COURT FILE NO.: 31/19

DATE: 2020/09/21

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Michelle Lee Hillyer, Applicant

AND:

Martin Edward Hillyer, Respondent

BEFORE: S. CAMPBELL J.

COUNSEL: Deborah L. Ditchfield counsel, for the Respondent

HEARD: July 24, 2020 by audioconference

ENDORSEMENT

Introduction

[1] The respondent (moving party) seeks to vary the order of Sproat J. made on March 15, 2017 as it relates to child support. At issue is the quantum of the respondent’s past and ongoing obligation, the proper amount of arrears, and the amount, if any, owing for extra ordinary (s.7) expenses. The motion to change was issued on July 24, 2019. By the time it was argued before me, the applicant (responding party) agreed in part that the order ought to be varied. This decision will dispose of the totality of the motion.

Background

[2] Notwithstanding some agreement on the issues, a limited outline of the facts and history of the litigation between the parties is necessary to place these reasons in context.

[3] The parties were married on August 30, 1997. Three children were born of their marriage, Austin Edward born on July 22, 1998; Joel Travis, born on July 28, 2000; and Laryssa Leanne, born on September 8, 2003.

[4] The parties separated on January 15, 2014. The parties resolved issues with custody, access, support, support arrears and issues ancillary to support by way of minutes of settlement. The terms of settlement were incorporated into the final order of Sproat J. made on March 15, 2017. That order provided that commencing January 1, 2016, the respondent would pay child support for Austin, Joel and Laryssa in the amount of $858 monthly. This was based on the respondent’s 2016 income being $45,960. Paragraph 4 of the order contemplated Austin no longer being a dependent child and provided that starting April 1, 2017, the respondent would pay child support for Joel and Laryssa only in the amount of $695/month. Again, this was based on the respondent’s income of $45,960.

[5] In paragraph 6 of Sproat J.’s order, arrears were fixed in the amount of $6,392. Included in paragraph 6 was a calculation of the arrears owing. It is important to recall that Sproat J.’s order was based on a written consent. The respondent now alleges that there is an error in the calculation of arrears that resulted from the applicant failing to give the respondent credit for a payment of $433. Counsel for the respondent acknowledges that this court may not be inclined to vary that aspect of Sproat J.’s order. She is correct, and this decision will not make any adjustment to that part of Sproat J.’s order.

[6] It is conceded that Joel ceased to be a dependent on June 30, 2018 when he graduated from high school and began working on a full-time basis. That concession was reflected in the interim order of Templeton J. made on September 12, 2019, terminating the respondent’s obligation to pay child support for Joel effective June 30, 2018. Templeton J. also provided that the respondent would continue to pay $695/month in child support for one child, Laryssa. Any over payment that resulted was to be applied to arrears acknowledged to be owing by the respondent.

[7] The respondent seeks to vary his child support obligations for 2018 and 2019 as well as his ongoing support obligation beginning on January 1, 2020. As noted, Sproat J.’s order was based on the respondent having an income of $45,960 in 2016. It is common ground that the respondent’s income was $34,904 in 2018 and was $21,212.38 in 2019.

[8] The respondent alleges, and the applicant concedes, that the reduction in income is the result of his loss of employment. I find that the respondent struggled to return to full time employment through 2018 and 2019. However, as of November 2019, he began work with Cargill Limited in Hagersville. His hourly rate is $19.21 (including a nightshift premium), and he is now working 40 hours/week. The respondent estimates that his income for 2020 will be $34,500.

[9] From January 1, 2018 to June 30, 2018, the respondent ought to have paid support for two children in the amount of $530/month based on an income of $34,904. From July 1, 2018 to December 31, 2018, the respondent ought to have paid child support for one child in the amount of $303 based on the same income.

[10] For 2019 the respondent ought to have paid child support for Laryssa only in the amount of $170/month based on his income of $21,212.38 Commencing January 1, 2020, the respondent should be paying ongoing child support for Laryssa based on his anticipated 2020 income of $34,500 in the amount of $298/month.

[11] At paragraph 20 of the affidavit of the respondent, sworn February 6, 2020, he deposes that for the period of January 1, 2018 to June 30, 2018, he paid $3,855.12 in child support. For the period from July 1, 2018 to December 31, 2018, he paid the amount of $2,990.04. The total paid is $6,845.16. That statement is repeated in the respondent’s factum.

[12] I have reviewed the statements from the Family Responsibility Office included in the respondent’s affidavit of December 23, 2019 and in the applicant’s brief of financial information filed October 9, 2019 (the statements are the same). After accounting for an NSF payment, I find the respondent’s statement of the amount he paid in 2018 is correct. However, there should be added to any amount owed by him the sum of $35 for an NSF fee charged by FRO on August 16, 2018.

[13] In paragraph 20 of respondent’s affidavit sworn February 6, 2020, he deposes that for the year 2019, he paid $5,479 in child support with “a payment of $1,000 just before Christmas of 2019”. Exhibit “I” of that affidavit is a chart summarizing amounts owed and amounts paid. I believe it was provided with a view of determining the appropriate calculation of arrears. That statement shows that in 2019, he paid $5,479 for child support “plus $1,000”.

[14] I have reviewed carefully the statements provided by the parties from FRO. The most up to date statement I was provided is one attached to the affidavit of the applicant sworn on January 23, 2020. This is a statement of account dated December 12, 2019. It does not reflect any payments of $1,000 as alleged by the respondent. The affidavit of the respondent that alleges the $1,000 payment provides no documentary proof it.

[15] I released an endorsement in this matter on August 21, 2020. In that endorsement, I requested the respondent direct me to any evidence within the record supporting his allegation that he made a $1,000 prior to Christmas of 2019. What I received in response from the respondent was a further submission by his counsel attaching, “Proof of an online bill payment”. The document provided shows a payee of Family Responsibility – Ontario and account number 1069862. It is for a payment made December 27 in the amount of $1,000.

[16] The applicant responded and requested that the respondent provide, “An original December 2019 bank statement showing sequential transactions that are to include the December 27, 2019 payment.” However, on September 9th, 2020, she provided an additional statement from FRO dated February 2, 2020 that shows a $ 1,000 payment December 31st, 2019.

[17] The respondent provided in response to the applicant’s request a portion of a statement from the Family Responsibility Office that bares the date May 2, 2020. It is for account number 1069862 and shows a “receipt telebanking credit of $1,000 on December 30, 2019.” While none of this information is contained in the record, in my view it would be unreasonable to ignore it. Therefore, I accept that in 2019, the respondent paid to the applicant $6,479 for child support.

[18] In her response to the motion for change, the applicant claimed that the respondent owed her the sum of $10,346.50 for special and extraordinary expenses incurred for Joel and Laryssa in 2018 and 2019. The respondent acknowledges that he received a chart and a variety of documents not attached to an affidavit. However, he states that it was not until he brought this application that this information was sent to him.

[19] The order of Sproat J. provided at paragraph 5 that the respondent pay 60% of section 7 expenses, and the applicant pay the remaining 40%. The order also provided that the applicant would “provide notice” for such expenses, and that the applicant would “obtain his consent”. There is some dispute as to whether the applicant provided the respondent with notice, but there is no evidence that the respondent consented.

[20] The respondent states that upon becoming aware of expenses, he attempted to assist the applicant by making available to her benefits through his wife’s extended health coverage. However, the applicant declined such assistance. The respondent also deposes that not only did he not consent to such expense, but that he does not believe that the expense was not necessary, and he could not afford it.

Issues

[21] I find the issues to be determined are:

a. Has there been a material change in circumstances with respect to the number of children eligible for support;

b. Has there been material change in circumstances with respect to the respondent’s income;

c. If there has been a material change in circumstance with respect to either the number of children eligible or the amount of support, should the respondent’s child support be varied; and

d. Is the respondent liable to pay any amount for extraordinary expenses under section 7 of the Child Support Guidelines?

Respondent’s Position

[22] The respondent submits that it is clear on the facts as reflected in the endorsement of Templeton J. that there has been a material change with respect to the number of children eligible for support. Further, he has established that there has been a material change in his circumstances as a result of a reduction of his income. The loss of his employment subsequent the order of Sproat J. occurred through no fault of his own. He diligently attempted to find other employment after losing his job at Autrans Corporation, Ingersoll. His efforts to find such employment have been hampered by several factors, including the fact that his licence was suspended for a period time.

[23] With respect to the section 7 expenses, the respondent argues that he was not made aware of the request in a timely fashion, and that he did not consent. Further, the expenses are not medically necessary, and he ought not to be required to contribute to them.

Applicant’s Position

[24] At the commencement of her submissions, the applicant acknowledged that there had been a material change in the number of children eligible for support and the respondent’s income. She accepted the child support should be adjusted accordingly. She also accepted the evidence from the respondent with respect to his income and the amount he ought to pay.

[25] The applicant did not agree that the amount for support arrears stated to be owing by the respondent was correct. She advised that “her lawyer” had calculated the amount he ought to have paid at $18,371.89 as of January 21, 2020 and the amount he had paid to be $9,710.50 as of the same day. Therefore, the arrears are $8,661.39. She stated the evidence to support her position was contained in her “documents and affidavit”. I would note there was no summary or chart in the material provided to me.

[26] The applicant also requested payment of the amount owing to her a result of the respondent’s failure to pay Dr. Weinberger the amount set out in paragraph 13 of the order of Sproat J. In her material, she has filed several statements of account from Dr. Weinberger’s office in support of her claim.

Analysis

Has There Been a Material Change in Circumstances in the Number of Children Eligible for Support.

[27] That issue is in effect conceded by the applicant. Sproat J.’s order anticipated that the child Austin would cease to be a child of the marriage as of April 1, 2017. Templeton J.’s order was based on the concession that Joel ceased to be a child of the marriage on June 30, 2018. Therefore, the only child for which support should be paid after June 30, 2018 is Laryssa.

Has There Been a Material Change in Circumstances of the Respondent’s Income.

[28] Again, this material change in circumstance is conceded by the applicant. In 2018, the respondent’s income was $34,904. In 2019, his income was $21,212.38. I accept for the purpose of this decision the respondent’s projected income from Cargill for 2020 will be $34,500.

Variation of Child Support

[29] Based on the findings above noted, the respondent’s obligation to pay support to the applicant for two children from January 1, 2018 to June 30, 2018 would be $530/month. He ought to have paid support from July 1, 2018 to December 31, 2018 for one child in the amount $303/month. Further, I find as a fact that the respondent paid, in that 12-month period, the sum of $6,845.16. He ought to have paid in addition to that, $35 as repayment of an NSF charge.

[30] In 2019, the respondent ought to have paid child support for one child, based on an income of $21,212.38 the amount of $170/month. I find that he paid in 2009 to FRO the sum of $6,479. As I noted above, proof that a $1,000 payment was made just prior to Christmas of 2019 did not appear in the record before me at the time this motion was argued. However, I conclude it would unreasonable not to give the respondent credit for that payment given the information provided by both parties after my request.

[31] I have carefully reviewed the applicant’s material, but I cannot find an evidentiary basis for her submission with respect to the amount owing and paid. Much of the applicant’s material focused on her position that the respondent was deliberately unemployed during the relevant time period. However, she abandoned that position at the commencement of her submissions. Further, a significant amount of her materials was dedicated to explaining past financial dealings up to the point of the order of Sproat J. That is not relevant to the issue before me.

[32] I accept that arrears owing by the respondent as of December 31, 2017 were $10,121.11. In 2018, he over paid $1,847.16. In 2019, he overpaid $4,439. Therefore, as of December 31, 2019, his arrears are $3,835.84 plus a $35 NSF charge for a total of $3,870.84.

[33] I further find that commencing January 1, 2020, the respondent should pay to the applicant, for the ongoing support of one child, Laryssa, the sum of $298/month based on his anticipated income of $34,500.

[34] With respect to repayment of arrears, I accept the appropriate amount is that which the respondent proposed being the sum of $200/month, commencing on January 1, 2020. This amount is in addition to the ongoing child support.

Section 7 Expenses

[35] The applicant abandoned any claim for section 7 expenses, save for the amount that she alleges is owing to her for Joel’s dental expenses. I would note that at paragraph 30 of the order of Sproat J., he ordered that the respondent pay Dr. Weinberger arrears of “approximately” $1,500. The order also provided that the respondent continue paying his monthly share of the orthodontic expense until his share was paid in full.

[36] The applicant provided several documents which appeared to have originated from the office of Dr. Weinberger. These included a statement of account with a billing date of July 25, 2018. It shows a balance forward of $2,632.92 and a payment by cheque for that amount resulting in a $0 balance.

[37] Also included in the applicant’s material at Exhibit “J” to her affidavit sworn January 23, 2020 is a statement of account which appears to be dated November 25, 2017. That statement has entries as early as August 2014 and as late as October 2017. The statement shows the “patient” to be Joel, Michelle, and Marty. I would note that the statement is typewritten except for the name “Marty” which is always handwritten. It shows charges and payments, but it does not show who made the payment. It does not show any payment of “approximately” $1,500.

[38] I have also reviewed the financial information brief provided by the applicant and, in particular, the documents at a tab described as “section 7” expenses. Those documents do not provide clarity with respect to the applicant’s claim.

[39] However, in paragraph 46 of the respondent’s affidavit sworn on February 6, 2020, he outlines the payment he says he made on account of Joel’s braces. These appear to correspond with payments set out in the statement from Dr. Weinberger’s office as attached as Exhibit “J” of the applicant’s affidavit sworn on January 23, 2020. The respondent further deposes that after Sproat J.’s order, Dr. Weinberger’s office was contacted, and it was “learned” that the balance had been paid.

[40] The statement provided by the applicant from the doctor’s office is very difficult to understand. It is not sequential by date. At the bottom of page 1 of exhibit “J”, it appears there is a balance owing as of March 1, 2017 of $3,277.80. A review of the document shows the last payment made by the respondent to be January 19, 2017. However, that appears to have been reversed on February 3, 2017, and an NSF payment of $25 is added.

[41] The respondent does not state he made the payment to Dr. Weinberger. Rather, he states that sometime after March 16, he learned the applicant had gone ahead and paid the balance owing. In my view that does not relieve him of the obligation to pay the “approximately $1,500” owing to Dr. Weinberger. His summary of payments made does not show any payment made on account in the amount of $1,500 or an amount close to it.

[42] On the totality of the material, I am satisfied that the respondent did not pay approximately $1,500 to Dr. Weinbergeras ordered by Sproat J. The onus is on the applicant to provide evidence satisfactory to establish her claim. Here the evidence is challenging to interpret. Nonetheless, I conclude the respondent did not pay the amount ordered by Sproat J. to Dr. Weinberger. Clearly, he ought to have paid at least $1,500. As I have noted, the balance owing to Dr. Weinberger at the time was slightly in excess of $3,000. The evidence does not establish that there was any further amount that the respondent ought to have paid and he did. Therefore, I find the respondent owes to the applicant the sum of $1,500 for reimbursement she made to Dr. Weinberger.

Summary

[43] In summary, I fix the arrears owing by the respondent to be $3,870.84 as of December 31, 2019. The respondent shall pay the arrears at the rate of $200/month in addition to any ongoing child support commencing on January 1, 2020. All other arrears will be rescinded.

[44] The applicant’s claim for section 7 extraordinary expenses shall be dismissed, save that the respondent shall pay to the applicant the sum of $1,500 as ordered by Sproat J. That amount is to be added to the arrears owing by the respondent to the applicant.

[45] The respondent shall pay to the applicant for the ongoing support of the child, Laryssa, the sum of $298/month based on his income of $34,500 commencing on January 1, 2020.

Costs

[46] If the parties are unable to agree with respect to costs, the respondent shall serve and file his costs submissions within 30 days. Those submissions shall be limited to three (3) pages, excluding any costs outline. The Applicant shall have 20 days to file responding submissions with the same limitations.

Justice S. Campbell

Release Date: September 22, 2020