Duggan v. Duggan, 2022 ONSC 4184

COURT FILE NO.: FC-14-206

DATE: 2022/07/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joel Alban Duggan

Applicant

– and –

Sommer Duggan

Respondent

Jeremy Dolgin for the Applicant

Respondent, Self-Represented

HEARD: July 15, 2022

ENDORSEMENT

SOMJI J.

Introduction

1The Applicant father brought a motion to obtain child support arrears, amend ongoing child support, and for an order to allow him to obtain a passport for the younger child.

2The motion concerns the parties’ four children: K.D. born February 17, 2002, A.D. born October 4, 2003, W.D born July 15, 2005, and M.D. born April 24, 2007.

3The Respondent mother was not in attendance at today’s motion hearing. The mother has failed to provide any updated financial disclosure since 2018 including following a court order. She has also failed to file an Answer to the motion.

Background and Child Support

4The father was ordered to pay child support on October 24, 2017 (“2017 Order”) in the amount of $1,156/month based on a set off for the parties’ four children who were living half time with each parent. The child support was calculated based on the father’s 2017 income of $102,688 and the mother’s 2017 income of $31,000.

5Since the issuance of the 2017 Order, there has been a change in material circumstances. The eldest child K.D. turned 18 on February 17, 2020, and is not attending school. There is no evidence to suggest that she cannot be self-supporting. Consequently, I find she is no longer considered a child of the marriage and child support is not payable to the mother for her.

6Two children, A.D. and W.D. started living primarily with the father as of August 1, 2020.

7The fourth child M.D. continues to reside equally with both parents.

8Based on the father’s 2021 income of $120,593 and the mother’s 2018 income of $33,810, the father should be paying ongoing child support for Miller in the amount of $1,072, and the mother should be paying ongoing child support to the father in the amount of $641 per month for the support of A.D., W.D. and M.D. The resulting offset amount for ongoing child support is $431/month payable by the father to the mother.

9Despite the material change in circumstances, the father has diligently paid the full support amount for all four children in accordance with the 2017 Order.

10The father notified the mother’s counsel that he wished to negotiate a change in child support in August 2020. Counsel were unable to negotiate a resolution. I am satisfied that the mother was provided effective notice that the father would be seeking child support arrears.

11Based on the materials filed, I am satisfied that there was a material change in circumstances as a described by the father and consequently, the father has overpaid the mother child support in the amount of $23,625 for the period of July 1, 2020, up to and including March 30, 2022.

12In arriving at the total amount of arrears, the father has correctly relied on the mother’s 2018 income of $33,810 because the mother has failed to file any updated financial disclosure. The father has fairly accounted for any increases in his own income in his calculations.

13The mother has also failed to pay the costs issued against her in the amount of $1300.

14Counsel for the father explains that there are concerns about the mother’s mental health. While the father would be entitled to offset the total arrears against the full amount of monthly future child support payments, he is agreeable to an alternative repayment schedule.

15Given the mother’s mental health issues, her current income, and recognition by the father that the mother may need continued financial support, the father agrees to collect the arrears by reducing future child support payments in the amount of $100/month. The father must be commended for his position with respect to the repayment schedule which is clearly taken in the best interests of the children and to ensure the ongoing financial support of the mother.

Passport

16In addition, based on the materials filed, I am satisfied that it is in the best interests of the children for the father to be able to obtain a passport for the youngest child without the mother’s consent so that he may travel internationally with them. The father has attempted several times to get the mother to co-operate to obtain a passport and for the children to travel but has been unable to obtain her agreement.

Costs

17The father is the successful party on this motion and is presumptively entitled to costs on the motion. The mother will pay the father costs in the amount of $1000.

18Costs incurred for the purposes of support are enforceable by the Family Responsibility Office (“FRO”) pursuant to s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31(“Act”); see also Wildman v Wildman (2006), 82. O.R. (3d) 401 (C.A.); Scipione v Scipione 2015 ONSC 5982 at para. 142. In this case, I am satisfied based on counsel’s submissions that the $2300 in cost awards constitute legal fees or other expenses arising in relation to support or maintenance, and as such, should be enforceable by the Director of the FRO pursuant to s. 1(1)(g) of the Act.

Order

19There will be an Order that:

1. The father will pay child support to the mother for M.D. in the amount of $431/month effective April 1, 2022.
2. The mother will pay the father child support arrears in the amount of $23,625 for the period of July 1, 2020, up to and including March 30, 2022.
3. The mother will pay the father costs for the motion in the amount of $1000.
4. The child support arrears of $24,625 and outstanding costs awards of $2300 will be offset in the amount of $100/month against any future support payments payable by the father.
5. The father retains the right to vary the amount of arrears to be collected.
6. The support order is enforceable by the Office of the Director of the Family Responsibility Office.
7. The father may apply for a passport for M.D. without the participation or consent of the respondent.
8. The father may travel internationally with the A.D., W.D., and M.D. without the consent of the mother.

20Should there be any discrepancy between the wording of this endorsement and the final Order, the language of the final Order shall prevail.

Somji J.