COURT FILE NO.: FC-18-341-1
DATE: 2022/07/19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kaylea Ann-Marie Donahue, Applicant
AND:
Kyle Stacey, Respondent
BEFORE: Somji J.
COUNSEL: Stephanie Smith, Counsel, for the Applicant
Respondent, Self-Represented
HEARD: July 15, 2022
ENDORSEMENT
[1] The Applicant mother brought a motion to amend the Order of Justice MacLeod dated April 18, 2018, with respect to child support (“2018 Order”). The primary issue on the motion is the quantum of child support arrears and the repayment schedule for arrears owing.
[2] The Respondent father failed to provide an Answer or updated financial information but was present for the motion hearing.
[3] The parties separated on August 27, 2017. They have one child T.S. born January 2017. The mother has been the primary caregiver since separation. Both the 2018 Order and the recent Final Order of Justice MacEachern dated October 29, 2021, granted the mother decision-making responsibility for the child and primary residence with the mother on a final basis. The 2018 Order provided for a temporary order of child support payable to the mother.
[4] The 2018 Order provided that the father would pay temporary child support of $150 based on the father’s income of $9,612. The support amount varied from the Federal Child Support Guidelines SOR/97-175, as am. (“Guidelines”), but was agreed upon by the parties and endorsed by the Court. However, the Final Order stipulated the amount to be paid on a bi-weekly basis rather than a monthly basis, the latter being what the parties had agreed upon. The mother acknowledges the error and agrees the Order should be corrected accordingly.
[5] The father also agreed in 2018 that he owed a fixed amount of $1400 in child support arrears at the time and would pay those arrears at a rate of $25/month. The mother does not seek to amend the fixed amount of arrears as agreed upon by the parties.
[6] As per the 2018 Order, the father was to advise the mother of changes in employment and to provide her annually with proof of income and Notices of Assessment.
[7] In May 2019, the mother started a Motion to Change the 2018 Order to adjust child support. In her Amended Motion to Change dated December 17, 2019, the mother sought to adjust the father’s child support obligation in accordance with the father’s income. In his second Response to Motion to Change dated February 18, 2020, the father acknowledged that the issue of child support has not been resolved on a final basis and also sought to vary his child support obligation in accordance with his income. I am satisfied that the father was provided effective notice of the mother’s intent to seek child support arrears.
[8] On November 23, 2021, Justice MacEachern ordered the father to file updated financial disclosure for the years 2018 to 2021, including Income Tax Returns and Notices of Assessment. Justice MacEachern noted that the father’s failure to provide full and frank disclosure of his financial situation as required by the Family Law Rules O. Reg. 114/99 as am, may result in an adverse inference being drawn against him on the final adjudication of this matter.
[9] To date, the father has not filed his 2021 notice of Assessment or any information with respect to his 2021 income. He advised at the motion hearing that he has not filed a tax return for the 2021 year. His most recent Financial Statement is dated February 18, 2020.
[10] The father made three payments of $200.00 each in June, July and August 2019 directly to the mother. Otherwise, the father has made minimal voluntary child support payments, and the mother only receives bits and pieces of child support every few months from the FRO when they are able to garnish his tax returns and HST benefits. As of April 5, 2022, the father’s child support arrears with the Family Responsibility Office (“FRO”) were $10,716.18.
[11] The mother seeks an adjustment of child support based on the father’s actual income for the year 2019 and 2020 and seeks to impute income for ongoing child support based on the father’s 2020 income which is the most recent record of his income that is available.
[12] The father’s reported line 150 income and Guidelines child support payable for the past years is as follows:
Year Income Monthly Guidelines support
2017 $14,738.00
2018 $14,595.00
2019 $43,799.00 $404
2020 $52,500.00 $484
2021 $52,500 (imputed) $484
2022 $52,500 (imputed) $484
[13] Counsel for the mother has not tabulated the child support arrears that would be owed as a result of the income adjustments described above once the father has been credited for any payments made and seeks that the calculation of arrears be left to FRO. I would agree.
[14] The father does not dispute his income for these years. He indicates that his present income is approximately the same but may be slightly reduced this year due to a recent injury he received. The father also supports a family with two children. The father seeks that any repayment schedule take into consideration his financial circumstances and family obligations.
[15] As the child support claims have never been resolved on a final basis, they form part of an initial support application that is therefore governed by section 33 of the Family Law Act R.S.O. 1990, c. F.3 and the Federal Child Support Guidelines, SOR/97-175, as am.(“Guidelines”).
[16] Section 33(7) of the Family Law Act states that the purposes of a child support order are that it should recognize a parent’s support obligation and apportion it according to the Guidelines.
[17] Sections 33(11) and (12) require the court to make an order in accordance with the Guidelines unless certain statutory exceptions. I find the exceptions do not apply in this case.
[18] The starting point for the calculation of child support is the payor’s line 150 income: s. 16 Guidelines. Where the court does not have that income information, the court may impute income to such amount that it considers appropriate in the circumstances: s. 19(1)(f) Guidelines. Where a party fails to provide income information, the court may draw an adverse inference and impute an income to the payor it considers appropriate based on the evidence available: s. 23 Guidelines
[19] In this case, I find that the father should pay Guidelines child support in accordance with his line 150 income for the years 2019 and 2020. For the years 2021 to present, I find that it is appropriate to impute the father’s income at $52,500 as per his 2020 Income Tax Return. The father has not provided any explanation or evidence that warrants deviating from that amount.
[20] There will be an order that the father pay Guidelines child support for the years 2019 to present as follows:
2019 - $4,848 (12 x $404)
2020 – 5,808 (12 x $484)
2021 – 5,808 (12 x $484)
2022– 5,808 (12 x $484)
[21] With respect to the schedule of payment for the arrears, I find that $25/month is unreasonably low. At that rate, the mother will not recuperate even the existing arrears of $10,716 for at least 30 years. Given the father’s 2020 income of $52,500, I find that repayment of arrears at $100/month is reasonable. This would be over and above the father’s obligation to pay $484/month for on-going Guidelines child support.
[22] The father requests that the repayment of arrears commence in September. There will be an order that effective August 1, 2022, the father will pay the mother child support in the amount of $484/month. There will be an order that effective September 1, 2022, the father shall pay the mother $584/month for both on-going child support and arrears of child support.
[23] There will be an order that the father provide the mother with his 2021 Income Tax Return by September 1, 2022, and his Notice of Assessment by October 1, 2022. While the mother is entitled to seek a further readjustment of child support in accordance with the father’s actual income for 2021, counsel for the mother has indicated that for the purposes of obtaining closure, she does not anticipate that the mother will seek a further adjustment of on-going child support absent a significant discrepancy in the father’s income.
[24] There will be an order that the father will provide the mother with his Income Tax Return and Notice of Assessment annually by June 1st of each year.
[25] The support order will be enforceable by the FRO. Should FRO have any issue with respect to the calculation of child support arrears based on the orders made today, the matter may be returnable before me for clarification.
[26] The matter will return before me for brief review in the fall of 2022. The mother shall contact the Trial Coordinator’s office to obtain a date and inform the father accordingly.
Costs
[27] The mother is the successful party on the motion and is presumptively entitled to costs. Counsel for the mother seeks costs in the amount of $4500. The Bill of Costs indicates that total costs of the litigation (issues of parenting and child support) from the period of February 25, 2020, to present was $7,862.07 including HST.
[28] The mother made three offers to settle. This matter has been ongoing for four years. The father has not cooperated with financial disclosure. Counsel is a 12-year call and charged a rate commensurate with her experience and the billings were appropriate for the work performed.
[29] Having considered that the mother is the successful party, the father’s conduct, that offers to settle were made, the complexity of the issues, that the parenting issues were resolved, the reasonableness of the costs request, and the father’s ability to pay, I find that a costs award to the mother in the fixed amount of $4500 as requested by the mother is fair and reasonable.
[30] There will be an order that the father pay costs to the mother in the total amount of $4,500 by November 30, 2022. The payments shall be made in four equal installments and paid on the 1st of August, September, October, and November 2022. Should the father require more time to pay, he can apply to the court accordingly.
Somji J.
Date: July 19, 2022
COURT FILE NO.: FC-18-341-1
DATE: 2022/07/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RE: Kaylea Ann-Marie Donahue, Applicant
AND:
Kyle Stacey, Respondent
BEFORE: Somji J.
ENDORSEMENT
Somji J.
Released: July 19, 2022