Court File and Parties
COURT FILE NO.: FC-94-160-1 DATE: 2022/02/16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GERARD J. GALLACHER Applicant – and – LAURIE G. GALLACHER Respondent
Counsel: Self-represented for the Applicant Self-represented for the Respondent
HEARD: In writing
Audet J.
REASONS FOR DECISION
[1] In my earlier decision in this matter, released on March 2, 2021 (Gallacher v. Gallacher, 2021 ONSC 1541), I requested additional evidence from the applicant payor, including financial disclosure, to allow me to assess his request for the rescission of significant child support arrears owing by him to the respondent mother. The detail of the additional evidence requested from the payor is more particularly set out in para. 20 of my March 2021 decision. It was also confirmed in a Direction to Request Further Information, as follows:
- Documentary evidence (in the form of income tax returns or their equivalent in the U.K.) of the Applicant's income for each of the years during which the arrears accrued and evidence supporting the conclusion that the Applicant did not have sufficient means to make the payments during those years.
- Applicant's employment history for the relevant years. If unemployed, what efforts, if any, were made to find gainful employment and maximize his income.
- An explanation as to why the Applicant left a lucrative employment in Canada to move to Scotland.
- An explanation as to why there was a significant reduction in the amount of arrears owing by the Applicant in 2017, and an explanation of how this reduction was calculated by the Shropshire Family Court and/or support enforcement authority in the U.K., including all the evidence upon which this reduction was based.
[2] In response to this request, the payor provided a ten page-long undated handwritten letter received by the reciprocating authority on June 6, 2021, and in which he provides the court with some additional information about his circumstances. The handwritten letter is unsworn and as such, it is not admissible evidence before me. Nonetheless, I have read the letter to see whether I might find some useful information that would allow me to consider the payor’s claims, in the event that it was re-submitted to me in the form of admissible evidence.
[3] In his letter, the payor reiterates that he has fallen upon hard times after he moved to Scotland when the children were very young. He explains that while his work as a draughtsman was quite lucrative when he was employed in Canada, in order to remain employed he was required to move from one place to the next in search of “the next job”, that he did not like the work he was doing and more especially, that he wanted to be able to settle down in one place.
[4] He further indicates that he is unable to obtain confirmation of his income during all those years, that he cannot recall “every single job” he has had in the past twenty years, and he expresses his view that single parents can – and do – work while raising children (and so should have the respondent mother in this case). The payor indicates that the maternal grandparents lived down the road from the mother and provided her and the children with financial support and a better lifestyle, and points to the fact that the mother also received government benefits to assist her supporting herself and the children.
[5] It appears that the payor does not realize that the income earned by the parent who has care of the children does not affect the other parent’s obligation to also support their children, by paying child support commensurate to that parent’s income. It is also unconceivable to me that the payor, who has worked and lived in Scotland for almost thirty years now, would be unable to provide documentary evidence (in the form of tax returns) of the income he has earned while living in Scotland (such as the last seven to ten years). Finally, while the payor might be able to recall “every single job he has had” over the past thirty years, at the very least he could have made genuine efforts to provide the most detailed employment history he could recall, and provide his best estimate of his yearly income over the years. He has done none of that.
[6] Let me be clear. In my view, a payor who signed a Separation Agreement requiring him to pay $500 per month in child support for his two young children (and, therefore, was fully aware of his legal obligations pursuant to that contract), who voluntarily chooses to relocate in another country (which resulted in a significant reduction in income), who thereafter fails to provide any financial support at all to his children for a period of roughly fifteen years (while fully aware of his obligations to support them), has a significantly heightened obligation to provide a complete, reliable and compelling evidentiary record when asking the court to rescind all of the child support arrears that accrued during all those years. Simply providing proof that he cannot, at this time, pay those arrears based on his current circumstances, is simply not enough.
[7] In order to ensure that I had before me all of the evidence provided by the payor during the proceedings which took place before the reciprocating jurisdiction, after receiving the payor’s handwritten letter I requested a transcript of the two hearings which took place there; the enforcement hearing heard on May 3, 2016, and the provisional hearing heard on September 3, 2019. What I received from the reciprocating jurisdiction had already been provided to me and did not contain any of the evidence that I had requested from the payor (as listed above).
[8] In light of the above, I am unable to confirm the Shropshire Family Court’s provisional decision of September 3, 2019, and the payor’s application to rescind his child support arrears is therefore dismissed [1].
Madam Justice Julie Audet Released: February 16, 2022
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