Court File and Parties

Court File No.: FS-18-208 Date: 2019/12/30 Superior Court of Justice - Ontario

Re: Melissa Anne Victor v. Maxime Matthieu Boulanger

Before: Ellies R.S.J.

Counsel: No one appearing

Heard: December 30, 2019

Endorsement

[1] This is an application to vary a child support order under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13. The child, who has special needs, resides with the applicant in Alberta.

[2] Unfortunately, this application has a rather tortured history due to various procedural issues. These are explained in my endorsement of April 24, 2019 (2019 ONSC 2420). The application eventually came on for hearing before me on October 10, 2019 but had to be adjourned to effect service on the respondent. Personal service was effected on December 2, 2019. However, the respondent did not appear when the matter resumed. Nor did he file anything in response to the application.

[3] The original order was made by the Alberta Court of Queen’s Bench on April 9, 2015. By virtue of that order, the respondent was required to pay ongoing monthly support for the child in the amount of $547 per month. The court also ordered that the respondent pay support for extraordinary expenses in the amount of $2,225 per year (at the rate of $139 per month) and that the respondent pay arrears with respect to both ongoing and extraordinary child support payments.

[4] The original order was based on imputed income of $65,000 on the part of the respondent. However, in 2017, the applicant learned that the respondent's income for 2015 was actually $77,304. She also learned that his income for 2016 was $78,994. In 2019, she learned that the respondent’s income for 2017 was $83,855 and $80,087 for 2018.

[5] The applicant seeks to vary the original order retroactive to January 2016 to reflect the income referred to above. In addition, she seeks to vary the original order with respect to extraordinary expenses retroactive to January 2018, on the same basis.

[6] I am satisfied that, for the most part, the application should be allowed. The applicant’s information with respect to the respondent’s income is well supported by the evidence, all of which was only made available to her after the original order was made. The information constitutes a material change, justifying a variation. However, there are some aspects of the application with which I have concerns.

[7] First, in the draft order, the applicant seeks an order retroactively imputing income to the respondent going back to 2014, based on the information she later obtained about his income for that year. However, the draft order only seeks arrears going back to the beginning of 2016. I see no reason to vary the order to impute income for any year before that.

[8] Second, in paragraph 5 of her draft order, the applicant gives two different end dates for the calculation of arrears of ongoing support. In her detailed calculations, she sets out the figures to the end of 2018. However, in the last sentence of the paragraph, she states that the arrears are calculated to September 2019. I propose to fix the arrears of ongoing support to the end of 2018, given that the applicant has not supplied information (probably because she does not yet have it) with respect to the respondent's 2019 income.

[9] Third, in her application, the applicant requested that arrears of child support be fixed in two different amounts, both in the range of $18,000. However, in her draft order, the applicant seeks arrears in a different amount. I propose to use the amount set out in the draft order because it is detailed, whereas the amounts set out in the application were not and were inconsistent with one another.

[10] Finally, in her draft order, the applicant asks that ongoing support payments be based on the respondent's 2016 income. In my view, ongoing support payments should be based on the most recent income information available, namely the information for 2018.

[11] Therefore, an order shall issue varying the original order, as follows:

(1) Effective on the 15th day of January 2016, and on the 15th day of each month thereafter, the respondent shall pay support for the child, Robert Mathieu Phillipe Boulanger, born September 3, 2004, in the amount of $735, representing the amount of support payable monthly by a payor in Ontario earning $78,994 per year.

(2) Effective on the 15th day of January 2017, and on the 15th day of each month thereafter, the respondent shall pay support for the said child in the amount of $782, representing the amount of support payable monthly by a payor earning $83,855 per year.

(3) Effective on the 15th day of January 2018, and on the 15th day of each month thereafter, the respondent shall pay support for the said child in the amount of $745, representing the amount of support payable monthly by a payor earning $80,087 per year.

(4) Commencing on the 30th day of January 2020, and on the 30 day of each month thereafter, with the exception of February, during which the payment shall be made on the 27th day of the month, the respondent shall pay arrears of ongoing support for the said child in the total amount of $7,464.24, representing arrears for 2016 ($2,257.32), 2017 ($2,820.48), and 2018 ($2,386.44), at the rate of $200 per month, until the arrears are paid in full.

(5) Commencing on the 15th day of January 2020, and on the 15th day of each month thereafter, the respondent shall pay arrears of support for extraordinary expenses for the said child in the total amount of $1,948.62, representing arrears for 2018 ($1,153.44) and for January to September, inclusive, 2019 ($795.18), at the rate of $50 per month, until the arrears are paid in full.

(6) Commencing on the 15th day of January 2020, the respondent shall pay ongoing support for extraordinary expenses for the said child at the rate of 65 percent of the said expense, to a maximum of $6,000 per year for medical, dental, psychological, or specialized education expenses not covered by insurance, and to a maximum of $2,500 for other extraordinary expenses as defined in s. 7 of the Federal Child Support Guidelines, SOR/97-175.

(7) The respondent shall pay his proportionate share of the extraordinary expenses referred to above within 45 days of receiving either an invoice relating to the expense, in which case he shall pay the service provider directly and provide proof of the payment to the applicant, or a receipt showing payment by the applicant, in which case he shall pay the applicant.

(8) By the 30th day of June of each year, the applicant and the respondent shall provide one another with information concerning their respective incomes, including copies of their Notices of Assessment from Canada Revenue for the previous year, personal income tax returns for the previous year, and most recent pay statements.

[12] The court staff shall be requested to prepare the said order for my signature.

[13] As there was no request for costs, there shall be no order as to costs.

Ellies R.S.J.

Date: December 30, 2019