ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Chantal Lee Santin
Chantal Lee Santin, Unrepresented
Applicant
- and -
David Elso Santin
David Elso Santin, Unrepresented
Respondent
HEARD: May 31, 2016,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Reasons For Judgment
Introduction
1The issues for trial are retroactive and prospective child support.
2The parties were not represented at trial. The presentation and cogency of the evidence reflected the parties’ unfamiliarity with the trial process.
3The parties were married in 1998. They separated in 2007.
4There are two children of the marriage: Turner David Santin, born October 23, 1997; and Cale Adrian Santin, born July 10, 1999.
5At trial, Ms. Santin advised that she was seeking child support retroactive to February 2009. The claim for prospective child support relates to the child, Cale.
Retroactive Child Support
6Both children resided in Thunder Bay until August 2014, when Turner moved to Kenora to play hockey.
7It is Ms. Santin’s position that from the date of separation until Turner went to Kenora, the children lived primarily with her and visited on weekends with Mr. Santin. It is Mr. Santin’s position that during this period of time, the children resided with him and Ms. Santin on a shared custody basis within the meaning of s. 9 of the Federal Child Support Guidelines, that is, he exercised a right of access to or had physical custody of the children for not less than 40 percent of the time over a course of a year.
8It is agreed that in April 2015, Turner returned to Thunder Bay from Kenora and resided primarily with Mr. Santin. In the Spring of 2015, Turner graduated from Grade 12 in Thunder Bay. In August 2015, he moved to Portage la Prairie to play hockey. He did not attend school in Portage la Prairie.
9There is no claim by either party for support for Turner after he went to Kenora in August 2014, although both parties led evidence as to monies that they had paid to or on behalf of Turner while he was in Kenora.
10Ms. Santin submits that after Turner went to Kenora in August 2014, until March 22, 2015, Cale continued to reside primarily with her. She requests that the Table amount under the Guidelines be paid for support of Cale during this period. Mr. Santin submits that after August 2014, Cale continued to reside with both parties on a shared custody basis within the meaning of s. 9 of the Guidelines.
11Both parties agree that from March 22, 2015 to date, Cale has resided with the two of them on a shared custody basis and, accordingly, that support should be payable as an offset of the Table amounts for their respective incomes.
12Mr. Santin testified that in 2013, he and Ms. Santin met at a coffee shop and settled the issue of child support for the total sum of $8,000. Mr. Santin paid the $8,000 in instalments of $2,000 on July 23, 2013; $2,000 on November 1, 2013; and $4,000 on November 14, 2013. Ms. Santin acknowledges receipt of the monies, but states that the parties never reached an agreement on support. Ms. Santin is prepared to credit Mr. Santin with the $8,000 as against an award of retroactive support.
13I cannot accept Mr. Santin’s submission that this payment of $8,000 resolved the issue of child support. First, there was no domestic contract relating to the payment. Second, child support is the right of the child and cannot be bargained away by the parents.
14Ms. Santin testified that from the date of separation to August 2014 when Turner moved to Kenora, the boys resided with her during the school week and resided with Mr. Santin on the weekends. At trial, Mr. Santin’s own evidence essentially confirmed this arrangement. He testified that the boys were in his care every weekend from after school until Sunday at 7:00 or 8:00 p.m. He testified that the boys “occasionally” slept over on weeknights and in the summer stayed over for extended times with extended family. Mr. Santin said that he coached Turner in baseball for eight years, including going to Cornwall for the Provincial championships and to Lethbridge for the National championships. He said he drove Cale to practices and hockey games.
15In cross-examination, Mr. Santin said that for the “majority of the time,” the children were with him after school until Sunday at 7:00 p.m., “but not all of the time.”
16Ms. Santin produced school records for both children. Mr. Santin did not take any issue with the records. The records indicate that both Turner and Cale resided at their mother’s residence, that Ms. Santin lived with them and that she was the primary contact for the school. The records indicate that the children did not reside at Mr. Santin’s residence, that he did not live with them and that he was the secondary contact person.
17Both parties produced calendars purporting to show when the children were with him or her. The calendars had discrepancies about how much time the children spent with each party. There was no evidence as to whether the calendars, going back to 2009, were prepared contemporaneously with the dates shown. Neither party agreed that the other’s calendar was accurate.
18Ms. Santin filed two affidavits in support of her case. The first affidavit was from a next door neighbour who deposed that since 2009 her son and Cale have been attending the same schools. While they were in public school, up to Grade 5, she would see them get off the bus or walk home together. Once her hours of work changed, after they left public school, she was not in a position to see them coming home from school. The second affidavit was from Ms. Santin’s common law spouse, Sean Warner. He said that before he moved in with Ms. Santin he spent a lot of time at her home and saw the children spend Monday to Friday in her care. After he began residing with her, he shared responsibility with her for driving Turner to school from their home while Turner attended grades 7 to 11. Turner went to school on the south side of Thunder Bay where he had been enrolled prior to separation. Ms. Santin lived on the north side of the City. Mr. Warner deposed that Cale, who went to school on the north side of Thunder Bay, caught the school bus from Ms. Santin’s home, although once Cale was in high school, he was also driven to school by Mr. Warner or Ms. Santin or, on occasion, drove himself.
Discussion
19If the children were with Mr. Santin every one of the 52 weekends each year, from Friday at 4:00 p.m. until Sunday at 8:00 p.m., they would, on an hourly basis, have been with him for approximately 31 percent of the year. By Mr. Santin’s own acknowledgment, they were not with him every weekend and generally left at 7:00 p.m. on Sunday. One can reasonably conclude that insofar as regular weekend visits were concerned, on an hourly basis, Mr. Santin had the children slightly less than 30 percent during the course of a year. Mr. Santin did have an occasional weekday overnight with the children, travelled with them on tournaments and had extended time during the school holidays. However, I am unable to conclude on the evidence that this additional time resulted in the children being with Mr. Santin 40 percent of the time over the course of a year.
20Ms. Santin requests retroactive support to February 2009. However, at settlement conferences on September 11, 2015 and February 10, 2016, Justice Fitzpatrick confirmed by endorsements that the issue of retroactive support only went back to November 2009. In my view, Ms. Santin is estopped from changing her position as to the start date for retroactive support. Mr. Santin is reasonably entitled to rely on Ms. Santin’s position as recorded by Justice Fitzpatrick.
21The general principles governing an award of retroactive child support were set out in D.B.S. v. S.R.G., 2006 SCC 37. Those principles were recently summarized by Brown J. A. in Gray v. Rizzi, 2016 ONCA 152, at para. 145:
The court identified four factors that a 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: paras. 94 to 116. The court also held that, as a general rule, the date of effective notice should serve as the date to which the award should be retroactive: para. 118. Finally, it usually will be inappropriate to make a support award retroactive to a date more than three years before formal notice was given: para. 123.
22On July 11, 2007, Ms. Santin’s lawyers wrote to Mr. Santin, requesting that she would like to deal with the issues arising from their separation on an amicable basis. The letter requested Mr. Santin to complete and return a Financial Statement.
23Mr. Santin did not respond. Ms. Santin testified that Mr. Santin told her that he was not going to answer, so she “backed off”.
24Mr. Santin was served with Ms. Santin’s Application in November 2012. He delivered his Answer in February 2013.
25The letter of July 11, 2007 from Ms. Santin’s lawyers should have reasonably led Mr. Santin to realize that child support was an issue. Ms. Santin took no further formal steps until her Application in November 2012. At trial, Mr. Santin did not give any explanation as to why, even if he believed that he and Ms. Santin had shared custody of the children, he did not respond to her lawyer’s letter. Given his refusal to deal with the matter, I am satisfied that Ms. Santin has explained why she did not seek child support until her November 2012 Application.
26The parties’ respective incomes from 2009 to 2015 are as follows:
Mr. Santin Ms. Santin
2009 $47,202 $43,108
2010 $51,316 $41,275
2011 $54,945 $41,037
2012 $52,433 $43,509
2013 $51,318 $48,413
2014 $70,827 $51,624
2015 $70,827 $51,503
27I am prepared to view Mr. Santin’s conduct on the basis that he assumed, although incorrectly, that he had shared custody of the children. I also take into consideration that he incurred expenses for the children and gave them items as set out in receipts that he introduced at trial. However, because of the differences in the parties’ incomes, Mr. Santin should have appreciated that even if he believed that the parties had a shared custody arrangement, he would still have some child support obligations. It appears that it was not until 2013 that Mr. Santin first acknowledged that he had a child support obligation. From July 2013 until January 1, 2014, Mr. Santin gave Ms. Santin monthly cheques of $200.00. He wrote on the cheques that they were for “child support”. In June 2014, Mr. Santin gave Ms. Santin two cheques of $250.00 for child support and in July, August and September 2014 gave her monthly cheques of $250.00. In 2013 he also gave her the three aforementioned cheques totalling $8,000.
28The failure to respond to the 2007 request to resolve matters arising out of the separation and the failure to pay child support until six years after separation can reasonably be described as blameworthy conduct.
29During the years prior to the commencement of the Application in November 2012, the children had need of support and Mr. Santin was in a financial position to pay that support.
30The issue of hardship that may be occasioned by a retroactive award must be considered in the context of Mr. Santin’s current income and his expenses, assets and liabilities.
31Mr. Santin’s Financial Statement sworn April 29, 2016 shows annual income of $68,149.68 and expenses of $60,168.00. The Financial Statement shows assets of $76,003.28 and no debts.
32Mr. Santin filed a paystub for the period ending March 25, 2016. If one extrapolates from that paystub, which shows year-to-date total earnings of $19,005.63 for the 12 weeks to March 25, 2016, one arrives at an estimated annual income for 2016 of $82,359.00. If one looks only at Mr. Santin’s earnings of $2,747.98 for the two week pay period ending March 25, 2016 and extrapolates those earnings to 52 weeks, one arrives at an annual income of $71,447.48, which is similar to his earnings for 2014 and 2015 of $70,827.00.
33For the purposes of this decision, I impute Mr. Santin’s income for 2016 to be $71,447.00. I am satisfied that he will be able to afford to pay retroactive child support, in monthly instalments, without undue hardship.
34Having regard to the principles set out in D.B.S., I am satisfied that it is appropriate to make a child support award retroactive to November 2009, which is three years prior to the date on which Ms. Santin served and filed her Application. I have calculated that award for two children as follows:
Date Mr. Santin’s Income Monthly Support Totals
Nov.-Dec. 2009 $47,202 $701 $1,402
2010 $51,316 $763 $9,156
2011 $54,945 $815 $9,780
Jan.-Nov. 2012 $52,433 $779 $8,569
$28,907
35From December 2012 to August 2014, when Turner moved to Kenora to play hockey, I calculate child support for two children as follows:
Date Mr. Santin’s Income Monthly Support Totals
December 2012 $52,433 $779 $779
2013 $51,318 $763 $9,156
Jan.-Aug. 2014 $70,827 $1,048 $8,384
$18,319
36After Turner moved to Kenora in August 2014, Mr. Santin should have paid support for Cale. However, Ms. Santin should have paid support to Mr. Santin for Turner while Turner resided with Mr. Santin after he returned to Thunder Bay in April 2015, for the four months until August 2015 when he moved to Portage la Prairie. Although Turner graduated from high school in June 2015, I conclude that he remained a child of the marriage within the meaning of the Divorce Act until he went to Portage la Prairie.
37Mr. Santin should have paid Ms. Santin support for Cale in the Table amount from August 2014 until March 2015 when Cale began residing in a shared custody arrangement with Mr. and Ms. Santin. I calculate the child support for Cale as follows:
Date Mr. Santin’s Income Monthly Support Total
Aug.2014 – March 2015 $70,827 $646 $5,168
38Support was payable by Ms. Santin for Turner for four months at the Table amount of $466 per month based on 2015 income of $51,503, for a total of $1,864.
39Commencing April 2015, the parties had shared custody of Cale. They agreed on an offset of the Table amounts payable for their respective incomes. Mr. Santin’s 2015 income of $70,827 resulted in a Table amount of $646 per month. Ms. Santin’s 2015 income of $51,503 resulted in a Table amount of $466 per month. Mr. Santin paid Ms. Santin the difference of $180.00 per month.
40I have calculated Mr. Santin’s child support obligation to March 2015 as follows:
$28,907
$18,319
$5,168
$52,394
41From this sum of $52,394, Mr. Santin should receive the following credits:
periodic support paid from July 2013 to January 2014 of $200 per month and periodic support paid in June, 2014 of $500 and $250 in July, August and September 2014, for a total of $2,650.
$8,000 paid by way of $2,000 on July 23, 2013; $2,000 paid on November 1, 2013; and $4,000 paid on November 14, 2013.
support payable by Ms. Santin for Turner for the four months from April 2015 to August 2015 when Turner resided with Mr. Santin. I calculate this to be $466 per month for four months for a total of $1,864.
The total credits in favour of Mr. Santin are:
$2,650
$8,000
$1,864 $12,514
42These credits are to be deducted from Mr. Santin’s child support obligation to March 2015:
Child support payable by Mr. Santin $52,394
Less Credits $12,514
Net child support payable by Mr. Santin $39,880
43Mr. Santin has been paying Ms. Santin $180 per month since April 2015, based on shared custody of Cale. Ms. Santin submits the payment commencing January 2016 should be higher, based on 2016 income which she imputes to Mr. Santin of $82,359, calculated from his paystub for the pay period ending March 25, 2016.
44I do not have sufficient evidence to find that Mr. Santin’s income for 2016 will be $82,359. As noted above, I have imputed Mr. Santin’s 2016 income to be $71,447 in my consideration of hardship. However, I will make no change in the amount of $180.00 per month that he is paying as child support, based on the parties 2015 incomes. I will order that child support shall be reviewed and readjusted on June 1 of each year, commencing June 1, 2017, based on the parties’ respective incomes for the previous year. This will capture the parties’ actual incomes for 2016.
Conclusion
45An order shall go that Mr. Santin is found to owe Ms. Santin child support for the children, Turner David Santin and Cale Adrian Santin, in the sum of $39,880, calculated to be owing as of March 2015. This lump sum child support of $39,880 shall be paid in instalments of $1,000 per month, commencing January 1, 2017.
46Commencing June 1, 2016, Mr. Santin shall pay to Ms. Santin child support for the child, Cale Adrian Santin, in the sum of $180.00 per month, based on shared custody of the child pursuant to s. 9 of the Child Support Guidelines. The 2015 income of Mr. Santin is found to be the sum of $70,827. The 2015 income of Ms. Santin is found to be the sum of $51,503. Mr. Santin shall receive credit for all support payments that he has made between June 1, 2016 and the date of this Order.
47By May 1 of each year, commencing May 1, 2017, each party shall deliver to the other his or her income tax return and notice of assessment for the previous year. On June 1 of each year, commencing June 1, 2017, support for the child, Cale Adrian Santin, payable under paragraph 46 of these Reasons, shall be readjusted to reflect any change in the incomes of the parties.
48A Support Deduction Order shall issue.
49Each party has been unrepresented since May 2014. I am not inclined to award costs. However, if either party nevertheless wishes to seek costs, written submissions shall be served and filed within 20 days, failing which costs shall be deemed to be resolved.
_____”original signed by”
Regional Senior Justice D. C. Shaw
Released: November 22, 2016
CITATION: Santin v. Santin, 2016 ONSC 7263
COURT FILE NO.: FS-12-0363
DATE: 2016-11-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Chantal Lee Santin
Applicant
- and –
David Elso Santin
Respondent
REASONS FOR JUDGMENT
Shaw R.S.J.
Released: November 22, 2016
/sab