COURT FILE NO.: FC-13-1333-ISO2

DATE: 20191009

SUPERIOR COURT OF JUSTICE

BETWEEN:

BARRY CALDER SCOTT

Applicant

– and –

JUSTYNA SZLUINSKA

Respondent

Self-Represented

Self-Represented

IN WRITING: October 9, 2019

DECISION

Audet J.

[1] This is a motion brought by the applicant father seeking to vary his child support obligation retroactively to 2015 and to terminate child support effective August 1, 2018. The mother seeks the dismissal of the father’s motion.

[2] The father’s child support obligations stem from a separation agreement signed by the parties in July 2013, which agreement was filed for execution by the Family Responsibility Office on May 15, 2018. The father resides in Nova Scotia and the respondent mother resides in Ottawa, Ontario with the parties’ child. The parties were divorced in Ontario on October 23, 2013. Their divorce order did not incorporate the child support provisions contained in their separation agreement. Rather, their domestic contract was filed under s. 35 of Ontario’s Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) for the purpose of enforcement. Pursuant to s. 35(2) of the FLA, a provision for support contained in a contract that is filed in this manner may be varied under s. 37. Therefore, the support order was made under the Ontario legislation, not the Divorce Act, 1985, c. 3 (2nd Supp.) and given that the parties reside in two different provinces, the provisions of the Interjurisdictional Support Orders Act, 2002, S.O. 2002, Chapter 13, apply.

Background

[3] The parties were married on February 5, 2000 and separated on December 31, 2011. They are the biological parents of Rory who was born on July 17, 2000. Rory is currently 19. The parties lived in Korea for the first ten years of Rory’s life and returned to Canada at some point in 2010. It is not clear to me whether the father remained in Korea throughout, or whether he came back with the family and then returned to Korea before the parties separated.

[4] In any event, at the time the parties signed their separation agreement in 2013, the father was still living in Korea and the mother lived in Ottawa with the child. The mother’s expected income for 2012 was $36,000 per annum. The father was employed as an English teacher in Korea and his estimated income for 2013 was $38,000 per annum. The separation agreement acknowledged that the father had additional income earned from private teaching contracts, the extent of which was unknown.

[5] Pursuant to the parties’ separation agreement, the mother was to have sole custody of Rory who was to remain in her primary care in Ottawa, and the father was to have access to him as arranged by the parties on 60 days’ notice. The parties further agreed that, starting on January 1, 2013, the father would pay child support in the amount of $700 per month. The parties recognized that the father was paying more than the table amount of child support to account for the uncertainty in the father’s income, his income from additional teaching contracts, his lower cost of living and as a contribution towards Rory’s special and extraordinary expenses. The parties also recognized their mutual wish to allow Rory and his mother to live in Orleans, where rent was more expensive.

[6] Finally, the agreement listed the events which would lead to the termination of the father’s obligation to pay child support and provided that if Rory began living away from home for educational purposes, the child support payable by the father would be reviewed.

[7] The father remained in Korea until March 2015 at which time he moved back to Canada with his second wife and young daughter. Despite his income changing drastically from January 2014 to February 2015 (in January 2014 he lost his position at the social science department of the University of Ulsan, and then in September 2014 lost a couple more classes at the University in the human ecology department), he continued to pay support in the amount of $700 per month. It is the father’s evidence that at some point after arriving back to Canada, he communicated with the mother to voice his inability to continue to pay the same level of child support given his changed income and difficult financial circumstances. The father states that the mother had agreed to reduce the monthly child support to $200 per month until the father was able to resettle in Canada and find an adequate source of income.

[8] Despite his hope to secure similar employment here, the father states that he was not able to secure gainful employment in Halifax, Nova Scotia where he re-settled with his second wife and young child. He indicated that he had to deal with significant health issues which required hospitalization for one month and which left him unable to return to the workforce in any meaningful way. In December 2016, his second child (third in total) was born to his second wife. Since his wife’s income was greater than any income he could earn at the time, he and his wife decided that she would be going back to work while he would stay home to care for their newborn child. He returned to work 18 months later while also pursuing post-secondary studies. The father also states that Rory spent six weeks with him in Nova Scotia in the summer of 2017, and that in August 2018 he moved out from his mother’s home to live on his own. It is the father’s evidence that Rory stopped going to school at that time.

[9] The mother disputes the father’s allegation that Rory stopped being a full-time high school student at any point in time. She states that (as of March 2019 when she swore her affidavit) he continues to be enrolled in high school full-time and that, while he did move out in the summer of 2018, he did so due to the deterioration of his behavioural and mental stability, which according to the mother, is the result of his being “abandoned” by his father. The mother states that she has asked the father several times to take Rory under his care for an extended period of time so that she could get some respite from his abusive behaviour towards her but that the father refused. This has left her with no choice but to settle Rory into his own apartment for her own physical and emotional safety, and Rory’s.

[10] The mother states that while Rory is not living in her home anymore, he is not financially independent and heavily relies on her financial support for his basic needs such as grocery, his phone bills and sometimes his rent. The mother denies that she ever agreed to reduce the father’s child support to $200 a month. However, she does confirm that when the father started to miss payments in mid-2014, she allowed him to send what he could. In September 2014, she asked that he send her at least $300 as table amount of support, and that he contributes an amount towards special and extraordinary expenses, for a total of $450 per month. The mother has attached emails exchanged between her and the father in December 2014 which confirm the mother’s position on this.

[11] In 2016, the mother lost her job. At that time, especially, she became insistent that the father provide her with regular financial assistance. It is the mother’s evidence that the father mostly ignored her pleas and responded that he did not have any money to give as a result of his financial responsibilities towards his new wife and children, and reduced ability to pay. The mother does not deny that the father did provide payments from time to time, but she denies that the father consistently paid $200 per month as he alleges.

Legal framework

[12] Section 37 of the FLA states that a support order may be varied if the court is satisfied that there has been a change in circumstances as defined in the Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”).

[13] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court identified four factors that must be considered before making a retroactive child support award:

a) reasonable excuse as to why support was not sought earlier;

b) conduct of the payor;

c) circumstances of the children; and

d) hardship occasioned by the retroactive award.

[14] These principles apply equally to payors, as stated in Colucci v. Colucci 2017 ONCA 892, 138 O.R. (3d) 321 at para. 27:

I agree with Buckingham that the law should adopt an even-handed approach and, from a jurisdictional perspective, treat payor and recipient parents the same way. If a court has jurisdiction to consider a recipient parent’s request for a retroactive increase in child support where the payor’s income increased, there should also be jurisdiction to consider a payor parent’s request for a reduction where his or her income declined.

Application to this Case

[15] Based on all the evidence before me, I come to the following conclusions as it relates to the father’s obligation to support Rory:

a) I find that the father communicated to the mother as early as 2014 his inability to continue to pay the level of child support provided for in the parties’ separation agreement. The issue of the amount of child support that the father ought to have paid was a live issue between the parties from early 2014 until present. In those circumstances, I find it appropriate and reasonable to vary the father’s child support obligations retroactively to January 2015, as requested by the father.

b) I find that there was never any agreement that the father would pay only $200 per month for the support of Rory. The parties never came to an agreement on that question and, therefore, it is for this Court to decide the level of child support that the father ought to have paid for Rory from January 2015 on.

c) I find that Rory’s mental health significantly deteriorated after the parties’ separation (regardless of the cause). The evidence before me makes it clear that Rory’s emotional health and behaviour became increasingly difficult when he became a teenager, eventually turning into verbal and physical aggression towards his mother. This coupled with Rory’s diagnosed ADHD, anxiety and depression since 2014, as well as his substance abuse, required the involvement of the Children’s Aid Society, the police and a variety of community workers with this family. Rory’s behavior challenges led to a significant deterioration in the mother’s own mental health which started to decline. I find, based on all the evidence before me, that it was not only reasonable but also necessary for Rory to move out of his mother’s home in August 2018, as recommended by the various players involved with this family.

d) Despite the fact that Rory was no longer living with his mother by the end of August 2018, he continued to attend school on a full-time basis to complete his high school degree. A letter dated March 5, 2019 from the Elizabeth Wyn Wood Secondary Alternate program confirms that Rory was on the roll at that school as a full-time student beginning September 6, 2018, that he took almost two months off (while staying with his father in Nova Scotia) and then resumed full-time studies on January 20, 2019. However, the letter does not indicate when Rory is expected to graduate.

e) A letter from the mother to the Family Responsibility Office written in March 2019 confirms that the mother was agreeable to end the father’s support obligations moving forward (from March 2019), but only on the understanding that the arrears owed to her pursuant to the separation agreement were not affected and would be enforced. I am unaware at this time whether or not Rory has continued his studies, completed his high school degree or whether he is now pursuing employment opportunities. However, based on the record before me, I come to the conclusion that Rory was a dependant child for whom support was payable throughout, and until at least April 2019;

f) I find that the father, indeed, suffered a significant reduction of his income as a result of the loss of his employment at the University of Ulsan in 2014 (Korea). I also accept the father’s evidence that relocating to Canada after 14 years working abroad and finding employment here was no small task. I accept that it was difficult for him to find gainful employment in Nova Scotia as his teaching credentials in Korea were not recognized in Canada. I find that he made reasonable efforts to find work immediately after he arrived in Canada in March 2015, working briefly as an English as second language teacher at a school in Halifax for a few months, and then as a superintendent of an apartment building beginning in July 2015.

g) However, this job came to an end in October 2015 when the father was hospitalized with a pulmonary embolism and was diagnosed with congestive heart failure, requiring one month of hospitalization. He received EI medical benefits for 15 weeks before returning to the workforce in March 2016 working 30 hours a week at minimum wage as an entry level Early Childhood Educator. He was later diagnosed with severe osteoarthritis and is on the waiting list for hip replacement surgery. I accept that the father’s health had a significant impact on his ability to work at that time.

h) I accept that, as a result of the lack of child support received by the mother, coupled with the deterioration of her mental health due to Rory’s very difficult behaviour, and the loss of her employment in 2016, the mother suffered significant financial difficulties which forced her to increase her debt in order to be able to support herself and Rory.

i) Finally, I accept, based on the evidence before me, that when Rory moved out of her home, the mother remained responsible for a significant amount of his expenses including groceries, phone bills and part of his rent (he is receiving subsidies and undisclosed social assistance payments as an adult living on his own). With the use of the child support garnished by the Family Responsibility Office since the separation agreement was filed with the court for enforcement, she purchased a computer that was necessary for Rory to pursue his high school education.

[16] All the above constitute material changes in circumstances allowing me to vary the child support provisions of the parties’ separation agreement, converted into a court order with its filing in May 2018. While the mother confirmed her agreement to terminate child support as of March 2019, provided that arrears accrued under the separation agreement ($700 per month) were enforced, the father’s child support obligations are based on the level of income he earned during those years, or which should reasonably be imputed upon him in case of intentional unemployment or underemployment. The terms of the separation agreement as it relates to the level of support he was required to pay during those years, can no longer stand in light of the material changes that have occurred since.

[17] The father only filed his notices of assessment for the years 2015, 2016 and 2017. This does not allow me to determine the nature of his various sources of income. In 2015, his line 150 total income was $15,727. This does not include the income he earned for the first three months of the year while he was still working in Korea. In 2016, the father’s line 150 income was $20,605. In his affidavit, the father confirms that while he worked as a superintendent of an apartment building from July to October 2015, part of his income was paid in rent, which may or may not have been reflected in his 2015 income tax return. In 2017, the father’s line 150 income was $15,170. As stated earlier, in January 2017 following the birth of his third child, the father and his wife agreed that it would be more beneficial for their family if he remained at home to care for their newborn instead of paying for daycare. While he received EI benefits for the first six months (parental leave), he was unemployed and a stay-at-home dad for seven months thereafter.

[18] The father returned to full-time employment in June 2018, earning an hourly wage of $13.50, 40 hours per week, as an Early Childhood Educator. This is reflective of an annual income of roughly $28,000.

[19] While I acknowledge that it might have made sense financially for the father to remain home with his newborn child instead of paying for daycare, the reality is that this had a significant impact on the father’s first family. The courts have often found that the birth of a subsequent child does not automatically give a parent the right to terminate their ongoing financial obligations to their existing children, by choosing to stay home with that child and not work (Podgorni v. Podgorni, 2010 ONSC 1070, 85 R.F.L. (6th) 373). In Lachapelle v. Vezina, (2000), 2000 CanLII 22446 (ON SC), 11 R.F.L. (5th) 328 (Ont. S.C.J.), the court stated that the Court is required, in the absence of clear necessity, to balance the needs of each child, whatever their stage of development, to determine what is fair and reasonable in all of the parental circumstances. Due consideration must be given to the financial needs of one’s first family (Dean v. Dean, 2016 ONSC 4298, 81 R.F.L. (7th) 292 (Ont. Div. Ct.)).

[20] The facts in Lachapelle were not significantly different than the facts raised in this case. In that case, Linhares de Sousa J. came to the following conclusion:

The period of unemployment requested by Ms. Vezina, some 15 months is a long one. I have considered Ms. Vezina's explanation for why she has chosen to remain at home with her new born child for that period. I am not persuaded that her explanation meets the test found in the s. 19(1)(a) exception. I cannot find that the needs of her new born "require" her to be unemployed for the period suggested. The imperative that that word entails is absent on the facts of this case. Clearly the needs of the new born justify some relief being given to Ms. Vezina. Accepting the reduced income on her part during her paid maternity leave during the year 2000 was therefore reasonable. Anything beyond that in my view is unreasonable, unfair and not supported by the circumstances of this case.

[21] I come to the same conclusion on the facts of this case. While I find that it was reasonable for the father to remain home to care for his newborn child for the first six months while he was receiving parental leave benefits which brought his income very close, overall, to what he would have otherwise earned (over the course of his two year parental leave), it was no longer reasonable to do so once his parental leave benefits ran out.

[22] I have not been provided with any particular reason why it would have been required for the father to remain home to care for his young child for a period of 13 months, other than the fact that it was financially more beneficial for his second family. I find that during the seven months following the exhaustion of the father’s paternity leave benefits, the father was intentionally unemployed and such unemployment was not required by the needs of any child or by the reasonable educational or health needs of the father. By doing so, the father disregarded the equally important needs of his first child.

[23] Considering the circumstances above, I come to the conclusion that it is reasonable to impute/use the following income to determine the father’s child support obligations from 2015 to present:

a. 2015: $20,000

b. 2016: $20,000

c. 2017: $20,000

d. 2018: $28,000

e. 2019: $28,000

[24] I am aware of the fact that it may not be appropriate to use the Table amount set out in the Guidelines to determine the father’s child support obligation toward Rory from September 2018 on since he was no longer living with his mother. But I have decided to use the Table amount in any event for the following reasons.

[25] Firstly, the mother has not provided me with a budget for the child upon which the analysis set out in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 could be made. Secondly, the father’s income in 2018 and 2019 is quite low. The evidence before me suggests, in a compelling way, that the father’s proportionate share of expenses which Rory cannot assume with his own resources will exceed the amount set out in the applicable Tables based on the father’s income.

[26] As stated earlier, I am not aware of whether Rory continues to be a dependent child since April 2019. For that reason, I have chosen to suspend the father’s child support obligation effective on April 1, 2019 but will allow the mother to provide me with additional evidence in the event that Rory continues to be a child of the marriage past March 2019. If she does not, the father’s child support obligation towards Rory will be terminated as of April 1, 2019. If the mother makes further submissions and provides additional evidence of Rory’s continued status as a dependent child past March 2019, she shall also be required to provide me with proper evidence of Rory’s yearly income and expenses, retroactive to September 1, 2018, and I reserve the right to retroactively vary (decrease or increase) the father’s child support obligations from September 2018 on, based on that additional evidence.

[27] Based on all the above, I make the following order:

a) Beginning on January 1, 2015 to and including December 1, 2017, the father shall pay basic child support in the amount of $139 per month (Nova Scotia 2011 and 2017 Tables) based on an imputed income of $20,000 per annum;

b) Beginning on January 1, 2018 to and including March 1, 2019, the father shall pay basic child support in the amount of $235 per month (Nova Scotia 2017 Tables) based on an imputed income of $28,000 per annum;

c) The father’s obligation to pay child support for Rory shall be suspended as of April 1, 2019.

d) Leave is granted to the mother to serve and file additional evidence confirming Rory’s current status as a dependant child (full-time studies or otherwise unable to achieve self-sufficiency as a result of illness or disability) if she is of the view that the father’s obligation to pay child support should be ongoing. If she does, she shall also provide a comprehensive and detailed yearly budget for Rory which includes documentary confirmation of his income for the years 2018-2019, as well as documentary proof of major expenses for him.

e) The mother’s additional evidence shall be served on the father and filed with the court within 30 days of this decision, and the father shall have 30 days thereafter to serve on the mother and file with the court his responding affidavit, should he wish to do so.

f) I shall then determine the level of child support that ought to have been paid and that should continue to be paid by the father, if different than the one set out in this order, for the period commencing September 1, 2018 onward.

g) If the mother does not serve and file additional evidence within 30 days as set out above, the father’s obligation to pay child support shall automatically end effective April 1, 2019.

[28] Finally, while the evidence makes it clear that the mother has assumed special and extraordinary expenses for Rory since 2015, such as the cost of extracurricular activities, the uncovered portion of medical and dental expenses, the purchase of a computer, counselling and other such expenses, I have been provided with no evidence of the actual cost incurred by the mother in that regard, or evidence confirming same. As a result, I find myself in the unfortunate position of being unable to make an order requiring the father to contribute to those expenses since 2015.

[29] It would be grossly unfair, in my view, for this self-represented mother to be denied a fair contribution to those expenses by the father. Consequently, leave is also granted to the mother, if she seeks a contribution from the father, to serve and file within 30 days additional evidence substantiating her claim for a contribution to Rory’s special and extraordinary expenses, as defined in s. 7 of the Guidelines, for the period of January 2015 to present, and ongoing. The father shall have 30 days thereafter to serve and file a responding affidavit should he wish to do so.

Madam Justice Julie Audet

Released: October 9, 2019

COURT FILE NO.: FC-13-1333-ISO2

DATE: 20191009

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BARRY CALDER SCOTT

Applicant

– and –

JUSTYNA SZLUINSKA

Respondent

Decision

Audet J.

Released: October 9, 2019