OSHAWA COURT FILE NO.: FC-07-002264-02 DATE: 20190116

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Cindy Louise Jackson Applicant – and – James Leonard Jackson Respondent

Counsel:

Self-represented (Applicant) Self-represented (Respondent)

HEARD: November 27, 2018

RULING

de sa j.

Overview

[1] The litigants represented themselves in this matter. The underlying facts were not contested by either party and went in by way of documentary evidence. Mr. Jackson seeks that any outstanding arrears be set aside, and that his support obligations be concluded.

[2] After hearing submissions of the parties, I reserved my decision. These are my reasons.

Summary of Facts

Order of November 22, 2010

[3] On November 22, 2010, by way of Settlement Agreement (the “Agreement”), Mr. Jackson was ordered to pay spousal support in the amount of $450 per month, and also child support in the amount of $1,457 per month (the “Order”). Both the child support and spousal support were based on Mr. Jackson’s income of $104,424.93 and Ms. Jackson’s annual income at the time of $40,457.

[4] The Order also provided that the parties annually review together the payment of any of their children’s special and extraordinary expenses (example: extracurricular, medical expenses, post-secondary educational costs, etc.). The costs of these expenses would be shared between the parties in proportion to their respective incomes.

[5] The Agreement also required Mr. Jackson to take out a life insurance policy in the amount of $250,000 to cover any outstanding spousal and child support obligations in the case of his death. The life insurance policy was to be irrevocable and in favour Ms. Jackson. This was anticipated to cover any shortfall in the Mr. Jackson’s ability to cover his support obligations in the case of his death.

[6] With respect to the original support amounts outlined in the Agreement, the current arrears have been listed as follows:

1. Spousal support: $47,264
2. Child Support: $24,911

Position of the Parties

Ms. Jackson’s Position

[7] According to Ms. Jackson, Mr. Jackson’s proportionate share of their elder daughter’s expenses for University is just over $40,000 (deducting amounts being paid back directly by their eldest daughter on her student loan). She seeks to have this amount added to the outstanding arrears.

[8] Ms. Jackson is also asking for an Order that Mr. Jackson comply with the requirement to obtain a life insurance policy naming Ms. Jackson as the irrevocable beneficiary to secure Child Support and Spousal Support with a minimum of $250,000 in coverage. She is also seeking compensation for the amounts she has paid towards maintaining such coverage, an amount just in excess of $9,000.

[9] She acknowledges that her elder daughter is an adult and is no longer a “dependent child”. However, Ms. Jackson seeks ongoing support for their youngest daughter (Emily). Emily has been diagnosed with Dubowitz Syndrome which is a developmental disability. According to Ms. Jackson, Emily will be dependent on her parents for the rest of her life. As such, ongoing support is necessary.

[10] Ms. Jackson takes the position that the table amount of support for Emily should be maintained ($538) given that Emily is still a dependent.

Mr. Jackson’s Position

[11] Mr. Jackson takes the position that the arrears should be set aside and that he should not be required to pay any additional support on the basis of his current financial circumstances. Since the date of the Agreement, Mr. Jackson’s income has materially changed.

[12] In 2015, Mr. Jackson lost his job. He was not able to find similar work. His current income at his new employment is substantially less. He has also taken on the responsibility of a new family. He has two step children from the new marriage. Since 2015, given the change in his employment, he has been having problems making the support payments. Accordingly, the outstanding arrears are beginning to accrue. Mr. Jackson’s income has been outlined in the materials as follows:

1. 2009 - $104,424
2. 2010- $104,577
3. 2011 - $111,428
4. 2012 - $112,362
5. 2013 - $127,911
6. 2014 - $141,269
7. 2015 - $92,538
8. 2016 - $43,945
9. 2017 - $46,195

[13] He takes the position that he should not be required to pay anything further and the arrears should be offset by his overpayments. According to Mr. Jackson, both of his children from the marriage are now adults, and his wife is in a better financial position than he is. While Emily, his youngest daughter, may be still “dependent”, she receives ODSP and is no longer in need of his support.

[14] According to Mr. Jackson, he has also been charged amounts that exceed the amounts he should owe, particularly over the last 3 years. The main items in dispute include:

1. The support paid towards his elder daughter after the age of 18. While she attended school, she did so out of the country. According to Mr. Jackson, she should be treated as independent/adult for this period of time. She was not living with the mother, nor was she meaningfully “dependant” on her mother at the time;
2. He also looks to have spousal support set aside for the period where he was earning the same or less than Ms. Jackson;

Analysis

General Principles: Rescission or Reduction of Arrears

[15] The Court has the power to retroactively discharge or rescind child support arrears: Family Law Act ss. 37(2.1). This power can be exercised in this case only if there has been a change in circumstances within the meaning of the Child Support Guidelines: Family Law Act ss. 37(2.1).

[16] In this case where the amount of child support was determined in accordance with the table, any change in circumstances that would result in a different order for child support constitutes a change in circumstances that gives rise to a variation: Child Support Guidelines (Ontario) s.14.

[17] The accumulation of arrears without evidence of a past inability to pay is not a change in circumstances. As well, the present inability to pay does not by itself justify a change order. Such an order should only be granted if the payor can also prove a future inability to pay. Otherwise, the option is to suspend or order repayment of arrears: Haisman v. Haisman (1994), 1994 ABCA 249, 1994 Carswell Alta 179 (Alta C.A.).

[18] In Gray v. Rizzi, 2016 ONCA 152, the Ontario Court of Appeal addressed the principles to be applied when a support payor moves to retroactively change a support obligation based on a reduction in income as follows at para. 56-59:

First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, "Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated."

Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor's circumstances that affected the payor's ability to make the child support payments when they came due.

A payor's request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. … [ the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly. [emphasis added]

[19] While there is no fixed formula a court must follow when exercising its discretion in this circumstance, the following factors should guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory or judicial;
2. The ongoing needs of the support recipient and the child;
3. Whether there is a reasonable excuse for the payor's delay in applying for relief;
4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: "Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears";
6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears; and
7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.: “[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.” [emphasis added]

(See Gray at para. 60.)

[20] If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. [1] See Deneau v. Scott, 2016 ONCJ 300.

Disposition

[21] Having regard to the principles above, I will not vary the child support arrears. In my view, the support payments were proper given Mr. Jackson’s ongoing obligation to assist with financing his eldest daughter’s expenses while in University. However, I will not add the extra amounts sought by Ms. Jackson. In my view, the support was adequate given that his daughter has assumed responsibility for much of the debt she incurred while in University.

[22] I will also deduct the spousal support for the period while Mr. Jackson was earning less than Ms. Jackson. This would leave spousal support arrears in the approximate amount of $32,800.

[23] Accordingly, the total arrears will be fixed at $57,711. These arrears will be paid at a rate of $250 per month.

[24] In addition, Mr. Jackson will be required to pay ongoing child support for Emily in the amount of $350 (given that Emily currently receives $800 in ODSP). He will no longer be required to pay spousal support.

[25] The total monthly support payment will be $600. As noted above, $250 will be directed towards arrears, and the remaining $350 will be directed towards ongoing child support for Emily. I recognize that Mr. Jackson is in a tight financial situation. However, the materials reflect various discretionary expenses that can be reduced with a view to satisfying his arrears and ongoing support obligations.

[26] Mr. Jackson will still be required to provide an update of his income to Ms. Jackson on an annual basis. If his salary changes substantially, Ms. Jackson can seek to increase the amount of the child support.

[27] The parties shall bear their own costs for this motion.

Justice C.F. de Sa Released: January 16, 2019

[1] It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.