COURT FILE NO.: 15-801
DATE HEARD: January 19, 2018
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Zvaniga v Orton
BETWEEN: Brandy Zvaniga, Applicant and William Orton, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Self-Represented Applicant and Respondent
ENDORSEMENT
[1] This application is brought by Brandy Zvaniga for an order increasing the child support payable by William Orton to 50% of his net pay.
[2] The parties separated in 2003. They have two sons, Michael who turned 18 years old in July 2017 and Christopher, now 16.
[3] In February 2012 Ms. Zvaniga brought a motion that was heard by Ray, J. The motion alleged several years of underpayment of child support by Mr. Orton. The revised amount for monthly child support was set at $1,804 based on Mr. Orton’s 2015 income of $132,000. Arrears of child support were found to be $12,719.80. No repayment terms were set by the court.
[4] In April 2017 Mr. Orton and FRO agreed to a voluntary arrears re-payment arrangement whereby Mr. Orton paid an additional $83.69 per week or $362.37 monthly on account of arrears, plus the ongoing support of $1,804.
[5] Over the course of 2017 the arrears were reduced by about $2,817 and, assuming the same rate of repayment in the future, will reduce by $4,348.44 ($362.37 x 12 months) on a full year basis.
[6] Ms. Zvaniga says the boys hope to enroll in a post-secondary education program and steps need to be taken to recover the arrears more quickly so funds are available to finance their post-secondary schooling costs.
[7] The parties’ agreement regarding post-secondary education costs is that Mr. Orton will pay table amount child support until they obtain their first degree and, at the end of their course of study, he will pay any OSAP loans they incur so they can graduate free of OSAP indebtedness.
[8] In December 2017 Ms. Zvaniga requested that Mr. Orton consent to an order adjusting the ongoing child support due to changes in Mr. Orton’s income. Although Mr. Orton’s income dropped from $131,999 in 2015 to $129,052 in 2016, the recent revisions in the child support guidelines will result in a small increase of child support to $1,863 per month for two children.
[9] Mr. Orton did not agree to this request because he questions Michael’s entitlement to continue to receive child support subsequent to his 18th birthday because he is not enrolled in a program of post-secondary studies. Instead he is staying another year at his secondary school.
[10] The relevant provision in the order of McDermot, J from 2013 provided at paragraph 4:
“The Respondent’s obligation to pay child support to the Applicant as set out above, shall exist until the child’s eighteenth (18) birthday if he is not attending post-secondary education, or if the child is attending school until his first degree of schooling is complete. The Applicant shall provide proof of enrolment to the Respondent by September 10th annually for the children.”
[11] There is an arguable point as to whether Mr. Orton is obliged to pay child support for Michael after July, 2017. The onus is on Ms. Zvaniga as the person seeking the payment to demonstrate entitlement. It was her obligation to ensure that Mr. Orton was fully informed of the situation and was provided with the reasons underlying Michael’s decision to return to secondary school for an additional year. This does not appear to have occurred.
[12] Ms. Zvaniga is ordered to provide Mr. Orton with any documentation that is relevant to the decision that Michael should spend another year in secondary school. This documentation is to be supplied within 30 days. The disclosure shall include but not be limited to a copy of Michael’s marks and progress reports for both last year and this year, his proposed course of study next year, the program requirements, and any medical information that may relate to the decision to spend another year in secondary school. This information may assist Mr. Orton to decide whether he wishes to bring a motion for an order terminating Michael’s entitlement to child support after his 18th birthday. If there are valid reasons why an additional year of secondary school was necessary or advisable, this may be relevant to the issue of ongoing entitlement.
[13] Mr. Orton said he would prefer to maintain the current level of payments even if it is determined that Michael is not currently eligible for child support because the arrears will be reduced more quickly.
[14] Accordingly, an order will issue adjusting the child support for both boys to $1,863 per month based on income of $129,052 for 2016 effective December 1, 2017. This order is without prejudice to the question of Michael’s entitlement after his 18th birthday should Mr. Orton decide to pursue this issue. The voluntary arrears repayment arrangement should continue and would be additional to this amount. If Mr. Orton decides to pursue the issue of Michael’s entitlement and is successful, the ongoing child support may have to be adjusted.
[15] In my view the present rate of arrears repayment is reasonable in the circumstances. In coming to this conclusion I have considered the substantial ongoing child support being paid and that part of the reason for Mr. Orton’s high income is due to substantial overtime work.
[16] I am advised that Ms. Zvaniga has a contempt motion pending for early February 2018 on the issue of Mr. Orton’s refusal to agree to adjust his child support based on the change to his income. At this point it would appear that the contempt motion is redundant because of the order contained in paragraph 14.
[17] On the issue of costs, Mr. Orton was substantially successful and costs are generally awarded to the successful party. He noted that he had significant travel expenses attending in Pembroke to respond to Ms. Zvaniga’s motion.
[18] On the other hand, as Ms. Zvaniga pointed out, he failed to prepare a factum which was specifically ordered to assist the court. By way of comparison, Ms. Zvaniga’s factum was thorough and helpful. Mr. Orton’s non-compliance with the court direction respecting the necessity of a factum ought to be taken into account.
[19] In the result Mr. Orton’s costs are set at $300, payable by Ms. Zvaniga, within 30 days.
[20] The disposition of this motion is therefore as follows:
a. As of December 1 2018 ongoing child support shall be $1,863 based on Mr. Orton’s 2016 income of $129,052 without prejudice to a motion respecting Michael’s entitlement if Mr. Orton decides to bring such a motion after considering the information to be supplied by Ms. Zvaniga.
b. The arrears shall continue to be paid at the rate of $83.69 per week.
c. Ms. Zvaniga’s request that Mr. Orton’s payments be increased to 50% of his net pay is dismissed.
d. Ms. Zvaniga shall pay costs to Mr. Orton fixed in the amount of $300 payable within 30 days.
James, J.
DATE: February 5, 2018
COURT FILE NO.: 15-801
DATE HEARD: January 19, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Zvaniga v Orton
BETWEEN: Brandy Zvaniga, Applicant and William Orton, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Self-Represented Applicant
Self-Represented Respondent
ENDORSEMENT
James, J.
DATE: February 5, 2018