Longmire v. Longmire, 2018 ONSC 4536
COURT FILE NO.: FS-17-21714 DATE: 20180727 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dyan Lily Longmire, Applicant AND: James Dennison Longmire, Respondent
BEFORE: Kiteley J.
COUNSEL: Both parties self-represented
HEARD: June 27, 2018
ENDORSEMENT
[1] The Applicant and Respondent married in 2001 and have two children: Tasha born May 13, 2000 and Kate born March 2, 2004. They separated in 2008. In an order dated December 6, 2011 by Justice Pierre L. Muise of the Supreme Court of Nova Scotia, the parties were divorced. The order also provided that the parents have joint custody of the children; that the Applicant was the primary care giver; that the Respondent have parenting times each year from July 15 to August 31, 10 days during the Christmas holiday and 10 days during March Break. The consent final order contained the following terms:
James Longmire shall pay to Dyan Longmire, for the maintenance and support of the children, the amount of EIGHT HUNDRED Dollars ($800.00) per month, based on his projected 2011 annual income of $56,200.00 as per the Federal Child Support Guidelines. Such payments will commence on the 1st day of November, 2011 and will continue on the 1st day of each and every month, until such time as the children are no longer dependant children of the marriage within the meaning of the Divorce Act, 1985.
…
The parties agree that, as of October 31, 2011, the arrears owing from James Longmire to Dyan Longmire are set at $4,600.00.
Given that the children reside in Ontario and James Longmire resides in Nova Scotia, it is agreed that James Longmire will not contribute to Section 7 expenses. However, Child Support shall not be decreased due to his increase in parenting time costs.
James Longmire shall notify each [sic] Dyan Longmire of any changes in his employment and he shall provide her with a copy of his income tax return, completed and with all attachments, even if the return is not filed, along with all notices of assessment received from Canada Customs and Revenue Agency, on an annual basis on or before June 1st.
[2] The Applicant lives in Toronto and the Respondent lives in Digby, Nova Scotia.
[3] On August 8, 2017, the Applicant issued an application in Toronto in which she asked for a provisional order that the child support be adjusted ongoing and retroactive to 2012 based on the Respondent’s financial disclosure. If the Respondent did not provide disclosure, she asked that the court impute an income to him of $100,000 and order child support in the amount of $1,416 per month. She asserted that the Respondent had not provided any disclosure notwithstanding paragraph 10 of the final order. She also asked for s. 7 expenses for orthodontic treatment for the younger child in the amount of $6,580 and an order that parties agree to other s. 7 expenses, failing which either party could return to court.
[4] At the initial hearing on August 24, 2017. I made an order requiring Mr. Longmire to provide disclosure including copies of income tax returns, attachments and notices of assessment for 2011, 2012, 2013, 2014, 2015, and 2016 as well as bank statements, credit card statements, applications for credit, a current credit bureau report and health benefits available through employment. I also made an order authorizing the hearing by video conference.
[5] On or about September 19, 2017 court staff forwarded to Mr. Longmire by mail a copy of the Application, supporting affidavit, form 13 financial statement and the order dated August 24, 2017.
[6] The matter came before me on April 26, 2018. The arrangements for video conferencing had not been made but Mr. Longmire participated by telephone. Mr. Longmire had provided some income information for the years of 2011 to 2016 but by text message. He conceded that he had not complied with the disclosure order. Based on the information he did provide, Ms. Longmire calculated the arrears of child support and she sent to Mr. Longmire an offer to resolve all outstanding issues. He had not replied. Furthermore, based on the income information he provided on April 26, 2018, it seemed that the information he had given her was not correct. Ms. Longmire was concerned about the orthodontist expense. I urged the parties to communicate directly to try to resolve that issue.
[7] Tasha was expected to attend her graduation on June 28 and Mr. Longmire expected to attend. If he came for the graduation, he agreed to attend the hearing in person.
[8] On April 26, 2018 I made a detailed order requiring Mr. Longmire to provide income information for 2011 to and including 2017 by May 7, 2018. I ordered Ms. Longmire to send to him by May 14, 2018 her calculation of the arrears of child support based on his line 150 income. I ordered Mr. Longmire to send to Ms. Longmire by May 21, 2018 his calculation of the arrears. I directed Mr. Longmire to serve and file by June 4, 2018 a form 13 financial statement. I directed the provisional hearing to be held on June 27, 2018, in person if Mr. Longmire came to Toronto for the graduation and by video conference if he did not.
Nature of the hearing
[9] As indicated above, this started as a provisional hearing pursuant to s. 18(2) of the Divorce Act. However, Mr. Longmire agreed to attend the hearing in Toronto. Pursuant to s. 17.1 of the Divorce Act the parties agreed that the hearing proceed on the basis of their submissions and evidence consisting of the Application, the Applicant’s affidavit sworn August 15, 2017, the Applicant’s form 13 financial statement sworn August 15, 2017, the Respondent’s form 13 financial statement sworn June 27, 2018 (which was marked as exhibit 1) and exhibits 2-9 as follows:
Exhibit 2: Mr. Longmire’s bank account statements dated May 15, 2015 to June 15, 2018 Exhibit 3: Mr. Longmire’s credit report from Credit Karma and Transunion Exhibit 4: Ms. Longmire’s letter with her calculation of arrears Exhibit 5: Mr. Longmire’s handwritten calculation of arrears Exhibit 6: Mr. Longmire’s tax information from 2011 to 2017 Exhibit 7: s. 3(3) of the Child Support Guidelines confirming that the applicable table is for the province of Nova Scotia where Mr. Longmire resides Exhibit 8: Fax dated June 26, 2018 from Nautical Seafood Ltd. sent to the court listing Mr. Longmire’s year to date pay and deductions.
Analysis
[10] As a result of the exchange of documents, information and calculations of arrears, the parties agreed to the amount of the arrears. Ms. Longmire had prepared a table that I have modified by deleting 2011 and adding 2018 as follows:
| Year | Actual Income | Child Support Nova Scotia | Annual Support | Credit Paid | Balance Due Annually |
|---|---|---|---|---|---|
| 2012 | $67,482.00 | $935.56 | $11,226.72 | $9,600 | $1,626.72 |
| 2013 | $74,802.00 | $1,032.27 | $12,387.24 | $9,600 | $2,787.24 |
| 2014 | $96,938.25 | $1,308.66 | $15,703.92 | $9,600 | $6,103.92 |
| 2015 | $80,403.25 | $1,107.40 | $13,288.80 | $9,600 | $3,688.80 |
| 2016 | $100,150.00 | $1,351.83 | $16,221.96 | $9,600 | $6,621.96 |
| 2017 | $54,000.00 | $755.00 | $9,060.00 | $9,600 | $540.00 |
| 2018 Jan.to June | $72,000.00 | $1,016.00 | $6,096.00 | $4,800 | $1,296.00 |
Total Arrears: $22,168.64
[11] Mr. Longmire conceded the arrears as calculated by Ms. Longmire in Exhibit 4 but he took the position that he should get credit for three amounts: (a) the amount of $2,468 for having the children for the summer for 6 weeks and the other school breaks for 10 days each; (b) the amount of $1,680 for paying for cell phones for the girls; and (c) the amount of $10,913 for costs for the children to travel to and from Digby. The order does not permit credits for the extended vacations when the children are with him or for the travel expenses. Indeed, paragraph 9 of the order anticipates such requests and does not permit such credits. There was never an agreement that he would get credit for cell phones. He is not entitled to any credits.
[12] Ms. Longmire took the position that Mr. Longmire should be required to contribute to the orthodontic expenses to be incurred for Kate. However, paragraph 9 of the order also makes it clear that he will not contribute to s. 7 expenses.
[13] The only issue between the parties was when Mr. Longmire would pay the significant arrears. Once the foregoing facts were agreed upon, I recessed to give the parties the opportunity to try to reach an agreement. They were unable to do so.
[14] Tasha was 18 years old on May 13, 2018. She graduated high school and is not going to college. Following her usual summer with her father, she will stay in Digby and work for the next year. As of the end of June, 2018, Mr. Longmire has no obligation to pay child support for Tasha. As of July 1, 2018, Mr. Longmire is required to pay support only for Kate.
[15] In making a variation order, the court must address the question of the arrears. In this case, all of the arrears accumulated because Mr. Longmire never complied with paragraph 10 of the order and never gave any disclosure. Once he fully disclosed, it is apparent that he withheld information that would have had a significant impact on his monthly support obligations over the last 7 years.
[16] Mr. Longmire’s form 13 financial statement indicates that he has a 1/3 interest (with his brothers) in two properties and a ½ interest in another property. He did not disclosure it in his financial statement, but he may be an owner of 1/3 of the shares of Paige 1 Fishery. He has listed two RBC bank accounts each with a balance of approximately $5,000 which he says are trust funds resulting from the settlement of a lawsuit and represents the damages to which the girls are entitled. He is an undischarged bankrupt because he says he does not have the money to pay his trustee to process the discharge documents.
[17] Mr. Longmire was willing to continue to make monthly payments at $800 per month and offered to increase it to $850 per month. Based on $72,000.00 income, he is required to pay child support for one child in the amount of $616. If he increased his current payment to $850, then $234.00 would be applied against the arrears. At the rate of $234.00 per month, it would take many years to pay and indeed would only finish after Kate turned 18 on March 2, 2022. Ms. Longmire was not interested in such a prolonged payment. She is anxious to have the arrears paid as soon as possible so that she can pay the orthodontist fees.
[18] It was not within the scope of this variation hearing for me to make decisions as to how all of the arrears will be paid. The Director, Family Responsibility Office has authority to pursue him for the arrears. In the meantime, I indicated to Mr. Longmire that I intended to make an order that he continue to pay the amount he has been paying, namely $800 per month, plus the $50.00 he offered to pay, even though Tasha is no longer entitled to child support and his monthly payment should be reduced to $616 on his 2018 income. Given the accumulation of arrears over almost 8 years, he ought not to be entitled to the reduction to $616. The excess of $234.00 per month will be applied against the arrears.
[19] At the conclusion of the hearing, I outlined to the parties the terms of the order I would make but did not give them an endorsement on June 27, 2018. I did not ask for submissions as to costs. Ms. Longmire has represented herself throughout this hearing but she has incurred disbursements. She has been wholly successful on the question of the arrears and is presumed entitled to some costs.
PURSUANT TO S. 17.1 OF THE DIVORCE ACT, FINAL ORDER TO GO AS FOLLOWS:
[20] Paragraphs 6 and 8 of the order dated December 6, 2011 are deleted and the following substituted therefor:
On consent, James Longmire shall pay to Dyan Longmire child support for Kate Josie Longmire, born March 2, 2004 in the amount of $616.00 per month based on 2018 annual income of $72,000 as per the Federal Child Support Guidelines. Such payments will commence on the 1st day of July 2018 and will continue on the 1st day of each and every month, until such time as the child is no longer a dependant child of the marriage within the meaning of the Divorce Act, 1985.
On consent, as of June 30, 2018, the arrears owing from James Longmire to Dyan Longmire are set to $22,168.64.
[21] Commencing on the 1st day of July 2018 and on the 1st day of each and every month, James Longmire shall pay Dyan Longmire on account of retroactive child support for Kate Josie Longmire born March 2, 2004 and Tasha Nicole Longmire, born May 13, 2000 the amount of $234.00 per month, for a total payment of $850.00 per month, until further court order.
[22] The Director, Family Responsibility Office shall use whatever mechanisms are available to enforce the order and to collect the arrears.
[23] Paragraphs 9 and 10 of the final order dated December 6, 2011, referred to above, continue to apply and shall be incorporated in this final order.
[24] Mr. Longmire shall pay costs to Ms. Longmire in the amount of $400.00 on account of disbursements she incurred in bringing this proceeding, to be enforced by the Director, Family Responsibility Office as child support.
[25] Support Deduction Order to issue.
[26] Ms. Longmire may take out this order without approval as to form and content by Mr. Longmire.
Kiteley J. Date: July 27, 2018