COURT FILE NO.: FS-13-191-0001 DATE: 2016-09-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Cindy Lisa Maureen Sakakeep Applicant
William Shanks, for the Applicant
- and -
Robert Baxter Respondent
Self-Represented
HEARD: September 9, 2016, at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Decision On Motions
[1] Robert Baxter brings a motion to change a final order granted by Justice Fregeau on March 25, 2014.
Background
[2] In June 2013, Cindy Lisa Maureen Sakakeep brought an application for custody of the parties’ three children: Brittany Baxter, born April 1, 1996; Brandon Baxter, born August 28, 2003; and Braydon Baxter, born March 18, 2005. Ms. Sakakeep also requested that Mr. Baxter pay support for the children.
[3] At a case conference on August 15, 2013, Mr. Baxter was ordered to file his Answer/Claim and Financial Statement, together with income tax returns and other financial information, by September 30, 2013.
[4] Mr. Baxter filed a Financial Statement sworn September 19, 2013, together with T-4s for 2010, 2011 and 2012 and a pay stub for the pay period ending August 1, 2013. He failed to file an Answer.
[5] Because of Mr. Baxter’s failure to file an Answer, Ms. Sakakeep’s application for custody and child support was heard by Justice Fregeau on March 25, 2014 as an uncontested summary judgment motion.
[6] Ms. Sakakeep was granted custody of the children. The order was silent as to access. Mr. Baxter was required to pay Ms. Sakakeep support for the three children in the sum of $1,734 per month, commencing August 1, 2013, based on the finding of the court that Mr. Baxter’s income was $80,035, as set out in his September 19, 2013 Financial Statement. The court found that because Mr. Baxter is of First Nations descent and was deemed to earn his income on a First Nations community, his income was exempt from income tax. The child support figure was stated by the court to take into account the tax free status of Mr. Baxter’s income. Mr. Baxter was employed as an officer with the Nishnawbe-Aski Police Services.
[7] The order also required Mr. Baxter to pay $591 per month, commencing April 1, 2014, for special or extraordinary expenses under s. 7 of the Child Support Guidelines, based on Mr. Baxter’s income and the income of Ms. Sakakeep, found to be $127,000 per year. Ms. Sakakeep was employed as a nurse in the remote First Nation community of Kingfisher Lake.
[8] Justice Fregeau found that as of August 1, 2013, Mr. Baxter owed arrears of support of $5,872.
[9] Mr. Baxter was ordered to pay Ms. Sakakeep costs of her application, fixed in the sum of $2,500.
[10] In October 2014, Mr. Baxter filed the within motion to change the order of March 25, 2014.
[11] In his motion to change, Mr. Baxter deposes that he did not learn of the uncontested summary judgment motion and the resulting order until his employer changed the amount deducted by the Family Responsibility Office for support.
[12] In the motion to change, Mr. Baxter asks that child support ordered on March 25, 2014 be varied retroactive to August 1, 2013, to an amount other than the Table amount under the Ontario Child Support Guidelines. He asks that support for Brittany be terminated effective September 1, 2013. He requests that there be no s.7 expenses payable, retroactive to April 1, 2014.
[13] Mr. Baxter refers to the fact that he is paying child support for other children not involved in this proceeding, pursuant to two separate orders out of the Ontario Court of Justice. He also refers to travel expenses related to his work as a police officer of $1100 per month for gas and $727 per month for truck payments.
[14] Mr. Baxter asks that his support obligation be less than the Table amount on the grounds of undue hardship.
[15] Ms. Sakakeep filed a Response to Motion to Change in December 2014. She asks that Justice Fregeau’s order not be changed and that the motion to change be stayed until Mr. Baxter pays outstanding arrears of support.
[16] At a case conference held February 25, 2015, Justice Newton required Mr. Baxter to elect by May 29, 2015 whether he intended to pursue an undue hardship argument. If he intended to do so, he was required within 30 days to deliver all financial information in support of that argument, including any income received by his current spouse or by anyone else in his household. Justice Newton ordered that no motions alleging undue hardship could be heard unless Mr. Baxter complied with those terms.
[17] Mr. Baxter was represented by counsel until April 21, 2016, when he filed a notice to act in person.
[18] A settlement conference was held on April 27, 2016 before Justice Pierce. Justice Pierce ordered Mr. Baxter to produce updated financial information. She ordered that he serve any affidavits on which he intended to rely and an updated Financial Statement within 30 days. She ordered Ms. Sakakeep to file any responding materials within 21 days. She directed counsel for Ms. Sakakeep to obtain a date for hearing of the motion to change.
[19] On May 24, 2016, Mr. Baxter filed an updated Financial Statement and an affidavit including financial information as to his base salary, his 2015 T-4 and his 2016 paystubs.
[20] September 9, 2016 was set for the hearing of the motion to change.
[21] On September 2, 2016, Ms. Sakakeep filed a notice of motion, returnable September 9, 2016. She acknowledged that Mr. Baxter should not pay support for the child, Brittany, effective September 1, 2014. She sought support for the children, Brandon and Braydon, in the amount of $2,366 per month, commencing October 1, 2016, together with $334 per month as Mr. Baxter’s contribution to the children’s hockey expenses of $5,200 per year.
[22] She also requested retroactive child support arrears, comprised of the following:
$7,115.46 – arrears as calculated by the Family Responsibility Office as of March 17, 2016; $404.00 – underpayment between November, 2014 to December 31, 2014; $7,896 – underpayment between January 1, 2015 to December 31, 2015; $3,375 – underpayment between January 1, 2016 to September 1, 2016.
[23] The costs of $2,500 ordered by Fregeau J. on March 25, 2014, remain outstanding.
[24] Ms. Sakakeep deposes that she is presently not employed. She attends university full-time to upgrade her nursing qualifications in order to keep her position at her home at Kingfisher Lake First Nations Reserve. It will take her two years to complete her university program.
[25] Ms. Sakakeep calculates that Mr. Baxter underpaid child support. His T-4 earnings showed the following income:
2013 - $99,363.54 2014 - $124,077.11 2015 - $131,821.35
[26] The March 25, 2014 support order was based on income of $80,035.
[27] Ms. Sakakeep’s income as shown in her T-4 earnings is as follows:
2013 - $127,017.00 2014 - $85,629.32 2015 – $43,005.66
[28] Ms. Sakakeep calculates that based on their respective incomes, for prior calendar years, grossed up to reflect that the incomes were not taxable, Mr. Baxter should have paid the following:
November 1 – December 31, 2014 Table amount $1,893 S. 7 expenses $643 Total $2,527
January 1 – December 31, 2015 Table amount $2,215 S. 7 expenses $768 Total $2,983
January 1 – September 1, 2016 Table amount $2,366 S.7 expense $344 Total $2,710
[29] On September 2, 2016, Mr. Baxter filed an affidavit.
[30] He deposes that on June 28, 2016 he was diagnosed by Dr. Margaret Coomes with Post Traumatic Stress Disorder.
[31] In submissions, Mr. Baxter advised that he was unable to file any material from the Workplace Safety and Insurance Board, from which he is receiving benefits, notwithstanding that he had requested information from the Board. Mr. Baxter did not file any documents by way of medical or psychological reports or records relating to his diagnosis of Post Traumatic Stress Disorder.
Discussion
[32] I start from the principle that the order of Justice Fregeau of March 25, 2014 is deemed to be correct. A motion to change is not an appeal of the original order. The correctness of the order must not be reviewed during the variation proceeding. See Willick v. Willick, [1994] 3 S.C.R. 670, at pp 687-688. For the purposes of that order, Mr. Baxter’s income was found to be $80,035 (non-taxable). Based on that income, his support obligation was found to be $1,734 and his contribution to expenses under s. 7 of the Child Support Guidelines was found to be $591 per month. I will not go behind the findings of Justice Fregeau.
[33] Mr. Baxter seeks to vary the March 25, 2014 order on grounds of undue hardship arising from (1) his support obligations to other children and (2) his travel expenses incurred in connection with his work as a police officer with Nishnawbe-Aski Police Services.
[34] Although under s. 10(2) of the Child Support Guidelines, Mr. Baxter’s legal obligations under the two Ontario Court of Justice orders, to support other children, may qualify as a circumstance which causes him to suffer undue hardship, s. 10(3) of the Child Support Guidelines provides that a determination of undue hardship must be denied if the household of the parent who claims hardship has a higher standard of living than the household of the other parent. A comparison of household standards of living test is set out in Schedule II of the Guidelines. Notwithstanding Justice Newton’s order of February 25, 2015, requiring Mr. Baxter to elect by May 29, 2015 whether he would advance the argument of undue hardship and, if so, to produce relevant financial information in support of the argument, Mr. Baxter did not do so. In any event, given the respective incomes of the two parties after the March 25, 2014 order and the number of persons in each household, Mr. Baxter would not be able to satisfy the household standard of living test. A determination of hardship would have to be denied.
[35] To obtain a variation order, Mr. Baxter must establish a material change in circumstances. A “material” change is a change that “if known at the time, would likely have resulted in different terms.” There is no evidence of a material change that negatively affected Mr. Baxter’s financial circumstances until the end of July, 2016 when his employment income apparently ended as a result of the diagnosis of Post Traumatic Stress Disorder. Mr. Baxter’s income in 2014, 2015 and the first half of 2016, far exceeded the income on which the March 25, 2014 support order was based.
[36] The fact that in September 2014 Brittany ceased to be a dependent within the meaning of the Family Law Act is a material change.
[37] How should support for Brandon and Braydon be determined once Brittany is no longer entitled to support?
[38] Ms. Sakakeep’s position is that there should be a retroactive award to reflect Mr. Baxter’s actual income in setting the support amount for Brandon and Braydon.
[39] In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court of Canada identified four factors that the court should consider before making a retroactive child support order. (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 award. See Gray v. Rizzi, 2016 ONCA 152, at para 45.
[40] As Justice Chappel observed in Corcios v. Burgos, 2011 ONSC 3326, “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 discouraged.”
[41] Although Mr. Baxter was aware that his support payments under the March 25, 2014 order were based on income of $80,035 (non-taxable), he did not inform Ms. Sakakeep, until ordered to do so in the motion to change proceedings, that his income in 2014 was actually $124,077 (non-taxable) and his income in 2015 was actually $131,821.35 (non-taxable). Moreover, he allowed the support payable under the March 25, 2014 order to go into arrears, and he failed to pay the costs ordered against him.
[42] In determining what support Mr. Baxter should have paid for Brandon and Braydon, after Brittany was no longer entitled to support, I can see no basis for denying the children the support that is payable under the Guidelines, based on Mr. Baxter’s employment income up to the end of July 2016.
[43] I have taken Ms. Sakakeep’s Divorcemate calculations, using Mr. Baxter’s income for the prior calendar year, as set out at paragraph 43 of these reasons. However, because Ms. Sakakeep’s calculations include August and September 2016, when Mr. Baxter was not earning employment income, I have deducted $2,700 for each of those two months, which Ms. Sakakeep calculates as the monthly support properly payable at an income of $131,821.35 (non-taxable), made up of $2,366 for periodic support and $334 for s. 7 Guideline expenses.
[44] I therefore set arrears of support as follows:
$7,115.46 – arrears as calculated by the Family Responsibility Office as of March 17, 2016; $404 – underpayment between November 1, 2014 to December 31, 2014; $7,896 – underpayment between January 1, 2015 to December 31, 2015; $3, 375 – underpayment between January 1, 2016 to September 1, 2016 $18, 790.46 Less $5,400 for July and August 2016 $13,390.46
[45] There is no evidence as to Mr. Baxter’s income beginning August 2016 other than his affidavit evidence that he is receiving Workplace Safety and Insurance Board (“WSIB”) benefits.
[46] He has filed a letter from his employer, confirming that his annual base salary is $81,235.44.
[47] S. 43 of the Workplace Safety and Insurance Act provides that a worker who has lost earnings as a result of injury is entitled to payments of 85 percent of the worker’s net average earnings before the injury.
[48] I do not have any evidence of Mr. Baxter’s “net average earnings”, apart from the letter from his employer as to his base salary.
[49] It is highly unsatisfactory to attempt to determine support with the limited information that I have. It is Mr. Baxter’s responsibility to provide his income information. For the purposes of determining Mr. Baxter’s support obligation from August 1, 2016 forward, I will use the only information that is available at this time and impute income to him, income of $69,050 (non-taxable), calculated on the basis of 85 percent of his base salary of $81,235.44. This results in a support obligation for two children of $1,308 per month according to Divorcemate. There are expenses for the two children for hockey, found by Justice Fregeau to be an expense payable under s. 7 of the Child Support Guidelines. Those expenses are currently in the amount of $434.00 per month. Ms. Sakakeep receives an Education Allowance from her First Nation, while attending university. A letter dated February 17, 2015, attached to her affidavit sworn September 2, 2016, shows Ms. Sakakeep received a living allowance of $1,465 per month in 2015. This amounts to $17,580 per year. Mr. Baxter’s proportionate share of the extraordinary expense of $434 per month would be approximately 80 percent, based on his imputed non-taxable income of $69,050, or approximately $345 per month. His support payment would therefore be $1,308 plus $345, commencing August 1, 2016.
[50] Because the current income information for Mr. Baxter (and for Ms. Sakakeep) is so unsatisfactory, I will make an interim, interim order for support of the children, commencing August 1, 2016, without prejudice to either party to bring a motion for determination of child support from August 1, 2016 forward, on further and better evidence. I am also making an order that each party is entitled to questioning, to assist in obtaining the necessary further and better evidence.
Conclusion
[51] A final order shall issue, fixing arrears of support payable by Mr. Baxter as of July 31, 2016 at $13,390.46. The costs of $2,500 ordered by Justice Fregeau on March 25, 2014 remain outstanding.
[52] An interim, interim order shall issue, requiring Mr. Baxter to pay Ms. Sakakeep support for the children, Brandon and Braydon, in the sum of $1,308.00 per month, commencing August 1, 2016, based on income imputed to Mr. Baxter of $69,050 (non-taxable), plus a further sum of $345 per month for his proportionate share of the children’s hockey expenses of $5,200 per year under s. 7 of the Child Support Guidelines. Mr. Baxter’s contribution to these expenses is based on income imputed to him of $69,050 (non-taxable) and income imputed to Ms. Sakakeep of $17,580 (non-taxable). This interim, interim order is without prejudice to the position of either party to bring a motion for a fresh determination of child support payable from August 1, 2016 forward, on further and better materials as to the parties’ respective income.
[53] Costs of the motions herein are awarded to Ms. Sakakeep, fixed in the sum of $5,000 for fees, plus HST, plus disbursements of $473.60, inclusive of HST.
_________ ”original signed by”_ ___ Regional Senior Justice D. C. Shaw