Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Brenda Otter, applicant
AND:
Brian Robert McIntyre, respondent
BEFORE: HENDERSON J.
COUNSEL: Brenda Otter in person
Megan Stuckey for the respondent
HEARD: September 11-12, 2019
ENDORSEMENT
1This is the respondent’s motion to change the final order of Marshman J. dated May 30, 2000. He seeks to vary that order by terminating child support for his son, Brian Gordon Otter, born May 7, 1999, effective September 26, 2017.
2In her response, the applicant seeks an order for child support retroactive to June 2015 and prospective support.
3By way of brief background, the parties cohabited for about six months in 1999. Brian is a child of that relationship.
4In her order dated May 30, 2000, Marshman J. ordered the respondent to pay child support in the amount of $217 each month based on an income of $24,500. That order has never been varied. No termination date was specified.
5The respondent is 62 years of age and currently unemployed. He lost his job as an assembly line painter when his company closed in September 2018. He has no specialized education or skills certification. He says he suffers from arthritis, which prevents him from doing any significant manual labour. To date, he has been unable to find any alternate employment despite efforts to do so.
6He owns a house in which he lives with his wife. She is employed and pays the mortgage. The respondent says his EI ended in July 2019 and, since, his only sources of income is CPP and a small RRSP.
7His historical incomes based on CRA evidence filed are:
| Year | Income | Details |
|---|---|---|
| 2018 | $42,974.74 | included $24,935.24 (employment), $6,470.40 (CPP), $5,389.10 (split pension) and $6,180 (EI) |
| 2017 | $28,476 | employment and CPP income |
| 2016 | $34,369 | employment and RRSP |
| 2015 | $51,627 | employment, RRSP and “other income” (not explained) |
8It is not clear from the evidence whether Brian completed high school. It was evident from report cards filed, he had a difficult time at school. He was truant, exhibited lack of focus, poor literacy skills and displayed opposition to authority. There was some medical evidence produced in the context of his ODSP application that shows he has been diagnosed with asthma, a learning disability and ADHD, for which he was prescribed Ritalin.
9He has a poor employment record, being unable to hold any job for more than a few weeks. The jobs he did have were either in the landscape or snowplough business. He owns his own truck, snowplough and lawn mowers. There was some evidence he was running his own business but I am satisfied that it has never produced but a few hundred dollars doing the odd job.
10He was initially denied ODSP but this decision was reversed on appeal. He has been receiving ODSP since July 2018 initially in the amount of $1,154 each month and currently $1,122 monthly. He is entitled to earn up to $300 each month without it affecting his ODSP payment.
Analysis
(i) Is Brian a Child of the Relationship
11The merit of either party’s claim turns on whether Brian is a child of the marriage. This determination is more complex than at first blush, arising from the amendment of the definition of child in the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) in 2017.
12On May 7, 2017, when Brian turned 18, s. 31 read:
Obligation of parent to support child
31 (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
Idem
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
13It is not challenged that Brian was not in fulltime attendance in an educational program. It is on this basis the respondent argues that child support should be terminated.
14On July 7, 2017, Sullivan J., in Coates v. Watson, 2017 ONCJ 454, struck down s. 31 as contravening s. 15(1) of the Canadian Charter of Rights and Freedoms. He found that the existing definition was too restrictive, excluding among other groups persons with disabilities. The case involved Joshua, who was born December 19, 1994, who was disabled. His father had brought a motion to change to terminate child support. His mother, Robyn, opposed the motion. The parties never married and so the FLA applied.
15Starting at para. 171, Sullivan J. described the discriminatory effect of s. 31 for Robyn and Joshua:
171 I find that Section 31 of the Family Law Act shuts a door to Joshua/Robyn to have a court in Ontario consider and have an opportunity to assess his needs and who is better positioned to meet those needs. Effectively access to a debate and a just adjudication of these issues is denied a citizen of Ontario and one who is a member of a vulnerable group.
172 I say this with confidence not because I sympathize with Joshua given his circumstances, as I am mindful of this earlier point made by Amicus, but rather I find this to be the objective effect of s. 31 of the FLA for Robyn and Joshua based primarily on being an unmarried women who has a child with disability who cannot meet the provisions for child support set out in s. 31 of the FLA.
16At para. 186, he elaborates:
186 … s. 31 discriminates because of its effects, in context, on groups already marginalized by systemic inequalities. The Charter is supreme law, and in Canada, both provincial and federal statutes must comply with it.
17On this basis, he struck down s. 31 as contravening s. 15(1), which cannot be saved by resort to s. 1 of the Charter. Instead, Sullivan J. found the expanded definition of “child” in s. 2(1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) “[t]he remedy that best advances the constitutional interests of equality, dignity and security …”
18That decision was not appealed but, on December 14, 2017, s. 31 was amended to read:
Obligation of parent to support child
31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,
(a) is a minor;
(b) is enrolled in a full-time program of education; or
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.
19In 2017, Brian applied for, but was denied, benefits pursuant to the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B. He appealed that ruling and it was overturned by the Social Benefits Tribunal on May 29, 2018.
20The Tribunal found that Brian’s disability arises from his learning disability and ADHD. Three conditions have resulted in the following verified impairments: poor concentration; difficulty reading; lack of ability to understand functions of daily tasks; and difficulty completing and maintaining focus on tasks (paragraph 5).
21The Tribunal went on to find these conditions were continuous or recurrent and expected to last one year or more (paragraph 5). It found these were “substantial” and concluded Brian was “a person with a disability” within the definition of the Act.
22On the basis of this evidence and other evidence pertaining to his school performance and work history presented at trial, I am satisfied that Brian falls within the definition of “disability” for the purposes of the amended s. 31.
23The question is whether he is captured by the expanded definition of child, even though he turned 18 seven months prior to the amendment. Put another way, does the amended s. 31 have retroactive effect?
General Principles of Interpretation
1. Retrospective v. Retroactive
24The distinction between retrospectivity and retroactivity was recently addressed by the Court of Appeal in R. v. R.S., 2019 ONCA 906, 2019 CarswellOnt 18776.
25At the outset, Doherty J.A. observed that the distinction “can be a fine one” and has been rendered more difficult “by the interchangeable use of the two words in many judgments” (para. 24).
26He then proceeds to define the two:
25 ... Retroactive laws refer to legislation that deems the law to have been something different than it actually was as of a date that precedes the enactment of the law. …
27On the other hand:
26 Retrospective laws operate only from the date of enactment, but change the legal effects, on a going forward basis, of events that occurred before the enactment. …
28In the context of the present case, there are three possible operations of the amendment:
Prospective: This would apply the amendment on only a go forward basis from December 14, 2017. In other words, it would capture only children turning 18 after December 14, 2017. Brian would be excluded.
Retrospective: This would capture Brian but only apply the law after December 14, 2017. In his case, he would not be entitled to support from May 7, 2017 (his 18th birthday) until December 14, 2017, but thereafter.
Retroactive: This would capture Brian and the amended s. 31 would apply from his birthday.
29As Doherty J.A. concluded that the distinction “does not significantly advance the resolution of the appeal” (para. 27), I arrive at the same conclusion. Certainly, the seven month difference in application has no significant practical impact.
30He then states that, at para. 27, the real question is:
27 … whether the legislation, whether it is described as retroactive or retrospective, interferes with acquired substantive rights. Legislation that interferes with acquired substantive rights is presumptively prospective only. If the application of the amendments to the appellants' prosecutions would interfere with the appellants' substantive rights, there is a rebuttable presumption against the application of the amendments to the appellants. That presumption exists regardless of whether the application of the law to the appellants is described as a retrospective or retroactive application and regardless of whether the amendments are characterized as substantive or procedural: see R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272 (S.C.C.), per Deschamps J., at paras. 10-11, per Cromwell J., dissenting but not on this point, at paras. 44-54; Angus v. Hart, 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256 (S.C.C.), at p. 265; Peel Regional Police Service v. Scott, 2012 ONCA 292, 110 O.R. (3d) 536 (Ont. C.A.), at paras. 71-77.
31There are sound policy reasons for the presumption. As Watt J.A. wrote, in R. v. Chouhan, 2020 ONCA 40, which addressed different aspects of the same Criminal Code (R.S.C., 1985, c. C-46) amendments, at para. 186:
186 … The purpose of the presumption is to prevent a change in the law from looking to the past and attaching new prejudicial consequences to a completed transaction. The presumption bespeaks fairness and engages the rule of law. …
32He continues, noting that the presumption against retroactive application is rebuttable, at para. 187:
187 However, like many other presumptions, this presumption is not absolute, unyielding, or preclusive. It may be rebutted by Parliament, expressly or by necessary implication. Or it may be rebutted because the nature or character of the legislation itself gives rise to a countervailing presumption that procedural legislation applies retrospectively — immediately and generally to both pending and future acts and events.
33Deschamps J. wrote to similar effect in R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, the leading authority on this issue. At para. 10, he states:
10 There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Hart, 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256 (S.C.C.), at pp. 266-67; Application Under s. 83.28 of the Criminal Code, Re, 2004 SCC 42, [2004] 2 S.C.R. 248 (S.C.C.), at para. 57; R. v. Wildman, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311 (S.C.C.), at pp. 331-32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application Under s. 83.28 of the Criminal Code, Re, at paras. 57 and 62; Wildman, at p. 331).
34Although most of the jurisprudence on this issue has developed in the criminal law context, there has been some limited application in the family law context. For example, in Cameron v. Cameron, 2018 ONSC 6823, the Superior Court considered the retroactive effect of changes to r. 24(11) of the Family Law Rules, O. Reg. 114/99. Relying on Dineley, the court concludes the Family Law Rules are procedural and amendments have retrospective effect.
2. Application
35In the present case, it is uncontroverted that the entitlement to child support is a substantive right, just as payment of child support is a substantive duty of the parent. On this point, for example, see Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] 1 S.C.R. 857, 38 D.L.R. (4th) 699, at para. 14, and Facchin v. Taylor, 2004 CarswellOnt 4105 (S.C.J.), at para. 6. As such, there appears to be a presumption of prospective application.
36However, as stated above, the presumption against retroactivity is rebuttable where “it is possible to discern a clear legislative intent” (see Dineley, supra).
37When analyzing this issue, the courts have drawn a distinction between prejudicial statutes and beneficial statutes, in other words those that restrict substantive rights and those that expand substantive rights.
38In Pusch v. Tarnowski, 1997 CanLII 11280 (SK QB), 1997 CarswellSask 59, 153 Sask. R. 287, Wilkinson J. was dealing with amendments to The Family Maintenance Act, S.S. 1990-91, c. F-6.1, which expanded the definition of spouse to include parties who lived common law.
39Wilkinson J. applied the legislation retroactively on the following rationale, at para. 17:
17 Where the character of the legislation is remedial in nature, designed to provide a remedy for that which the legislature considered to be a presently existing defect in the legislation, the legislation may be applied retrospectively. The provisions in The Family Maintenance Act were intended to remedy the exclusion of common law spouses from the benefits of spousal support and to correct an imperfection in the existing law.
40In that case, the parties, who were not married, separated in 1989. Amendments to The Family Maintenance Act expanding the definition of spouse to include non-married partners was proclaimed into force in December 1990.
41In 1993, the petitioner was diagnosed with post-traumatic stress disorder and collected disability benefits until May 1996. Her financial circumstances declined thereafter. In giving retroactive effect to the legislation back to when the parties separated, Wilkinson J. found the petitioner to be a spouse and ordered spousal support commencing December 1, 1996, taking her circumstances into account.
42In Ontario, Benotto J. (as she then was) relied on a similar approach in S. (R.) v. H. (R.), 2000 CarswellOnt 1994 (S.C.J.). At issue was whether a claim for spousal support under the FLA could be made in 2000 by a same sex partner who separated in 1993.
43The proceedings followed an unusual path. The plaintiff commenced an action for support eight months after the parties separated in 1993. The action was then held in abeyance pending the outcome of the Supreme Court of Canada decision in M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, 46 R.F.L. (4th) 32. The decision was released in early 1999 and the FLA was amended November 30, 1999 by expanding the definition of spouse to include same sex couples.
44Before Benotto J. was a motion by the defendant to strike the plaintiff’s claim for support. He argued that, at the time the action was commenced, the plaintiff had no right to claim support and that the amendments to the FLA have no retroactive effect.
45As in the present case, the Supreme Court, in M. v. H. had found that the existing definition of spouse in the FLA contravened the Charter. It suspended the operation of the offending section for six months to permit the legislature time to amend the definition. It did so on November 30, 1999.
46Benotto J. acknowledged that the amending legislation contains no retroactive provision. However, she held that the amending legislation did not need to contain such a provision because the FLA already does. Section 34(1)(f) provides that the court may make an interim or final order “requiring the support be paid in respect of any period before the date of the order.” She concluded that this provided sufficient basis to give retroactive effect to the amendment.
47She continued however to find that there was an alternate ground for her conclusion that the amendment could be applied retroactively. The amendment was introduced to address a systemic wrong. The presumption against retroactivity does not apply to remedial legislation such as the amending legislation and as such, the amendments must be interpreted broadly and applied retroactively.
48For these reasons, Benotto J. dismissed the motion to strike the plaintiff’s claim. The effect was that there was an entitlement to spousal support that was retroactive to the parties’ separation in 1993, despite the fact that the entitlement only arose following legislative amendments in 1999.
49I find nothing in the facts of the present case that distinguishes it from S. (R.) v. H. (R.) and, consequently, I find no reason to depart from its principles (compare also Finlayson J. in M.P.A.N. v. J.N., 2018 ONCJ 769 and Shirley v. Campbell, 2018 ONCJ 871). Therefore, in following that decision, I would give retroactive effect to the legislation amending the definition of child to the date when Brian turned 18.
50The respondent argues that to impose such an obligation retroactively is unfair, particularly in the present circumstances where the respondent has complied with the existing order.
51This concern arises whenever family courts grapple with retroactive active orders.
52The leading case regarding retroactive child support is the Supreme Court decision in D.B.S. v. S.R.G., [2006] 2 S.C.R. 231, 2006 SCC 37.
53Starting at para. 95, Bastarache J. considers the philosophical and practical implications when awarding retroactive support:
95 It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed.
96 Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. Prospective awards serve to define a new and predictable status quo; retroactive awards serve to supplant it.
54In this context, he then outlines a list of factors, none of which are decisive that should be considered when making retroactive awards:
- reasonable excuse for why support was not sought earlier;
- conduct of the payor parent;
- circumstances of the child; and
- hardship occasioned by a retroactive award.
55In my view, it would be appropriate to apply those factors to the present case, as would occur with any retroactive award. The hardship factor could, for example, mitigate the harsher results of a retroactive application of the statutory amendment.
(ii) Has there been a material change in circumstances?
56Having determined Brian is a child. The next hurdle is whether there has been a material change in circumstances. Section 37 of the FLA governs variation applications. Section 37(2.1) grants the court wide powers to vary an order in the event there has been “a change in circumstances within the meaning of the child support guidelines.” Section 14.1. of the Child Support Guidelines, O. Reg. 391/97 states:
Circumstances for variation
For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:
In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.
57Both parties are seeking a variation. The respondent is seeking an order to terminate child support retroactive to September 26, 2017 and the applicant is seeking an order for retroactive and ongoing child support.
58As a threshold matter, I find there has been a change in circumstances, which merits a consideration of the parties’ positions. The applicant is unemployed, with a consequential reduction in income, and Brian turned 18 on May 7, 2017 and since 2018 has been receiving ODSP benefits. Child support, on the other hand, has not been changed since the original order and, on the evidence, at least back to 2015, the respondent’s income has been significantly higher than it was in 2000. Within the definition set out in s. 14.1. of the Child Support Guidelines, this change in income of itself would merit a review of the original order.
(iii) Applicant’s Claim for Retroactive Support to 2015-2018
59It is my intention to consider the retroactive claim in two timeframes: January 1, 2015 to June 30, 2018; and July 1, 2018 onward. Different factors come into play commencing July 1, 2018. I will now consider the first period.
60In D.B.S., Bastarache J. recommended a maximum limit of three years before formal notice was given for a retroactive claim (para. 123). The Applicant’s claim contained in her Response is the first notice of her claim for a change.
61I have no difficulty making an order retroactive to January 1, 2015. There was no evidence of prior requests for a variation of child support before the applicant’s response dated June 16, 2018. I find this reasonable in view of the fact there has been no variation since the 2000 order.
62I have calculated the retroactive support owing for 2015 to June 30, 2018 as follows:
| Year | Respondent’s Income | Amount Owed | Amount Paid | Deficit |
|---|---|---|---|---|
| 2018 | $42,974.74 | $392 x 6 = $2,352 | $217 x 6 = $1,302 | $1,050 |
| 20171 | $28,476 | {$232 x 11 = $2552} {$240 x 1 = $240} $2792 |
$217 x 12 = $2,604 | $276 |
| 2016 | $34,369 | $296 x 12 = $3,552 | $2,604 | $948 |
| 2015 | $51,627 | $475 x 12 = $5,700 | $2,604 | $3,096 $5,370 |
Starting July 1, 2018 Brian received ODSP benefits and the impact of this is discussed below. I will now address the three remaining factors articulated by Bastarache J. in D.B.S., noted above.
63There is some blameworthy conduct on the respondent to the extent that he did not disclose his income at any time over the period. He tried to justify this on the basis he informed the Family Responsibility Office of changes in employment which, in his mind, satisfied his obligation. If the applicant wanted more details of income, she could have inquired.
64This misconstrues the obligation. It is established law that the obligation is on the payor to disclose, not on the payee to inquire. To the extent the respondent tried to justify his non-disclosure, this strongly suggests his awareness of his obligation.
65The lack of maintaining current child support has also impacted the child’s circumstances. At para. 110 of D.B.S., Bastarache J. observes that “[a] retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time.” He then discusses the relative circumstances of the child. A child benefitting from a higher standard of living might benefit less from a retroactive award. On the other hand, “[a] child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award” (para. 113).
66In the present case, Brian’s circumstances have always been basic. While the applicant does own a home, the main family income sources were the applicant’s ODSP benefits, Child Care Tax Benefits for two children and the applicant’s receipt of non-taxable survivor benefit from Veterans Affairs Canada. A retroactive award would no doubt provide some appropriate compensation.
67A final consideration when awarding retroactive support, discussed by Bastarache J., is possible hardship on the payor. While I agree that in the respondent’s current circumstances, any award would be a hardship, I am still prepared to impose one. Bastarache J. noted that blameworthy conduct by the payor, as I have found here, can reduce the influence of hardship. Taking these factors into account, I order the respondent to pay retroactive support for the period January 1, 2015 to June 30, 2018 fixed in the amount of $5,370 commencing March 1, 2020 (at the rate of $75.00 per month. The fixed amount may be reduced by an overpayment made by the respondent.
(iv) Child Support 2018 Onward
68The applicant described Brian’s current living situation since he began receiving ODSP. He lives in his mother’s basement. He has his own bank account into which his ODSP is deposited directly. He handles his own finances paying his bills including his credit card.
69He pays for his own hydro, car insurance, rent, cell phone and gas and repairs for his truck. He buys his own groceries and cooks his own meals on his hot plate. He “sometimes” eats with the applicant but also spends about three nights a week at his girlfriend’s home.
70In addition to his truck, which he bought in 2016, he owns a snowplough for the front of the truck, two trailers and lawn mower equipment.
71Despite his relative independence, the applicant does not believe he could live on his own.
72I requested a monthly budget for Brian which the applicant produced in Brian’s handwriting:
| Expense | Amount |
|---|---|
| car insurance | $300 |
| rent (to the applicant) | $450 |
| bank fees | $15 |
| Netflix | $15 |
| food | $150 |
| cellphone | $60 |
| gas | $20 |
| haircut | $30 |
| Visa | $200 |
| parts | $150 |
| hydro | $200 |
| Total | $1,590 |
73Since July 1, 2018, Brian has been receiving ODSP. An ODSP payment stub dated July 31, 2019 shows a net receipt of $1,122 per month which is broken down as “Basic Need” $672 and “Shelter” $450.
74This leaves a shortfall of about $468 per month in Brian’s budget.
75His mother stated he is not working or going to school. She described him as “very aggressive right now,” in addition to his other challenges.
76Because Brian receives ODSP, does the respondent continue to have an obligation to support Brian and, if so, to what extent?
77The leading authority on this issue is the Court of Appeal decision in Senos v. Karcz, 2014 CarswellOnt 7900, 2014 ONCA 459. In that case, the court considered whether there was a continuing obligation to support a child in receipt of ODSP benefits.
78Strathy J.A., writing for the court, held that the burden of supporting a disabled adult and child was to be shared between society and the child’s parents. Therefore, there is a continuing obligation.
79That said, the question is whether s. 3(2)(a) or s. 3(2)(b) of the Child Support Guidelines apply. Section 3(2) reads:
Child the age of majority or over
3(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,
(a) the amount determined by applying these guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.
80In determining whether the table approach is appropriate, Strathy J.A. approved of the observation that the closer the child’s circumstances are to those upon which the Guidelines table approach is usually based, the more likely the usual Guidelines calculation will be appropriate. The converse is also true (para. 39).
81Strathy, J.A., then went on to find that the receipt of ODSP support makes the Guidelines approach inappropriate (para. 40). After a lengthy discussion about the interplay of ODSP payments and support payments, he concluded that a s. 3(2)(b) analysis is appropriate. A calculation of the support obligation must take into account the child’s unique condition, means, needs and other circumstances, including receipt of ODSP and the ability of his parents to contribute to his support (para. 64).
82I order that the respondent pay child support as calculated below commencing on July 1, 2018, I do so taking into account the following circumstances:
- Brian’s budget shortfall is about $468 per month.
- While I have found Brian to be disabled, I find he is not so disabled as to prevent him from earning some income. The applicant indicated that he can earn up to $300 per month without affecting his ODSP. While his working history demonstrates a difficulty working for a company, he may be able to earn some money by working for himself. He has equipment to plough snow and cut grass. In fact, there was evidence that in recent times he took steps to advertise his services. I find, on the evidence, that he lives a near independent life tending his own finances. I find that he is capable of earning some income to contribute to his needs, if only on a limited scale.
- I have considered the circumstances of the applicant. In 2018, she earned $25,528 from different sources of assistance. I expect her 2019 income to be about the same. She lives with another child in a home that she owns. In her financial statement sworn August 19, 2019, she shows a value of $220,000 for the home with a mortgage. She has no other savings. Brian pays her his shelter allowance of $450 per month and his hydro of $200 per month.
According to the respondent’s financial statement sworn August 27, 2019, he is currently earning $13,218.48 annually, which is comprised of CPP and RRSP withdrawal. He owns a home jointly with his wife, which he values at $150,000 subject to a mortgage of $34,554.86, which his wife pays. He owns a truck, which he values at $36,000. There does not appear to be a corresponding loan on the truck, although he claims a car loan/lease payment of $546.46 per month. He has an RRSP balance of $7,000. Based on his budget, it would appear his wife is picking up not only the mortgage payment but also property taxes and household insurance. While he has entered $150 per month for water, there are no entries for heat or electricity. Similarly, there are no entries for clothing or even a haircut. He puts in $100 per month for groceries which, for two people, is lean and there is no entry for household supplies. There is no entry for gas, even though the respondent drives a truck. I can only presume these expenses, at least, must be picked up by the respondent’s wife and she is subsidizing the respondent’s lifestyle. I have taken this into account when considering the respondent’s ability to pay chid support. Further, it is my view that the respondent could improve his ability to pay by reducing his vehicle costs from $546.46 per month. I also find that the respondent has some ability to earn some income, despite his age, ailments and lack of skills. Finally, it is accepted that the respondent lost his job in 2018 and earned $42,974.74 from a variety of sources.
83Taking all of these factors into account, I order that the respondent continue to pay $392 per month from July 1, 2018 to December 30, 2018. I would impute an annual income of $16,000 commencing January 1, 2019, resulting in a payment for child support in the amount of $100 per month.
84Therefore, I order as follows:
- Commencing March 1, 2020, the respondent shall pay child support arrears fixed as of June 30, 2018 in the amount of $5,370, less any payments made by the respondent in excess of amounts ordered herein, at the rate of $75.00 per month.
- Commencing July 1, 2018, the respondent shall pay support for the child, Brian Gordon Otter born, May 7, 1999, in the amount of $392 per month until December 30, 2018 based on an income of $42,974.74 per year. Commencing January 1, 2019, the respondent shall pay child support in the amount of $100 per month based on an imputed annual income of $16,000 pursuant to s. 3(2)(b) of the Child Support Guidelines.
- Child support shall be payable so long as the chid is a child for the purposes of the Family Law Act.
- The applicant shall inform the respondent forthwith in the event the child is denied ODSP benefits, which shall constitute a material change in circumstances.
- By June 1 of each year, the respondent shall produce his annual T1 general income tax form with all schedules attached and his notice of assessment when received.
85The applicant shall make written costs submissions within 15 days and the respondent shall have 15 days thereafter to respond.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Date: February 21, 2020