Court File and Parties

COURT FILE NO.: F223/05-02 DATE: July 27, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Evelyn Erica Van Beest Evelyn Erica Van Beest not appearing Applicant

• and -

David Hugh Rock David Hugh Rock in person Respondent

HEARD: July 7, 2017

MITROW J.

INTRODUCTION

[1] This matter proceeds in this court as a hearing to confirm a provisional variation order in relation to child support made in the Court of Queen’s Bench of Alberta by Bast J. on October 21, 2015 (“the provisional order”).

[2] The relevant sections pursuant to the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISO”) are sections 32 - 38: see s. 31(1)(a).

[3] Pursuant to my order dated March 14, 2017, a hearing was ordered and the respondent was required to file additional affidavit evidence, including all his relevant income tax returns and notices of assessment. That order was complied with. The order also required additional information from the applicant to be filed, via affidavit, that included verifying the child’s school attendance record and residence history. The applicant complied with that request.

[4] For reasons that follow, the provisional order is not confirmed except for the lump sum special expense, but in a revised amount.

DISCUSSION

(a) Litigation History

[5] This matter has a litigation history in Ontario and in Alberta involving child support for the parties’ child, Andrew, born December 17, 1998.

[6] This history is summarized by Korpan J. of this court in her reasons dated August 21, 2013. The relevant portions of Korpan J.’s reasons relating to previous litigation are summarized as follows (and, unless otherwise indicated, any references to judges or orders refer to judges and orders of this court):

(a) By final order of Marshman J. dated June 9, 2005, the respondent was ordered to pay child support for Andrew, then age 6, in the amount of $319 per month based on an income of $36,800. This was an order made pursuant to ISO.

(b) Marshman J. found that the respondent’s income consisted of rent, which he received from leasing out his farm acreage, and a portion of his home, and income from running a small business.

(c) In 2008, Youtube offered the respondent income from advertising on the respondent’s videos. The respondent had been posting videos about activities on his farm. As a result of the Youtube income, the respondent’s line 150 income increased to $89,553 in 2009.

(d) This prompted the applicant to bring a child support variation proceeding under ISO to increase child support; on June 28, 2010, Campbell J. made a final order under ISO, increasing the child support to $794 per month effective January 1, 2009 based on an income of $89,554.

(e) The respondent then sought to reduce this child support, alleging that the applicant had made a number of public statements that resulted in Youtube cancelling his contract. At para. 7 of her reasons, Van Beest v. Rock, 2013 ONSC 2155 (S.C.J.), Korpan J. explains:

Mr. Rock’s evidence is that Ms. Van Beest curtailed his ability to earn Youtube income through her interference. He says she set up a website “keepandrewsafe2” and posted his personal and confidential documents on that website and then produced documents to the press relating to him being a convicted child sex offender. He produced a photograph that he took of a screenshot of the website which shows the August 10, 2008 addition of “David Rock’s police report, psychiatry file etc.” The screenshot shows that the website directs viewers to related videos. Ms. Van Beest went on a television show on Global TV, “16x9” with Mary Garofalo that aired in October 2010 and alleged that Mr. Rock was a convicted pedophile.

(f) Korpan J. accepted that the respondent had lost his Youtube income during 2010 when the contract was terminated, and that the respondent’s income had reverted back to income from his small business and from rent derived from leasing out his farm acreage and renting a portion of his home. Korpan J. found that the respondent had a significant net worth, with his house, farm, RRSP and bank accounts worth over $800,000.

(g) In 2010, the respondent’s income would have included some Youtube income. Korpan J. found the respondent’s income to be $40,508 for 2010.

(h) Korpan J. rejected the respondent’s argument that his annual income for child support purposes on an ongoing basis should be $14,358. Consequently, Korpan J. imputed income to the respondent in the amount of $22,395 for 2012 for child support purposes. Korpan J. also found the respondent’s income for 2011 to be $22,395.

(i) Korpan J. then made a provisional order that provided for child support based on the incomes as described above for 2010, 2011 and 2012.

[7] Korpan J.’s provisional order was confirmed by Michalyshyn J. in the Court of Queen’s Bench of Alberta on February 18, 2015.

(b) The Current Variation Application and the Provisional Order

[8] The applicant commenced the current proceeding by way of “Family Law Application – Provisional Application to Change Child Support.” The requisite documents were completed and filed by the applicant in Alberta.

[9] The applicant requested contributions pursuant to s. 7 for extraordinary school expenses; she further sought a provisional order that the respondent pay child support retroactive to January 1, 2013 based on an increased income.

[10] In her accompanying affidavit, at paragraph 7, the applicant is required to state the reasons for changing the existing child support order. The only reason stated is: “The order only goes to December 2012.” This reference would relate to the confirmed provisional order of Korpan J. However, that child support order did not terminate effective December 2012 as deposed by the applicant; Korpan J.’s order in paragraph 2(c) required the respondent to pay child support on an ongoing basis in the amount of $179 per month based on an income of $22,395, commencing January 1, 2012.

[11] The applicant deposes as to her belief that the respondent’s income is $40,000. She has no financial documents to corroborate this belief. She does attach extracts from translated Youtube videos as evidence that the contents of those documents support a finding that the respondent has been earning $40,000 annually since 2013. It is not clear who transcribed the audio portion of the videos.

[12] The applicant appeared before Bast J. on the hearing that resulted in the provisional order. The applicant made submissions. The transcript reveals that the evidence relied on by the court was based on the material filed by the applicant. There was no viva voce evidence.

[13] Bast J. summarizes the applicant’s evidence as to the applicant’s belief that the respondent’s income is $40,000 annually (see transcript pages 7-8). Bast J. imputed income to the respondent at $40,000 annually based on that evidence, retroactive to January 1, 2013, and ordered the respondent, provisionally, to pay $360 per month child support, being the Guideline amount in Ontario on that income.

[14] Further, Bast J. found that the child had to drive to attend an educational institution in 2015. Accordingly, Bast J. allowed $570 as an extraordinary expense for secondary school education, being the respondent’s share of the automobile insurance expense for the child. That amount was based on a total insurance expense of $1,541, and the respondent’s share, at 37%, was based on his imputed income of $40,000 and the applicant’s projected income for 2015 of $68,686.

(c) Should the Provisional Order be Confirmed?

[15] It is noted that in her affidavit filed pursuant to my order, the applicant deposed that she had filled out documents to terminate the child support effective December 17, 2016, being the child’s 18th birthday. In his material, the respondent includes a letter dated January 23, 2017 from the Family Responsibility Office (“FRO”) Ontario, stating that FRO has ceased enforcement and that there are no arrears.

[16] The respondent has filed his T1 General income tax returns and his notices of assessment for the years 2013 to 2016 inclusive. His line 150 incomes are:

2013 2014 2015 2016 $15,219 $15,669 $16,943 $25,035 (includes $9,972 for RRSP income)

[17] The hearing proceeded before me on the basis of the material filed. The respondent elected to call no viva voce evidence.

[18] On the basis of the entire evidentiary record, the threshold issue is whether there has been a change in the respondent’s income since the confirmed order of Korpan J. that would result in a new table amount of child support. I find that there has not been such a change.

[19] The evidence is that the respondent continues to live in, and own, the same properties as he had when this case was before Korpan J. The respondent still has the same small business income and rental income from the same properties. His current net worth remains in the range as found by Korpan J.

[20] The respondent’s affidavit evidence is that his income is correctly shown in his tax returns, as assessed by the Canada Revenue Agency. The respondent deposes that his rental income and his business income are in the range of $15,000 - $16,000 annually.

[21] This variation proceeding brought by the applicant is little more than a replay of the case before Korpan J. The same recycled arguments are advanced by both parties.

[22] Korpan J. did impute income to the respondent and rejected his argument that his income for 2012 (and ongoing) should be fixed at $14,358. The respondent in essence makes a similar argument now when he deposes that his income is in the range of $15,000 - $16,000 annually. A review of the respondent’s income tax returns for 2013 to 2016 shows his business income as negligible or negative. I do not find that evidence to be credible.

[23] However, in considering the issue of imputation of income to the respondent, I find that little, if anything, has changed from the date of Korpan J.’s decision. I find that there is no reason to disturb the income imputed to the respondent by Korpan J. in the amount of $22,395. There are no new material facts that require a fresh determination as to the amount of rental and business income to be imputed to the respondent. I would not vary the 2015 child support order based on RRSP income for that year.

[24] The applicant’s evidence that the respondent’s income is $40,000 starting in 2013 is little more than an exercise in speculation and guesswork, and that evidence should not inform the decision whether or not to confirm the provisional order.

[25] I find that the respondent’s annual income for child support purposes for the years 2013-2016 inclusive remains at $22,395. Accordingly, there is no change in the table amount of child support for those years.

[26] Despite the respondent’s submission to the contrary, I do confirm the finding of Bast J. that the applicant, for 2015, had a s. 7 extraordinary education expense of $1,541. However, the respondent’s share should be reduced given the finding that his income for 2015 is $22,395. Accordingly, based on the applicant’s income of $68,686 for 2015, the respondent’s share is 25% (rounded) which translates to $385 (rounded).

[27] Para. 2 of the provisional order required the respondent to pay his proportionate share, monthly, of s. 7 extraordinary school expenses. However, there is no evidence of such expenses except the insurance expense for 2015. Accordingly, para. 2 is not confirmed.

ORDER

[28] I make the following order:

1. The provisional variation order of Bast J. dated October 21, 2015 made in the Court of Queen’s Bench of Alberta, in particular paras. 1 and 2 thereof, is not confirmed.

2. Para. 3 of the aforesaid provisional variation order is confirmed, except that the amount to be paid shall be $385, and not $570.

3. The clerk shall send a copy of the signed and issued order, and the reasons, to the Ontario Interjurisdictional Support Orders Unit, to the applicant and to the respondent, and shall file proof of service.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: July 27, 2017

COURT FILE NO.: F223/05-02 DATE: July 27, 2017 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: Evelyn Erica Van Beest Applicant - and - David Hugh Rock Respondent REASONS FOR JUDGMENT MITROW J. Released: July 27, 2017