Udoeyop v. Nkanta, 2022 ONSC 4332

COURT FILE NO.: FC-12-2477-2

DATE: 2022/07/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AKAN EBENEZER UDOEYOP

Applicant

– and –

JULIE EFIOK NKANTA

Respondent

Self-represented for the Applicant

Self-represented for the Respondent

HEARD: In writing

REASONS FOR decision

Audet J.

[1]

Introduction and Background

This is an interjurisdictional support variation application filed by the Applicant father under the Divorce Act (R.S.C. 1985, c.3 (2^nd Supp)).

2The parties are the biological parents of a son, who is now eleven (11) years old. They were married in Calgary in 2009 and were divorced in Ontario in January 2013. On February 26, 2015, Labrosse J. made a final order on all corollary issues, requiring the father to pay to the mother child support in the amount of $1,753 per month based on an annual income of $200,000. At the time, the father was living and working in Fort McMurray, Alberta, whereas the mother and child were residing in Ottawa, Ontario. The mother was granted sole custody (as it was then called) and primary care of the child, and the father was granted access (now parenting time) every third weekend.

3In this variation application, the father seeks an order reducing his monthly child support to $514.16, beginning on January 1, 2021. In other words, he is not seeking a change in his child support obligations prior to January 1, 2021. Outstanding arrears owing as of December 31, 2020, amounted to $8,749.17 and, as of December 31, 2021, to $23,268.91. Although in his Application the father ticked the box indicating that he was seeking a change in arrears owing under the existing order and asking for them to be “set at $100”, in the balance of the documents filed it is clear that what he is seeking is the ability to repay arrears accrued prior to January 1, 2021 at the rate of $100 per month, beginning on January 1, 2021.

[4]

The Evidence

The evidence provided by the father in support of his Application is extremely limited. He indicates that he was laid off from work on October 28, 2019 (which may explain why his income that year was so high, and likely included a severance payment), and due to the COVID pandemic he was unable to find any other work until February 2021.

5It is to be noted that from January to April 2021, the sum of $500 per month was deducted from the father’s employment insurance benefits, and thereafter the father began making voluntary payments of $500 each month.

6The father’s income since 2018 was as follows (as demonstrated by his income tax returns for those years, filed with the court):

2018: $207,438

2019: $340,039

2020: $60,954

7To establish his income for the year 2021, the father provided three paystubs for the pay periods ending on May 14, May 28 and June 11, 2021 (his Application was signed and filed in January 2022, so why more recent pay stubs were not provided is unknown to me). According to the information provided, he began working in his current job in February 2021. According to his June 11, 2021 pay stub, the father’s year-to-date income earned amounted to $70,930.81. This means that he earned a total of $70,930.81 over the course of roughly four months. The mother rightfully points out that at this rate, if annualized, the father’s 2021 income would be in the range of $216,000.

8Although he has provided a signed financial statement, and proof of his income for the years 2018 to 2020, the financial statement provided has been left completely blank. As a result, this court has no information about the father’s current debts and assets, his monthly budget, or any other relevant evidence which would allow this court to assess his request to fix his monthly contribution towards arrears at $100 per month.

[9]

Analysis

While I am prepared to accept, based on the limited evidence provided, that the father lost his employment in October 2019 as alleged (which is a material change in circumstances allowing the court to review his support obligations from that date), I am not prepared to change his ongoing child support obligations, nor would I have been prepared to vary arrears owing prior to January 1, 2021 (even if this had been asked by the father), based on the following reasons:

• The father’s income in 2019 was significantly higher than the income upon which his child support obligations were based. His significant overpayment of child support in 2020 is offset to a large extent (if not fully) by his significant underpayment of child support in 2019;

• Although he was required to contribute to the child’s s. 7 expenses pursuant to the 2015 Final Order, the mother’s evidence is that he has never done so. The mother’s evidence confirms that she assumed significant s. 7 expenses on her own over the past seven years, and that her requests for assistance from the father have been ignored. The child will soon require braces as well, and I have no confidence that the father will voluntarily pay those s. 7 expenses since he has not contributed to past s. 7 expenses;

• The proof of 2021 income provided by the father, which did not include his most recent pay stubs for that year (only his paystubs up to June 11, 2021), reveals at first glance that the father’s annual income currently remains in the $200,000 range; and,

• The father has not provided a duly completed financial statement which would have allowed this court to assess his current ability to pay child support or to repay arrears.

[10]

Conclusion

For all these reasons, the father’s application to vary his child support obligations is dismissed, without prejudice to his right to seek a further variation for the year 2021 forward, upon disclosure of his 2021 income tax return and notice of assessment, and a duly completed financial statement setting out his current debts, assets, and monthly budget.

11In other words, the Final Order of Labrosse J. made on February 26, 2015 remains in full force and effect.