COURT FILE NO.: FS-20-18495
DATE: 20210407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Olga Polanski
Applicant
– and –
Jerzy Polanski
Respondent
Self-represented Applicant
Self-represented Respondent
HEARD: in writing
Kiteley J.
[1] The Applicant has brought this uncontested trial based on written evidence including a form 23C affidavit sworn December 5, 2020 and a form 13 financial statement sworn September 2, 2020. The only issue is retroactive and ongoing child support.
Background
[2] The Applicant and Respondent were married on May 15, 1998. Their daughter N.P. was born September 3, 1998. The parties separated on February 15, 2005 when N.P. was 7 years old.
[3] Following the separation, the Respondent paid $300 to $425 per month for child support from April 2005 until September 2010. In Exhibit A to her affidavit, the Applicant provided a copy of cheques for April 30, 2005, September 28, 2006 and December 23, 2009 indicating the dates when the amount of child support had changed.
[4] In September 2010, the Applicant enrolled in a full-time Activation Coordinator for Gerontology Program. She received student loans for the two year program. The Respondent agreed to increase the child support payments to $600 per month until May of 2015.
[5] At the request of the Respondent, the parties filed a joint application for divorce dated May 25, 2015. On page 5 appears the following:
We both ask the court for joint custody; our child will live with the mother and the father will be granted access to the child on regular basis with the child’s consent. We both agree that the father will pay child support $621 each month and all after school activities and summer camps until the age of 21 or when completed her education.
[6] At the time of signing the divorce application, the Respondent told the Applicant that his income was $68,000 per year but did not provide any proof. The Applicant deposed that the monthly amount of $621 was the amount required based on income of $68,000. N.P. was then 16 years old.
[7] The divorce order is dated June 25, 2015 and took effect 31 days later. The order does not make reference to any child support arrangements, but the Respondent started paying $621 as they had agreed.
[8] Between June 2015 and January 2020, the Respondent paid child support fluctuating from $620 per month to $640 per month. The Applicant does not have copies of the cheques, but she did provide bank print outs from her RBC account ending #1852. Those print outs indicate the amount that was changed in December 2016, July 2017, February 2018 and March 2019.
[9] In September 2016, N.P. enrolled in Guelph university and started her 5 year undergraduate program Bachelor of Commerce Co-op Major Accounting. She is expecting to complete that program in April of 2021 after which she will be enrolling in a graduate full-time program.
[10] In September 2019, N.P. became 21 years old. The Respondent had routinely provided 6 months post-dated cheques. On December 10, 2019, the Applicant contacted the Respondent requesting another series of post-dated cheques. In the exchange of emails, the Applicant referred to the Respondent’s previous two pay deposits into the joint account. On December 20, 2019, the Applicant and Respondent spoke by telephone and he refused to continue paying the child support.
[11] Arising from the Applicant’s request for more cheques for child support, the Respondent asked the Applicant to remove her name from the joint account.
[12] The last payment made by the Respondent was in January 2020 in the amount of $640.
[13] The Applicant retained a lawyer who sent a letter (by mail and by email) to the Respondent dated January 29, 2020. The Respondent refused to pay child support.
[14] The Applicant intended to start this proceeding in March 2020 but was delayed because of the interruption in court services. On September 3, 2020, she filed an Application and a financial statement. She asked for an order for child support pursuant to the Divorce Act. According to the affidavit of the process server, on September 15, 2020, the Respondent was served with a cover letter, the Respondent’s MIP Notice, Form 8 Application, Form 13 and Form 10 (blank). The process server left a copy with the Respondent at the Respondent’s place of work in Woodbridge.
[15] The Respondent has not filed an Answer or a form 13 financial statement. He did not give any financial disclosure. Having failed to comply with Family Law Rule 10, the Respondent is exposed to the consequences set out in paragraphs 1 to 4 of subrule 1(8.4) namely that the Respondent is not entitled to any further notice of steps in the case, the Respondent is not entitled to participate in the case in any way, the court may deal with the case in the Respondent’s absence and a date may be set for an uncontested trial. The Applicant asked that the matter proceed as an uncontested trial. It was not necessary for her to serve the Respondent with any of the materials and she has not done so.
[16] In accordance with Family Law Rule 23(22) the Applicant has provided a form 13 financial statement sworn September 2, 2020 and a detailed form 23C affidavit sworn December 5, 2020 attached to which are relevant exhibits that corroborate her evidence. I am satisfied that the evidence provided for this uncontested trial is credible and reliable.
Issues
[17] The Applicant is asking for an order effective September 1, 2018 to and including April 1, 2021 for periodic child support and, effective January 1, 2019 to and including April 30, 2021, for s.7 special and extraordinary expenses. The evidence is that the child intends to continue her education and training after she graduates from her Bachelor of Commerce program. The Applicant does not specify that program but, based on the evidence, I infer that she will pursue a career as a Chartered Professional Accountant. The Applicant is asking for a support order to the conclusion of the Bachelor’s degree.
[18] The threshold issue is whether N.P. continues to be entitled to child support and the Respondent continues to be obliged to pay table amount and section 7 expenses.
[19] Assuming the Applicant has established entitlement, the issue for purposes of the claim for table child support is the income of the Respondent. For purposes of the claim for s. 7 expenses, the issues are (a) whether the expenses are necessary and reasonable and (b) the income of the Respondent and of the Applicant.
Analysis
A. Entitlement to child support
[20] The claim is made pursuant to the Divorce Act which requires that N.P. fall within the definition of “child of the marriage”. Pursuant to s. 2(1) a child of the marriage means a child who is over the age of majority but unable, by reason of illness, disability or other cause, to withdraw from the charge of her parents or to obtain the necessaries of life. “Unable to withdraw” typically includes attending post-secondary education.
[21] The Applicant has not made any specific submissions with respect to compliance with this definition. She appears to assume that because N.P. is continuing her education, she is entitled to child support and the Respondent is obliged to pay it.
[22] As indicated in the joint application for divorce, the parents agreed that the Respondent would continue to pay child support until N.P. attained the age of 21 or completed her education.
[23] In my view, the entitlement is clear up to and including the month in which N.P. completes her Bachelor’s program, expected to be in April, 2021.
B. Income of the Applicant
[24] The evidence of the Applicant is that she had had a skiing accident prior to the separation and had a torn meniscus and medial collateral ligament. She had surgery in the summer of 2005 followed by intensive physiotherapy. For the period February 2006 to August 2010, the Applicant worked full time as a physiotherapy assistant for a Registered Physiotherapist. Between September 2010 and April 2012, the Applicant attended a full-time Activation Coordinator for Gerontology Program at George Brown College. After graduating in April 2012, the Applicant was employed as an Activation Coordinator at a retirement home and has continued working full-time in that position.
[25] The Applicant has provided details of her gross income for the period 2005 to and including 2019. In 2018, her gross income was $49,420 and in 2019, it was $62,150. In the Applicant’s form 13 financial statement sworn September 2, 2020, she deposed that her then income was $62,150.
[26] For purposes of establishing the ratio of s.7 special and extraordinary expenses, I find that the Applicant’s income for the period January 1, 2019 to and including April 1, 2021 was $62,150.
C. Income of the Respondent
[27] The evidence of the Applicant is that the Respondent is employed as a Project Surveyor at a surveying firm in Woodbridge, Ontario. The Respondent did not file a form 13 financial statement or any other financial disclosure. However, the Applicant has provided evidence on which to base her position that his income should be found to be $128,873 per year for the period in question.
[28] At the time of the separation, the Applicant and Respondent had operated a joint bank account with the Respondent’s father. The Applicant did not use the account but had access to it. Her father-in-law passed away on December 9, 2006. After separation, the Applicant observed the Respondent’s net payroll deposits in the joint account and was sure that the Respondent had misrepresented his income at $68,000 in 2015. The Applicant said that she did not ask him to increase the child support and she accepted the status quo “for the wellness of our child”. In early 2020 when the Respondent refused to continue to pay child support, he asked the Applicant to remove her name from the joint account and when she did not do so, he took steps to remove her name.
[29] In the period September to December 2018, the Respondent’s payroll net deposits in the joint account were $36,933. In 2019, the payroll net deposits totaled $83,814. In January 2020, the payroll net deposits totaled $5,141. The Applicant deposed that the Respondent’s average monthly net pay from September 2018 to January 2020 was $7,405. The Applicant takes the position that, for that period, the Respondent’s yearly average net income should be $88,860. She has attached as Exhibit N a calculation of net income in Ontario taken from the CalculConversion website. For purposes of this motion, she takes the position that the Respondent’s gross yearly income should be $128,873.
[30] The Respondent was properly served. He chose not to participate in the case. The Applicant has provided documentation to support an estimate of his income which is credible and reliable. For purposes of establishing the Respondent’s child support obligations, I accept the evidence and find that the Respondent’s gross yearly annual income from September 1, 2018 to the present is $128,873.
D. Table amount of child support
[31] The Applicant has provided a calculation from the Government of Canada website indicating that, based on income of $128,873, the Respondent should have paid child support in the amount of $1,136.63 per month commencing September 1, 2018. On page 7 of her affidavit, the Applicant has provided a table that details the monthly child support that the Respondent did pay and the amount that he should have paid. Between September 2018 and the end of December 2020, the Respondent is in arrears the sum of $21,065.64. I agree with that calculation. This decision will be released in April 2021, after the payment that was due on April 1, 2021. I assume that the Respondent has not paid child support for the months of January to and including April 2021 and will add further arrears at the rate of $1,136.63 for those 4 months in the amount of $4,546.52.
[32] The total arrears of table child support for the period September 1, 2018 to and including April 1, 2021 is $25,612.16.
E. Section 7 special or extraordinary expenses
[33] The Applicant has provided documentation to confirm the university tuition and related expenses. On page 7 of her affidavit, the Applicant has provided a table that details the university expenses which indicates that N.P. had lived with the Applicant until April 30, 2020 when she rented a room in Guelph until the end of her school program. Her lease ends on April 30, 2021. In that table, the Applicant lists expenses for tuition, Chartered Professional Accountants of Ontario and cell phone in the total amount of $6,843.20 for the period January to December 2019. For the period January to December 2020, the expenses for tuition, books, CPAO, rent and cell phone totalled $11,392.19. On page 8 of her affidavit sworn December 5, 2020, the Applicant has provided a table that estimates those expenses for the period January 2021 to April 2021 in the amount of $7,692.12.
[34] I am satisfied that all of those are necessary and reasonable s. 7 expenses incurred by N.P. to complete her Bachelor of Commerce degree.
[35] Based on the income of the Applicant in the amount of $62,150 and the income of the Respondent in the amount of $128,873, I accept the evidence of the Applicant that the ratio for sharing s.7 expenses is 67.46% for the Respondent and 32.54% for the Applicant. On page 8 of her affidavit, the Applicant has provided a table allocating the expenses referred to in paragraph 33. For the period January to December 2019, the Respondent’s share is $4,616.42; for the period January to December 2020, the Respondent’s share is $7,685.17; for the period January to April 2021, the Respondent’s share is $5,189.10. I accept the evidence of the Applicant that the total amount owed by the Respondent for 2019, 2020 and to and including April 2021 for s. 7 expenses is $17,490.69.
F. Costs of the case
[36] The Applicant retained a lawyer to assist her. Attached to her affidavit are copies of accounts for the period January 28, 2020 to December 5, 2020 in the total amount of $1,206.35 including disbursements and HST, court fee paid in the amount of $202 and the anticipated fee of $420 for placing the case on the list for hearing, as well as the search fee of $163.36 to ascertain ownership of the residence in which the Respondent lives. The Applicant has asked for 100% of those costs rounded at $1992.
[37] The Applicant has been successful and pursuant to Family Law Rule 24(1), she is presumptively entitled to an order requiring the Respondent to pay her costs of the case. The costs incurred are modest. The Applicant was well served in that the affidavit evidence and the documentation and calculations provided a thorough history of the issues along with reliable and appropriate documentation. There is no suggestion that the Respondent acted in bad faith or unreasonably. However, given the quality of the record, the amount recovered and the issues and importance in the case, I am satisfied that the total amount claimed is both reasonable and proportionate. The Respondent will be ordered to pay 100% of the costs incurred.
G. Draft order
[38] The Applicant has provided a draft order which is largely acceptable but requires some modification. In paragraph 7, she had included the usual language requiring annual updated income disclosure by the Respondent. This order for child support will not continue after April 30, 2021. On that basis, I see no reason to require further annual disclosure by the Respondent and therefore paragraph 7 should be deleted. The other terms with respect to the Family Responsibility Office are appropriate. The Applicant is entitled to post-judgment interest but the rate of 2% should be deleted because the rate is inserted by court staff when the order is entered.
ORDER TO GO AS FOLLOWS:
[39] Commencing September 1, 2018 to and including April 1, 2021, the Respondent shall pay to the Applicant table child support for the child N.P. (name and birth date to be inserted in formal order) in the amount of $1,136.63 per month based on the Respondent’s yearly income of $128,873.00.
[40] For the period September 1, 2018 to and including April 1, 2021, the Respondent shall pay forthwith arrears of table child support fixed at $25,612.16.
[41] The Applicant’s share of the s.7 expenses is 32.54% and the Respondent’s share is 67.46% based on the annual income of the Applicant for the period January 1, 2019 to April, 2021 in the amount of $62,150 and the annual income of the Respondent for that period in the amount of $128,873.00.
[42] The s.7 expenses on account of N.P. are as follows: January 1, 2019 to December 31, 2019, the sum of $6,843.20; January 1, 2020 to December 31, 2020, the sum of $11,392.19; January 1, 2021 to April 30, 2021, the sum of $7,692.12.
[43] Based on the ratio of 32.54% (Applicant) and 67.46% (Respondent), the Respondent shall pay the following s. 7 expenses: January 1, 2019 to December 31, 2019, the sum of $4,616.42; January 1, 2020 to December 31, 2020, the sum of $7,685.17; January 1, 2021 to April 30, 2021, the sum of $5,189.10.
[44] For the period January 1, 2019 to April 30, 2021, the Respondent shall pay forthwith arrears of s.7 expenses fixed at $17,490.69.
[45] The Respondent shall pay to the Applicant costs in the all-inclusive amount of $1,992.00. The Director, Family Responsibility Office shall enforce those costs as child support.
[46] Support Deduction order to issue.
[47] This order bears interest at the post-judgment interest rate provided by the Courts of Justice Act.
[48] Counsel may forward an unapproved draft order to my attention that incorporates paragraphs 39 to 47; an unapproved Support Deduction Order; and a Support Deduction Order information sheet.
Kiteley J.
Released: April 7, 2021
COURT FILE NO.: FS-20-18495
DATE: 20210407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Olga Polanski
Applicant
– and –
Jerzy Polanski
Respondent
REASONS FOR JUDGMENT
Kiteley, J.
Released: April 7, 2021