COURT FILE NO.: FC-19-1412-ISO0
DATE: 2019/12/31
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Rose Louise Seury, Applicant
AND
Derek Sean Greenwell, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Self-represented, Applicant
Self-represented, Respondent
HEARD: In writing
ENDORSEMENT
[1] Ms. Seury resides in Nova Scotia. Mr. Greenwell resides in Ottawa, Ontario.
[2] Ms. Seury has commenced a support variation application under the Interjurisdictional Support Orders Act[^1].
[3] The parties were not married. The parties have two children, M., born [redacted] (now age 21), and B., born [redacted] (now age 18).
[4] The current child support is payable under the Consent Order of the Honourable M. Clare MacLellan of the Supreme Court of Nova Scotia (Family Division), dated April 2, 2004. In 2004, both children primarily resided with the Applicant. The Respondent had access every second weekend, every Saturday, and each Tuesday and Friday evening. The Respondent’s income was $30,225, and the Applicant’s income was $19,594. The Respondent paid child support of $450 per month for the support of the two children. The terms of the Consent Order acknowledge this amount is $10 above the table amount payable for two children under the Child Support Guidelines.
[5] The terms of the Consent Order require the Respondent to provide annual income information to the Applicant. The terms state that the Respondent:
“shall supply the Applicant with a copy of his Income Tax Return completed with all attachments even if the return is not yet filed, along with all Notices of Assessment received from Canada Customs and Revenue Agency on an annual basis on or before June 1st in any year commencing as of June 1st, 2004 and continuing thereafter until otherwise ordered by a court of competent jurisdiction.”
The Applicant’s Claims
[6] The Applicant seeks child support for M. for the period from January 1, 2013, to the end of August 2016. The Applicant seeks child support for B. retroactive to January 1, 2013, and ongoing child support for B. based on the Child Support Guidelines.
[7] The Applicant’s evidence is that, despite the terms of the Consent Order, the Respondent did not provide his annual income information. She believes that the Respondent has underpaid child support. She states she did not apply for an increase in child support earlier because she wanted to avoid a fight with the Respondent, whom she described as verbally abusive, and only recently investigated what a chartered accountant is capable of earning. The Applicant’s evidence is that she repeatedly asked the Respondent for his income information, but the Respondent never provided it. The Respondent does not deny that the Applicant requested his income information, nor that he failed to provide it.
The Respondent’s Position
[8] The Respondent states that he always paid the child support as required under the terms of the April 2, 2004 Consent Order. He does not, however, state that he complied with his obligation under the April 2, 2004 Consent Order to provide annual disclosure of income information to the Applicant, nor does he deny the Applicant’s evidence that he failed to do so. I find that the Respondent did not provide proof of his income to the Applicant as required by the April 2, 2004 Consent Order.
[9] The Respondent states that although the April 2, 2004 Consent Order required him to pay child support of $450 per month, he voluntarily increased the child support on several occasions, after moving to Ottawa in October of 2008. He states he increased the child support to $750 per month in October of 2008, to $875 per month in 2001, and to $950 per month in March of 2014. In September of 2016, after M. moved to reside with the Respondent, the Respondent states he reduced child support to $750 per month. For the period in issue (after January 1, 2013), the Applicant agrees that the Respondent paid child support as set out above.
[10] The Respondent raises several arguments in response to the Applicant’s claims:
a. His child support obligation should be reduced by, in effect, what the Applicant owes him for child support for M. The evidence of both parties is that M. moved to Ottawa to reside with the Respondent in September of 2016. The Respondent seeks to impute an annual income of $25,000 to the Applicant for this purpose;
b. Any child support arrears should be reduced because he has incurred high costs to exercise access since 2013, including a portion of his vacation costs. The Respondent totals these access expenses for the period from 2013 to 2019 to be $24,000;
c. Any child support arrears should be reduced because he paid for orthodontic expenses for both children, which he states totalled $3,005 over and above his dental insurance coverage; and
d. Any child support arrears should be reduced by funds he sent to the Applicant and directly to the children, which he states total $5,538.
The Respondent’s Income
[11] The Respondent is a chartered accountant. He is employed by the federal government. In his financial statement, signed September 4, 2019, he states his current income is $115,000 per year.
[12] The Respondent has provided his notices of assessment for 2018, 2017 and 2016. According to these documents, his total income in 2018 was $115,853, his total income in 2017 was $116,474, and his total income for 2016 was $96,866.
[13] The Respondent has not provided proof of his income for the years before 2016. He has provided a chart in which he states what his income was back to 2013, without providing any supporting documents. Based on this chart, the Respondent states his income was as follows:
a. 2013 – $89,179;
b. 2014 – $89,179; and
c. 2015 – $95,400.
[14] I am prepared to use these income figures for 2013, 2014 and 2015 to calculate child support arrears. However, I order the Respondent to provide the Applicant with copies of his complete income tax returns and notices of assessment for 2013, 2014 and 2015 within 45 days of this decision. If the Respondent’s income is higher than the amounts stated above, the Applicant may bring a motion before me, with copies of the income documents provided, seeking an increase in the support amounts owed for these years. If the Respondent fails to provide the income information as directed, the Applicant may bring a motion before me seeking an increase in the support amounts based on deeming the Respondent’s annual income to be $20,000 higher.
M.
[15] The Applicant acknowledges that M. moved to Ottawa in September of 2016 when he was 18 years of age. The Applicant acknowledges that M. has resided with the Respondent since September of 2016, and he is now attending university on a full-time basis. Her position is that the Respondent underpaid child support for M. before his move.
[16] The Applicant states that M. was not in full-time school during the period from September of 2016 to September of 2018 but was instead working and upgrading some courses. The Respondent does not deny this, and this evidence is consistent with the Respondent’s evidence that, in September of 2019, M. was in the second year of his university program.
[17] The Applicant appears to acknowledge that, since September of 2018, she has a child support obligation towards M. but believes her income is too low for any amount to be payable under the Child Support Guidelines. In her financial statement, the Applicant states that her current annual income is $9,100. The Applicant works as a self-employed hairstylist. Her tax information, filed, reports that her total income was $8,564 in 2016, $8,848 in 2017 (with gross revenue of $23,955.95), and $9,053 in 2018 (with gross revenue of $24,425.50).
[18] The Applicant’s position is also that M.’s contribution to his own expenses should reduce any child support obligation she may have for M. The Applicant’s evidence is that M. pays for most of his living and school expenses through his part-time employment and a student line of credit. Her evidence includes that M. pays for his clothing, spending money, and spends most of his time at his girlfriend’s home. The Applicant also states that M. secured a well-paying job ($17 per hour) for the summer of 2019.
[19] The Applicant’s evidence on M.’s financial contributions to his own support is consistent with the Respondent’s evidence provided on this point. The Respondent states that M. is employed and earned $10,000 in 2018. He does not reference M.’s employment income in the summer of 2019, nor comment on how M. uses his income to contribute to his own expenses. The Respondent also acknowledges that M. has a student line of credit, which the Respondent guaranteed.
[20] I make the following findings concerning M.:
a. The Respondent continued to have an obligation to pay child support to the Applicant for the support of M. up to the end of August 2016, at which time M. then moved to Ottawa to reside with the Respondent;
b. During the period from September 1, 2016, to the end of August 2018, the Applicant did not have an obligation to pay child support to the Respondent for the support of M. because M. was over 18, was not in full-time school during this period and was working;
c. As of September 1, 2018, both parents have an obligation to contribute to the support of M. because he is enrolled and pursuing full-time attendance at a post-secondary educational institution;
d. For the purposes of determining the Applicant’s child support obligation to M., I impute income to her of $20,000 per year. This income is based on taking into consideration the Applicant’s income in 2004 ($19,594) and minimum wage full-time income in Nova Scotia, which is approximately $20,000 per year. I do not accept the Applicant’s income as being $9,100 per year for child support purposes. If this is her income, then I find she is voluntarily unemployed under s.19 of the Child Support Guidelines; and
e. The table amount payable for M., based on an income of $20,000 per year (for a payor residing in Nova Scotia), is $139 per month. Taking into consideration the evidence before me on M.’s income and contributions to his own expenses, I find that the table amount is inappropriate and reduce the child support for M. to $80 per month.
B.
[21] The Applicant’s evidence is that B. graduated from high school in the spring of 2019 and began university in September of 2019. The Respondent acknowledges that B. is attending university on a full-time basis and resides with the Applicant.
[22] Neither party has provided information about B.’s income, nor any special and extraordinary expenses related to her university or otherwise.
[23] The Respondent, in his material, does not take issue with the Applicant’s claim for him to pay table child support for B.
[24] I make the following findings concerning B.:
a. The Respondent continues to have an obligation to pay child support to the Applicant for the support of B. on an ongoing basis; and
b. Based on the Respondent’s evidence that his current income is $115,000 per year, the ongoing table child support payable by the Respondent to the Applicant for B.’s support is $1,028 per month (for a payor residing in Ontario).
Child Support Arrears from January 1, 2013, to present
[25] In his material, the Respondent does not take issue with child support being calculated based on his actual income dating back to January 1, 2013. This is an appropriate concession that recognizes the Respondent’s failure to provide his annual income information as required under the April 2, 2004 Consent Order. The Respondent’s position is only that he be credited with certain payments, and that his arrears be offset by the Applicant’s obligation to provide child support for M.
[26] Based on the findings above, and the parties’ respective incomes, the following amounts should have been payable between the parties since January 1, 2013:
a. 2013 – the Respondent should have paid $1,283 per month for the support of two children, based on his income of $89,179[^2]. He paid $875 per month, amounting to a shortfall of $408 per month, or $4,896 for the year;
b. 2014 – the Respondent should have paid $1,283 per month for the support of two children, based on his income of $89,179[^3]. He paid $875 per month for January and February of 2014, and then $950 per month for the remainder of the year. This results in a shortfall of $4,146 for the year;
c. 2015 – the Respondent should have paid $1,360 per month for the support of two children, based on his income of $95,400[^4]. He paid $950 per month, resulting in a shortfall of $410 per month, or $4,920 for the year;
d. 2016 – January to August – the Respondent should have paid $1,378 per month for the support of two children, based on his income of $96,866[^5]. He paid $950 per month, resulting in a shortfall of $428 per month for eight months, for a total of $3,424 for this period;
e. 2016 – September to December – the Respondent should have paid $855 per month for the support of one child, based on his income of $96,866[^6]. He paid $750 per month, resulting in a shortfall of $105 per month for four months, for a total of $420 for this period;
f. 2017 – the Respondent should have paid $1,009 per month for the support of one child, based on his income of $116,474[^7]. He paid $750 per month, resulting in a shortfall of $259 per month, or $3,108 for the year;
g. 2018 – January to August – the Respondent should have paid $1,035 per month for the support of one child, based on his income of $115,853[^8]. He paid $750 per month, resulting in a shortfall of $285 per month for eight months, or $2,280 for this period;
h. 2018 – September to December – the Respondent should have paid $1,035 per month for the support of one child, based on his income of $115,853[^9]. He paid $750 per month, resulting in a shortfall of $285 per month for four months, or a total of $1,140 for this period. The Applicant should have paid $80 per month for the support of M. for these four months, for a total of $320. The net owed ($1,140 less $320) is $820; and
i. 2019 – the Respondent should have paid $1,028 per month for the support of one child, based on his income of $115,000[^10]. He has paid $750 per month, resulting in a shortfall of $278 per month, or a total of $3,336 for the year. The Applicant should have paid $80 per month for the support of M., for a total of $960 for the year. The net owed ($3,336 less $960) is $2,376.
[27] The total owed by the Respondent since January 1, 2013, based on the above calculations and without consideration of the Respondent’s claims for various credits, is $26,390.
Access Costs
[28] The Respondent’s position is that any child support arrears should be reduced because he has incurred high costs to exercise access since 2013, including a portion of his vacation costs. The Respondent totals these access expenses for the period from 2013 to 2019 to be $24,000.
[29] The Respondent acknowledges that this $24,000 total includes vacation expenses. These vacation expenses are significant and include trips to Disney, Mexico, and a Cruise. I do not find that the child support payments should be reduced by any portion of the Respondent’s vacation expenses that he incurred at his discretion, and which he enjoyed with the children.
[30] When the vacation expenses are excluded, the Respondent’s claim for access costs is reduced to $7,732. The Respondent incurred these expenses over seven years, from 2013 to 2019, which amounts to approximately $1,100 per year. They are primarily made up of car, gas and airfare expenses.
[31] Interestingly, in the Respondent’s calculations, he has deducted 100% of these access expenses from the child support arrears owed. Even if I found that these access expenses warranted a reduction in child support, I would not deduct 100% of the access costs from child support, as to do so would effectively place 100% of the financial burden of the increased costs of access on the recipient. There is no basis for doing so, particularly when the Respondent was the party who moved.
[32] I do not find that the Respondent’s access costs warrant a reduction in child support. This is because I do not find that access costs of approximately $1,100 per year qualify as “unusually high” under s.10 (2) of the Child Support Guidelines[^11], particularly when compared to the expenses that the Respondent would have incurred if he remained in Nova Scotia and saw the children every second weekend, every Saturday, and every Tuesday and Friday evening.
[33] I also do not find that the Respondent will otherwise suffer undue hardship under s.10 of the Child Support Guidelines due to the access costs that he has claimed. In particular, I find that the household of the Respondent has a higher standard of living than the Applicant. In arriving at this finding, I have considered that the Respondent has a new partner who has an annual income of $55,000 and that the Applicant is recently separated and has another child from her subsequent relationship. I have considered the calculations using the applicable test under Schedule II of the Child Support Guidelines. Assuming the Applicant’s income is $20,000 per year, her household income ratio is approximately 1.7, whereas the Respondent’s household income ratio is over 6.
Orthodontic Expenses
[34] I do not find that there is a basis to reduce the child support amounts by one-half of the $3,005 amount the Respondent states he paid towards the children’s orthodontics.
[35] It appears that the parties shared equally the children’s s.7 expenses. This equal sharing is not specified under the April 2, 2004 Consent Order, nor would an equal sharing be typical under the Child Support Guidelines. The guiding principle under the Child Support Guidelines is that such expenses be shared in proportion to the respective incomes of the parents[^12]. I note this because the Respondent benefitted from the Applicant’s belief that she was required to pay an equal share of s.7 expenses when her contribution would have otherwise been significantly less, given her income.
[36] In support of the Respondent’s claim to reduce the child support amounts by his orthodontic payments, he has produced statements from the dental clinic showing billings and credits dating back to 2011. For each of the payments that the Respondent claims he paid, and seeks credit for, the statements show offsetting credits presumably paid by the Applicant. The statements expressly show that the sum of $7,089 was paid towards the children’s dental accounts, not including insurance amounts. The Respondent only paid half of these amounts. It is fair and reasonable to assume that the Applicant paid the other half, which again, is more than she would have normally been required to pay given her income.
Funds Sent Directly to the Applicant and the Children
[37] The Respondent seeks to reduce any child support arrears by the sum of $5,538, which he states is the total for funds he sent directly to the children and the Applicant. The Respondent has provided a table of these transfers that took place from December 26, 2012, to August 3, 2019. The Respondent totals these transfers to be $5,958. This total includes a $1,200 transfer that has a side note indicating 80% of this amount was reimbursed through insurance. With this adjustment, the total is reduced to $4,998.
[38] I do not find that there is a basis to reduce the child support amount by these payments, for the following reasons:
a. The Respondent has not provided any evidence that these payments were to be considered by the Applicant as satisfying his additional table child support obligation;
b. The Respondent should have been aware that he had an obligation to pay higher child support to the Applicant, given his knowledge of his income, his knowledge that he had not provided his income information to the Applicant, and his knowledge of the requirement under the April 2, 2004 Consent Order to do so;
c. The vast majority of the payments were made directly to the children. The amount of the transfers, the timing of some of the transfers (close to Christmas) and the notes attached to some of the transfers support a finding that these transfers were the Respondent’s contribution to specific s.7 expenses or were gifts to the children. There is, for example, a happy birthday message attached to one of the e-transfers to M.;
d. One of the transfers was completed before the period in issue (December 26, 2012); and
e. The transfers to the Applicant directly, over this seven-year time-period, other than the regular table child support, total only $793. On average, this is approximately $113 per year. This is not an amount that warrants a credit to the amount owed, to ensure a fair and just result. In the absence of compelling evidence that the Respondent communicated to the Applicant that these payments were being made as a credit to his table child support obligation, I decline to do so.
Retroactive Child Support Considerations
[39] As stated above, the Respondent does not take issue with child support being recalculated dating back to January 1, 2013, based on his actual income, although he seeks credits to the amounts owed.
[40] I have, however, considered the D.B.S. v. S.R.G[^13] factors in arriving at my finding that the Respondent be required to pay the Applicant the increased child support dating back to January 1, 2013. For the reasons stated above, this amount of child support totals $26,390. This amount is for the period up to and including December 31, 2019, based on the assumption that the Respondent has continued to pay child support of $750 per month for 2019.
[41] In applying these factors, I find as follows:
a. The Respondent’s failure to provide his income information, as required under the April 2, 2004 Consent Order, is blameworthy conduct, particularly when the Applicant made repeated requests for this information;
b. Given the terms of the April 2, 2004 Consent Order, the Respondent should have known he had an obligation to pay higher child support with increases in his income. He did, in fact, periodically increase and decrease child support in a manner that reflects an awareness of child support obligations. I find, however, that he sought to mislead the Applicant on the true amount of child support owed by failing to provide his income information to her;
c. Given the Respondent’s conduct, and her limited financial resources, the Applicant’s delay in commencing a legal proceeding to compel the Respondent to comply with his court-ordered obligation was reasonable;
d. The Respondent’s financial circumstances are significantly better than the Applicant’s. The Respondent has a positive net worth, not including his pension through his federal government employment. He has significant equity in his residence. Payment of the child support amount of $26,390 will not create an undue hardship on the Respondent;
e. I do not find that the circumstances of the children, and particularly that M. is now residing with the Respondent, are a basis to reduce the child support amount. B. continues to reside with the Applicant. The Applicant’s financial circumstances are significantly less than the Respondent’s. M. can contribute to his own support, and is doing so through his income and student loans; and
f. I have taken into consideration that the Respondent underpaid child support before January 1, 2013, but is not being required to pay increased support before that date. The Respondent has also benefitted by the Applicant paying more than her proportionate share of s.7 expenses, such as the orthodontic expenses.
[42] I find, taking into consideration all of the circumstances and considering a holistic approach, that it is fair and just for the Respondent to pay the full amount of child support owed, being $26,390.
Disposition
[43] For the above reasons, the Consent Order of the Honourable M. Clare MacLellan of the Supreme Court of Nova Scotia (Family Division), dated April 2, 2004, is hereby varied as follows:
a. For the period from January 1, 2013, up to and including December 31, 2019, the Respondent shall pay the Applicant child support arrears fixed at $26,390;
b. Commencing January 1, 2020, and continuing until further order of the court or agreement of the parties, the Respondent shall pay child support to the Applicant for the benefit of B.[redacted], born [redacted] of $1,028 per month. This is the table amount for one child based on the payor’s income of $115,000 for a payor residing in Ontario;
c. Commencing January 1, 2020, and continuing until further order of the court or agreement of the parties, the Applicant shall pay child support to the Respondent for the benefit of M. [redacted], born [redacted], of $80 per month. This is a reduction of $59 per month from the table amount for one child based on the payor’s income of $20,000 (being $139/month) for a payor residing in Nova Scotia;
d. The Respondent shall provide copies of his complete income tax returns and notices of assessment for 2013, 2014 and 2015 to the Applicant within 45 days of this decision. If the Respondent’s income is higher than the amounts stated above, the Applicant may bring a motion before me, with copies of the income documents provided, seeking an increase in the support amounts owed for these years. If the Respondent fails to provide the income information as directed, the Applicant may bring a motion before me seeking an increase in the support amounts based on deeming the Respondent’s annual income to be $20,000 higher;
e. The Respondent’s obligation to provide the Applicant with notice of any changes to his employment or income status, and to provide annual income disclosure, as prescribed under the Consent Order of the Supreme Court of Nova Scotia (Family Division), dated April 2, 2004, shall continue;
f. If I have made mathematical errors, either party may make submissions to me seeking correction, copied to the other party, to be served and filed within 45 days. The other side shall have 20 days to serve and file a response; and
g. I have applied Ontario law in making this order.
Justice P. MacEachern
Date: December 31, 2019
COURT FILE NO.: FC-19-1412-ISO0
DATE: 2019/12/31
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Rose Louise Seury, Applicant
AND
Derek Sean Greenwell, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Self-represented, Applicant
Self-represented, Respondent
ENDORSEMENT
MacEachern J.
Released: December 31, 2019
[^1]: Interjurisdictional Support orders Act, S.N.S. 2002, c.9; Interjurisdictional Support Orders Act, 2002, S.O. 2002, c.13, part IV
[^2]: Based on the Child Support Guidelines tables effective December 31, 2011
[^3]: Based on the Child Support Guidelines tables effective December 31, 2011
[^4]: Based on the Child Support Guidelines tables effective December 31, 2011
[^5]: Based on the Child Support Guidelines tables effective December 31, 2011
[^6]: Based on the Child Support Guidelines tables effective December 31, 2011
[^7]: Based on the Child Support Guidelines tables effective December 31, 2011
[^8]: Based on the Child Support Guidelines tables effective November 22, 2017
[^9]: Based on the Child Support Guidelines tables effective November 22, 2017
[^10]: Based on the Child Support Guidelines tables effective November 22, 2017
[^11]: Child Support Guidelines, O.Reg. 391/97 as am., s.10
[^12]: Child Support Guidelines, O.Reg. 391/97 as am.,, s. 7(2)
[^13]: D.B.S. v. S.R.G, 2006 SCC 37