Superior Court of Justice - Ontario

COURT FILE NO.: FC59/14

DATE: 2020/10/27

RE: Shane Merritt Hannigan, Applicant, Self-represented

AND: Julie Ann McArthur, Respondent, Self-represented

BEFORE: The Honourable Justice N. Gregson

IN WRITING: October 27, 2020

ENDORSEMENT

[1] The Applicant father, Shane Merritt Hannigan commenced a support variation application made pursuant to the Interjurisdictional Support Orders Act (“ISO”). His application was filed with the Judicial Centre of Grande Prairie on October 10, 2018 and was eventually forwarded to our jurisdiction as the mother and children live in Niagara Falls, Ontario.

[2] The father seeks a termination of his spousal support obligation and a variation of his child support obligations retroactive to January 1, 2015.

[3] The hearing in this matter was originally set for July 29, 2019. However, after a review of the father’s material, I noticed the father had not filed his income tax returns or Notices of Assessment as per the Child Support Guidelines. The father had originally stated he did not have the income to hire a professional to do his income tax returns. Rather than dismissing the father’s application, I adjourned the hearing and requested that he provide the necessary financial disclosure. Unfortunately, there were further delays including the COVID-19 pandemic. An oral hearing finally occurred before me on October 19, 2020.

SUMMARY OF THE EVIDENCE

[4] The father and the Respondent mother, Julie Ann McArthur commenced cohabiting in a common law relationship on or about October 2002 in Niagara Falls, Ontario.

[5] There are two children of the relationship namely, Damon Tyler McArthur, born May 5, 2003 and Katie Elizabeth McArthur, born September 4, 2005. The children continue to be dependents and reside with their mother.

[6] The parties separated on or about July 23, 2013.

[7] The parties executed a Separation Agreement made on August 27, 2013. The Separation Agreement was prepared by the mother’s legal counsel, namely Mr. Ian Glen Pearson. The father chose not to obtain independent legal advice.

[8] Pursuant to the Separation Agreement, the mother has custody of the children. The father is to enjoy reasonable access to the children on reasonable notice to the mother. The Separation Agreement does reflect the father was residing in Alberta at that time which limited his ability to exercise access in person however he had the right to communicate with the children by telephone, email, SKYPE or other forms of communication.

[9] During the hearing, the parties indicated the father had relocated to Alberta as a result of his employment while they were still in a relationship. The mother stated she felt the father had been in Alberta for close to three years prior to their final separation.

[10] Based on the father having an annual income of $130,000.00 in 2012 commencing September 1, 2013 and on the first of each month thereafter, the father was to pay child support to the mother in the amount of $1,781.00.

[11] According to the father’s evidence, 2012 was his best employment year in terms of his gross annual income. He has never earned this income again since 2012.

[12] The father was to also contribute to the children’s extraordinary expenses, including but not limited to daycare; medical, dental and prescription costs not covered otherwise under any plans of insurance; and, sporting activities on a pro rata basis, providing however that if expenses are to be incurred that the parties shall first discuss these so as not to incur unnecessary expenses or involve the children in treatments or activities which are beyond their financial means.

[13] During the hearing, the mother indicated she has paid the lion’s share of the children’s s. 7 expenses. Unfortunately, this is not a claim which is before me and I cannot deal with this issue at this time.

[14] The Separation Agreement also stated that for so long as child support is payable, the parties shall provide one another with completed copies of their current income tax returns, together with any Notices of Assessment or Reassessment by June 1st of each year, commencing in June of 2014.

[15] According to the evidence by the parties neither of them supplied one another with ongoing financial disclosure. The mother indicated she had asked the father at some point in time to supply his income tax returns but she never received the financial disclosure. The father disputed same. Unfortunately, there was no supporting evidence provided by either party to reflect they had both complied with the financial disclosure requirement.

[16] Paragraph 9 of the Separation Agreement dealt with spousal support. The parties acknowledged the father was employed as a truck driver on a full-time basis and earned $130,000.00 in income in 2012. The parties acknowledged the mother was employed by the District School Board of Niagara as an Educational Assistant and her annual income for 2012 was approximately $24,000.00.

[17] Paragraph 9 (e) of the Separation Agreement specified the parties acknowledged that throughout the course of their relationship the mother was the parent primarily responsible for caring for the children and adopted many of the traditional domestic roles assumed by the primary care giving spouse. Though employed, she was also responsible for getting the children ready for school in the morning and had to be home in the afternoon when the children were off school. As the father’s work obligations often required him to leave for work early in the morning and not return until later in the evening, the mother was also unable to attend most staff meetings and/or staff social obligations and dinners so that she could be home to care for the children. As a result of assuming these responsibilities, it impacted directly on her chances of advancement in her career and/or seeking other job opportunities that might have been more remunerative, had benefit coverage, and the possibility of pension benefits. As a result of her assuming these roles, especially in making it possible for the father to work outside of the province, she was entitled to compensatory support. Further, given the great disparity in the parties’ respective incomes, any support payable to the mother was also needs based.

[18] At paragraph 9 (f) the parties acknowledged the father was currently attempting to re-establish himself in Alberta and further because he had left much of the furnishings for the mother and the children he would incur a large degree of start-up costs to establish a residence for himself. In recognition of this, the mother was prepared to access substantially less than the Spousal Support Advisory Guidelines figures to enable the father to do so. Commencing September 1, 2013 and on the first of each month thereafter, the father is to pay to the mother spousal support in the amount of $400.00 per month.

[19] Pursuant to paragraph 9 (h), the parties acknowledge that though the spousal support is of an unspecified duration, it may be subject to variation and possible review with a minimum duration of 5.5 years and a maximum duration of 11 years from the date of separation, pursuant to the Spousal Support Advisory Guidelines.

[20] Spousal support may be changed if there is a material change in circumstances even if the change was foreseen or unforeseen. The change may be:

i. In either parties’ financial position;

ii. In the child support arrangements;

iii. The mother’s marriage, or

iv. The mother’s cohabitation with another person in a common law relationship of not less than 3 years duration.

[21] According to the Separation Agreement, the father’s total monthly support obligation (for both child and spousal support) since September 1, 2013 has been $2,181.00.

[22] The father was enrolled in the Maintenance Enforcement Program (“MEP”) of Alberta since on or about January 1, 2014.

[23] The parties’ Separation Agreement was registered as a domestic contract with the court in Welland, Ontario on January 28, 2014.

[24] It appears the father attended court proceedings in Alberta to deal with enforcement proceedings in 2016, 2017 and 2018 as he had substantial arrears of support. Court orders were made to have the father pay a fixed amount of support presumably on account of the arrears.

[25] Regardless, the father did begin the process under the Interjurisdictional Support Orders Act on March 23, 2016 to seek a review of his support obligations due to a change in his financial circumstances. The father noted he was advised on November 27, 2017 that his ISO Application was returned for failure to provide the Separation Agreement as required by the reciprocal office in Ontario. The father had to collect updated financial information and refile a new ISO Application on July 31, 2018. However, on September 21, 2018 he was informed by the Court of Queen’s Bench of Alberta he had to refile the ISO Application with new forms. As previously noted, the current ISOA was filed with the Judicial Centre of Grande Prairie on October 10, 2018.

[26] I am satisfied the father has attempted to take steps to review his support obligations as of 2016 which permits me to consider his request for retroactivity through to the year 2015 as he requested. I have considered the relevant factors as outlined in the Supreme Court of Canada decision of D.B.S. v. S.R.G., 2006 SCC 37 when considering the father’s request to reduce child support retroactively based on a material decline in his income.

[27] At the time the father commenced his support variation application he was residing in Grande Prairie, Alberta. During his evidence, the father indicated he relocated to the province of Saskatchewan in or about January 2019. Accordingly, the table amount of child support for the years 2015 to 2018 would be from the province of Alberta while the table amount of child support for the years 2019 going forward would be for the province of Saskatchewan where the payor presently resides.

[28] The basis for which the father seeks to terminate his spousal support obligation and vary his child support obligation is based on a reduction in his gross annual income.

[29] The mother is agreeable to have the father pay child support based on his gross annual income and the table amount of the Child Support Guidelines. She however disputes the father’s request to terminate spousal support noting she has limited income and is raising the parties’ two children. The mother stated she continued working as an Educational Assistant with the District School Board of Niagara. She earned a gross annual income of $37,000.00 in 2019 and this was her best year of employment income.

[30] The father noted in his material that he lived in Northern Alberta and worked in the energy sector and since 2015 his income and employment had suffered significantly since the economic downturn in Alberta’s economy. He had been unemployed and changed employment numerous times in the past three years.

[31] The father produced his Notices of Assessment for the years 2014 to 2018. He indicated he had not done his 2019 income taxes. During his evidence he indicated his T4 reflected he had earned the sum of $55,660.00.

[32] When the father was asked about his 2020 income he noted he was laid off on March 31, 2020 and received employment insurance. He recently accepted new employment on September 2, 2020 with Phinmar Contracting as a truck driver. When I pressed the father as to what he expected to earn with this employer he believed he should earn approximately $60,000.00 per year. I do not intend to have him pay child support based on $60,000.00 for the 2020 taxation year. I am mindful the father was on reduced income from March 31, 2020 to September 1, 2020, a period of five months. I will therefore use my best judgment and impute the father a gross annual income of $47,500.00 for the year 2020. As of January 1, 2021, I will have the father pay ongoing child support to the mother based on an estimated gross annual income of $60,000.00. Based on the 2017 Saskatchewan table amount of the Child Support Guidelines, the father will be paying the sum of $830.00 per month for his two children.

[33] The following is the father’s line 150 income as per his Notice of Assessments (for at least 2015 to 2018) by Revenue Canada filed at Tab 9 of the court’s Continuing Record and the table amount of child support the father should have paid:

2015: $66,045.00 $939.00/mo as per the 2011 Alberta CSG

2016: $61,864.00 $877.96/mo as per the 2011 Alberta CSG

2017: $81,148.00 $1,186.19/mo as per the 2011 Alberta CSG

2018: $71,061.00 $1,034.92/mo as per the 2017 Alberta CSG

2019: $55,660.00 $769.00/mo as per the 2017 Sask CSG

2020: $47,500.00 $657.00/mo as per the 2017 Sask CSG

[34] I was not provided a Statement of Arrears from either party. It appears from the father’s material filed in support of his variation request he owed about $87,755.29 in support arrears as of January 1, 2019.

[35] The enforcement agency will have to review their records and adjust the support arrears accordingly based on what I have calculated the father should have paid and what he in fact paid. This should have the result of reducing the father’s support arrears.

[36] Commencing on January 1, 2021 I will have the father pay the mother the sum of $100.00 per month over and above his monthly child support and spousal support obligation, on account of child support arrears. The father is to make this monthly payment until all arrears of support owing to the mother are paid in full.

[37] Based on the above, I am prepared to vary the father’s child support obligation for the years 2015-2020.

[38] Considering the spousal support was of a compensatory nature, the maximum time frame for such a payment has not ended and the mother’s continued need for same, I am not terminating the father’s obligation nor am I changing the quantum.

ORDER

[39] 1. Paragraph 11 (a) of the parties’ Separation Agreement dated the 27th of August, 2013 dealing with the father’s child support obligation shall be varied such that:

a. Commencing January 1, 2015 and continuing each subsequent month, the father shall pay child support to the mother for the parties’ two children namely, Damon Tyler McArthur, born May 5, 2003 and Katie Elizabeth McArthur, born September 4, 2005 in the amount of $939.00 per month based on his 2015 line 150 income of $66,045.00 and the table amount of the 2011 Alberta Child Support Guidelines.

b. Commencing January 1, 2016 and continuing each subsequent month, the father shall pay child support to the mother for the parties’ two children namely, Damon Tyler McArthur, born May 5, 2003 and Katie Elizabeth McArthur, born September 4, 2005 in the amount of $877.96 per month based on his 2016 line 150 income of $61,864.00 and the table amount of the 2011 Alberta Child Support Guidelines.

c. Commencing January 1, 2017 and continuing each subsequent month, the father shall pay child support to the mother for the parties’ two children namely, Damon Tyler McArthur, born May 5, 2003 and Katie Elizabeth McArthur, born September 4, 2005 in the amount of $1,186.19 per month based on his 2017 line 150 income of $81,148.00 and the table amount of the 2011 Alberta Child Support Guidelines.

d. Commencing January 1, 2018 and continuing each subsequent month, the father shall pay child support to the mother for the parties’ two children namely, Damon Tyler McArthur, born May 5, 2003 and Katie Elizabeth McArthur, born September 4, 2005 in the amount of $1,034.92 per month based on his 2018 line 150 income of $71,061.00 and the table amount of the 2011 Alberta Child Support Guidelines.

e. Commencing January 1, 2019 and continuing each subsequent month, the father shall pay child support to the mother for the parties’ two children namely, Damon Tyler McArthur, born May 5, 2003 and Katie Elizabeth McArthur, born September 4, 2005 in the amount of $769.00 per month based on an estimated yearly income of $55,660.00 and the table amount as per the 2017 Saskatchewan Child Support Guidelines.

f. Commencing January 1, 2020 and continuing each subsequent month, the father shall pay child support to the mother for the parties’ two children namely, Damon Tyler McArthur, born May 5, 2003 and Katie Elizabeth McArthur, born September 4, 2005 in the amount of $657.00 per month based on an estimated yearly income of $47,500.00 and the table amount as per the 2017 Saskatchewan Child Support Guidelines.

g. Commencing January 1, 2021 and continuing on the 1st of each subsequent month, the father shall pay child support for the two children of the relationship namely, Damon Tyler McArthur, born May 5, 2003 and Katie Elizabeth McArthur, born September 4, 2005 in the amount of $830.00 per month based on an estimated gross annual income of $60,000.00 per year and the 2017 Saskatchewan Child Support Guidelines.

h. The father shall pay an add-on amount of $100.00 per month payable to the mother towards his support arrears commencing January 1, 2021 until such time as the arrears are sooner paid.

i. All other aspects of the parties’ Separation Agreement remain in full force and effect.

Gregson, J.

Date: October 27, 2020