Court File and Parties
Court File No.: 5041/12 Date: 2019-06-17 Superior Court of Justice – Ontario
Re: Nicole Marie Smith And: Matthew James Robert Graham
Before: Mr Justice Ramsay
Counsel: none
Heard: June 17, 2019
Endorsement
[1] The Respondent moves to change the final order of MacPherson J. dated November 15, 2012, which required him to pay $601 per month child support for three children based on his income of $30,538 per year.
[2] The parties reconciled and moved back in together on January 1, 2013. The parties withdrew enforcement from the Family Responsibility Office in March 2013.
[3] The parties separated again in November 2015. The Respondent brought the present motion to change on June 1, 2016. FRO enforcement was reinstated at that time.
[4] In May 2017 one of the children moved in with the Respondent. Another resides with the Applicant. The third child spends more or less equal time with both parents.
[5] The present motion proceeded through conferences, motions for temporary orders, appointment of the Children’s Lawyer and on July 10, 2018 at the trial scheduling conference the Applicant and the Respondent, through their respective lawyers, Dennis Covello and Nathalie Fortier, agreed to 10 days for trial at the sittings of April, 2019, to deal with custody, access and support issues. Two days later, the Applicant filed a notice of her intention to act in person. On December 19, 2018 the Respondent filed a notice of his intention to act in person. On March 25, 2019 Maddalena J. decided the custody and access issues on consent of the parties and the Children’s Lawyer. The support issues were adjourned to today.
[6] Since 2015 the Respondent has not been earning much money because of health problems. He made the decision to go to college and learn how to do home renovations. He has just started his business. He has an operation scheduled for September, so he does not expect to make much money in 2019. If he keeps his health and the business succeeds, he could be making $40,000 or so one day. At the moment he is receiving benefits from Ontario Works.
[7] The Applicant is making about $30,000 a year. She has consistently earned a bit less than that over the last few years.
[8] The Applicant hired a private eye to follow the Respondent for two months or so from April to June 2018. He saw the Respondent working at a retirement home and then for a renovation company. The Respondent claimed the retirement home income on his taxes. The renovation company work was an unpaid assignment that was part of his schooling.
[9] Based on the testimony of the Respondent, the admissions of the Applicant and what documents there are in the file I find or impute the following annual incomes:
| Year | Applicant (Income) | Respondent (Income) |
|---|---|---|
| 2015 | $32,323 (actual) | $24,970 (actual) |
| 2016 | $28,000 (imputed) | $19,000 (imputed) |
| 2017 | $28,000 (imputed) | $18,836 (actual) |
| 2018 | $28,000 (imputed) | $22,000 (actual) |
[10] For the month of December 2015 the Respondent should have been paying for three children based on $24,970 a year, or $511 according to the 2011 table.
[11] From January 1, 2016 to April 30, 2017 (16 months), the Respondent should have been paying for three children based on $19,000 a year, or $360 per month.
[12] From May 1, 2017 to November 30, 2017, child support should be based on split custody of two children and shared custody of one child. Given the parties’ respective incomes for 2017, the Applicant should pay the offset of $204 per month.
[13] From December 31, 2017 to date, based on the new table, the Applicant should pay the set off of $144 per month.
[14] I expect that the parties’ incomes will be equal by next year. I impute $28,000 a year to each of them, with the result that neither party shall pay child support from January 1, 2020.
[15] This family cannot afford hockey. I decline to order s.7 expenses.
[16] I make the following order:
a. Child support ordered by MacPherson J. on November 15, 2012 is terminated effective December 31, 2012. b. The Respondent shall pay child support for the three children mentioned in MacPherson J.’s order in the amount of $511 for December 2015 based on his annual income of $24,970. c. The Respondent shall pay child support for the three children at a rate of $360 a month commencing January 1, 2016 and ending April 30, 2017. d. From May 1, 2017 to November 30, 2017, the Applicant shall pay child support to the Respondent at a rate of $204 per month based on her imputed income of $28,000 a year, the Respondent’s income of $18,836 a year, split custody of two children and shared custody of the third child and the setoff of the table amounts. e. From December 1, 2017 to December 31, 2019 the Applicant shall pay child support of $144 per month based on her imputed income of $28,000 a year, the Respondent’s income of $22,000 a year and the same residence arrangements for the children. f. From January 1, 2020 on neither party shall pay child support. g. SDO to issue. No order as to costs.
J.A. Ramsay J. Date: 2019-06-17