Kostyk v. Hamilton, CITATION: 2018 ONSC 1713
COURT FILE NO.: D21597/08
DATE: 2018-03-13
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Shawn Kostyk, Applicant
AND: Diane Hamilton, Respondent
BEFORE: Mr Justice Ramsay
COUNSEL: both parties self-represented
HEARD: March 13, 2018 at Welland
ENDORSEMENT
[1] The Respondent moves to change the child support order of Tucker J. dated April 12, 2010. The parties appeared before me today for a settlement conference. The Applicant did not file an Answer or a settlement conference brief but both parties agreed that instead of conducting a settlement conference I should hear their arguments and decide the motion on the materials before me, which includes the affidavit of the Respondent and the parties’ agreement as to their respective incomes and the children’s living arrangements at the relevant times.
[2] The parties agree on the relevant facts. They have three children. Under Tucker J.’s order, which the product of minutes of settlement, the parties share residence of the three children more or less equally. Child support is determined using the following formula, which is set out in paragraph 32 of the order:
- Using this information [income information for the previous year] the parties shall then calculate the child support amount payable by the Applicant to the Respondent from July 1 of each year in accordance with the following formula:
a. Each party’s child support obligation for three children shall be calculated in accordance with the Federal Child Support Guidelines.
b. The Applicant’s child support obligation for three children shall be set off against the Respondent’s child support obligation for three children to determine the set-off amount.
c. The Applicant shall pay to the Respondent the set-off amount plus an additional one-half of the set-off amount.
- Commencing July 1, 2011 and every year thereafter the Applicant shall pay to the Respondent the new child support amount as calculated in the formula above…
[3] At the time of the order, this resulted in child support payments by the Applicant of $700 a month based on his 2009 income of $48,742 and the Respondent’s income of $25,705.
[4] The following material changes of circumstance took place, in chronological order:
a. In 2015 the parties’ incomes changed to $71,258 for the Applicant and $40,171 for the Respondent.
b. In 2016 the parties’ incomes changed to $99,207 for the Applicant and $42,696 for the Respondent.
c. In February 2016 the parties’ older daughter went to live full time with the Applicant.
d. In 2017 the Applicant’s income changed to $79,479.
e. In June 2017 the parties’ younger daughter went to live full time with the Applicant.
f. In December 2017, the new child support tables came into effect.
g. In 2018 the Applicant’s annual income is $65,312.
h. Since January 2018 the Respondent has been voluntarily refunding to the Applicant $380 monthly of the $700 she receives from him.
[5] The parties were required to share income disclosure annually. The Respondent brought this motion in late 2017 after trying unsuccessfully for some time to get the Applicant to make the required disclosure. I shall make an order for ongoing support based on the present circumstances:
a. The Applicant’s annual income is $65,312.
b. The Respondent’s annual income is $42,696.
c. Two of the children live full time with the Applicant. The third child splits his time more or less evenly between both parents.
[6] I propose to calculate child support for the shared child using the formula agreed upon by the parties and set out in the court order. The Applicant’s table amount is $740. The Respondent’s is $390. The “set-off amount” is $350. According to the formula, the Applicant’s obligation is the set-off amount plus an additional half of the set-off amount, or $350+175= $525.
[7] For the two children in the Applicant’s care the Respondent’s obligation is $635.
[8] The result is that the Respondent is required to pay the Applicant $110 per month.
[9] Since January 1, 2018, the Respondent has paid $700 a month, or $2,100. The Respondent has voluntarily repaid him $1,140. She therefore owes him for 2018 the difference of $860 plus $330 for three months’ child support, a total of $1,190.
[10] I have calculated retroactive support from January 1, 2015 using the same method as for ongoing support. I set out my calculations in the attached table. Including the overpayment from January 1, 2018 to date, the Respondent owes the Applicant $4,303 after deducting his underpayments from his overpayments. Rather than make a complicated order for child support over several distinct periods, I shall fix an amount for retroactive child support.
[11] The Applicant came to a different conclusion. He had the Respondent owing him more like $12,000. But he did not apply the extra half set-off to which the parties agreed in 2010. He also used the current table amounts throughout, not just for the period since they came into effect.
[12] The order of Tucker J. is varied by adding the following paragraph after paragraph 33:
33.1 Notwithstanding any other provision of this order, commencing April 1, 2018 the Respondent shall pay child support to the Applicant at a rate of $110 per month based on the Applicant’s annual income of $65,312 and the Respondent’s annual income of $42,696. The amount ordered is the difference between the Respondent’s table obligation for two children (Mackenzie Kostyk and Grace Kostyk) and the Applicant’s obligation for one child with shared residence (Hunter Kostyk). The Applicant’s obligation for Hunter is calculated according to the formula in paragraph 32.
33.2 For the period from January 1, 2015 to March 31, 2018, taking into account the amounts paid by the Applicant during that period, which the Respondent is entitled to keep, the Respondent shall pay the Applicant child support fixed at a total of $4,303 for the whole period, at a rate of $100 a month commencing April 1, 2018.
[13] A support deduction order shall issue. There will be no order as to costs.
J.A. Ramsay J.
Date: 2018-03-13
Appendix
Retroactive child support
Date
Res.
A
R
A table amt for 1, 2, 3 children
R table amt for 1, 2, 3 children
2015
3 shared
71,258
40,171
649 1055 1379
362 582 767
1379-767=612 612/2=306 612+306=918 A to R
A owes 918 times 12 [11016] less 8400 paid = $2,616.
Jan 2016
3 shared
99,207
42,696
874 1407 1832
385 625 811
1832-811=1021 1021/2=510 1021+510=1531 A to R
A owes 1531 less 700 paid = $831.
Feb 1, 2016 – Dec. 31, 2016
1 w. A, 2 shared
99,207
42,696
874 1407 1832
385 625 811
For the one, R owes 385. For the shared two, A owes 1407-625=782 782+391=1173 The difference: 1173-385=788 A to R
A owes 788 times 11 [8668] less 8400 paid = $268.
Jan 1, 2017 - June 30, 2017
1 w. A, 2 shared
79,479
42,696
720 1166 1521
385 625 811
For the 1, R owes 385 For the shared two, A owes 1166-625=501 501/2=250 501+250=750 The difference: 750-385=365 A to R
A owes 365 times 6 [2190] less 4200 paid = -2010 I.e. R. owes $2,010.
July 1, 2017 – Dec 31, 2017
2 w. A, 1 shared
79,479
42,696
720 1166 1521
385 625 811
For the 2, R owes 625. For the shared one, A owes 720-385=395 395/2=197 395+197=592 The difference: 625-592=103
R owes 103 times 6 [618] plus 4200 paid by A = $4,818.