COURT FILE NO.: FC-11-793-2
DATE: 2019/01/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Katherine Smith, Applicant
-and-
Anthony Redhead, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant, Self-Represented
No one appearing for Respondent
HEARD: January 10, 2019
ENDORSEMENT
[1] This is an uncontested trial.
[2] This is a motion to change the child support payable by the Respondent pursuant to the final order of the Ontario Superior Court of Justice, Blishen J., dated February 16, 2012, made pursuant to the Divorce Act[^1]. That order requires the Respondent to pay child support to the Applicant in the amount of $1,416 per month for the support of Isaiah Redhead, born November 28, 2009, and Nevaeh Redhead, born September 5, 2011.
[3] This motion to change is brought pursuant to s.17 of the Divorce Act. The parties were divorced pursuant to the Divorce Order of the Ontario Superior Court of Justice, Labrosse J., dated May 8, 2015, which divorce came into effect 31 days after the date of that order.
Service
[4] The Respondent resides in Texas. The United States is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The Application must be served in accordance with the Convention (Lin v. Wang, 2016 ONSC 3967). The Respondent has been served by mail which complies with the Convention.
[5] The Respondent has also been served by email and has responded to the service of the documents upon him. I find that he is aware of the Applicant’s motion to change.
Law
[6] Section 17(4) of the Divorce Act provides:
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
[7] Section 14 (a) of the Child Support Guidelines[^2] provides:
14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof.
[8] Section 19 (1) of the Child Support Guidelines allows the Court to impute income to a spouse as it considers appropriate in the circumstances, which circumstances include the spouse failing to provide income information when under a legal obligation to do so.
[9] Sections 25 and 21 of the Child Support Guidelines impose a legal obligation on a support payor to provide income disclosure upon the written request of the other spouse, not more than once per year after the making of the order and as long as the child is a child within the meaning of the Guidelines, being a child of the marriage as defined under the Divorce Act.
[10] Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them[^3].
Evidence and Findings of Fact
[11] Based on the evidence before me, I find that the Applicant continues to reside in Ontario, with the children, who continue to reside with her. I find that each child continues to be a child of the marriage pursuant to the Divorce Act[^4].
[12] The Applicant’s evidence, which I accept, is that the child support has not been changed since the 2012 order. The Applicant sent an email to the Respondent on August 14, 2018 asking for his income information as well as for child support to be updated to reflect his current income. The Respondent responded to that email refusing to provide the income information, refusing to update child support and refusing to participate in any court process initiated by the Applicant seeking to update the child support.
[13] The Respondent did not provide income information to the court in the original divorce proceedings. On December 16, 2011, the Respondent was ordered to produce income information to the Applicant but did not comply with that order. The order of February 16, 2012 was made on an uncontested basis, based on imputing income to the Respondent of $100,000 per year. The child support under the 2012 order of $1,416 per month is the table amount payable for two children for a payor earning $100,000 per year, based on the tables in force at the time.
[14] The Respondent resided in Texas at the time of the 2012 order. The evidence before the court at the time of the 2012 order included that the Respondent’s income in 2010 was $68,500, and his income in 2008 was $100,655.
[15] The Applicant’s evidence, which I accept, is that she incurs a number of special and extraordinary expenses for the children’s activities and tutoring. The Applicant is not, however, seeking an additional amount to be payable with respect to s.7 expenses at this time.
[16] The Applicant’s evidence, which I accept, is that the Respondent is an engineer and continues to be employed with the same company as in 2012, in the position of a Principal Application Engineer. The Applicant has provided a copy of a job advertisement from the same company for the same position, dated October 9, 2018, that indicates that the salary range for this position is $109,000 to $161,000 in U.S. funds.
[17] I also accept the evidence of the Applicant that the applicable exchange rate between Canada and U.S. funds is 1.3 (being $1 U.S. = $1.30 Cdn.).
Disposition
[18] The Respondent has failed to provide income disclosure despite being under a legal obligation to do so.
[19] Given the evidence before me, I find that it is appropriate in the circumstances to impute income to the Respondent in the amount of $150,000 U.S. This falls within the salary range paid by his employer for an engineer in his position. This salary is at the high end of the range given the Respondent’s experience and that he has been working for his employer since at least 2012.
[20] Applying the exchange rate of 1.3, I find that the Respondent’s current income for the purposes of determining his child support obligation is $195,000 Cdn.
[21] Applying the Ontario tables[^5], the amount payable for two children for a payor earning $195,000 is $2,617 per month.
[22] I find therefore that there has been a change of circumstances that gives rise to the making of a variation order varying the child support payable pursuant to the order of the Ontario Superior Court of Justice, Blishen J., dated February 16, 2012.
[23] Given the Applicant’s notice to the Respondent on August 14, 2018 that she sought to update child support, I make a final order as follows:
- Pursuant to s.17 of the Divorce Act, paragraph 8 of the Final Order of the Ontario Superior Court of Justice, Blishen J., dated February 16, 2012, is varied to provide that, commencing September 1, 2018, and on the first of every month thereafter, the Respondent, Anthony Redhead, shall pay child support to the Applicant, Katherine Smith (previously known as Katherine Redhead), for the support of Isaiah Redhead, born November 28, 2009, and Nevaeh Redhead, born September 5, 2011, in the amount of $2,617 (Canadian funds). This amount of child support is based on the Federal Child Support Guidelines on an imputed income of $195,000 (Cdn) per year.
Costs
[24] The Applicant did not seek costs of this motion. Accordingly, I order that no costs are payable.
Justice P. MacEachern
Released: January 11, 2019
COURT FILE NO.: FC-11-793-2
DATE: 2019/01/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Katherine Smith, Applicant
-and-
Anthony Redhead, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant, Self-Represented
No one appearing for Respondent
ENDORSEMENT
Justice P. MacEachern
Released: January 11, 2019
[^1]: Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am. [^2]: Federal Child Support Guidelines, SOR/97-175, as am [^3]: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583. [^4]: Section 2 of the Divorce Act states that "child of the marriage" means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [^5]: The Ontario tables are applicable as the Respondent resides outside of Canada, and therefore the tables for the province where the Applicant resides are applicable (Child Support Guidelines s.3(3)(b)).