Court File and Parties

COURT FILE NO.: 273/19 DATE: 2020/01/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Herbert Fournier, Applicant, Self-represented AND: Trina Chamberlain, Respondent, Self-represented

BEFORE: The Honourable Justice N. Gregson IN WRITING: January 2, 2020

ENDORSEMENT

[1] The Applicant father, Herbert Fournier commenced a support variation application dated May 31, 2019 under the Interjurisdictional Support Orders Act, S.N.B. 2002, c. I-12.05 against the Respondent mother, Trina Chamberlain. This came before me today by way of a paper hearing.

[2] The parties are the parents of Ethan J. Chamberlain, born September 12, 2004. The mother and child reside in Fort Erie in the province of Ontario. The father resides in the city of Moncton in the province of New Brunswick.

[3] The mother was served with the father’s support variation Application and has not responded to the claim.

[4] The father seeks the following relief:

[5] That the child support be varied retroactively to 2012 based on the Applicant’s annual income and the Federal Child Support Guidelines;

[6] That the accumulated arrears of child support be rescinded;

[7] Costs pursuant to Rule 59 of the Rules of Court of New Brunswick; and

[8] Such other relief as this Honourable Court deems fair and just in the circumstances.

SUMMARY OF FATHER’S AFFIDAVIT EVIDENCE

[9] On or about February 3, 2006, the parents signed a voluntary agreement for the father to pay the mother the sum of $262.00 per month in child support.

[10] On or about May 29, 2007, a court order was granted by the Honourable Mister Justice Roger Savoie of the Court of Queen’s Bench of New Brunswick, Family Division to have the father continue paying his monthly child support amount of $262.00 per month to the mother. The final order did not indicate the income of the father. The May 1, 2006 Child Support Guidelines for the province of New Brunswick reflects an income of approximately $30,000.00 for a child support obligation of $262.00. The father’s Notice of Assessment for 2006 reflected a line 150 income of $21,213.00 and $26,532.00 in 2017.

[11] An Enforcement Order was made against the father on August 28, 2017 under the Support Enforcement Act, S.N.B. 2005, c. S-15-5. The father was ordered to continue paying the sum of $262.00 per month in child support and the further sum of $38.00 per month commencing the 1st day of October 2017 on account of outstanding child support arrears. These sums were to continue until the father filed a Motion for Variation dealing with the issue of child support. It is unclear whether the father attended before the court to explain his default.

[12] The father has been involved in the nutrition and fitness business for the past 13 years. He is currently self-employed and operates his office out of a gym in Riverview New Brunswick. Previously, he was operating his business out of his residence until the summer of 2017.

[13] In or around 2015, the father began to experience cognitive issues and was referred to a neurosurgeon, Dr. Robert Adams. He has been followed by this surgeon since January of 2016. In December 2016 the father was hospitalized and underwent a craniotomy. Following the surgery, he was placed off work for several months. The father supplied a medical report from his neurosurgeon dated March 2, 2018 which noted the father was limited in his activities for the first six months after his surgery.

[14] In or around May of 2017, the father filed for bankruptcy in light of his financial situation and expected to be discharged in May 2019.

[15] The father indicated that in or around September of 2017 he began trying to resume his business as he had to rebuild his client base as he had been away from his business since before his surgery in December 2016.

[16] The father noted that he is currently earning approximately $1200.00 to $1400.00 per month gross business income from his employment (an average annualized income of $15,600.00) although this does vary. His sworn financial statement noted a total income of about $18,000.00.

[17] The father still suffers from some physical issues and as such he is unable to perform any employment which requires physical labour.

[18] The father produced his Notices of Assessments for the years 2005 to 2017.

[19] In 2016 the father’s income tax return reflected a gross business income of $8,024.82. This period would reflect the time when the father was suffering medical issues which led to his surgery in December 2016.

[20] In 2017, his pre-bankruptcy income tax return for the fiscal period of May to December 31, 2018 noted a business income of $12,700.00. As a result of business expenses claimed in the amount of $5,578.44, his income for tax purposes was reduced to the sum of $7,121.56. I have reduced his business expenses by half considering he claimed expenses for his motor vehicle and meals and entertainment which would also have a personal component. An income of $9,910.78 does not meet the threshold of the Child Support Guidelines. This period of time would reflect the father’s inability to work for a number of months after his surgery in December 2016.

[21] The father filed some income statements for the months of June-July 2018 and September to December 2018 which were provided to his trustee in bankruptcy. This provided a gross business income of $9,860.00 for six months. This does not include the months of January -May 2018 or the month of August 2018 for which I received no proof of income. Considering the father noted it took some time to get his business off the ground in late 2017 after he began recuperating, I am prepared to impute the father a gross annual income of $15,000.00 for the taxation year of 2018. I was not provided with any information regarding business expenses and there is a good likelihood most would be added back into the father’s income for child support purposes in any event.

[22] The father also provided income statements for the months of January to March 2019 which reflected total income in the amount of $5260 for three months. If this amount was annualized, it would provide the father with a gross business income of $21,040. The father noted on his financial statement that his annualized income was about $18,000.00. Since I did not receive income tax information for 2018 and 2019, I have no information regarding the father’s true income or any legitimate business expenses.

[23] I am prepared to accept an income of $18,000.00 for child support purposes. Accordingly, I will impute the father an income of $18,000.00 for the years 2019 and on a go forward basis.

[24] The father seeks to have all of his arrears rescinded retroactively to 2012. I am not prepared to do so. The father has been in default of the court ordered child support for a number of years. Child support is the right of the child. There is no reason the father could not have continued to maintain some type of employment based on a gross annual income of $30,000.00 to ensure he paid his court ordered ongoing child support obligation. I also rely on the factors outlined in the Supreme Court of Canada decision D.B.S. v. S.R.G., 2006 SCC 37. If the father wanted to have his child support reviewed as a result of a decrease of his income he should have done so at the time and not years later. There is no reasonable excuse for why support was not reviewed earlier. The child continues to be a minor. To vacate arrears of child support retroactively to 2012 (seven years ago) would be highly prejudicial to the child.

[25] I am prepared to review the father’s financial circumstances as of the year 2016 considering his medical issues which impeded his ability to earn an income for child support purposes. I would agree this was a material change in circumstances which permits the court to review and possibly reduce child support.

ORDER:

[26] Accordingly, there shall be a final order as follows which shall vary all previous child support orders as follows:

[27] The Applicant father shall have no obligation to pay child support for the taxation years of 2016 and 2017 as he did not generate enough income to meet the threshold amount of the Child Support Guidelines.

[28] The Applicant father’s income for the taxation year 2018 shall be imputed to be the sum of $15,000.00 for child support purposes. Accordingly, the father shall pay the sum of $119.00 per month to the mother in child support for their son Ethan J. Chamberlain born September 12, 2004 commencing January 1, 2018 and continuing each and every month thereafter to and including December 1, 2018 based on the table amount of the Child Support Guidelines for the province of New Brunswick.

[29] The Applicant father’s income for the taxation year 2019 and on a go forward basis shall be imputed to be the sum of $18,000.00. Accordingly, the father shall pay child support in the amount of $146.00 per month to the mother for their child, Ethan J. Chamberlain born September 12, 2004 commencing January 1, 2019 and continuing on the 1st of each subsequent month thereafter in accordance with the table amount of the Child Support Guidelines for the province of New Brunswick.

[30] In the event there are any arrears of child support owing by the father to the mother once the above adjustments have been made, the father shall pay the sum of $30.00 per month over and above his monthly child support obligation on account of arrears commencing March 1, 2020 and continuing on the 1st of each month thereafter until the arrears are paid in full.

Gregson, J.

Date: January 2, 2020