Superior Court of Justice – Family Court
COURT FILE NO.: FC-19-00059219
DATE: 20210316
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Barbara Jean Leonard Applicant
– and –
Michael Alan Leonard Respondent
COUNSEL:
Howard Warren, for the Applicant
Lauri Daitchman, for the Respondent
HEARD: March 10, 2021
REASONS FOR DECISION
CHARNEY J.:
[1] The applicant mother (the applicant) brings this motion for interim retroactive and continuing child support and retroactive spousal support.
[2] The respondent father (respondent) argues that the applicant overpaid child support in the past, and that this overpayment should be deducted before he is required to pay any additional monies, either on a retroactive or prospective basis. He argues that these issues should not be determined on an interim motion, but should await the trial so that they can be determined on a complete evidentiary record when the financial position of both parties is known.
Facts
[3] The parties were married on September 9, 2000. This is the second marriage for both parties. There is one child of the marriage, JEL, born June 22, 2001.
[4] The parties separated on September 30, 2017.
[5] The applicant is now 56 years of age, the respondent is 63.
[6] The respondent retired in February 2015 after working for 37 years. His pension was in pay on the date of separation, and his pension income is currently $66,167 per year.
[7] The applicant was employed until September 2020. From March 2017 until August 2019 she was in receipt of long term disability benefits (LTDB) and earned only $27,500 per year. Her LTDB terminated on August 30, 2019, but she was not able to return to work. From August 30, 2019 until March, 2020 she received no income. In March of 2020 she started to receive government COVID-19 benefits together with EI of approximately $2,000 per month. In September 2020 she formally retired for health related reasons, and she receives a pension income of $61,874 per year.
Past Credits
[8] The parties sold the matrimonial home a few months prior to separation, and were residing in rental accommodations at the time of separation. On renting the house they put a portion of the proceeds of the matrimonial home into a dedicated rent payment account (rental account). They each contributed funds to the rental account equally.
[9] At the time of separation, the rental account held $55,100. The applicant acknowledges that she and the respondent were each entitled to one-half of those funds, and that she used all of those funds after the separation to pay the rent for her and the daughter. Accordingly, she agrees that the respondent "might be credited with payment to me of $27,500 in support".
[10] The applicant further acknowledges that the respondent paid $1,000 per month for child support from November 2017 until he stopped in August, 2019, for a total of $21,000.
[11] The applicant alleges that the respondent unilaterally took $10,000 from their joint account.
[12] Assuming these amounts are correct, the respondent would be entitled to a credit of $38,500.
[13] As indicated below, the respondent claims that the applicant also withdrew additional funds from the joint account, including some of the inheritance/life insurance proceeds he received after his father passed away. The applicant denies this.
Spousal Support
[14] The applicant acknowledges that, given their similar pension income, the respondent would not have to pay spousal support in 2020 or going forward. She calculates her retroactive spousal support as follows:
2018 mid range spousal support @ $1,118 per month = $13,416
2019 mid range spousal support @$1,028 per month = $12,336
Total: $25,752
[15] The respondent disputes the applicant's spousal support calculations. He alleges that she has not included at least some of her LTDB in her income calculations, and that there are unexplained funds deposited into her bank accounts during the years 2018 and 2019 for which she claims spousal support. He argues that if these amounts were included in her income for those years, there would be no spousal support owing.
Child Support
[16] The applicant calculates that the respondent should have paid her $595 per month child support for the years 2017 to and including 2020. The calculations are as follows:
2017 (3 months) = $1,785
2018 = $7,140
2019 = $7,140
2020 = $7,140
Total: $23,205
[17] The respondent's child support calculations are somewhat higher than those proposed by the applicant. He takes the position that based on his Notices of Assessment, his monthly child support payments should have been $603 in 2017, $662 in 2018, and $659 in 2019. He takes the position that between November 2017 and August 2019 he overpaid child support by $7,800, and argues that this should be taken into account and set off against any monies he now owes.
Section 7 Expenses
[18] While the Notice of Motion originally sought an order that the respondent father contribute to the s. 7 expenses of their daughter, the applicant was unable to file all of the invoices and receipts required to support her claim for s. 7 expenses due to page limitations imposed by the COVID-19 practice directions. Accordingly, she has requested that this issue be deferred to another day.
[19] It appears from the affidavits filed that there was some dispute about the money being held in the daughter's RESP. Some of it had been transferred to other accounts, including an account held by the applicant. The affidavit material does not indicate how much money has been withdrawn from the RESP and placed in other accounts. This information must be provided to the respondent, and the money that was in the RESP must be used to offset the parents' s. 7 expenses: Crisp v. Crisp, 2012 ONSC 521, at para. 74; Lowe v. Lowe, 2020 ONSC 5224, at para. 52.
[20] A parent paying child support for an adult child enrolled in an educational program is entitled to receive information from the educational institution attended by the child confirming that that child is enrolled and is attending, whether the child is attending on a part or full-time basis, in addition to all financial information regarding tuition paid and bursaries, scholarships or other financial assistance provided.
[21] The respondent acknowledges his continuing obligation to pay for the post-secondary education related expenses incurred by JEL. I would hope that once the invoices in support of these claims and an accounting of the RESP monies are provided, the parties will be able to resolve this particular dispute without the need for a further motion.
Analysis
[22] Based on her own calculations, the applicant is owed $10,457 by the respondent to the beginning of 2021, calculated as follows: $48,957 ($25,752 spousal support plus $23,205 child support) minus the $38,500 which she acknowledges the respondent should be credited.
[23] I note that the applicant appears to have underestimated the respondent's past child support obligations. For some reason, she based her calculations on child support at $595 per month, while the respondent acknowledges that, based on his income, his child support payments should have been $603 in 2017, $662 in 2018, and $659 in 2019.
[24] The respondent argues that the applicant owes him approximately $95,000. He alleges that shortly after separation the applicant withdrew almost all of their joint funds, including some of the inheritance/life insurance proceeds he received after his father passed away. He has offered few particulars with regard to this allegation, and I give it little weight because it is just a bald allegation.
[25] He also alleges that he has not had full disclosure from the applicant, and, in particular, he has questions about deposits to her bank account that may indicate that her income for 2018 and 2019 was higher than she reported.
[26] Subject to what I say below, this is not an appropriate case in which to award retroactive spousal or child support on an interim motion. The evidence indicates that the wife has had access to at least $38,500 in support since the date of separation in September 2017, and, by her own calculations, arrears of approximately $10,450 are in dispute.
[27] The respondent disputes the applicant's income for the purposes of spousal support, and, even if his position is only partially successful at trial, the alleged arrears could be significantly reduced at trial. Given the fact that both parties are limited to their pension income, it would be inappropriate to order the respondent to make a $10,000 lump sum payment at this interim stage. Motions for interim support typically deal only with prospective orders: Mohamed v. Mohamed, 2020 ONSC 6567, at para. 8. The issue of retroactive spousal support in this case is a matter that is best left to trial once a full record can be developed: McGuire v. Jean, 2011 ONSC 5236, at para. 15; Abdur-Rashid v. Abdur-Rashid, 2021 ONSC 1117, at para. 49.
[28] Ongoing child support, however, is a different matter. Based on his 2020 income, the respondent should be paying guideline child support of $616 per month. The applicant is supporting JEL and is entitled to that amount on a prospective basis as long as JEL remains a child of the marriage. The applicant should not be denied her ongoing child support payments while the parties fight about the past. Interim child support payments should commence the date of the applicant's Notice of Motion, March 1, 2021.
[29] I note again that the applicant acknowledges that she is not entitled to any spousal support from 2020 onwards, so no prospective spousal support is being sought on this motion.
[30] There is, however, one aspect of retroactive child support that should be awarded on this interim motion. As indicated above, the respondent takes the position that by the time he stopped paying child support in August 2019 (his last payment was July 2019), he had overpaid child support by $7,800. Assuming that the respondent's calculations are correct, his overpayment would have been reduced to nil by August 2020[^1]. Even assuming that the respondent's calculations are correct, and he should be credited for his child support overpayments until they were reduced to nil, he would have to recommence these child support payments as of August 2020.
[31] The respondent was aware of his child support obligations, and could not simply stop paying even after any overpayment claimed had been reduced to nil. By his own logic, any other disputes, such as his allegation that the applicant had taken funds from his inheritance, must await trial and a full evidentiary record.
[32] Accordingly, I find that it is appropriate that the child support payments be made retroactive to August 2020. By my calculations, this amounts to $4,337.[^2]
Conclusion
[33] This Court Orders that the respondent shall pay guideline child support for the child JEL, d.o.b. June 22, 2001, based on his annual income of $66,167 per year in the amount of $616 per month commencing March 1, 2021.
[34] This Court Orders that the respondent will pay retroactive child support for the child in the amount of $4,337.
[35] The issue of retroactive spousal support is reserved to trial.
[36] The applicant has obtained some success on this motion, and, subject to the costs consequences of Rule 18 of the Family Law Rules, is presumptively entitled to her costs. If the parties cannot agree on costs, the applicant may file costs submissions of no more than 3 pages plus costs outline and any offers to settle, within 15 days of the release of this decision. The respondent may file submissions on the same terms within a further 10 days.
Justice R.E. Charney
Released: March 16, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Barbara Jean Leonard
Applicant
– and –
Michael Alan Leonard
Respondent
REASONS FOR DECISION
Justice R.E. Charney
Released: March 16, 2021
[^1]: This amount is calculated as follows: The respondent takes the position that his child support payments should have been $659 per month in 2019, and $621 per month in 2020. He did not pay any child support for the last five months of 2019 (5 X $659 = $3,295). By July 2020 he would have withheld an additional (7 X $621 =) $4,347, for a total $7,642.
[^2]: This amount is calculated as follows: ($621 for August – December 2020 =) $3,105 plus ($616 for January and February 2021 = ) $1,232 =$4337.