ENDORSEMENT
COURT FILE NO.: FS-18-003523
DATE: 20210428
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kirk Morris, Applicant
AND:
Rima Dib, Respondent
BEFORE: Kiteley J.
COUNSEL: Bobbi M. Olsen, counsel for the Applicant; Katherine Linton as agent
bobbi@olsen.law katherine@parslowtyas.ca
Catherine Hibberd, counsel for the Respondent
HEARD: April 27, 2021
ENDORSEMENT
[1] This is a motion by the Respondent Mother for an order requiring the Applicant Father to pay retroactive and ongoing child support and related relief.
Background
[2] The Applicant and Respondent married on August 15, 2014. Their child was born May 28, 2016. The parents separated on December 14, 2016. The Applicant started this proceeding on July 3, 2018. The Respondent filed an Answer dated December 11, 2018.
[3] A case conference was held on October 28, 2019 at which time Horkins J. directed the parties to exchange updated documents, attend at mediation 393 and she scheduled a settlement conference on January 27, 2020. The settlement conference was adjourned to March 13, 2020. In the meantime, the Applicant Father brought a motion for an order for access. The endorsement on March 5, 2020 by Shore J. indicates that the motion was adjourned because the Respondent Mother had not been served and because there was a settlement conference scheduled for March 13, 2010.
[4] The settlement conference did not take place on March 13, 2010.
[5] On November 18, 2020, Goodman J. made an endorsement arising from the request by the Applicant Father for an urgent case conference on the issue of the parenting schedule. Goodman G. scheduled it for December 1, 2020. The material before me does not indicate what, if anything occurred on December 1, 2020.
[6] In an endorsement dated February 10, 2021, Nakonechny J. noted that the case conference had been held and issues of the parenting schedule, child support, disclosure and pleadings were discussed. She noted that the Applicant wanted to advance a constructive trust claim again the matrimonial home owned by the Respondent and that the Applicant would amend his Application. She set a timetable for the exchange of pleadings. She also noted that the parties did not agree to the access schedule. On the issue of child support, Nakonechny J. noted that the Applicant had been paying set off support although the child was not with him at least 40% of the time as required by s. 9 of the CSG. Nakonechny J. scheduled a settlement conference for June 16, 2021, apparently to discuss the constructive trust claim. Nakonechny J. also scheduled a telephone conference call with her on February 25 to set a date for the Respondent Mother’s motion for child support.
[7] In her endorsement dated February 25, 2021, Nakonechny J. set April 27th for the motion by the Respondent mother for child support and she postponed the settlement conference to June 28, 2021.
Motion by the Respondent Mother
[8] In her notice of motion, the Respondent mother asks for child support retroactive to January 1, 2018.
[9] For the period January 1, 2018 to December 31, 2018, the Respondent Mother asks for an order finding that the Applicant Father pay child support in the amount of $862 per month based on his line 150 income on his 2018 Notice of Assessment in the amount of $93,935, less the amount paid in that year of $3,462.
[10] For the period January 1, 2019 to the trial the Respondent Mother asks for an order finding that the Applicant Father pay child support in the amount of $1016 per month based on his income from all sources in the amount of $113,246, with credit of $2,268 in 2019 and in 2020, and a credit for the period January to April 2021 in the amount $567.
[11] The Respondent Mother also asks for orders with respect to health insurance and life insurance.
[12] The motion and affidavit were served on April 16, 2021. The Summary of Fact and Law was served on April 23, 2021.
Request for adjournment by Applicant Father
[13] The Applicant did not file any responding material. On the morning of April 27th, at my request, the Trial Co-ordinator contacted counsel for the Applicant before Court.
[14] Ms. Olsen sent email messages to the court office at 9:36, 9:49 and 9:52 providing some information about the delay in filing responding material and requesting an adjournment.
[15] When the remote hearing started at 10:00, Ms. Linton attended and, within a few minutes, Mr. Morris attended. I held the matter down for a few minutes to give Ms. Linton and Ms. Hibberd an opportunity to speak. The recess started at about 10:10 and court resumed at about 10:50.
[16] I heard submissions in support of the request on behalf of the Applicant Father for an adjournment which the Respondent Mother opposed.
[17] Ms. Linton advised that Ms. Olsen left her former law firm on February 26, 2021, the day after Nakonechny J. made an order that this motion would be heard on April 27. Ms. Linton reported that there had been a delay in the transfer of files and Ms. Olsen did not obtain possession of Mr. Morris’ file until April 1, 2021. Ms. Linton said that there had been some issues about Mr. Morris paying the outstanding account before the firm would make the file available. Ms. Linton also said that, on Monday April 26, 2021, Ms. Olsen had tested positive for Covid19. According to Ms. Linton, there had been “frantic emails” on Friday February 23 in which Ms. Linton asked for an adjournment. Ms. Linton took the position that Mr. Morris would be prejudiced if the matter proceeded because there were issues about Ms. Dib’s income and because of the retroactive claim. She pointed out that Mr. Morris had been paying some child support. She asked that the motion be adjourned for “a few weeks” with a timetable for the filing of responding material. She observed that Mr. Morris is entitled to healthy counsel to represent him.
[18] I asked Mr. Morris if he wanted to say anything. He said that his lawyer was ill, and that he only got the documents for the motion on April 21. He said he had been asking since 2018 for disclosure from Ms. Dib about her income from employment and rental income. In answer to my question, he said that he had filed his 2020 income tax return and that, within a week, he should have all the information, from which I understood that he expected his notice of assessment.
[19] Ms. Hibberd reported on how events had unfolded. She said she did not know until April 16 that Ms. Olsen had left the firm and did not know until this hearing that Ms. Olsen had tested positive for COVID. She was sympathetic to Ms. Olsen’s circumstances but took the position that her client’s motion should nonetheless proceed.
[20] Ms. Hibberd’s motion material was served on April 16, 2021. She immediately received a response from the law firm confirming that Ms. Olsen no longer worked there. On April 16, 2021 a member of that firm forwarded the material by email, with a copy to Ms. Hibberd. Even without a proper notice of change of representation, service was effected on April 16, 2021. At some point, the former firm forwarded a notice of change of representation signed by Mr. Morris.
[21] On April 22, 2021, Ms. Hibberd’s law clerk sent the confirmation form to Ms. Olsen inquiring how long her submissions would take and indicating that if Ms. Olsen did not respond right away, she would assume 30 minutes.
[22] Ms. Hibberd’s summary of fact and law was served on Ms. Olsen on April 23. Ms. Hibberd left the office on April 23 and did not check emails over the weekend.
[23] On Monday April 26, Ms. Hibberd received an email that Ms. Olsen had sent on the afternoon of April 23 in which she said that “30 is fine”, meaning she would need 30 minutes for submissions. She also said that Ms. Hibberd may need an adjournment of her own motion and Ms. Olsen agreed to an adjournment. She informed Ms. Hibberd that the client had just been able to transition the file due to financial obligations at the former firm, which I take to mean, he had an outstanding account that had to be paid. Ms. Hibberd also received an email sent on the evening of Sunday April 25 in which Ms. Olsen indicated she was ill, and that the lawyers should speak to remove the anxiety of the motion so that Ms. Olsen could get some rest. Ms. Hibberd advised that she had sent an email to Ms. Olsen in which she confirmed that she had not asked for an adjournment and did not want one.
[24] After providing that chronology, Ms. Hibberd made submissions in opposition to the requested adjournment including on the issue of prejudice to the Applicant Father to which I will make reference below.
[25] I asked Mr. Morris if he wanted to comment on Ms. Hibberd’s submissions. He said that he has not withheld payment and that he has no problem paying what is fair. He said that his wife’s (financial) information was not accurate and that he had no problem being told what to pay, he just wanted it to be fair.
[26] I asked Ms. Linton if she wished to reply to Ms. Hibberd’s submissions. She repeated the concern about prejudice including the documents that Mr. Morris did not have (from Ms. Dib). In her reply she also referred to potential prejudice to Mr. Morris in that there were periods of time when the parenting schedule was 50/50 or 5 out of 14 and he would be entitled to a set off pursuant to s. 9 of the Child Support Guidelines.
[27] I asked Ms. Hibberd to respond on the s. 9 issue and she referred to paragraphs 22 to 30 of her client’s affidavit where the evolution of the parenting schedule was described. In addition, she pointed out the endorsement made by Nakonechny J. dated February 10, 2021 that “the Applicant has been paying set off support but he does not have the child with him at least 40% of the time as required by s. 9 of the CSG”.
[28] I recessed and on returning, I gave oral reasons roughly as follows. I will hear the motion with respect to child support in 2020 and 2021. I will provide more detail when I write the decision. The primary reason is that it is mandatory that the Applicant father pay child support. He agrees and that is why he has paid some amount. The Child Support Guidelines apply. There is evidence of his line 150 income so the court can establish the correct amount. The concern raised about Ms. Dib’s income and the request to adjourn for that purpose is irrelevant to this motion because there is no claim for s.7 special and extraordinary expenses. I will hear submissions with respect to 2020 and 2021. The claim for retroactive child support for 2018 and 2019 will be adjourned. There may be some basis for not ordering retroactive child support that far back on a motion for temporary support and hearing and deciding that issue could be prejudicial to the Applicant. There is no prejudice to the Applicant if the court decides the current and ongoing child support obligation.
[29] Pursuant to s. 2(2) of the Family Law Rules, the court is required to promote the primary objective, namely to deal with cases justly. That includes ensuring that the procedure is fair to all parties, saving expense and time, and dealing with the case in ways that are appropriate to its importance and complexity.
[30] The court has sympathy when a lawyer is ill. Based on submissions by Ms. Linton, Ms. Olsen had tested positive the day preceding the motion. That does not account for the fact that the date for the hearing of this motion was scheduled 2 months ago, that Ms. Olsen has had the file since April 1, and that the motion and affidavit were served before any question of illness arose.
[31] The Applicant Father is employed. He has provided a Notice of Assessment for 2018 and a copy of his tax return for the year 2019. The Child Support Guidelines apply. Financial disclosure by the Respondent Mother is irrelevant because there is no s. 7 claim. The child is entitled to be properly supported by his father. It is explicit in s. 1(a) of the Child Support Guidelines that they establish a fair standard of support; it is not what the payor considers to be fair. Dealing with cases justly is from the perspective of both parties. To adjourn under these circumstances would not ensure that the procedure is fair to both parties.
Issues and Analysis
[32] The child is entitled to support and the Applicant father has an obligation to pay child support.
Income of the Applicant father
[33] The Applicant is a teacher employed by the Peel District School Board. According to his Notice of Assessment for 2018, his line 150 income was $93,935.
[34] For 2019, the Applicant Father has provided his Income Tax and Benefit Return that shows employment income in the amount of $82,743, other employment income of $368 and gross business income of $30,234. Those total $113,345. He also showed net business income in the amount of $6,264. When the business expenses are allowed and only the net business income is taken into consideration, his total line 15000 income was $89,376. That amount is less than his line 150 income in 2018.
[35] The Respondent Mother takes the position that for purposes of establishing his income for child support in 2020 and 2021, the court should rely on the Applicant Father’s total income of $113,345, an amount that is not found on the tax return because it reflects a calculation made by counsel. The Respondent Mother argues that that amount is the fair amount pursuant to the Child Support Guidelines for these reasons:
(a) the onus is on the Applicant Father to provide disclosure of his income and he has not done so;
(b) when a support payor has sources of income that are not reflected in a T4 from an employer, the support payor has an obligation to provide reasonable disclosure. Meade v. Meade 2002 CanLII 2806 (ON SC), [2002] O.J. No. 3155 The Applicant Father provided a copy of the Income Tax and Benefit Return for 2019 but did not provide the schedules that he would have submitted to the CRA to account for his gross business income and his net business income. Nor has he provided a copy of his 2019 Notice of Assessment that would indicate whether the business expenses he deducted were accepted. As a result, the Respondent Mother cannot ascertain whether the $24,000 of business expenses that might have been allowed by the CRA are appropriate deductions for calculating income for child support purposes;
(c) in response to my question, the Applicant Father said he had filed his 2020 income tax return but he has not provided a copy to the Respondent Mother. As a result, the Court has no information whether he continued to earn business income and what expenses he deducted;
(d) according to the evidence of the Respondent Mother, as a teacher, the Applicant Father likely had an increase in employment income in September 2020 which he has not disclosed. He has not even provided his T4 for 2020 which he has had in possession since the end of February 2021, which is the deadline for employers to provide the document to the employee.
[36] For all of those reasons, the Respondent Mother takes the position that the court should draw a negative inference against the Applicant Father, namely that he is hiding his actual income. In the absence of proper disclosure, the court should depart from the line 150 income in 2019 in the amount of $89,376 and use the total income in the amount of $113,345.
[37] Pursuant to s. 16 of the Child Support Guidelines, a payor’s income is determined “using the sources of income set out under the heading Total income” in the T1 General form. In general, the amount of income in line 150, now line 15000 is the relevant amount. Section 16 does refer to the “sources of income” and, in theory, an analysis that includes the sources of the Applicant Father’s income that includes employment income and business income, without allowing the deductions taken for tax purposes, would be reasonable. However, I have indicated as one of the reasons for proceeding with the motion vis-à-vis 2020 and 2021, that the framework of the Child Support Guidelines is what applies. It would be prejudicial to the Applicant Father to depart from that framework when I have no responding material and no summary of the facts and the law. That may be the outcome. However, for purposes of this motion for temporary child support, I will not depart from the framework of the Child Support Guidelines.
[38] I do accept the submission of the Respondent Mother that the line 15000 income in 2019 is $89,376.67 while the line 150 income in 2018 was $93,935. It would be unfair to rely on a lower amount when the main source of the Applicant Father’s income is from employment. I am also mindful of the evidence that the Applicant Father has likely had a salary increase in 2020 that has not been disclosed. In my view, the appropriate approach, pending full disclosure by the Applicant father is to use the line 150 income from 2018 as the basis for establishing the child support payment starting in 2020. While the temporary order is likely too low, it can be adjusted once disclosure has been provided.
[39] I am satisfied that, for purposes of child support starting January 1, 2020 and continuing until trial, the income of the Applicant Father is $93,935 and, according to the Child Support Guidelines, he has been and is required to pay child support in the amount of $862 per month.
[40] Based on the evidence in paragraphs 22 to 30 and the endorsement of Nakonechny J. dated February 10, I am satisfied that s. 9 of the Child Support Guidelines does not apply.
Health and dental coverage
[41] The Applicant Father has health and dental coverage through his employment. The Respondent Mother gave evidence about what happened at the dentist. I gave the Applicant Father an opportunity to explain. I need not make a finding as to which version of reality is closer to the truth because the Applicant Father agrees to continue to provide the coverage. He does not see any reason for the court to make an order for him to do what he is already doing. The Respondent Mother took the position that she should be able to access the coverage for the child without going through the Applicant Father. Given the conflict over the dentist bill, I consider it reasonable to avoid that as a source of conflict.
Life Insurance coverage
[42] The Applicant Father has significant life insurance through employment which he said was $½ million. He said that the child continues to be the beneficiary of that insurance and he has no intention to change it. Again, he sees no reason for the court to make an order for him to do what he is already doing. In my view, given the age of the child, it is reasonable assurance to the Respondent Mother that the Applicant Father be required by court order to maintain the child as beneficiary.
[43] The Respondent Mother also asked that the court make the same order with respect to the private life insurance that the Applicant father has. I do not have sufficient information to consider it.
Costs of the motion
[44] I encourage the parties to attempt to agree on costs of the motion. The Respondent Mother was successful and is presumptively entitled to costs pursuant to rule 24(1). If unable to agree, I have established a schedule below for written submissions.
Next steps
[45] As indicated above, in the endorsement dated November 10, 2021, Nakonechny J. directed the parties to amend the pleadings in order that a settlement conference could be conducted on June 16th, subsequently changed to June 28th. Based on the circumstances referred to above, I query whether the parties have complied with that timetable. If not, it means that the settlement conference should be changed. I encourage the parties to address that as soon as possible.
TEMPORARY ORDER TO GO AS FOLLOWS:
[46] The motion by the Respondent Mother for temporary child support for 2018 and 2019 is adjourned to a date on notice to the Applicant Father in accordance with the Family Law Rules.
[47] Commencing January 1, 2020 to and including December 1, 2020, the Applicant Father shall pay to the Respondent Mother temporary child support for the child (full name and birth date to be inserted in the order) in the amount of $862 per month for a total for that year of $10,344 less credit for payments in the amount of $2,268 leaving $8,076 due by May 28, 2021.
[48] Commencing January 1, 2021 and until decision by the trial judge or agreement between the parties, the Applicant Father shall pay to the Respondent Mother temporary child support in the amount of $862 per month for a total to the end of April 2021 in the amount of $3,448 less credit for payments in the amount of $567 leaving $2,881 due by May 28, 2021.
[49] Support Deduction Order to issue.
[50] By May 28, 2021, the Applicant Father shall produce the following:
(a) for 2018 and 2019: income tax return and attachments and schedules and Notices of Assessment;
(b) for 2020: income tax return and attachments and schedules, and the Notice of Assessment as soon as it becomes available;
(c) pay slip for April, 2021.
[51] Upon receipt of the documents in paragraph 50 the Respondent Mother may bring a motion for a variation of the temporary support ordered in paragraph 47 and 48 above;
[52] The Applicant Father shall continue to cover the child with all health, dental and related benefits through his employment group insurance provided that the Applicant Father shall confirm in writing to the insurance carrier that the Respondent Mother may access the benefits directly for the child.
[53] The Applicant Father shall continue to designate the child as beneficiary under his group term life insurance available through his employment group insurance, confirmed in the amount of at least $500,000, and shall continue that designation until court order or written agreement.
[54] By May 28, 2021, the Applicant Father shall provide proof in writing to the Respondent Mother from the insurance carriers referred to in paragraphs 52 and 53 that he has complied with the orders in those paragraphs.
[55] This order takes effect immediately without a formal order being signed and entered.
[56] If by May 14, 2021 the parties have not agreed as to costs of this motion, the parties shall make written submissions not exceeding 3 pages plus costs outline and offers to settle, if any, on this timetable:
(a) the Respondent Mother by May 21, 2021;
(b) the Applicant Father by May 28, 2021.
[57] Counsel for the Respondent Mother shall provide a draft order consistent with paragraphs 46 to 56 and a draft support deduction order and information sheet to counsel for the Applicant Father. If the draft orders are not approved as to form and content within 10 days, counsel for the Respondent Mother may forward unapproved draft orders to my attention for signing.
Kiteley J.
Date: April 28, 2021