Dos Santos v. Dos Santos, 2017 ONSC 6627
CITATION: Dos Santos v. Dos Santos, 2017 ONSC 6627
COURT FILE NO.: FS-10-362315-00
DATE: 20171114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MILJANA PETRUSIC DOS SANTOS
Applicant
– and –
SABASTIAO DOS SANTOS
Respondent
COUNSEL:
Renata Kirszbaum, for the Applicant
Harinder Dhaliwal, for the Respondent
HEARD: October 31, 2017
REASONS FOR DECISION
M. D. FAIETA J.
INTRODUCTION
[1] The parties have one child, Petrija Deobela Petrusic Dos Santos (“Petrija”), who was born in August 1988. The parties have been separated since at least 2008. Commencing November 1, 2011 the amount of child support required to be paid by the Respondent increased to $1,699 per month.
[2] Petrija graduated from high school in 2007. She completed an undergraduate degree at York University in May 2012. That September, she enrolled in Ryerson University to study photography. She completed this degree in June 2016 and is now “building up her portfolio” in Japan and intends to pursue a Master’s degree in 2018.
[3] On April 21, 2017 the Respondent brought this motion for an order (1) retroactively terminating payment of child support by the Respondent to the Applicant as of June 1, 2012; (2) directing the Applicant to repay the Respondent the sum of $24,867.29 in child support payments; (3) declaring the Respondent does not currently owe any child support arrears; (4) directing the Family Responsibility Office (“FRO”) to correct its records to terminate child support effective June 1, 2012 and to reduce the arrears to zero.
[4] On June 30, 2017 the Applicant brought a motion to strike the Respondent’s motion for failure to comply with earlier Orders of this court. In the event the Applicant’s motion is dismissed, she submits that child support should be terminated effective September 1, 2013 after Petrija’s 25th birthday rather than as of June 1, 2012.
[5] For the reasons described below, I have dismissed both motions with the exception that I have ordered, on consent, that child support provided under October 2011 Order be varied so that it ends on September 1, 2013.
BACKGROUND
[6] On May 24, 2011, the Respondent was ordered, on consent, to: (1) pay the Applicant the sum of $647 per month; (2) pay their daughter the sum of $3,362.67 on account of tuition, textbooks (the “May 2011 Order”). This Order was based upon the Respondent having an annual income of $70,000.00.
[7] On October 25, 2011 this court ordered that child support be increased to $1,699 per month commencing November 1, 2011 based on the Respondent having a net income of $210,000.00 (the “October 2011 Order”). The Respondent states that his lawyer failed to file sufficient evidence to show that his annual income was, in fact, $77,590.00. The Applicant submits that the court relied on the Respondent’s own evidence in finding his net income to be $210,000.00.
[8] Petrija finished her education at York University in May 2012.
[9] On August 18, 2014 Justice Frank heard the Applicant’s motion for various relief including the enforcement of earlier Orders that required the payment of child support. The Respondent did not attend the motion. Justice Frank’s Endorsement, at page 4, states the following:
… In calculating the amount owing by Mr. Dos Santos pursuant to the court orders, I limited child support to seven months from the date of Greer J’s order, which is to the end of May 2012. This is based on the assumption that after that time Petrija would have completed her course of study at York. There is no evidence before me why Petrija should still be considered a child of the marriage. If she is not, there would be no basis for including in the amounts owed by Mr. Dos Santos, ongoing child support or tuition or supplies. These comments are without prejudice to Ms. Dos Santos advancing this claim on the basis of additional evidence.
[10] On April 24, 2015 the Respondent’s driver’s licence was suspended by the FRO on account of unpaid child support arrears.
[11] On May 14, 2015 the Respondent sent a letter to the Applicant’s counsel which stated that he had contacted Justice Frank’s secretary because the Order issued failed to “mention a few details”. His letter does not reference child support or request that the Order be modified to terminate child support. However his email dated May 20, 2015 to the Applicant’s counsel asserts that Justice Frank’s Order fails to reflect the fact that she (allegedly) ordered that the payment of child support end as of May 2012. By email dated May 28, 2015, the Applicant’s counsel advised the Respondent that she would not be seeking to amend Justice Frank’s Order because it was her client’s view that she did not order termination of child support.
[12] By letter dated February 2, 2016, the FRO advised the Respondent that they had received his notice that child support had terminated. The FRO advised him that the Applicant disagreed with that view. The FRO advised the Respondent that it would continue to enforce the child support order unless it was varied by the court.
[13] On April 5, 2016 the Respondent’s former solicitor, Ravinder Dhaliwal, sent the following letter to the Applicant:
My client has instructed me to filing [sic] a Motion to correct the error in the order of justice [sic] Frank, dated August 7, 2014, regarding termination of child support, which was to end in May 2012 (refer to page 4 para 3 of the endorsement dated August 18, 2014, copy enclosed). Since Petrija has completed her studies at York University (refer to excerpts from Convocation 2012, page 52, copy enclosed). Kindly discuss it with your client and provide us the consent for the above request at you [sic] earliest.
[14] In June 2016 the Respondent’s driver’s licence was reinstated after he entered into a voluntary payment agreement with the FRO to pay the sum of $2,731 per month.
[15] On April 17, 2017, counsel for the Respondent advised counsel for the Applicant that he had prepared motion materials to obtain an order for the termination of child support.
[16] As described at the outset, on April 21, 2017 the Respondent brought this motion for, amongst other things, an order retroactively terminating child support effective June 1, 2012.
[17] On May 30, 2017 this court, on consent of the parties, issued an order that, amongst other things: (1) adjourned the hearing of the Respondent’s motion to October 3, 2017; (2) terminated child support without prejudice to the parties’ right to argue the proper retroactive date of termination on the return of the Respondent’s motion; (3) ordered the FRO to stay enforcement and collection of any arrears of child support until the earlier of October 31, 2017 or a further order of this court.
[18] On June 30, 2017 the Applicant brought two motions returnable on October 3, 2017 for an order striking the Respondent’s motion dated April 21, 2017 and for an order for security for costs.
[19] On September 26, 2017, this court, on consent of the parties, directed the issuance of an order that: (1) adjourned the hearing of the Respondent’s motion from October 3, 2017 to October 31, 2017; (2) before proceeding with his motion on October 31, 2017, the Respondent shall: (a) pay to the Applicant the sum of $5,511.60, in certified funds, as payment of the costs ordered to date (exclusive of interest which the Applicant is entitled to pursue) and (b) pay the sum of $5,000 in certified funds to the trust account of his solicitor which shall remain as security for costs to which the Applicant may be entitled on the Respondent’s motion; (3) The Respondent’s counsel shall maintain the $5,000 in security for costs until the issue of costs on the Respondent’s motion is determined and shall notify the Applicant’s counsel of receipt of the funds; (4) there shall be no costs of today’s motion.
ISSUES
[20] This motion raises the following issues:
Should the Respondent’s motion be dismissed pursuant to Rule 1(8) of the Family Law Rules?
Has there been a material change in circumstances under s. 17(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“Divorce Act”) since the last variation of the child support order on October 25, 2011? In turn, this requires a determination of whether Petrija was a child of the marriage during the period June 1, 2012 to September 1, 2013.
If the answer to question 2 is yes, then should the variation be permitted retroactively to June 1, 2012?
ISSUE #1 – SHOULD THE RESPONDENT’S MOTION BE DISMISSED PURSUANT TO RULE 1(8) OF THE FAMILY LAW RULES?
[21] The Applicant submits that the Respondent’s motion for termination of child support should be struck pursuant to Rule 1(8) of the Family Law Rules because he owes the Applicant more than $10,679.00 pursuant to the May 2011 Order and the October 2011 Order.
[22] I accept the Respondent’s submission that the Applicant has failed to sufficiently explain the basis for the assertion that $10,679.00 is owed pursuant to the above Orders especially given the consequence of the remedy sought by the Applicant. Accordingly, I dismiss the Applicant’s motion to strike the Respondent’s motion to vary.
ISSUE #2: HAS THERE BEEN A MATERIAL CHANGE IN CIRCUMSTANCES SINCE THE DATE OF THE LAST CHILD SUPPORT ORDER?
[23] The determination of whether an Order for the payment of child support should be varied turns on whether there has been a material change in circumstances since the date of the last variation of the child support order: Divorce Act, R.S.C. 1985, c. 3, ss. 17(1), (4); Willick v. Willick 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, paras. 21, 22.
[24] The Respondent submits that Petrija was no longer a “child of the marriage” effective June 1, 2012 given that she completed her undergraduate degree at York University in May, 2012. On the other hand, the Applicant submits that Petrija was no longer a child of the marriage effective September 1, 2013 which is the month following her 25th birthday.
[25] In my view, this issue need not be determined given my conclusion on Issue #3.
ISSUE #3: SHOULD THE RESPONDENT BE PERMITTED TO SEEK A VARIATION OF CHILD SUPPORT RETROACTIVE TO JUNE 1, 2012?
[26] Considerations that apply to a request for a retroactive increase in child support “…such as taking into account the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support …” also generally apply to a request for a retroactive decrease in child support: Gray v. Rizzi, 2016 ONCA 152, paras. 45, 46, 51.
[27] However, it is generally inappropriate for a retroactive order to extend back more than three years before the date that effective notice was given. 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.": Gray, paras. 61, 62.
[28] The Respondent offered no reason in his affidavits to explain the reason for delay in bringing this motion to terminate child support. He did not appeal the October 2011 Order. Instead the Respondent chose not to pay one cent in child support for more than four years until December 2015 when he paid $629.92. At that time his arrears were $79,471.38. The Respondent only paid federal garnishments from December 2015 until August 2, 2016 at which time he commenced paying the sum of $2,075 per month as a result of default proceedings brought by the FRO.
[29] On balance I find that a retroactive reduction in child support to June 2012 is inappropriate. Rather than bring this motion to terminate the child support order much earlier, the Respondent chose to disregard the October 2011 Order for many years until the FRO took enforcement action. The Respondent did not request that the October 2011 Order be adjusted until this motion to vary was brought on April 21, 2017. There is no evidence of any letters or emails exchanged between the parties in 2017 or earlier that indicate that he made any such request. Further, I do not find that the correspondence sent by the Respondent in 2015 and 2016 disputing whether the terms of Justice Frank’s Order dated August 18, 2014 Order reflected her Endorsement provides notice that the Respondent would seek to vary the October 2011 Order. Accordingly, based on the evidence filed, I find that effective notice that the Respondent would be seeking an adjustment of the child support provisions of the October 2011 Order was not given until April 21, 2017.
CONCLUSIONS
[30] Order to go as follows: The Applicant’s motion to strike the Respondent’s motion to retroactively terminate child support effective June 1, 2012 is dismissed. The Respondent’s motion to retroactively terminate child support effective June 1, 2012 is dismissed with the exception that, on consent of the parties, the Order of Justice Greer dated October 25, 2011 is varied by deleting the word “onward” from the third line of paragraph 10 and replacing it with “ending on September 1, 2013”. To be clear, payment of child support is not required for the month of September, 2013. The Respondent owes arrears of child support for the period up to September 1, 2013.
[31] The parties have agreed that the Respondent shall pay to the Applicant costs of $2,000.00 in respect of these motions. I order that this amount be paid within 30 days.
Mr. Justice M. D. Faieta
Released: November 14, 2017
CITATION: Dos Santos v. Dos Santos, 2017 ONSC 6627
COURT FILE NO.: FS-10-362315-00
DATE: 20171114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MILJANA PETRUSIC DOS SANTOS
Applicant
– and –
SABASTIAO DOS SANTOS
Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: November 14, 2017