Court File and Parties
BARRIE COURT FILE NO.: FC-10-1277-04 DATE: 20200228 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Erin Hunt, Applicant AND: Richard Vallee, Respondent
BEFORE: The Hon. Madam Justice S.E. Healey
COUNSEL: Erin Hunt, Self-represented Richard Vallee, Self-represented
HEARD: February 28, 2020
Endorsement on Motion
The Nature of the Motion
[1] The applicant brings a motion for the following temporary relief:
i. An order requiring the respondent to pay child support for one child, Belle, commencing February 1, 2020, based on an imputed 2019 income; ii. An order requiring the respondent to pay s. 7 expenses for Belle, including but not limited to orthodontic expenses, commencing February 1, 2020.
[2] The applicant also asked that the respondent be “held in default”. The reason for this was that he served his responding affidavit after 4:00 p.m. on February 24, which made service not strictly in compliance with the order of Vallee, J. dated February 13, 2020, which required him to serve it on February 24.
[3] The other basis for her request was that the respondent did not include a document showing his earnings for 2019 as an exhibit to his affidavit, as directed by Vallee, J. This latter omission is not a total impediment to proceeding with this motion, as the applicant has asked that the respondent’s 2019 income be imputed at $53,000.
[4] As to the former objection, no disadvantage resulted to the applicant from the technically late service of the respondent’s affidavit because the court permitted her, with the respondent’s consent, to file her reply affidavit in court prior to the argument of the motion even though the timetable imposed by Vallee, J. required her to do so by February 26.
[5] This motion has been brought within the context of a motion to change the final order of McGee, J. dated May 26, 2014, commenced by the applicant.
Periodic Child Support for Belle
[6] The parties have two children: Belle Earl Rose Vallee, born June 15, 2006; and Ryder Eric Vallee, born January 1, 2008.
[7] The order of McGee J. imposed a shared custody arrangement, with the children residing with each parent on alternate weeks. Based on the applicant’s income of $42,400 and the respondent’s income of $17,000, the applicant was ordered to pay a set-off amount of child support to the respondent calculated at $364 per month. The uninsured portion of health, medical and dental expenses were to be paid on a 70%/30% proportionate basis. Updated income disclosure was to be made each year.
[8] The parties never voluntarily adjusted the support based on updated income information from 2015 forward.
[9] In her motion to change, which requests a change in custody and residency for Belle, the applicant seeks to have child support payments “updated to reflect the court payments, tabled under the Child Support Guidelines, based on 2015, 2016 and 2017 income tax returns”. She also seeks an order to have orthodontic expenses shared on a 50/50 basis. The applicant does not seek payment of any other s.7 expenses in her motion to change.
[10] In December 2018 Belle began to live with her mother full-time. Orders were made shortly thereafter suspending contact between Belle and the respondent.
[11] On April 11, 2019 an order was made suspending the applicant’s payment of the set-off amount of child support ordered by McGee, J.
[12] The notices of assessment or reassessment filed in this proceeding by the parties show that their line 150 incomes have been:
| Year | Applicant | Respondent |
|---|---|---|
| 2015 | $38,017 | $0 |
| 2016 | $36,669 | $18,764 |
| 2017 | $34,029 | $4,269 |
| 2018 | $49,434 | $11,941 |
[13] I am not making findings that these are the accurate income amounts for the parties in these years. That will be for the trial judge to determine on all the evidence presented.
[14] Assuming these amounts are proven to be accurate, the set-off child support amount for each of those years is:
2015: $571 - $0 = $571 x 12 months = $6,852 2016: $554 - $286 = $286 x 12 months = $3,432 2017: $517 - $0 = $517 x 12 months = $6,204 2018: $745 - $0 = $745 x 12 months = $8,940
[15] These amounts total $25,482. Assuming that she has paid continuously and there are no arrears, the applicant has paid $364 x 48 months = $17,472 during those four years, a potential underpayment of $8,010.
[16] Although the applicant expressed confidence during the argument of this motion that she will prove that the respondent is deliberately underemployed and working “under the table”, the onus is on her to prove that at trial and no such findings have yet been made. It does not appear to be in dispute that in 2017 the respondent had quadruple bypass surgery, and that he only obtained his current job at the end of 2018.
[17] For 2019, the respondent has not provided a final pay slip or his T4 statement, which he indicated was available to him but at home. He earlier provided a year-to-date pay statement dated November 13, 2019 (which was a Wednesday) showing year-to-date income of $41,280.74. It indicates that he is paid weekly. Given that the statement was dated midweek, I am assuming that this total was in reference to the last pay period, which would make seven more pay periods in 2019. Accordingly, in the previous 45 weeks the applicant earned an average of $917.35 per week. In the absence of more exact numbers, I would calculate his 2019 income to be $47,702 (7 x $917.35 = $6421.45 + $41,280.74).
[18] If this amount is shown to be correct at trial, the child support payment for Belle based on an annual income of $47,702 would be $442 monthly, and $5,304 for the entire 2019 year. This is not enough to offset the potential amount of underpayment that may be calculated as owing for the years 2015 to 2018 inclusive.
[19] The applicant has not provided proof of her income for 2019 on this motion. This makes it impossible to know whether there remains any set-off payable by either party for Ryder in 2019, or even going forward in 2020.
[20] These parties have been in litigation in one form or another since 2010. In her endorsement of October 25, 2018, Eberhard, J. stated that the applicant may well be a vexatious litigant. Since this motion to change was initiated by her in July 2018, there have been 14 appearances in this motion to change alone, including today’s motion. Other than the court initiating the scheduling of case conference and settlement conference dates, each of these appearances has been initiated by the applicant.
[21] This matter is scheduled to be tried during the trial sittings commencing May 18, 2020. As the above calculations have shown, ordering the respondent to pay funds now for child support for Belle as of February 1, 2020 may ultimately not be warranted given the potential for the finding of an underpayment by the applicant between 2015 to 2018 inclusive. Although an order for payment of support by the respondent for Belle from the time that she began to live full-time with the applicant may be legally correct, ultimately the correct approach is to leave the commencement date for any exchange of money for determination by the trial judge. He or she is tasked with determining the parties’ incomes for each of these years and will determine whether, and if, any retroactive amounts are owed by either party.
[22] In reaching this outcome it has been unnecessary to consider the respondent’s claim under s.10 of the Child Support Guidelines with respect to hardship. However, I do note that none of the grounds argued by him for invoking that section come within the circumstances listed in s.10(2).
[23] Accordingly, the applicant’s motion for a temporary child support order is dismissed.
Orthodontic Expenses
[24] The applicant’s request for an interim order for this relief must be dismissed for three reasons:
i. The applicant has not provided proof of her 2019 income on this motion in order to determine the proportionate sharing of such expense; ii. The applicant has not provided documentary proof of this expense in her evidence filed on this motion; and iii. The applicant has not provided proof of the coverage, or lack thereof, available to Belle for orthodontic costs under her current spouse’s benefit plan. It is only the uninsured portion of such costs that are liable to be shared on a proportionate basis, and the onus is on the applicant to prove that the cost, in whole or in part, is not a covered expense. It is also necessary to prove that she has no such insurance available to her through her employment.
[25] Accordingly, the motion for an order requiring the respondent to share payment for this expense is dismissed.
Costs
[26] The respondent asked for modest costs if the applicant is wholly unsuccessful on this motion. He did not provide proof that he has incurred any out-of-pocket or other expenses for responding to this motion, and he advised the court that he has not missed a workday as a result of the scheduling of the motion.
[27] However, modern cost rules serve many purposes, one of which is to discourage litigants from taking unnecessary steps or putting opposing litigants to unnecessary inconvenience, or from using scarce court resources for minor matters. Child support is not a minor matter. However, with a trial anticipated to take place in three-and-a-half months, in which all of these issues will be determined, it should have been obvious to the applicant that this was an unnecessary motion. In her endorsement from January 13, 2020, Vallee, J. signaled this to the applicant by stating: “Although I have not done the calculations, with the offset for Ryder, the amount payable by the RF may be modest”. In my questioning of the applicant on this motion, it became obvious that she has not calculated the potential underpayment for 2015 to 2018 and refuses to accept it as a potential trial outcome. That may ultimately prove to be an unreasonable position after the evidence is tested at a hearing. In all the circumstances, it was unreasonable to bring the motion.
[28] This court orders that costs shall be paid by the applicant to the respondent for this motion fixed in the amount of $100 and payable within 30 days.
[29] This court orders that each party shall provide the other with his or her T4 statement for 2019 within 30 days.
HEALEY J. Date: February 28, 2020