The Supreme Court of Canada held that, as a general rule, the date of effective notice should serve as the date to which the award should be retroactive and it usually will be inappropriate to make a support award retroactive to a date more than three years before the formal notice was given.

[57] In Gray v. Rizzi, Brown J.A. adopted the analysis of Chappel J. in Corcios v. Burgos, 2011 ONSC 3326 (S.C.J.). Chappel J. applied the D.B.S. principles to a motion to change a child support order where the payor requested a retroactive decrease in support or rescission of arrears. I set out, at length, the discussion by Brown J.A., which guides the analysis in the present case:

[56] First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, “Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.”

[57] Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor’s circumstances that affected the payor’s ability to make the child support payments when they came due.

[58] A payor’s request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

[59] Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: “[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly.”

[60] The present case falls into this second category. While there is no fixed formula a court must follow when exercising its discretion in this circumstance, Chappel J. identified the following factors to guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory or judicial;
2. The ongoing needs of the support recipient and the child;
3. Whether there is a reasonable excuse for the payor’s delay in applying for relief;
4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: “Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears”;
6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;
7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.:

[1] [I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.

[61] If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following D.B.S., a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

[62] Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide “reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately.” As put by Chappel J.:

[2] A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor’s circumstances has occurred.

[63] This obligation to disclose and negotiate with the recipient parent is ongoing, so that the recipient can assess and react to changes in the payor’s financial situation. A payor’s failure to comply with his continuing notice and financial disclosure obligations most likely will impact the remedy which the court crafts.

[64] Finally, “with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating.”

B. Application of the Principles

[58] Having determined that Mr. Korczynski has met the threshold of a material change in circumstances, the issue is whether this change resulted in an inability to make child support payments and whether any variation should be retroactive.

[59] The years in question are 2011 through 2016.

[60] I accept that Mr. Korczynski’s actual income during these years is accurately set out in his income tax returns as summarized at paragraph 10 of these Reasons.

[61] I accept that Mr. Korczynski suffers from Bipolar Affective Disorder. I accept Dr. Hampe’s opinion that the mental illness has rendered Mr. Korczynski unable to work. Dr. Hampe has 20 years of experience assessing the impact of mental illness on a person’s ability to work. Dr. Hampe was clear that Mr. Korczynski is not feigning his symptoms. Mr. Korczynski has been compliant with his prescribed treatment. Although Dr. Hampe agreed that a gradual return to work would be beneficial for Mr. Korczynski, this was in the context of work hardening, beginning with an hour or two every second day.

[62] There is no question that Mr. Korczynski has been unable to work since he first saw Dr. Hampe in July 2014. At that time, Mr. Korczynski was, in the opinion of Dr. Hampe, “profoundly unwell.” The question is, how long prior to July 2014 did Mr. Korczynski’s mental illness disable him from working? Dr. Hampe could not say from direct observation. However, he said that an illness this severe “did not happen overnight.” He had no reason to doubt Mr. Korczynski’s self-reporting that he had been suffering from mental illness, fluctuating in severity for about 10 years.

[63] Mr. Korczynski testified that he had been on anti-depressant medication, as prescribed by Dr. Gillen for approximately 10 years. He said that he met with Dr. Gillen about his mental health issues in 2012. He was referred to St. Joseph’s Health Care by Dr. Gillen in about 2013. He was placed on a waiting list for “a good six months.” Mr. Korczynski testified that he last worked November 2012, when he left Supreme Cleaners because of his mental health issues.

[64] I am satisfied, on the balance of probabilities, that Mr. Korczynski’s income from 2011 to 2016, as shown in his last returns, reflected what he was reasonably able to earn as a result of his illness. I do not find that Mr. Korczynski was intentionally under-employed or unemployed during those years or that I should impute additional income to him.

[65] Mr. Korczynski children had continuing need for support during the years in question. However, Mr. Korczynski’s children were entitled to support at a level commensurate with Mr. Korczynski’s income and the Child Support Guidelines. On those criteria, the arrears which have accrued do not reflect what should have been paid.

[66] Mr. Korczynski does not have a current ability to pay the arrears. However, this is not the basis warranting rescission of the arrears. Rather, rescission of the arrears is warranted because of the change in circumstances that adversely affected Mr. Korczynski’s ability to make the payments as they came due. There is no reason to believe that Mr. Korczynski will have an ongoing ability in the reasonable future to pay the arrears.

[67] Although Mr. Korczynski’s income in 2008, 2009 and 2010 was $9,824, $22,114 and $13,947, respectively, I note that he did not fall into arrears until 2011, notwithstanding that his income did not approach the income of $29,200 imputed to him in the March 21, 2007 order. He also paid the arrears of $2,229 arising under the Separation Agreement, as required under the March 21, 2007 order. Mr. Korczynski therefore complied with his support obligations from 2007 to 2011 during years when his income was significantly less than the income that gave rise to the obligation.

[68] Under the D.B.S. criteria, a retroactive order should normally begin as of the date that Mr. Korczynski gave effective notice of his request for a child support adjustment. The retroactive order should generally not go back more than three years before the final notice is given.

[69] Mr. Korczynski testified that he first gave notice in writing in 2008. He did not receive a favourable response from Ms. Garofalo. However, he took no steps to change the March 21, 2007 order until he brought the written motion to change in July 2013.

[70] In my view, because of the delay in bringing the motion to change, I cannot find that 2008 was the effective date of notice. The effective date of notice was July 2013.

[71] In his Change Information Form, Mr. Korczynski accurately set out his income for 2010, 2011 and 2012. Ms. Garofalo would have been able to assess Mr. Korczynski’s support obligations under the Child Support Guidelines relative to the income information.

[72] Calculating Mr. Korczynski’s child support obligations based on his actual income for 2011 to 2016 and the Child Support Guidelines, leads to the conclusion that he overpaid support in the amount of $13,095. Repayment of that overpayment by Ms. Garofalo would occasion hardship to the children. The fact that Mr. Korczynski does not request repayment eliminates that aspect of hardship. I do not disregard the fact that because Ms. Garofalo bore the bulk of the financial burden of supporting the children, with minimum support from Mr. Korczynski after 2011, the children suffered financially during those years. However, their hardship was not the result of blameworthy conduct by Mr. Korczynski. He simply did not have the ability to pay the amounts required under the support order of March 21, 2007.

[73] In my view, it would be appropriate to make an order retroactive to 2011, when the arrears began to accrue, ignoring any overpayment and setting arrears as of today at zero. Ongoing support should also be set at zero.

[74] Having determined that there should be no arrears, it would not be appropriate to grant Ms. Garofalo’s request that the home at 238 Heron Street be transferred to her. Child support is based on the Child Support Guidelines and the payor’s income. If support was not payable by Mr. Korczynski under the Guidelines, taking into account not only Mr. Korczynski’s actual income but also the provisions of s. 19 of the Guidelines, allowing the court to impute income, then there is no basis to require Mr. Korczynski to transfer a capital asset as an alternative to ordering Guidelines support. There is no evidence that 238 Heron Street should have been used by Mr. Korczynski to generate income. The evidence is that the house is not habitable. Even if the house could be sold, the sale proceeds would not generate a level of income that would result in support under the Guidelines.

[75] An order shall go as follows:

(1) Paragraphs 1, 8 and 9 of the final order of Justice Pierce, dated March 21, 2007 shall be deleted and replaced with the following:

1. Commencing September 1, 2016, the Applicant, Terry Edward Korczynski, shall pay $0.00 per month for the support of the children, Sierra Nicole Korczynski, born July 7, 1998, and Luke Alexander Korczynski, born March 6, 2001, based on the Applicant’s income of $0.00 and the Child Support Guidelines.
2. Support arrears payable under the order of Justice Pierce, dated March 21, 2007, are hereby rescinded and fixed at $0.00 as of September 1, 2016.
3. Any child support overpayment that may have been received by the Respondent, Elfreida Rose Garofalo, for the period January 1, 2010 to June 1, 2016, shall not be reimbursed to the Applicant, Terry Edward Korczynski.
4. The Applicant, Terry Edward Korczynski, shall notify the Respondent, Elfreida Rose Garofalo, of any change to his employment or income within 14 days of such a change occurring and the child support payable shall be adjusted accordingly.
5. For as long as the children are children of the marriage within the meaning of the Divorce Act, the parties shall deliver to each other on the first day of June in each year, commencing on June 1, 2017, and annually thereafter a true copy of their income tax returns and Notice of Assessment, and Notices of Re-Assessment, if any, and any other document or current information requested under the Child Support Guidelines.
6. Child support and special or extraordinary expenses of the children shall be adjusted in accordance with the Child Support Guidelines, on July 1 of each year commencing on July 1, 2017.

Costs

[76] The parties advised the court by letter dated June 6, 2016 that neither party would seek costs in this proceeding, regardless of the outcome. Accordingly, there shall be no order as to costs.

The Hon. Mr. Justice D. C. Shaw

Released: September 23, 2016

COURT FILE NO.: FS-014195-03 DATE: 2016-09-23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Terry Edward Korczynski, Applicant - and - Elfreida Rose Korczynski, Respondent DECISION ON MOTION TO CHANGE A FINAL ORDER Shaw R.S.J. Released: September 23, 2016 /sab