COURT FILE NO.: FS-11-7621 M1

DATE: 20201118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sarah Jane Louise Carder, Applicant

AND:

Virgil Scott Ashley Morris, Respondent

BEFORE: Justice J.R. Sproat

COUNSEL: Ross H. Thomson, for the Applicant

Scott C. Vining, for the Respondent

HEARD: November 10^th, 2020

ENDORSEMENT

OVERVIEW

[1] This is a motion to change a court order of July 11, 2014 whereby Mr. Morris was ordered to pay child support for Tyler (born September 14, 2005) in the amount of $801 a month, based on an “anticipated” 2014 income of “approximately” $90,000. The court order further provided:

There will be an adjustment in June 2015 to correct support paid to reflect his annual income.

[2] The July 11, 2014 court order also fixed child support arrears at $5,000 as of June 1, 2014.

[3] In fact, Mr. Morris’ 2014 line 150 income was $116,211. From 2015 – 2019 his line 150 income has ranged from approximately $111,000 to $151,000.

[4] Ms. Carder was self-represented when she commenced this Motion to Change on August 23, 2018. She originally requested that the support order be changed with payments to start on January 1, 2018. The Motion was later amended on January 9, 2019 to claim increased child support starting January 1, 2015.

[5] Mr. Morris did not disclose that his 2014 – 2017 income was far in excess of $90,000 until Mr. Thomson sent a letter dated December 21, 2017 requesting this information and threatening an application to court to compel it.

Has Mr. Morris at any time had access for 40% of the time over the course of a year

[6] The position of Mr. Morris is that he has at times had access to Tyler for 40% or more of the time and, as such, the amount of child support should not be the table amount and instead should be determined under section 9 of the Child Support Guidelines.

[7] Ms. Carder testified that for the most part Mr. Morris has had access with Tyler every other weekend and occasionally an evening during the week.

[8] It was suggested to Ms. Carder that during the time that Tyler played rep-hockey Mr. Morris saw him considerably more often given that Mr. Morris was the trainer for the hockey team. Ms. Carder responded that they both attended hockey games and practices, and went away for weekend tournaments.

[9] Ms. Carder did acknowledge that on occasion Tyler has begun his weekend visits on Thursday evening, and sometimes stayed over with Mr. Morris on Sunday night because he was playing recreational hockey with Mr. Morris Sunday evening.

[10] Mr. Morris testified that at one point he asked to have Tyler 50 percent of the time. This was never agreed to. Mr. Morris indicated that since commencing this motion in August 2018 Ms. Carder has limited his access for the stated purpose of ensuring that his time with Tyler was less than 40 percent.

[11] Neither party kept a record of how much time Tyler was spending with each of them.

[12] I accept Ms. Carder’s evidence that she attended hockey games and practices regularly. I do not think that the fact that Mr. Morris may have attended some additional practices as trainer, with responsibility for all the players, should be counted as time “exercising a right of access to Tyler” as referred to in section 9.

[13] The parties both seemed to acknowledge that alternate weekend access (on occasion extended for special reasons), mid-week evening access and access for special occasions such as a four-day ATV excursion was the norm. I am satisfied that at no time was there a one-year period in which Mr. Morris had access 40% of the time.

Should Support be based on Line 150 or Line 260 income

[14] The position of Ms. Carder is that child support should be based upon Mr. Morris’ line 150 income minus union dues. Mr. Morris’ position is that child support should be based upon his line 260 income which incorporates a further deduction related to his expenses travelling to and from work.

[15] Mr. Morris is employed by E.F. Fox, a corporation based in Niagara Falls. Mr. Morris’ employment is governed by a union contract which compensates him for driving approximately 68 kilometers each way to and from his home to work on the premises of Bruce Power.

[16] Schedule III to the Child Support Guidelines provides for an adjustment to income for Income Tax Act section 8(1)(h.1) travel expenses, which provides as follows:

(h.1) where the taxpayer, in the year,

(i) was ordinarily required to carry on the duties of the office or employment away from the employer’s place of business or in different places, and

(ii) was required under the contract of employment to pay motor vehicle expenses incurred in the performance of the duties of the office or employment,

amounts expended by the taxpayer in the year in respect of motor vehicle expenses incurred for travelling in the course of the office or employment, except where the taxpayer

(iii) received an allowance for motor vehicle expenses that was, because of paragraph 6(1)(b), not included in computing the taxpayer’s income for the year, or

(iv) claims a deduction for the year under paragraph 8(1)(f);

[17] Mr. Morris agreed in cross-examination that throughout all the years in question he worked at one location being Bruce Power. He drove to work every day and parked his truck. He did not need to use it for work and only needed it to drive back home. I fail to see how expenses to get to work, constitute “expenses incurred for travelling in the course of the office or employment” as referred to in section 8.(1)(h.1).

[18] Further, if Mr. Morris is allowed to pay support based on line 260 income he would be treated better (and Tyler would be treated worse) than the vast majority of employee-payors who incur expense to get to work and then pay child support on line 150 income.

[19] I, therefore, calculate Mr. Morris’ obligation based on his line 150 income.

SHOULD RETROACTIVE CHILD SUPPORT BE ORDERED

[20] Both parties relied upon D.B.S. v. S.R.G. 2006 SCC 37. I will address the factors the court should consider before awarding retroactive child support.

Reasonable Excuse for Why Support Was Not Sought Earlier

[21] Ms. Carder explained the delay in bringing the Motion to Change as follows. She was not aware his income had increased. From the fall of 2016 to the spring of 2017 she and Mr. Morris made attempts to reconcile. In the summer or fall of 2017 she inquired about his income, however, he did not provide information to her. This led to retaining Mr. Thomson and him writing to Mr. Morris on December 21, 2017 requesting financial information.

Conduct of the Payor Parent

[22] The July 11, 2014 order reflects that Mr. Morris represented that his annual income was approximately $90,000 and that “there will be an adjustment in June 2015 to correct support paid to reflect his actual income”. In other words, he agreed to make a retroactive payment if it turned out he had underpaid.

[23] I appreciate that in D.B.S., paragraph 108, Bastarache J. stated that, “… a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy conduct”. Mr. Morris’ conduct extends beyond a simple failure to increase his support as his income increased.

[24] By the end of 2014 Mr. Morris knew that he had significantly understated his 2014 income, yet he said nothing.

[25] Having taken the benefit of a settlement based upon his estimate of his income, and having agreed to make a retroactive adjustment, I find he had an obligation to correct his error and disclose his actual income. His failure to do so is in my view blameworthy.

Circumstances of the Child

[26] There is no evidence that Tyler experienced any specific hardship due to Mr. Morris paying less than the proper amount of child support. Having said that, I have no doubt that Ms. Carder expended more of her limited resources on Tyler than should have been necessary and that she can put retroactive payments to good use for Tyler’s benefit.

Hardship Occasioned by a Retroactive Award

[27] Mr. Morris lives with his fiancé who has two children, ages 5 and 6, from a previous relationship. The children’s father has access every weekend and pays ongoing child support which Mr. Morris believed to be around $600 a month. His fiancé earns approximately $35 - $40,000 per year.

[28] Mr. Morris has another son Jordan who is now 21. Mr. Morris acknowledges that he has not been a dependent since he turned 18.

[29] Mr. Morris has another son Joshua who is now 18 years old. By court order of October 9, 2019 Mr. Morris was ordered to pay child support for Joshua in the amount of $988.50 per month, which was calculated based upon his line 260 income.

[30] Mr. Morris’ child support arrears, assuming that he should have paid based upon line 150 income, for the 5 year and 11 month period January 1, 2015 to November 30, 2020 total $23,167. In other words, less than $4,000 a year.

[31] The evidence indicates that in 2018 Mr. Morris borrowed $58,000 to purchase a truck. He recently built a garage at his house at a cost of $45,000. His fiancé, who has two children and a modest income, recently bought a travel trailer. Mr. Morris has two ATVs and takes them for vacation excursions. Given the nature and extent of these expenditures I see no hardship to Mr. Morris if required to pay retroactive child support.

[32] Further, in terms of hardship, Mr. Morris has known for approximately three years that these arrears were sought. He could and should have planned his finances to account for the contingency that he would have to pay them.

Retroactive Child Support is Payable

[33] In D.B.S., Bastarache J. indicated at paragraph 90 that no one factor is decisive. Ms. Carder has some excuse for why support was not sought earlier. Given the blameworthy conduct of Mr. Morris and the fact that he will not suffer hardship by paying the retroactive amounts, I conclude that he should be required to pay retroactive child support.

[34] According to D.B.S., paragraph 118 the general rule is to make payments retroactive to the date that the payor parent was given effective notice that increased support was sought. D.B.S. at paragraph 124 states that in cases of blameworthy conduct it is more appropriate to use the date that increased support should have been paid. In my opinion this is the most appropriate date in this case.

[35] If Mr. Morris had disclosed his 2014 income in early 2015, as he should have, I have no doubt that the sharp increase from his earlier approximation of his 2014 income would have prompted Ms. Carder to be sure to obtain annual updates as to his income. As such, I calculate child support arrears from January 1, 2015 being the date on which Mr. Morris knew with certainty his 2014 income. While the July 11, 2014 order provided for an adjustment in June 2015, that was to be a retroactive adjustment. As such, there is no unfairness to Mr. Morris in retroactively adjusting to January 1, 2015.

[36] As set out in Exhibit 4, the retroactive child support from January 1, 2015 to November 30, 2020 totals $23,167 which Mr. Morris shall pay at the rate of $500 per month commencing December 1, 2020. This is enforceable through FRO.

ONGOING CHILD SUPPORT

[37] The parties agreed that ongoing child support should be based upon Mr. Morris’ 2019 income. As such, child support for Tyler commencing December 1, 2020 shall be $1,226 per month which is based on his 2019 line 150 income.

[38] The parties agreed that child support should be adjusted on June 1, 2021, based on 2020 income to avoid further arrears accruing.

CONCLUSION

[39] Mr. Thomson shall provide his Costs Outline and submissions, not to exceed three pages, within 10 days. Mr. Vining shall respond within a further 10 days. Reply, if any, within a further 5 days.

SPROAT, J.

Date: November 18, 2020