Court File and Parties

COURT FILE NO.: FC-10-732-1 DATE: 2019/07/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tina Marie Guenette, Applicant -and- James Morrisey, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant Self-Represented Respondent Self-Represented

HEARD: January 8, 2019

Endorsement

[1] Ms. Guenette seeks increased child support from Mr. Morrissey for the support of their child, now age nine. Mr. Morrissey seeks increased access.

[2] The parties cohabitated for a few months in 2009. They have one child. The child has always resided with Ms. Guenette, and she has sole custody under the Final Order of Justice Robertson dated November 25, 2010. The 2010 Order provides for Mr. Morrisey to have reasonable access on alternating Sundays for four hours, to be expanded if access goes well. The 2010 Order provides for Mr. Morrisey to pay child support in the amount of $250 per month based on his income being $25,000 per year, and for s.7 expenses to be shared equally. Mr. Morrisey is required to provide his tax returns by June 1st each year.

[3] In her revised Motion to Change, Ms. Guenette seeks child support commencing January 1, 2018, in the amount of $521 per month, and that Mr. Morrisey pay her $355.70 per month towards s.7 expenses. She also seeks monthly child support and contribution to s.7 expenses retroactive to January 1, 2015. Ms. Guenette served her Motion to Change on August 20, 2017.

[4] Mr. Morrisey opposes any increase in child support on the basis that he has other children for whom he also provides financial support. Mr. Morrisey raises his claim of undue hardship in his response to the Motion to Change when he refers to his support obligations to other children, as well as his Affidavit sworn May 1, 2018. Mr. Morrisey also seeks increased access.

[5] The issues to be determined are:

1. What is Ms. Guenette’s income for child support purposes?
2. What is Mr. Morrisey’s income for child support purposes?
3. What child support should Mr. Morrisey be required to pay from the date he received effective notice that Ms. Guenette sought to increased child support? Should Mr. Morrisey child support obligation be reduced due to undue hardship?
4. What child support should Mr. Morrisey be required to pay for the period from January 1, 2015, to the date of effective notice?
5. What should Mr. Morrisey be required to contribute to s.7 expenses?
6. Has there been a material change warranting an increase in Mr. Morrisey’s access? If so, what access is in the child’s best interests?

Issue 1: What is Ms. Guenette’s income for child support purposes?

[6] Ms. Guenette works for Canada Post. She has provided copies of her Notices of Assessment for the period in issue. She did not provided any income tax returns nor confirmation of union dues.

[7] I find that Ms. Guenette’s income is determined under the Child Support Guidelines as follows:

2014- $61,076 (Line 150) 2015- $61,799 (Line 150) 2016- $61,448 (line 150)

[8] Ms. Guenette did not provide her income tax return for 2017 but states her income was $66,553 for the year. I accept this was her income in 2017 because Mr. Morrisey does not take issue with it.

[9] Ms. Guenette did not confirm her income in 2018. She states she was on sick leave, and on Employment Insurance. She provided some income documents in support of her total income in 2018 being $42,760, which I accept.

Issue 2: What is Mr. Morrisey’s income for child support purposes?

[10] Mr. Morrisey has worked for Minimax Express Transportation Inc. since 2013. Mr. Morrisey provided copies of his Income Tax Return Summary Information printouts from CRA.

[11] I find that Mr. Morrisey’s income is determined under the Child Support Guidelines as follows:

2014 - $59,102 (Line 150) 2015 - $53,051 (Line 150) 2016 - $59,205 (Line 150) 2017 - $56,372 (Line 150)

[12] Mr. Morrisey has not provided his income information for 2018. I attribute the same income he made in 2017 to him as income for 2018, being $56,372.

Issue 3: What child support should Mr. Morrisey be required to pay from the date he received effective notice that Ms. Guenette sought to increased child support?

[13] The date that Mr. Morrisey received effective notice that Ms. Guenette was seeking to increase child support was when he was served with the Motion to Change on August 20, 2017. Ms. Guenette has not provided evidence that she asked him to change the child support before that date. The presumption, therefore, is that Ms. Guenette is entitled to change child support as of August 20, 2017.

[14] The main issue herein is whether Mr. Morrisey is entitled to pay less than the table amount based on his income due to his claim of undue hardship. Mr. Morrisey has four other children, and two stepchildren, to whom he claims he provides financial support. There is also a retroactive issue for child support owed before August 20, 2017, which I will deal with below.

3A: Should Mr. Morrisey’s child support obligation be reduced due to undue hardship?

[15] I find that Mr. Morrisey would suffer undue hardship if he were required to pay the full table amount of child support, given his financial support obligations to his other children, and taking into consideration the comparable household standards of living.

[16] Section 10 of the Child Support Guidelines allows a court to order an amount that is different from the table amounts if the court finds that the payor would otherwise suffer undue hardship.

[17] Section 10 requires a multi-step analysis.

Step One:

[18] The first step is whether an order in the Guidelines table amount would cause Mr. Morrisey to suffer undue hardship. The non-exhaustive list of circumstances that may cause a party to suffer undue hardship is set out in s.10(2) and includes a legal duty to support other children.

[19] Mr. Morrisey is under a legal duty to support his other children. He is required to pay child support of $290/m for one child, age seven, under a 2016 Order that considered Mr. Morrisey’s income of $55,000 per year, that he had five children, and the table amount payable for five children. Mr. Morrisey is required to pay $262/m for two other children, now age 19 and ten under a 2008 Order. I also accept Mr. Morrisey’s evidence that he pays approximately $3,000 per year towards the expenses for a fourth child, also age seven. Lastly, I find that Mr. Morrisey resides with two other children, ages ten and four, for whom he has a legal duty to support as one is his child, and one is a stepchild whose father has died.

[20] I find that these circumstances would cause Mr. Morrisey to suffer undue hardship if he was required to pay the full amount of table child support and that, in particular, this would create an undue hardship on the two children in his care, as well as his ability to provide support to his other children.

Step Two:

[21] If the answer to the first step is yes, s.10(3) requires the court to consider the standards of living of the households of both parties. If the person claiming undue hardship has a higher standard of living than the other party based on the payment of support under the Guidelines, the claim must be denied. On this issue, the income of all income earners in both households is relevant.

[22] I find that Mr. Morrisey’s household standard of living is lower than Ms. Guenette’s. I rely on the support calculations provided by Ms. Guenette that have included Mr. Morrisey’s new partner’s income, which was $29,095 in 2016, $40,748 in 2017, and is assumed to be $14,617 in 2018. Although Mr. Morrisey states they did not begin to cohabit until 2018, even if I exclude his new partner’s income in 2016 and 2017, and the two children in his home, his standard of living in his household is still lower than Ms. Guenette’s.

Step Three:

[23] Given Mr. Morrisey is successful on the first two steps, the final step of the analysis is to determine the appropriate amount of child support payable. This requires an examination of the needs and means of both parties, among other things.

[24] I find that the appropriate amount of child support payable by Mr. Morrisey is $400 per month. I have taken into consideration that in 2010, Mr. Morrisey was required to pay child support of $250 per month based on his income being $28,000 per year. At that time, he was providing support for two other children, and he was required to pay the full table amount. Since the 2019 Order, Mr. Morrisey is now supporting four other children, two of whom reside with him. I have considered; therefore, the table amount payable for five children based on Mr. Morrisey’s income of $56,372, which is $1,484/m, or approximately $297/m per child. I have taken into consideration that the economies of supporting five children in one home, which are imbedded into the table amounts, do not apply to Ms. Guenette and therefore I have increased the support to $400/m.

[25] Lastly, I have considered the needs and means of both parties, as reflected in their financial circumstances. These include the benefit that Mr. Morrisey receives by living in a mortgage-free home owned by his partner, the other expenses of Mr. Morrisey’s household, and Ms. Guenette’s expenses. I have considered that Mr. Morrisey does not appear to have any assets, whereas Ms. Guenette has a significant pension with her employer. I have also considered the amounts that Ms. Guenette has spent on s.7 expenses, including the portion incurred for childcare.

Issue 4: What child support should Mr. Morrisey be required to pay for the period from January 1, 2015, to the date of effective notice?

[26] I find that Mr. Morrisey should be required to pay child support of $400 per month retroactive to January 1, 2015. The arrears of child support shall be payable in the amount of $150 per month until paid in full.

[27] The Family Law Act permits an award of retroactive child support. Whether the Court retroactively increases child support based on the payor’s increased income raises the principles articulated by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37.

[28] The 2010 Order required Mr. Morrisey to provide his tax returns by June 1st in each year. He failed to do so. I accept Ms. Guenette’s evidence that she only found out Mr. Morrisey was working in a new job, and suspected, therefore, that his income had increased, in 2016. At that point, I find that she acted reasonably in pursuing her claim, including in addressing the issues that she had in trying to serve Mr. Morrisey.

[29] I find Mr. Morrisey’s conduct in failing to provide his income tax returns as required in the 2010 Order to be blameworthy. Mr. Morrisey compounded this by failing to provide Ms. Guenette with his address for service and making it difficult for her to serve this Motion to Change on him. I do not find that Mr. Morrisey had a reasonably held belief that he was complying with his child support obligation when he was in breach of his obligation to provide his income tax information, and his income had doubled since the date of the 2010 Order.

[30] I reject Mr. Morrisey’s claim that Ms. Guenette should have been aware that he was earning more income because he made it known on Facebook that he had a new job. This is not an excuse for Mr. Morrisey failing to comply with his express obligation under the 2010 Order to provide his income tax returns every year.

[31] I also find that the child will benefit from an award of retroactive support and that such an award, particularly given the reduction in the table amount above because of undue hardship, and my ruling on s.7 expenses below, will not create an undue hardship on Mr. Morrisey.

Issue 5: What should Mr. Morrisey be required to contribute to s.7 expenses?

[32] I find that Mr. Morrisey would suffer an undue hardship if required to contribute additional amounts towards s.7 expenses. I, therefore, decline to order him to contribute, on top of the amount already ordered for monthly child support retroactive to January 1, 2015, additional amounts towards s.7 expenses. Ms. Guenette may seek to change this if Mr. Morrisey’s obligations to support his other children reduce and/or his financial circumstances improve.

Issue 6: Has there been a material change warranting an increase in Mr. Morrisey’s access? If so, what access is in the child’s best interests?

[33] I find that the access provisions under the 2010 Order should be changed to provide Mr. Morrisey with access on alternate Sundays from noon to 5 p.m. The transfer point for these visits shall be at a mid-point halfway between Cornwall and Ottawa, preferably in Casselman. If the parties are unable to agree on a location, they may re-attend before me to do so. Mr. Morrisey’s partner may assist with the transfers by picking and dropping the child off. If the access times conflict with the child’s gymnastics, the parties may either agree to move the access to a different day or, if they cannot agree, Mr. Morrisey shall be required to take the child to gymnastics.

[34] These terms of access are based on Mr. Morrisey’s representations to the court that he will take the child to gymnastics if it occurs during his access times, and that he can adjust his work so that he does not work on weekends when the child is in his care.

[35] I have also taken into consideration Ms. Guenette’s submission that the only time available for access is on Sundays between noon and 3 p.m., due to the child’s activities and the family dinners that take place every Sunday. I find that on alternating weeks, the child’s schedule can accommodate a change to allow for the visits with Mr. Morrisey and that it is in the child’s best interests to do so.

[36] The most significant change in circumstances since the 2010 Order is that the child, who is now nine years of age, wishes to have contact with Mr. Morrisey. I find that the child’s views, and the child’s increased age, is a material change in circumstances that warrants a change in access and that the above access schedule is in the child’s best interests.

[37] Although in his responding material on this motion Mr. Morrisey only sought access on alternate Sundays from 2 to 5 p.m., at the hearing of the motion he sought alternate weekend access from Saturday at noon to Sunday at 5 p.m. I decline to Order this level of access without Mr. Morrisey demonstrating that he is committed to being a consistent presence in the child’s life by exercising his access consistently. I am also not prepared to extend access further without receiving evidence on the child’s views and preferences on extended access through a Voice of the Child Report. If Mr. Morrisey seeks a Voice of the Child Report in the future, he shall be solely responsible for the cost of the report.

[38] Ms. Guenette’s main concern regarding access is that Mr. Morrisey will not exercise access consistently and will “disappear,” as he has in the past. These concerns have a rational basis given the history in this matter. Shortly after the 2010 Order, Mr. Morrisey ceased any access and did not see the child again until January of 2018. Although Mr. Morrisey blames Ms. Guenette for ignoring his requests for access, I find that Mr. Morrisey did not make significant or concerted efforts to pursue access during this period, with significant gaps between his requests for access. Mr. Morrisey did not pursue his request for access until after he was served with this Motion to Change.

[39] Mr. Morrisey was also inconsistent in exercising access under the Temporary Order of Master Champagne (as she was then), dated February 2, 2018, which granted Mr. Morrisey access on alternate Sundays from 2 to 5 p.m. Mr. Morrisey repeatedly cancelled access or requested changes. The effect of this was that Mr. Morrisey only saw the child on three occasions during the period from February 4, 2018, to November 11, 2018. Ms. Guenette cancelled three of these visits due to other commitments, but Mr. Morrisey cancelled the other visits.

Disposition

[40] For the reasons above, I grant the following orders:

1. Ms. Guenette’s income is determined under the Child Support Guidelines to be as follows:
   • 2014- $61,076 (Line 150)
   • 2015- $61,799 (Line 150)
   • 2016- $61,448 (line 150)
   • 2017 - $66,553
   • 2018 - $42,760
2. Mr. Morrisey’s income is determined under the Child Support Guidelines to be as follows:
   • 2014 - $59,102 (Line 150)
   • 2015 - $53,051 (Line 150)
   • 2016 - $59,205 (Line 150)
   • 2017 - $56,372 (Line 150)
   • 2018 - $56,372 (based on his 2017 income)
3. Effective January 1, 2015, the monthly child support payable by Mr. Morrisey to Ms. Guenette for the support of A., born XXXX, 2010, under paragraph 4 of the Order of Justice Robertson dated November 25, 2010, is changed to be $400 per month. This amount is based on Mr. Morrisey’s income above, taking into consideration the undue hardship due to his support obligations to six other children.
4. The arrears of child support payable as a result of the retroactive adjustment to child support under paragraph 3 above shall be payable in the amount of $150 per month until paid in full.
5. Due to undue hardship, paragraph 4 of the Order of Justice Robertson dated November 25, 2010, is also changed to provide that Mr. Morrisey shall not be required to contribute additional amounts towards s.7 expenses until further order of the court or agreement of the parties. Ms. Guenette may seek to change Mr. Morrisey’s contribution to s.7 expenses if Mr. Morrisey’s obligations to support his other children reduce and/or his financial circumstances improve.
6. Paragraph 2 of the Order of Justice Robertson dated November 25, 2010, is changed to provide that Mr. Morrisey shall have access to A., born XXXX, 2010 on alternate Sundays from noon to 5 p.m. The transfer point for these visits shall be at a mid-point halfway between Cornwall and Ottawa, preferably in Casselman. If the parties are unable to agree on a location, they may re-attend before me to do so. Mr. Morrisey’s partner may assist with the transfers by picking and dropping the child off. If the access times conflict with the child’s gymnastics, the parties may either agree to move the access to a different day or, if they cannot agree, Mr. Morrisey shall be required to take the child to gymnastics.

Costs

[41] If the parties are unable to agree on the costs of this motion, Ms. Guenette may file submissions concerning costs on or before August 16, 2019. Mr. Morrisey may file submissions concerning costs on or before August 30, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

Justice P. MacEachern Date: July 17, 2019

COURT FILE NO.: FC-10-732-1 DATE: 2019/07/17 ONTARIO SUPERIOR COURT OF JUSTICE RE: Tina Marie Guenette, Applicant -and- James Morrisey, Respondent BEFORE: Justice P. MacEachern COUNSEL: Applicant Self-Represented Respondent Self-Represented ENDORSEMENT Justice P. MacEachern Released: July 17, 2019