COURT FILE NO.: FC-12-1125-2
DATE: 2018/05/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JULIE PYGAS Applicant
-AND-
STEPHEN BROWN Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Applicant, self-represented Respondent, self-represented
HEARD: May 18, 2018
ENDORSEMENT
Introduction
[1] The parties were before me in March 2016, when the applicant mother requested a historical review of the child support payable by the respondent. The applicant also requested relief requiring the respondent father to take steps to have the parties’ children added as beneficiaries on his employee benefits coverage for medical and dental benefits.
[2] My original endorsement was issued on May 9, 2016 and amended on May 24, 2016. The end result with respect to the issue of child support was:
a) The respondent was ordered to pay the applicant arrears of child support for the period from September 2012 to and including June 2015 in the amount of $18,927 plus applicable interest (para. 53, item 1 of the amended endorsement (“Endorsement”); and
b) Pending further order of the Court, the respondent was ordered to pay child support for the year 2015 in the amount of $2,126 per month (para. 53, item 2 of the Endorsement).
[3] The respondent’s actual income for 2015 was not known as of the date of the Endorsement. The parties recognized that an adjustment to the monthly child support payable for 2015 might be required once the respondent’s actual income for 2015 was known (para. 53, item 3 of the Endorsement).
[4] The parties returned before me on May 18, 2018 for a determination of a dispute that arose because of the manner in which the Family Responsibility Office (“FRO”) dealt with the issue of arrears of child support for 2015. The applicant’s position is that (a) FRO twice gave the respondent credit for arrears paid with respect to 2015 and, (b) as a result, the respondent has underpaid child support for 2015. The applicant requests an amendment to the Endorsement so as to eliminate the effect of what she describes as an error that resulted in FRO twice crediting the respondent for arrears paid with respect to 2015.
[5] The respondent submits that FRO properly addressed the arrears of child support for 2015 and did not credit him twice for payments made with respect to child support for 2015.
Background
[6] The parties were married in 2002, separated in 2007, and divorced in 2012. They have two children, Connor Stephen Brown (born November 24, 2000) and Hayden Joseph Brown (born June 27, 2004). The respondent paid child support in the amount of $1,325 per month from September 2012 to the end of 2014.
[7] Pursuant to an order made at a December 2015 case conference, and on a temporary, without prejudice basis, the monthly child support payable was increased to $2,126 effective January 2015. The respondent eventually paid child support in that amount for the 2015 calendar year. He continued to pay child support in that amount as of March 2016 when the parties were first before me.
Arrears of Child Support
[8] When the parties were before me in March 2016, two historical periods were in issue for the purpose of determining the arrears in child support:
- The academic terms for 2013-14 and 2014-15, both September through June, when the parties’ oldest son was attending a residential school during the weekdays; and
- August through October 2014 when, it was argued by the respondent, the parties had “joint shared custody” of the children.
[9] I determined that the applicant had sole custody of the children from September 2012 through June 2015. As a result, arrears of child support were calculated on that basis, with the respondent required to pay support for two children during the relevant period.
[10] For the return of the motion in March 2016, the respondent had prepared a chart in which he calculated the arrears in child support owing for the relevant period based on two scenarios. The first scenario was that the applicant had sole custody of the children for the relevant period; the second scenario was that the parties had joint custody for the three months from August to October 2014.
[11] The parties agreed that the respondent had correctly calculated the arrears of child support for the relevant period and for two children. Specifically, the parties agreed that the arrears of child support owing for the period from September 2012 to and including June 2015 were $18,927 (paras. 40-42 of the Endorsement).
[12] Unfortunately, the order taken out pursuant to the Endorsement does not reflect the precise terms of it. Between May 2016, when the Endorsement was issued, and September 2016, when the order was taken out, the parties addressed the arrears for 2015 based on the respondent’s actual income for 2015 (once known). The sum of $1,020 was added to the monetary amount for arrears (for a total of $19,947) and the end date for the arrears was changed from June to December 2015. The order is not limited to the first six months of 2015 as was the Endorsement.
[13] The order identifies arrears for 2015 in its entirety in the amount of $19,947. That figure includes arrears for other years as agreed between the parties.
Enforcement of Arrears by FRO
[14] Included in the record before me in May 2018 is a printout obtained by the applicant from FRO. The printout covers the period from January 2013 through March 2017. The printout includes a record of child support payments made by the respondent and the adjustments made by FRO with respect to (a) the change, effective January 1, 2015, in the amount of child support payable (the increase from $1,325 to $2,126 per month), and (b) the arrears ($19,947) identified in the order issued and entered in September 2016.
a) February 2016 Adjustment of Arrears
[15] In February 2016, FRO addressed the change in the monthly amount of child support payable for 2015. As a result of an order made on consent at a case conference held in December 2015, the respondent’s child support obligation for 2015 was set at $2,126. Based on that order, FRO made an adjustment to address the shortfall of $801 per month ($2,126 - $1,325) paid by the respondent for 2015.
[16] FRO made that adjustment in February 2016. The adjustment included all of 2015 and the first two months of 2016 (14 months in total). The arithmetic involved in the February 2016 adjustment is straightforward and appears to be based only on the terms of the December 2015 case conference order. FRO (a) credited the respondent with $18,550 ($1,325/mo. x 14 mos.), (b) debited $2,126 per month for 14 months, and (c) identified a shortfall in the payments made of $11,214 (14 mos. x $801/mo.).
[17] Neither of the parties takes issue with the arithmetic involved in the adjustment made by FRO in February 2016.
b) October 2016 Adjustment of Arrears
[18] Less clear is the basis for and the impact of the specific adjustment made by FRO in October 2016, following their receipt of a copy of the order issued and entered in September 2016. As noted above, the order does not precisely reflect the terms of the Endorsement. It does not do so for the following reasons:
- The Endorsement addressed arrears in child support from September 2012 to and including June 2015. The $18,927 set out at para. 53, item 1 of the Endorsement took into consideration arrears for 2012, 2013, and 2014, plus arrears of $801 per month for the first six months of 2015;
- Subsequent to the release of the Endorsement and prior to the order being taken out, the respondent’s actual income for 2015 became known. Counsel for the respondent exchanged email communication with the applicant with respect to the calculation of the arrears for 2015 based on the respondent’s actual income in 2015. The respondent’s position was that support payable for 2015 needed to be increased by $85 per month from $2,126 to $2,211; and
- The order taken out reflects arrears in child support from September 2012 to December 2015 (not to June 2015 as per the Endorsement) and in the amount of $19,947 ($18,927 from the Endorsement plus $1,020 ($85/mo. x 12 mos.)).
[19] Before the order was issued and entered in September 2016, counsel for the respondent communicated by email with the applicant to deal with (a) the respondent’s actual income for 2015, (b) a revised calculation of the monthly child support owed for 2015 based on the respondent’s actual income, and (c) the effect of that revision on arrears owing for 2015.
[20] Counsel for the respondent advised the applicant that the respondent’s actual income for 2015 was $167,441. The respondent’s position was that the effect of the respondent’s actual income for 2015 on the monthly child support figure was an increase of $85 per month from $2,126 to $2,211. I note that child support for two children based on that level of income is calculated as follows: $2,012 + (1.14 % x ($167,441-$150,000)) = $2,211. I find that counsel for the respondent correctly calculated the child support payable by the respondent for 2015.
[21] On the return of the matter before me in May 2018, the applicant disputed that she had agreed that the total of the arrears owing from September 2012 to December 2015 was in the amount of $19,947. That issue is addressed below in a separate section of this endorsement.
[22] In the fall of 2016, after receiving a copy of the order taken out, FRO made a second adjustment with respect to arrears of child support. In October 2016, FRO (a) credited the respondent with $9,612 and (b) debited the $19,947 set out in the order. I note that $9,612 represents the difference between $2,126 per month for 12 months ($25,512) and $1,325 per month for 12 months ($15,900).
[23] There is no evidence or explanation from anyone at FRO as to the basis for the adjustment made in October 2016. In an effort to determine the approach taken in October 2016, I have considered the following. First, in February 2016, the $18,550 ($1,325/mo. x 14 mos.) paid by the respondent was balanced against the respondent’s actual child support obligation of $29,764 ($2,126/mo. x 14 mos.). The Case Balance or arrears identified immediately following the adjustment were $11,214 ($29,764 - $18,550).
[24] Second, to avoid the arrears for 2015 being included twice in the Case Balance calculated by FRO, upon receipt of a copy of the order in the fall of 2016, FRO had to reverse, to some degree, the adjustment made in February 2016. FRO had to ‘back out’ of the arrears for 2015 identified in the order, the arrears for which FRO had already made an adjustment in early 2016. From the $19,947 figure set out in the order, FRO therefore subtracted the $9,612 for which it had already made an adjustment in February 2016.
[25] The end result of the October 2016 adjustment was the identification of a Case Balance (arrears) in the amount of $18,049.36 (i.e. as of October 24, 2016). The document produced by FRO dating to March 1, 2017 shows a Case Balance (or arrears) as of that date in the amount of $26,635.14. For the purpose of this endorsement, I am concerned only with the Case Balance identified as of October 24, 2016.
c) Summary
[26] For the reasons set out above I find that:
- The adjustment made by FRO in February 2016, for arrears owing for all of 2015, took into consideration the increase from $1,325 to $2,126 in the monthly amount of child support;
- In the fall of 2016, the only further adjustment that FRO had to make with respect to arrears for 2015 was to add the $85 per month increase based on the respondent’s actual income for that year;
- Given that the February 2016 adjustment made was for arrears owing for the entire calendar year of 2015, it was appropriate for FRO to ‘back out’ of the $19,947 figure the arrears included in that amount for the first six months of 2015 (i.e. included in the $18,927 calculated by me and ending in June 2015); and
- The net effect of the February and October 2016 adjustments made by FRO accurately reflect the terms of the Endorsement and the subsequent addition of $1,020 in arrears for the entire year, 2015.
Calculation of Support (and Arrears) for 2015
[27] On the return of the matter before me in May 2018, the respondent took the position that the applicant had, in 2016, agreed upon $19,947 as the figure that accurately reflected arrears in child support for 2012, 2013, 2014, and 2015. The respondent relied upon an exchange of emails between his former counsel and the applicant in the summer of 2016, prior to the order being issued and entered and upon which FRO based its fall 2016 adjustment of arrears of child support. The respondent’s affidavit sworn May 15, 2018 included copies of the email communication.
[28] The applicant did not have time to prepare and deliver a reply affidavit. She was given the opportunity on the return of the motion to give viva voce evidence with respect to the email communication in the summer of 2016 with the respondent’s former counsel. The respondent was given an opportunity to cross-examine the applicant on her evidence in that regard. In summary, it was the applicant’s evidence that in the summer of 2016 she did not intend to agree that the $19,947 figure included all of the arrears for 2015.
[29] The email exchange includes a message dated June 13, 2016 from the applicant to the respondent’s former counsel. In that message, the applicant says, “I approve the information for the Final Order which you will draft. As for the $19,947, will it also ready (sic) plus applicable interest?” In a responding message sent on the same date, the respondent’s former counsel says, “I will draft the order and will include the standard interest clause.”
[30] Paragraph 5 of the order taken out in September 2016 states that the order bears post-judgment interest at the rate of 2 per cent per annum from the date of the order. In addition, paragraph 5 identifies that payment in default bears interest from the date of default.
[31] There is no evidence of any equivocation on the part of the applicant in the summer of 2016 as to the terms of the order to be taken out. I find that she agreed at the time that the additional arrears owed for 2015 were to be based on $85 per month ($1,020 for the entire year). I find that the applicant’s position on the return of the motion is driven by her concern that FRO did not accurately address arrears of child support. That concern, although understandable given the complexity of the calculations, is not, as I have already determined, well-founded.
[32] I find that the $19,947 figure set out in the order taken out in September 2016 was agreed upon by the parties. The issue of the impact of interest on arrears is not before me. There is nothing to prevent the applicant from inquiring of FRO as to whether their calculation of arrears includes interest from the date of default.
Summary
[33] I find that there was no error in the Endorsement. In addition, the adjustments made by FRO in February 2016 and October 2016 reflect the combined effect of the (a) terms of the Endorsement, and (b) agreement between the parties reached over the summer of 2016 as to additional arrears owing for 2015. The Endorsement does not require amendment.
[34] The applicant’s motion is dismissed.
Other Matters
[35] The parties were self-represented when they appeared before me in May 2018. The materials they each prepared were detailed and well-considered. Both parties were well-prepared, well-spoken, and respectful when making their respective oral submissions.
[36] The confusion that arose for the applicant upon receipt of the FRO statement with respect to arrears is understandable for a number of reasons. First, the FRO statements are not easily understood by a lay person. Second, the approach taken by the respondent’s former counsel with respect to the terms of the order issued and entered in September 2016 was not the correct approach.
[37] Third, the error on the part of the respondent’s former counsel was compounded by an error on the part of the counter staff. The latter did not recognize the discrepancy between the terms of the Endorsement and the terms of the draft order submitted. I fully appreciate that the number of files which the counter staff are managing is very high and errors occur from time to time. I do not wish to be seen as critical of the counter staff.
[38] It is unfortunate that a combination of circumstances led to confusion that continued for a number of months before it was possible for the parties to appear before me again. I hope that with this endorsement, the parties have clarification as to the approach taken by FRO in making adjustments for arrears owing over time.
[39] In all of the circumstances, there shall be no costs on this motion.
Madam Justice Sylvia Corthorn
Date: May 24, 2018
COURT FILE NO.: FC-12-1125-2
DATE: 2018/05/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: JULIE PYGAS, Applicant
AND
STEPHEN BROWN, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Applicant, self-represented Respondent, self-represented
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: May24, 2018