COURT FILE NO.: 3442/15-01

DATE: 2019-10-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MONICA CAMPBELL Applicant

– and –

DAVID WILLIAM CAMPBELL Respondent

Self-represented

Self-represented

HEARD: September 27, 2019

GAREAU J.

REASONS ON MOTION TO CHANGE

1David William Campbell on August 1, 2018 brought a motion to change pertaining to the final order granted on consent on July 11, 2017 by McMillan J. The issues as far as Mr. Campbell is concerned are the payment of ongoing support, based on his current income, and the calculation of arrears. It is Mr. Campbell’s position that he has overpaid both child support and spousal support based on his income in 2017, 2018 and 2019, and that there are no arrears owing by him.

2The issues as far as Monica Campbell is concerned are the level of ongoing child and spousal support, the proper contribution by Mr. Campbell to the section 7 expenses for their son David’s hockey, and the calculation of the proper amount of arrears for support owing to her by David Campbell.

BACKGROUND

3Mr. Campbell and Mrs. Campbell are both 51 years of age. They were married on August 24, 1989 and separated as of November 23, 2014. There are three children as a result of their marriage. The two older children are independent. Their youngest child, David Campbell, born August 12, 2002, has remained dependent at least for some period of time, since the order of July 11, 2017 was granted.

4On consent a final order was granted on July 11, 2017. It provided, inter alia, as follows:

(a) Ms. Campbell have custody of the child David;

(b) Mr. Campbell pay to Ms. Campbell child support of $1788.00 per month and spousal support of $4462.00 per month, for a total of $6250.00 per month commencing March 1, 2017;

(c) The quantum of support is based on Mr. Campbell having an annual income of $221,000.00 and Ms. Campbell having an imputed annual income of $25,000.

(d) The amount of support ordered will continue unless there is a material change in circumstances but in any event will be reviewable in August 2020;

(e) All arrears of spousal support and child support under previous court orders are fixed at $35,000.00 as of February 28, 2017;

(f) Mr. Campbell’s share of section 7 expenses for David are fixed at $410.00 per month commencing September 1, 2017 reviewable in the event that section 7 expenses are no longer necessary but in any event after August 2020.

5The final order granted on July 11, 2017 was varied within the motion to change proceedings by a temporary order granted on September 25, 2018 by Varpio J. which reads as follows:

1. Paragraph 3 of Justice I.S. McMillan’s order dated July 11, 2017 is varied to read:

Commencing October 1, 2018 the respondent David William Campbell shall pay to the applicant Monica Anne Campbell $989.00 per month in child support and $2,000.00 per month in spousal support based on his estimated current income of $110,000.00 per annum and the applicant’s imputed income of $25,000.00 per annum.

6The order of September 25, 2018 also provides for a lump sum partial payment toward arrears under the July 11, 2017 order of $17,000.

7As of March 1, 2017 the parties have been operating under the orders of July 11, 2017 and September 25, 2018.

THE ISSUES

Has there been a material change in circumstances to enable the previous orders to be reviewed?

8On the evidence before me, I am satisfied that there has been a reduction in the income of Mr. Campbell due to his inability to work as a result of health difficulties that he has experienced.

9Attached as Tab “A” to the affidavit of David Campbell sworn on September 11, 2019 (Tab 8 motion to change record) is an undated brief note from Dr. Beduhn who writes simply, “Off work for medical reasons. Mental illness.” Also attached at that tab is a more fulsome medical report dated April 24, 2018 addressed to Dr. Beduhn from Dr. Wendy Sutton, a psychiatrist at St. Joseph’s Healthcare in Hamilton, Ontario. This report notes that Mr. Campbell has been diagnosed with depression by his general practitioner and that he is off work on disability. In the opinion and recommendations portion of her report, Dr. Sutton makes the following comments:

Mr. Campbell is a 49-year-old gentleman who presents with ongoing difficulties with mood and anxiety in the aftermath of what appears to be a rather traumatic dissolution of his 25 year marriage. It is likely that Mr. Campbell’s initial difficulties related to an Adjustment Disorder in the context of his divorce, however, given the enduring nature of his symptoms, and associated functional decline, he would now meet the criteria for Major Depressive Disorder, moderate, with anxious distress.

10Also attached at Tab A of Mr. Campbell’s affidavit sworn on September 11, 2019 is confirmation that Mr. Campbell’s long-term disability benefits have been approved effective February 27, 2019.

11I am satisfied that there has been a material change in circumstance sufficient for this court to review the support provisions in the July 11, 2017 order due to Mr. Campbell’s medical condition and his resulting reduction in income.

Income of the Parties

12On the affidavit and documentary evidence before me, I find that the income of Mr. Campbell since the granting of the July 11, 2017 support order is as follows:

2017 - $182,942.00

2018 - $178,131.00

2019 - $113,390.04

13As to the income of Ms. Campbell, she has deposed in her affidavit material that her income from part-time employment is $10,000 to $12,000 per year. At the time the final order of July 11, 2017 was granted by McMillan J., Ms. Campbell agreed that her yearly income as imputed was $25,000. This amount of yearly income to be attributed to Ms. Campbell was agreed to by her at a time when she was not able to work as recommended by her physician. Attached as Exhibit “O” to the affidavit of Monica Campbell sworn on August 12, 2019 is a letter from Dr. Blair Jarrett of the Group Health Centre which reads as follows:

It is my medical opinion that Monica Campbell should remain off work until further notice.

14When the Honourable Justice Varpio dealt with a variation of support on an ongoing basis, he ordered the variation on September 25, 2018 on the basis that Ms. Campbell’s imputed income was $25,000 per year.

15Given these facts and the historical background in this case, my view is that there is no justifiable reason for this court to adjust the yearly income imputed to Ms. Campbell of $25,000, which is the amount she agreed to when she was not working due to medical reasons.

16Therefore, the income of Monica Campbell for the years 2017, 2018, and 2019 will be imputed at a level of $25,000 per annum.

The status of the child David Campbell, born April 12, 2002

17Pursuant to the order of July 11, 2017, the child is technically in the custody of his mother, Monica Campbell, and remains in her custody.

18The child David has played hockey at a high competitive level in the years 2017, 2018, and 2019. From September 2019 to the present time David has been a member of the North Bay Battalion hockey club in the Ontario Hockey League. As such, he has been billeted in a home independent of his parents in the City of North Bay, Ontario. All hockey related expenses for David will be covered by the hockey club as will his accommodation and food. David will be provided a monthly allowance by the North Bay Battalion hockey club to cover other incidental expenses which he may occur.

19Although the child David is clearly entitled to ongoing child support and section 7 expenses for 2017-2018, and 2018-2019 hockey seasons, given his present circumstances there should be no ongoing child support paid for him commencing September 1, 2019 except for the months the hockey season is concluded and he will be back residing with his mother in Sault Ste. Marie. This will be for the months of May, June, July, and August.

Ongoing Support

20I have found Mr. Campbell’s 2019 income to be $113,390.04, and Ms. Campbell’s imputed income to be $25,000 annually. Based on these amounts, the spousal support guidelines provide for a range of monthly support between $1301.00 to $2131.00 with a mid-point amount of $1726.00. The present interim order provides for $2,000 monthly based on an income of $110,000. I see no reason to deviate from that amount, which his in the range set out in the spousal support advisory guidelines. Accordingly, this court grants a final order that the respondent David William Campbell pay to the applicant Monica Anne Campbell spousal support in the amount of $2,000.00 per month, commencing October 1, 2019.

21As to child support for David Campbell, born April 12, 2002, David William Campbell shall pay to Monica Anne Campbell the sum of $1016.00 per month for the months of May, June, July, and August of each year. This amount is based on David William Campbell having an annual income of $113,390.04.

22The quantum of spousal support and child support ordered shall be reviewable upon a material change in circumstances of either party or the child David, including a change in the income of the parties or the status of the child David.

Calculation of Arrears

23The calculation of the arrears owing under the orders of July 11, 2017 and September 25, 2018 should be an exercise that the parties could undertake themselves. The dislike and distrust of the parties for each other has made that impossible.

24Starting with the July 11, 2017 final order, Mr. Campbell is paying spousal support in the amount of $4462.00 per month and child support of $1788.00 per month based on an income of $221,000. In 2017, Mr. Campbell in fact had an income of $182,942. Based on that income, the child support payable under the guidelines is $1536 per month. The spousal support advisory guidelines provide for a range between $3101 to $4195, with a mid-point of $3648 based on Mr. Campbell having an income of $182,942 and Ms. Campbell having an imputed income of $25,000 per year. Considering the respective financial positions of the parties, appropriate monthly spousal support for 2017 is $4000 per month based on the income actually received by Mr. Campbell in 2017.

25The result is that Mr. Campbell overpaid child support by $2520 ($1788 – 1536 x 10 months) and overpaid spousal support by $4620 ($4462 – 4000 x 10 months) and therefore should receive a credit against any arrears owing of $7140.00 for the year 2017.

26With respect to the year 2018, both child support and spousal support should be calculated on Mr. Campbell’s actual earnings of $178,131. On the basis of this income, child support is $1502.00 per month. On the basis of Mr. Campbell earning $178,131 and Ms. Campbell having imputed income of $25,000, the range for spousal support under the spousal support guidelines is $3060 to $4128 per month, with a mid-point of $3594. Considering the respective financial positions of the parties, appropriate monthly spousal support for 2018 is $3700 per month based on the income actually received by Mr. Campbell in 2018.

27From January 1, 2018 to September 30, 2018, the date of the adjusted amounts being effective October 1, 2018, pursuant to the order granted September 25, 2018 by Varpio J., Mr. Campbell overpaid child support by $2574 ($1788 – 1502 x 9 months) and overpaid spousal support by $6858 ($4462 – 3700 x 9 months) and therefore should receive a credit against any arrears owing of $9432 up to October 1, 2018.

28For the balance of 2018 (October, November and December) the support is calculated on income of $110,00 whereas we know that Mr. Campbell earned the sum of $178,131 in 2018. Mr. Campbell has underpaid support for October, November and December 2018 by $6639 (calculated at $1502 – 989 = 513 x 3 months for child support; and $3700 – 2000 x 3 months for spousal support).

29This sum of $6639 must be deducted from the other credits referred to above, leaving Mr. Campbell with a net credit of $9,933 from March 1, 2017 to December 31, 2018, under the court orders dated July 11, 2017 and September 25, 2018.

30As for 2019 up to October 1, 2019, Mr. Campbell is paying support based on earnings of $110,000. We know that his earnings are $113,390.04 in 2019. Based on these earnings, Mr. Campbell has underpaid child support by $243.00 ($1016 – 989 x 9 months) to October 1, 2019. This amount should be deducted from the credits Mr. Campbell receives as calculated above, leaving an amount of $9,690 to be credited against the amount ultimately set by this court as support arrears owing to Ms. Campbell.

Section 7 Expenses

31The section 7 expenses in issue involve expenses related to hockey for the child David. Both parents have been committed to David being involved in competitive hockey and David has responded by advancing to the point where he is now playing in the Ontario Hockey League. This is an accomplishment enjoyed by very few.

32Mr. Campbell’s obligation to contribute to these extraordinary expenses for David’s hockey is recognized in the order of July 11, 2017. Paragraph 8 of that order provides that Mr. Campbell is to contribute $410 per month toward section 7 expenses for David, commencing September 1, 2017.

33It is the position of Ms. Campbell that given the expenses incurred for hockey in the 2017-2018 and 2018-2019 seasons that the sum of $410 order results in an underpayment by Mr. Campbell of section 7 expenses given their respective incomes during those years.

34Attached as Exhibit “K” to Ms. Campbell’s affidavit sworn on August 12, 2019 are summaries for the expenses incurred for David for the hockey seasons in 2017-2018 and 2018-2019 with receipts attached. The total expense for the 2017-2018 season was $12,722.19. The total expense for the 2018-2019 season was $11,314.87. There is no serious dispute to these numbers advanced by Mr. Campbell.

35Based on the parties’ respective incomes in 2017, Mr Campbell’s proportionate share of the 2017-2018 hockey expenses would be 87%. This equates to a total responsibility of $11,068.30 out of the $12,722.19 in expenses for that year. This equates to $922.35 per month. Mr. Campbell has therefore underpaid the sum of $6,148.20 for the 2017-2018 hockey expenses.

36Based on the parties’ respective incomes in 2018, Mr. Campbell’s proportionate share of the 2018-2019 hockey expenses would be 87%. This equates to a total responsibility of $9,843.93 out of the $11,314.87 in expenses for that year. This equates to $820.32 per month. Mr. Campbell has therefore underpaid the sum of $4,923.84 for the 2018-2019 hockey expenses.

37In summary, Mr. Campbell has underpaid $11,072.04 in actual section 7 expenses for David’s hockey and this has to be factored into the calculation of any arrears which might be owing in support by Mr. Campbell to Ms. Campbell.

Calculation of Actual Arrears Owing

38Given the finding of facts made by this court as to the payment of ongoing support and section 7 expenses, the calculation of arrears should not be difficult, but it has been made difficult by the dislike and distrust the parties have for each other.

39Monica Campbell takes the position that $40,664.71 is owed by Mr. Campbell to her in arrears. She takes that position based on calculations completed for her by the accounting firm of Priddle-Luck Thibeault, which are found at Exhibit “M” to her affidavit sworn on August 12, 2019. There are several difficulties with these calculations. Firstly, the calculations do not form with the findings made by this court as to what should have been paid by Mr. Campbell since the order of July 11, 2017 granted by Justice McMillan. Secondly, there are obvious errors with the calculation prepared, the most glaring, is the adjustment entry of $35,000 in April 2017 which is added to the arrears then at $28,818.88, bringing the arrears to $63,818.88. The $35,000, as set out in paragraph 5 of the order granted on July 11, 2017 is the number that arrears are fixed at by the court at that point in time. It is the starting point for arrears that are calculated from that point forward, not an addition to arrears which is the erroneous approach in the calculations relied upon by Ms. Campbell.

40Mr. Campbell takes the position that he has overpaid support and takes this position based on calculations indicated what he should have paid for 2017 and 2018, and what was collected by the Family Responsibility Office during that period of time. The difficulty with this approach is that the Family Responsibility Office is collecting on arrears as well and not just ongoing spousal support payments.

41In my view, the more accurate way of calculating the present arrears owing is to use the Family Responsibility Office statement of arrears and make the adjustments to it that should be made as set out in these reasons. The Family Responsibility Office is charged with the responsibility of enforcing the support to be paid under the orders of July 11, 2017 and September 25, 2018, and doing the accounting as to what has been collected and what is owed under these court orders. A four-page summary of arrears from the Family Responsibility Office is attached to the affidavit of David Campbell sworn on September 11, 2019 at Tab B. That statement of arrears correctly recognizes the fixing of arrears by the court at $35,000, by the court order granted on July 11, 2017 and makes that adjustment to the arrears calculation as of August 28, 2017.

42The FRO statement of arrears then tracks support accrual under the orders and payments received from that date to August 1, 2019. As of August 1, 2019, the arrears owing by Mr. Campbell are fixed at $18,390.03 by the Family Responsibility Office. It is that figure that will be adjusted to account for overpayments and underpayments by mr. Campbell as set out in these reasons.

43Mr. Campbell underpaid section 7 expenses in the amount of $11,072.04. This underpayment will be added to the arrears calculated by FRO at $18,390.03 for total arrears of $29,462.07. From these arrears the overpayment made by Mr. Campbell based on his actual income must be deducted in the amounts broken down in these reasons for a total of $9,690. The sum of $9,690 deducted against the arrears owing after the section 7 adjustment of $29,462.07 results in a net amount of arrears owing by Mr. Campbell to Ms. Campbell of $19,772.07 as of September 30, 2019.

44Given the history in this matter and the gross disparity in the incomes of the parties, these arrears should be paid by a lump sum payment made by Mr. Campbell to Ms. Campbell. The full arrears of $19,772.07 shall be paid by Mr. Campbell to Ms. Campbell by November 15, 2019. As disclosed in Mr. Campbell’s sworn financial statement, he has $160,000 in RRSPs and there can be a partial liquidation of that asset to pay the arrears owing in a timely manner.

SUMMARY

45The previous orders of July 11, 2017 and September 25, 2018 should be varied to reflect the provisions set out in these reasons, which can be summarized as follows:

(a) The respondent shall pay to the applicant the sum of $2,000 per month for spousal support, commencing October 1, 2019. This quantum of spousal support is based on the respondent having an income of $113,390.04 per year and the applicant having imputed income of $25,000 per year;

(b) The respondent shall pay to the applicant child support for the child David Campbell, born April 12, 2002, in the amount of $1,016.00 per month for the months May, June, July, and August of each year, commencing May 1, 2020. The quantum of child support is based on the respondent having an annual income of $113,390.04;

(c) There shall be no section 7 expenses paid by the respondent to the applicant for the child David Campbell, born April 12, 2002;

(d) Arrears of spousal support, child support and section 7 expenses under the orders of July 11, 2017 and September 25, 2018 are fixed at $19,772.07 as of September 30, 2019. These arrears shall be paid in full by David Campbell to Monica Campbell on or before November 15, 2019;

(e) The ongoing spousal support and child support can be varied upon a material change in circumstances. In this regard, the parties are to exchange copies of their income tax returns and notice of assessment by June 1^st of each year, commencing in 2020;

(f) The previous orders of July 11, 2017 and September 25, 2018 are varied to reflect the final order as set out in these reasons.

COSTS

46Both parties have made claims for costs with respect to the motion to change. Ms. Campbell’s claim for costs is particularized at Tab 11 of Volume 3 of the continuing record at $1,796. Mr. Campbell has not particularized his claim for costs. Success in this proceeding has been very much divided. Mr. Campbell has not succeeded in having arrears rescinded nor has Ms. Campbell succeeded in obtaining arrears of $40,000 as she has claimed. Given the divided success in this matter, each party should bear their own costs.

Gareau J.