Court File and Parties

Court File No.: FS-10-0087-01 Date: 2023-04-26

Ontario Superior Court of Justice

Between:

M.G., Applicant Self-rep, for the Applicant

- and -

A.T., Respondent Self-rep, for the Respondent

Heard: April 19, 2023, via ZOOM at Thunder Bay, Ontario

Before: Mr. Justice W. D. Newton

Decision On Motion

Overview

[1] The mother [1] brings a motion to change certain terms of the Order of Koke J. dated November 14, 2016. She seeks sole decision making with respect to their children, now aged 15 and 17, who have their primary residence with her, variation of child support in accordance with the child support guidelines, payment of certain extraordinary expenses, and variation of the ratio for allocation of extraordinary expenses based on the current income of the parties.

[2] At a case conference with Fregeau J. on December 16, 2022, the mother agreed that there is no pressing need to change the parenting issues given the ages of the children and the fact that there are no immediate concerns or issues regarding decision-making or parenting time. As the father had been in default of his income disclosure obligations until just prior to the case conference, each party was ordered to prepare and exchange calculations of child support arrears. It was noted that the father had been voluntarily increasing his child support payable annually.

[3] The father did not attend a subsequent case conference and leave was granted for the mother to schedule a hearing of the motion to change.

The Motion to Change

[4] The father filed affidavits for the motion to change. He claimed that he received late notice with respect to the second case conference resulting in his failure to attend. In any event, affidavits were filed by both parties and both parties were given the opportunity to make submissions on the motion.

Decision Making

[5] Notwithstanding her position at the case conference, the mother argued that she should have sole decision making with respect to the children based on the difficulty that she has in receiving responses from the father with respect to parenting issues. The father countered with examples of poor decision-making on the part of the mother. The examples he gave were in the distant past.

[6] However, in response to my questions it was apparent that, apart from an alleged failure to communicate, the parties were not in disagreement with respect to any significant decisions regarding the children. For example, both parents agree with respect to education decisions now and for post secondary education. There have not been any disagreements over medical treatment other than a failure to address a need for orthodontics which will be discussed under section 7 expenses.

[7] Based on the evidence, there is no basis for a change in decision-making. The mother also sought an order allowing her to travel internationally with the children without the father’s consent but no basis for this relief was put forward. The father must understand that this consent must not be unreasonably withheld.

Retroactive and Ongoing Child Support

[8] As directed by Fregeau J., the parties prepared and exchanged calculations with respect to retroactive child support. The father has voluntarily increased child support over the years but did not provide proof of income as required under the Order.

[9] The father’s income from 2018 to present has been as follows:

2018 87,923 2019 99,281 2020 107,868 2021 99,985 2022 116,384 [2]

[10] The mother calculated child support arrears at $1542.22 and the father calculated arrears at $862. Most of the difference in the calculations relate to when the change in income was adjusted to reflect past income. Having reviewed both charts, I accept the mother’s calculations as best reflecting the child support arrears and accounting for the late disclosure by the father. The arrears as at the date of this decision are fixed at $1542.22.

[11] I confirm that current child support payable by the father to the mother is $1470 per month based on the father’s 2021 income of $99,985 and that effective June 30, 2023, the child support payable by the father to the mother shall be $1,672 per month based on the father’s 2022 income of $116,384.

[12] Arrears shall be payable at the rate of $100 per month until paid.

[13] The Order of Koke J. is varied to provide that each party shall exchange income tax returns and notices of assessment by June 1 each year and adjust child support effective June 30 based on the father’s income for the prior year.

[14] The original Order provided that support shall be paid to the Family Responsibility Office, but the mother withdrew from the Family Responsibility Office. She wishes to revert to collection through the Family Responsibility Office. Therefore, a Support Deduction Order with the employers as listed in paragraph 2 of the father’s Financial Statement, sworn December 5, 2022, found at CaseLines B234.

Section 7 – Extraordinary Expenses

[15] There are two issues with respect to section 7 expenses: past expenses not paid by the father and fixing of pro rata sharing of expenses going forward.

[16] Past expenses owing as set out at exhibit CC of the mother’s affidavit sworn March 8, 2023, CaseLines A278 are $810.47, based on the father’s contribution of 60%. The father did not challenge that amount and the mother was content to have the father’s contribution remain at 60% for the past expenses. The amount owing for past to section 7 expenses by the father to the mother is therefore $810.47.

[17] With respect to future section 7 expenses there will be a future orthodontic expense for one of the children. The father advised that he has confirmed that he has coverage for 50% of the orthodontic expenses and there appears to be agreement by the parties to work together in coming up with a payment plan for this future expense.

[18] With respect to future expenses, the mother wishes future expenses to be based on their actual income. The father wishes to have income imputed to the mother for calculation of the formula for contribution to section 7 expenses and says that the mother has not provided information with respect to her income annually. However, the prior Order does not specifically provide that the mother shall provide income disclosure. She has deposed that her net self-employment income will be approximately $30,000 annually as opposed to the father’s current income of $116,000. That would reduce her contribution from 40% to 25%.

[19] The father submits that income should be imputed to the mother as she is only working part-time hours and offered generalized information with respect to what the mother’s income should be. I am prepared to accept the father’s submission in a general fashion and set the mother’s contribution at 30% and the father’s percentage at 70% going forward noting the significance difference in income.

Conclusion

[20] Order to issue in accordance with these reasons. No order as to costs.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: April 26, 2023

Notes

[1] Non-specific identifiers are used to protect the privacy of the parties and their children.

[2] The father’s 2022 was not in evidence but in his Financial Statement, sworn December 5, 2022, he deposed that his income for 2022 was $116,384.