Court File and Parties
COURT FILE NO.: FC-07-026614-00
DATE: 20190812
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Terry Allen Leonard Mierau
AND:
Sheila Tracy Mierau (Rickards)
BEFORE: The Honourable Mr. Justice R.E. Charney
COUNSEL: Terry Allen Leonard Mierau, In-person
Sheila Tracy Mierau (Rickards), No-one appearing
HEARD: July 24, 2019
ENDORSEMENT
[1] This is an application to vary an ex parte divorce judgment issued by the Court of Queen’s Bench of Alberta, Calgary District, on June 18, 2003 (Action #4801-113628).
[2] Pursuant to that judgment, the Applicant was deemed to have a Guideline Income of $43,000 per year, and ordered to pay child support in the amount of $984 per month ($795 for child support, $189 for s. 7 expenses related to daycare expenses) for three children (born 1986, 1993 and 1995 respectively).
[3] While the Applicant has paid some child support off and on during the years, and has made monthly payments of $200 per month for arrears since January 2014, he is currently $48,698 in arrears pursuant to the terms of the Alberta divorce order.
[4] The Applicant takes the position that he has never earned $43,000 per year, and he has now provided Notices of Assessment from Canada Revenue Agency setting out his income for each year since 1992. These Notices confirm that the Applicant earned the following amounts since 2002:
• 2002 - $19,303
• 2003 - $25,184
• 2004 - $8,202
• 2005 - $12,367
• 2006 - $16,566
• 2007 - $8,430
• 2008 - $13,212
• 2009 - $19,854
• 2010 - $37,976
• 2011 - $22,619
• 2012 - $9,171
• 2013 - $11,022
• 2014 - $26,056
• 2015 - $32,914
[5] The eldest child ceased to be a child of the marriage in 2004, the second child ceased to be a child of the marriage in 2010, and the youngest child began living with the Applicant in 2010.
[6] The Applicant agrees to pay child support back to 2002 (the date of the first interim order), but argues that his payment obligation should reflect his actual income for the years 2002 – 2011, not the amount deemed in the Alberta divorce judgment. The Applicant has recalculated his support obligations based on his actual income and the number of children (see Schedule A). According to these calculations, the Applicant is still in arrears, but his arrears are only $4,736.44.
[7] The evidence provided on this motion confirms that at the time the divorce judgment was granted, the Applicant had a serious drug addiction issue and was, at various times, either in prison, living on the street or living at his mother’s home. He claims that he did not have notice of the divorce proceedings. In 2003 his mother retained a lawyer to appeal the child support order, but her health deteriorated and she passed away in 2004. At the time of his mother’s death in 2004, the Applicant was in jail, and was not released until 2005. His drug addiction continued and he was living on the streets.
[8] In the five years following, the Applicant moved to Ontario, and with the help and guidance of his pastor and others, was able to overcome his drug addiction. He now has full time employment in Ontario and is a resident of Ontario. He has provided confirming letters from his employer and his pastor. His pastor has assisted him in this application to vary the support amounts.
[9] The evidence also indicates that in 2010, the Applicant’s ex-wife contacted him and asked if their youngest son could live with him in Ontario because she was having difficulty handling him. The youngest son lived with the Applicant from 2010 until December 2015. He graduated from high school in 2014.
[10] This application to vary the support amounts was commenced in August 2009, but the Applicant had some difficulty navigating the judicial system and filing the appropriate forms. The correct application was finally filed in August 2015, and was initially dealt with by Rogers J. on August 28, 2015. Her endorsement set out the shortcomings in the material filed, and provided some guidance to the Applicant to proceed correctly. The Applicant has made several additional attempts to bring this application back, and the matter was dealt with by Douglas J. on September 20, 2017, MacPherson J. on December 15, 2017, and by McDermot J. on May 16, 2018.
[11] The Respondent lives in Alberta and has not appeared in these proceedings, filed an answer, or attorned to the jurisdiction of this Court. McDermot J. noted the Respondent in default in his May 16, 2018 endorsement, and, pursuant to his direction, this matter proceeded as an uncontested trial and as a provisional hearing under ss. 18 and 19 of the Divorce Act. Pursuant to his direction, an oral hearing was held.
[12] The Applicant has now complied with all of the directions given in the previous endorsements. He has explained the reasons for his delay in seeking to vary the Alberta support order. The delay was the result of his serious drug addiction and his focus on overcoming that addiction, combined with the difficulties he had navigating the court system without legal assistance. In my view, these circumstances justify a retroactive variation to the date of the original Alberta Order: see D.B.S. v. S.R.G, [2006] 2 SCR 231, 2006 SCC 37. The same analysis applies to an application by a payor for a retroactive reduction of support as to a retroactive increase of support: G.M.W. v. D.P.W., 2014 BCCA 282, at paras. 40 - 44.
[13] Section 17 of the Divorce Act requires a change in circumstances before a child support order may be varied. I am satisfied that the material change in circumstances giving rise to this application is the Applicant’s lengthy period of drug addiction followed by his subsequent recovery. While late disclosure of supporting documents such as Notices of Assessment does not, on its own, qualify as a material change in circumstances, I am satisfied that the Applicant has provided evidence that his addiction and other circumstances such as his mother’s death and his time in prison, prevented him from providing the correct information to the court.
[14] In my view, justice in these circumstances justifies a variation of the Alberta Order so that the Applicant’s past support obligations and his current arrears are consistent with his actual rather than his deemed income.
[15] The children are now all adults. At this stage payments of arrears will compensate the Respondent for her past financial responsibilities. The children will not directly benefit from the payment of any large arrears of maintenance.
[16] This case is similar to C.A.K. v. B.D.K., 2018 BCPC 404, in which the father sought to vary a 2006 support order to reflect his actual income for the years 2006 to 2015. The father had experienced a prolonged period of mental disability and homelessness. The Court held, at paras. 34 and 35:
I find that Mr. K.’s development of a physical disability, followed by his lengthy period of unemployment, homelessness and mental disability, does constitute a material change in circumstances that was protracted and significant. His reduced ability to work due to his physical disability continues to be an enduring material change in circumstances from the time the original order was made. I am satisfied that had Mr. K.’s economic and personal circumstances been brought to the attention of the Court during the relevant time period, the Court would have made a different support order…
I find that Mr. K.’s descent into unemployment and homelessness occurred quite rapidly over the last quarter of 2007. Once he was in that state, I accept that Mr. K.’s life and mental condition became highly dysfunctional. The urgency in meeting his immediate basic needs would have significantly distracted from attending to his legal obligations under the Child Support Order. I am satisfied that given he was too defeated to even apply for social assistance, he did not possess the requisite mental state to undertake a complicated variation application in a court proceeding. I find he had a reasonable explanation for not making the requisite variation application from 2008-2013. Once Mr. K. started working again in 2014 he should have brought this application more promptly, however, I accept that Mr. K. first attempted to deal with the issue by negotiating with FMEP directly and only brought the application once it was clear no arrangement could be made on a mediated basis.
[17] The Applicant has indicated his commitment to pay the arrears based on his actual income. Granting the variation requested will permit the Applicant to move on with his life without being encumbered by a massive debt load that is unrelated to any ability that he ever had to pay.
[18] That said, it would not be fair to the Respondent to permit the Applicant to pay child support on an amount less than the equivalent of an annual salary based on minimum wage. The Applicant should be responsible for at least this amount in any year. Accordingly, where the Applicant’s actual income for the year is less than minimum wage, I have imputed minimum wage for that year (based on a 36.5 hour work week). For the year 2004, I have imputed a salary based on a minimum wage of $5.90 per hour ($11,198 per year). For the year 2005, I have imputed income based on a minimum wage of $7.00 per hour ($13,286 per year). For the year 2007, I have imputed income based on a minimum wage of $8.00 per hour ($15,184 per year). For the year 2008, I have imputed income based on a minimum wage of $8.75 per hour ($16,607 per year).
[19] I have reviewed the monthly payments proposed by the Applicant in Schedule A. Paragraph 3 of the Federal Child Support Guidelines provides that it is the payor’s residence that determines the applicable table. The Applicant moved to Ontario sometime in 2005, and so Ontario table amounts and minimum wage rates should be used for years 2006 and following.
[20] Finally, the Applicant’s youngest child came to live with him in 2010, and therefore no child support should be paid by the Applicant for part of 2010 and all of 2011.
[21] The original order required the Applicant to pay $189 per month for daycare expenses. Given the age of the children, it is unlikely that daycare expenses continued much past the first couple of years, but there were undoubtedly other s. 7 expenses over the years, and the Applicant has not requested a variation of his s. 7 expenses except for a pro rata reduction based on the number of children. This appears to be a reasonable approach in the circumstances.
[22] I have prepared Schedule B, which includes the correct monthly child support amounts for each year. Based on these calculations, the Applicant was required to pay $41,912 over the years; this is $3,795 more than the $38,117 calculated by the Applicant, and would result in arrears of $8,531.44.
Conclusion
[23] Based on the foregoing, this Court makes the following provisional order pursuant to ss. 18(2) of the Divorce Act, R.S.C. 1985, c. 3:
a. The Applicant’s child support obligations are varied as set out in Schedule B, appended hereto.
b. The Applicant’s arrears are set at $8,531.44 as of the July 24, 2019.
[24] This provisional order shall be transmitted to Alberta, together with a copy of this decision, in accordance with s. 18(3) and (4) of the Divorce Act.
Justice R.E. Charney
Date: August 12, 2019
COURT FILE NO.: FC-07-026614-00
DATE: 20190812
Schedule A
| YEAR | INCOME FOR YEAR | MONTHLY AMOUNT ACCORDING TO GUIDELINES | NUMBER OF MONTHS | TOTAL OWED |
|---|---|---|---|---|
| 2002 | 19,303.00 | 419.00 | 5 (3 Children) | 2095 |
| 2003 | 25,184.00 | 515.00 | 5 (3 Children) | 2575 |
| 515.00+189.00=704.00 | 7 (3 Children) | 4928 | ||
| 2004 | 8,208.00 | 6.00+189.00=195.00 | 5 (3 Children) | 975 |
| 5.00+126.00=131.00 | 7 (2 Children) | 917 | ||
| 2005 | 12,367.00 | 165.00+126.00=291.00 | 12 (2 Children) | 3492 |
| 2006 | 16,566.00 | 278.00+126.00=404.00 | 12 (2 Children) | 4848 |
| 2007 | 8,430.00 | 9.00+126.00=135.00 | 12 (2 Children) | 1620 |
| 2008 | 13,212.00 | 204.00+126.00=330.00 | 12 (2 Children) | 3960 |
| 2009 | 19,854.00 | 318.00+126.00=444.00 | 12 (2 Children) | 5328 |
| 2010 | 37,976.00 | 545.00+126.00=671.00 | 9 (2 Children) | 6039 |
| 272.50+63.00=335.50 | 3 (1 Child) | 1005 | ||
| 2011 | 22,619.00 | 272.50+63.00=335.50 | 1 (1 Child) | 335 |
| 0 | 11 (0 Children) | 0 | ||
| 2012 | 9,171.00 | 0 | 0 | 0 |
| Total: | 38,117 |
COURT FILE NO.: FC-07-026614-00
DATE: 20190812
Schedule B
| YEAR | INCOME FOR YEAR | MONTHLY AMOUNT ACCORDING TO GUIDELINES | NUMBER OF MONTHS | TOTAL OWED |
|---|---|---|---|---|
| 2002 | 19,303.00 | 417.00 | 5 (3 Children) | 2085 |
| 2003 | 25,184.00 | 513.00 | 5 (3 Children) | 2565 |
| 515.00+189.00=704.00 | 7 (3 Children) | 4928 | ||
| 2004 | 11,198.00 (imputed) | 122.00+189.00=311.00 | 5 (3 Children) | 1555 |
| 113.00+126.00=239.00 | 7 (2 Children) | 1673 | ||
| 2005 | 13,286.00 (imputed) | 204.00+126.00=330.00 | 12 (2 Children) | 3960 |
| 2006 | 16,566.00 | 260.00+126.00= 386.00 | 12 (2 Children) | 4632 |
| 2007 | 15,184.00 (imputed) | 244.00+126.00=370.00 | 12 (2 Children) | 4440 |
| 2008 | 16,607.00 (imputed) | 261.00+126.00=387.00 | 12 (2 Children) | 4644 |
| 2009 | 19,854.00 | 306.00+126.00=432.00 | 12 (2 Children) | 5184 |
| 2010 | 37,976.00 | 568.00+126.00=694.00 | 9 (2 Children) | 6246 |
| NA – child lived with father | 3 (1 Child) | 0 | ||
| 2011 | 22,619.00 | NA - child lived with father | 1 (1 Child) | 0 |
| 0 | 11 (0 Children) | 0 | ||
| 2012 | 9,171.00 | 0 | 0 | 0 |
| Total: | 41,912 |