CITATION: Newman v. Nicholson, 2017 ONSC 7922
COURT FILE NO.: FC-08-1156-3
DATE: 2017/02/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SUSAN RAE NEWMAN – Applicant
- and –
CAMPBELL LlOYD ROSS NICHOLSON – Respondent (Moving Party)
BEFORE: The Honourable Madam Justice Liza C. Sheard
COUNSEL: Applicant, Self-Represented
Respondent (Moving Party), Self-Represented
HEARD: October 28, 2016
additional reasons and amendments to the January 06, 2017 ENDORSEMENT
The Additional Reasons and Amendments to the January 6, 2017 Endorsement are Attached as Schedule “A”
[1] Both parties are self-represented. Many of the materials filed were not in the continuing record; not sworn or photocopied. The poorly-assembled materials posed a challenge to the Court in determining the issues.
[2] The Respondent Father (“the Father”) brings a motion to change the order of (then) Master Roger dated January 26, 2012 (“the Roger Order”). In his motion, the Respondent Father seeks an order to:
(1) Retroactively adjust child support payments for the parties’ son, Kai James Nicholson born July 2, 2002 (“Kai”) based on the Father’s actual income (Line 150 of Income Tax Return);
(2) Balance other agreed costs “primarily hockey” proportionate to the incomes using the Line 150 figures; and
(3) Restore his driver’s license so that he can work and drive his son to hockey.
[3] The Applicant Mother (“the Mother”) also had a motion returnable on October 28, 2016. The Mother sought an order:
(1) Setting arrears of child support at $7,870.65 plus interest at the rate of 3% from the date of default as per the final order;
(2) Seeking arrears of s. 7 expenses at $14,434.18;
(3) That the final order dated January 26, 2012 be varied to:
(a) Imputes a minimum amount of $43,000 to the Father;
(b) Applies the table amount for the imputed income; the monthly child support amounts of $388;
(c) Direct the Director of the Family Responsibility Office to enforce payment of special expenses and that amounts owing under the order shall be paid to the Director who shall then pay them to the person to whom they are owed.
(4) Enforcing the Father’s compliance with the Roger Order which required the Father to contribute $1,000 annually into an RESP for Kai’s education.
(5) Costs of this motion and the motion of August 23,2016 on a full indemnity basis; and,
(6) Such further and other relief as counsel may advise and this Honorable Court permits.
[4] On August 23, 2016 the Mother’s Motion to Change the Roger Order was argued and disclosure by both parties was ordered. Part of the Mother’s Motion was reserved, and the balance was put over to October 28, 2016. By endorsement dated August 30, 2016 Justice Doyle granted the Mother’s motion, in part, and changed the custody and access of Kai.
[5] The Roger Order had granted the parties joint custody of Kai, whose primary residence was to be with the Mother; the Father had access as per a fixed schedule and, the Father was to pay child support of $388 per month based on an annual income of $43,974.
Disclosure Order made August 23, 2016
[6] By handwritten endorsement of August 23, 2016, Justice Doyle ordered that:
On consent, the Court orders that within 30 days; (1) Ms. Newman will provide the receipts for s. 7 expenses claimed from January 1, 2012 and a sworn Form 13 Financial Statement; (2) Mr. Nicholson will serve and file; (i) an updated Form 13 Financial Statement and a copy of his 2016 contracts; (ii) his 2014 and 2015 Income Tax returns.
He will also provide his 2014 and 2015 Notice of Assessment when he receives the same.
His motion to change child support is adjourned to October 28, 2016 at 10:00 a.m. for 1 hour. He will serve F.R.O. (the Family Responsibility Office) with his materials.
[7] The endorsement further made an order in accordance with paragraph 1(c) of the Mother’s notice of motion dated July 22, 2016 (Vol. 1 - Tab.8). That paragraph reads as follows:
An order requiring the parties to forthwith (in the next 10 days) take the necessary steps to split the joint Ivari insurance policy #080292285 such that each party herein becomes the owner of the policy on his life and maintains and designates the other parent or a third party as beneficiary in trust for Kai Nicholson as security for his support. In this regard, the parties shall cooperate in completing and signing the necessary paperwork including but not limited to the policy service application and the notice of transfer of ownership attached as Schedule A to the notice of motion.
Custody and Access Order August 30, 2016
[8] In her endorsement of August 30, 2016, Justice Doyle, gave the mother custody of Kai with limited access to the Father.
[9] These motions were before me on October 28, 2016. The materials filed by the Father were date-stamped October 28, 2016. Those included a photocopy of a Form 13 Financial Statement apparently sworn on October 26, 2016 and photocopies of the Father’s Notices of Assessments for 2012 and 2013 and a copy of his 2014 and 2015 Income Tax Returns. Also before me was the Father originally signed and sworn affidavit dated October 26, 2016 containing his Line 150 income information in support of his motion to vary child support. The Father did not serve F.R.O. with his motion. The power to restore his Driver’s License rests with F.R.O. and for that reason this Court cannot address that request.
[10] In her affidavit, filed in response to the Father’s motion, (Vol. 2 - Tab 2, sworn October 21, 2016) the Mother provides a history of the motions to vary the Roger Order (paras. 11-16). The Father apparently brought a motion in December of 2015 asking that his child support payments be reduced or terminated by reason of his reduced income of only $10,345. The Mother responded to that motion and sought a variation of custody and access. That is the motion that appears to have ultimately been decided by Justice Doyle in August of 2016.
[11] Based on the materials before me, I understand that on December 14, 2015 F.R.O. suspended the Father’s Driver’s License as he was more than $5,000 in arrears of table support not including section 7 expenses and the $1,000 annual amount he was to contribute to Kai’s RESP.
[12] At paragraph 19 of her affidavit, the Mother confirms that F.R.O. recorded that the Father was in arrears of $7,870.65 as of October 16, 2016. In addition, the Mother states that the Father has not contributed his share of s.7 expenses. In particular, Kai plays competitive hockey and she seeks contributions by the Father to the costs of that sport. Each party had some issues with the other’s accounting with respect to monies paid for support and s. 7 expenses claimed.
[13] The Mother asserts that the Father is underemployed for a variety of reasons, including his “addiction patterns” (para. 27.) She asserts that if the Father was working full-time and billing for his time he would be earning an income in the range of $180,000 per year. Were he to be employed as a company he would earn in excess of $90,000 per year. At the hearing before me, the Father acknowledged that he has the ability to earn more money but that he is a “poor businessman.”
[14] The Mother asked the Court to impute income to the Father because he is self-employed and his Line 150 income reflects deductions that are related to his living expenses and also that the Father is a “brilliant architectural lighting person” and is “deliberately under-employed.”
[15] The Mother also asserts, with justification, that the Father has failed to provide the financial details that he is obliged to do pursuant to the Family Law Rules, O.Reg 114/99 and as ordered by Justice Doyle on August 23, 2016.
[16] On the hearing before me, the Father presented as overwhelmed and distraught. He was tearful for part of his submissions on the motion. The Father acknowledged that he has not paid anything to the RESP. He asserts that he would be better able to earn money if he had a car.
[17] As stated above, restoring the Father’s Driver’s Licence must be addressed on motion to F.R.O. However, the arrears accrued prior to August 2016, prior to losing his Driver’s License. I also note from the Support Enforcement Record that a Refraining Order was made in December of 2014.
[18] This is a difficult situation. The Mother is entitled to receive proper support for Kai, yet, in part, the Father seems emotionally or otherwise unable to fulfil his own employment/career potential.
[19] His emotional or other problems aside, the Father has chosen to pay his credit card and other debts rather than to keep up with his child support, section 7, and RESP payments. In his submissions and as evidenced by his Financial Statement, the Father has been making debt payments shown at $425 on the October 26, 2016 financial statement. On the motion, the Father explained that he suffered a dip in income that resulted in his having to go significantly into debt.
[20] In his Financial Statement sworn on December 15, 2014 he identified total debts of $54,000 (including a debt of $4,000 to the Mother). In his Financial Statement sworn on October 26, 2016 the Father now identifies debts of $88,348 which include a debt to the Mother of $7,800 and a new debt to CRA for HST of $20,000. He continues to show $6,500 for a car loan, the same amount shown in his Financial Statement sworn on December 15, 2014. At that date he swore that he was paying $179 monthly against that car loan. Again, comparing his 2014 and 2016 Financial Statements it appears that the Father has increased his TD line of credit by $1,350, increased his TD Visa by $2,020, has increased his Master Card by $678, has increased the amount he owes to the Mother by $3,800 and has a new debt to CRA for HST of $20,000.
[21] Despite his increased debt, in his submissions and as shown in his Financial Statements, it would appear that the Father is paying his commercial debt but failing to meet his financial obligations to support Kai. In his submissions, the Father stated that he did understand that he could benefit from credit counselling and, possibly, a proposal in bankruptcy. He had been reluctant to take those steps but acknowledged that the time may have come for him to do so.
Income for 2014 – Retroactive Variation of Child Support
[22] Based on the evidence before me, I am not satisfied that it would be appropriate to retroactively vary the amount of child support payable by the Father any earlier than 2014. Based
on the Father’s 2014 tax return, it would appear that his net income was $35,288.37. That amount was arrived at by adding his employment income of $13,095.92 to his stated net professional income of $21,049.74. In arriving at his net professional income, the Father deducted various expenses including motor vehicle expenses, capital costs allowance (“CCA”), meals and entertainment from his gross employment income of $35,304.60. . In addition, the Father deducted $6,150 for the business use of his home. Those expenses include heat, electricity, insurance, maintenance, rent and water. While those may be proper deductions from his business income, for the purposes of calculating his income for child support, I have added some of those deductions back in to his income.
[23] Therefore, for the purposes of determining the Father’s income for 2014, I determine his income to be comprised of employment income of $13,095.92 and professional income which I determine to be $27,647 ($21,049.74 + 5,000 home expenses + $598.99 CCA) for a total 2014 income of $40,742.
[24] Based on income of $40,472, the amount payable by the Father in Table Child Support for Kai in 2014 would be $367.12 per month.
[25] Should the Notice of Assessment be significantly different from the amount reported in his 2014 Income Tax Return, then these figures may require further consideration by a court.
Income for 2015
[26] In 2015, the Father had no employment income but had professional income which he reported to be $43,227.50 in gross income and net income of $28,057.25. For the reasons explained above, to his net professional income, I include the CCA of $1,165.05 together with the expenses claimed for business use of his home of $5,000. Adding in those two amounts brings his 2015 income up to $34,022.30. For the purposes of determining the Father’s income for child support I impute an income to the Father in 2015 of $34,222. Therefore, his Table Child Support payable for Kai in 2015 would be $294.40 per month.
[27] Again, if the Father’s 2015 notice of assessment is significantly different from the income he has reported in his 2015 income tax return, then these figures may be adjusted accordingly.
Income for 2016
[28] The Father did not comply with the order of Justice Doyle who ordered him to provide particulars of his contracts for 2016. In the Financial Statement filed and dated October 26, 2016 the Father reported self-employment income totalling $43,200. I accept the submissions of the Mother that the Father is able to earn more money. From his submissions the Father also believes that he could earn more money if he were a better businessman. Despite that admission, I see no benefit to an order that imputes an income that the Mother acknowledges cannot be earned by reason of the Father’s addiction or other problems. For that reason, for the purposes this motion, I determine the Father’s 2016 income to be $43,200 and order him to pay 2016 Table Child Support in the amount of $398.88 per month.
[29] The Mother is not pursuing a claim for recovery of section 7 expenses for 2011 and 2012 as the Father pay $14,434.18 which represents 50% of the section 7 expenses she has paid for 2013 to 2016 as follows:
i) 2013
$3,456.29
ii) 2014
Medical dental and sports Hockey Gear
$6,192.22 $1,176.12
iii) 2015
Medical dental and sports Hockey Gear
$5,808.21 $1,176.12
iv) 2016
Medical dental and sports Hockey Gear
$9,436.16 $1,176.12
TOTAL
$28,868.37
[30] The Mother acknowledges that in 2014 the Father paid $2,450.62 for Kai’s section 7 expenses. This figure is taken from the Father’s affidavit sworn October 26, 2016, Appendix 14A-1 on which he lists his payment of Kai’s section 7 expenses of 2,939.62 less a deduction of $489 which the Father claimed to have paid for hockey camp fees, but which the Mother claims she paid.
[31] The Mother acknowledges that in 2015 the Father paid $4,070.90 for Kai's section 7 expenses. This figure is taken from the Father's affidavit sworn October 26, 2016, Appendix 14A-2 on which he lists his payment of Kai's section 7 expenses $4,829.30 less a deduction of $758.40 for payments which the Father claimed to have made but which the Mother claims she paid.
Arrears
[32] For the reasons set out in this endorsement, I make no variation of any arrears owing in child support prior to 2014, which includes section 7 expenses. Accordingly, I determine that the Father owes $1,728.14 with respect to his 50% contribution toward Kai's 2013 section 7 expenses.
[33] I accept the figures used by the Mother with respect to the amounts she has paid for section 7 expenses for the years 2014, 2015 and 2016. I also accept the submissions of the Mother that the section 7 expenses that the Father claims to have made for 2014 and 2015 should be reduced. For clarity, I find that the Father has paid section 7 expenses in 2014 of $2,450.62 and in 2015 of $4,070.90. As with the expenses incurred by the Mother, these expenses shall be shared by the Mother and the Father in proportion to their incomes: the incomes to be used for the Mother shall be her line 150 income as reported in her income tax returns and the incomes to be used for the Father shall be as set out in this endorsement.
[34] Should the parties not be able to agree on the calculation of their proportionate share of the section 7 expenses, they may make written submissions to me not to exceed three pages in length on that issue.
[35] With respect to arrears in child support, I make no change in the amounts owing up to and including December 31, 2013 as may have been determined by F.R.O.
[36] With respect to child support payable from January 1 to December 1, 2014, there will be a retroactive reduction in child support from $388.00 a month to $367.12 per month. The arrears shall be adjusted accordingly.
[37] With respect to child support payable from January 1 to December 1, 2015, there will be a retroactive reduction in child support from $388 per month to $294.40 per month. The arrears shall be adjusted accordingly.
[38] With respect to child support payable from January 1 to December 1, 2016, there will be a retroactive increase in child support from $294.40 per month to $398.88 per month. The arrears shall be adjusted accordingly.
[39] Notwithstanding the above, in the event that there has been an overpayment of child support by the Father, he shall not be entitled to return of such overpayment. Rather, the overpayment will be applied toward the amounts he still owes with respect to contributions to Kai's RESP.
[40] Should the parties not be able to agree on the calculation of the amounts owing in child support arrears, they may make written submissions to me not to exceed three pages in length on that issue.
[41] A copy of this endorsement shall be submitted by the Father to F.R.O. who may recalculate the child support arrears using the income figures determined above.
[42] I do not vary the Father's obligation to contribute to Kai's RESP in the amount of$1,000 per year.
Costs
[43] The Mother has asked for her full indemnity costs. In her affidavit sworn October 21, 2016 (V2, T2) she claims to have incurred total legal costs in the amount of $12,391.68. That figure is based upon the legal accounts attached as Exhibit "H" to that affidavit from the law firm of Victor Ages Valance LLP dated July 26, 2016 and August 24, 2016.
[44] Although the Father has enjoyed some success on his motion to reduce the amount owing in child support, the Mother also enjoyed success with respect to the custody and access of Kai. More importantly, the materials show that the Father has had the skills, education and talent to earn a significant livelihood and to properly provide for the support of his son. He has failed to do so, in part due to the choices he has made and in part through his personal health and addiction challenges. Overall, and in consideration of the factors in Rule 24 of the Family Law Rules, O. Reg 114/99, I conclude that the Father has behaved unreasonably in his conduct of this litigation in failing to provide the financial information required of him both pursuant to the Rules and as ordered by Justice Doyle. Also, he failed to follow the direction of Justice Doyle in serving his motion material s on the Family Responsibility Office which fettered the Court in determining one of the issues that he raised, namely, the reinstatement of his Driver's Licence. He failed to prepare or to serve and file his responding materials in a timely way. By contrast, the voluminous materials prepared by the Mother were of great assistance to this Court. I conclude, therefore, that the Mother is entitled to her costs of this motion, fixed in the amount of $10,000. This amount is less than she is asking for and is intended to reflect some measure of the Father's success.
Sheard J.
Date: February 24, 2017
APPENDIX A
[1] Following the release of my Endorsement dated January 6, 2017, by e-mail, the Applicant Mother identified errors in paragraphs 30, 31, 32 and 33 of the Endorsement. The Respondent Father was invited to respond to the Mother’s e-mail. He did not.
[2] I have reviewed the amounts set out in Appendices 14A-1-5 attached to the Respondent Father’s Affidavit sworn October 26, 2016 and filed at the hearing of the motion. As a result, the January 6, 2017 Endorsement is amended as follows:
[30] The Mother acknowledges that in 2014 the Father paid $646.02 for Kai’s section 7 expenses. This figure is taken from the Father’s affidavit sworn October 26, 2016, Appendix 14A-1 on which he lists his payment of Kai’s section 7 expenses for 2012 to 2016 of $2,939.62 less a deduction of $489.00 which the Father claimed to have paid for hockey camp fees, but which the Mother claims she paid.
[31] The Mother acknowledges that in 2015 the Father paid $1,130.07 for Kai’s section 7 expenses. This figure is taken from the Father’s affidavit sworn October 26, 2016, Appendix 14A-1, on which he lists his payment of Kai’s section 7 expenses in 2015 of $1,737.38 less a deduction of $267.30 for a payment which the Father claimed to have made but which the Mother claims she paid towards Sens Camp fees. Also deducted from the Father’s 2015 list of payments is $220.00 for a hockey girdle and $120.00 for “1/2 skates” for which the Father has not provided proof of payment.
Arrears
[32] For the reasons set out in this endorsement, I make no variation of any arrears owing in child support prior to 2014, which includes section 7 expenses. Accordingly, I determine that the Father owes $928.66 with respect to his 50% contribution toward Kai’s 2013 section 7 expenses. This amount is calculated using the Mother’s figure of $3,456.29 and the Father’s figure of $1,598.97 paid toward section 7 expenses ($3,456.29 - $1,598.97) ÷ 2 = $928.66.
[33] I accept the figures used by the Mother with respect to the amounts she has paid for section 7 expenses for the years 2014, 2015 and 2016. I also accept the submissions of the Mother that the section 7 expenses that the Father claims to have made for 2014 and 2015 should be reduced. For clarity, I find that the Father has paid section 7 expenses in 2014 of $646.02 and in 2015 of $1,130.07. As with the expense incurred by the Mother, these expenses shall be shared by the Mother and the Father in proportion to their incomes: the incomes to be used for the Mother shall be her line 150 income as reported in her income tax returns and the incomes to be used for the Father shall be as set out in this endorsement.
[3] I make no other amendments to the Endorsement of January 6, 2017.
CITATION: Newman v. Nicholson, 2017 ONSC 7922
COURT FILE NO.: FC-08-1156-3
DATE: 2017/02/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: SUSAN RAE NEWMAN - Applicant
AND
CAMPBELL LLOYD ROSS NICHOLSON, RESPONDENT (MOVING PARTY)
BEFORE: The Honourable Madam Justice Liza Sheard
COUNSEL: Applicant, Self-Represented
Respondent (Moving Party), Self-Represented
__________________________________________
additional reasons and amendments to the January 06, 2017 ENDORSEMENT
____________________________________________
Sheard J.
Released: February 24, 2017