COURT FILE NO.: FC-22-506
DATE: 2023-11-01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sarah Dianne Laprise, Applicant
AND
Michel Joseph Laprise, Respondent
AND
MCCSS Legal Services Branch and Ontario Works Kingston, Third Party Assignees
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Vanessa Baker-Murray, Counsel for the Respondent Graeme B. Fraser, Counsel for the Third Party
HEARD: October 17, 2023
REASONS FOR DECISION
M. Smith J
[1] The Respondent, Michel Laprise seeks to change a final order of Robertson J. dated March 18, 2009, whereby he was imputed an income of $30,000 for the purposes of child support. Mr. Laprise argues that he has never earned $30,000 since the making of the order, and he seeks a retroactive adjustment downward.
[2] The Applicant, Sarah Laprise, did not participate in the hearing.
[3] The Third Party Assignees, MCCSS Legal Services Branch (“MCCSS”) and Ontario Works Kingston (“OWK”) oppose the motion.
[4] For reasons that follow, Mr. Laprise’s motion is granted.
BRIEF FACTS
[5] On March 18, 2009, Robertson J. issued a final order at an uncontested trial, imputing an annual income of $30,000.00 to Mr. Laprise, ordering him to pay $598.00 in monthly child support.
[6] There were three children of the marriage: Matthew (born in 1998), Nicholas (born in 1999) and Benjamin (born in 2003).
[7] In 2009, Mr. Laprise’s income was $12,386.00. Between 2010 and 2022, his income fluctuated between $1.00 and $29,767.00.
[8] In November 2009, Mr. Laprise was only able to pay $25.00 per month because of his precarious financial situation. He made 69 of these payments.
[9] In December 2021, the Family Responsibility Office (“FRO”) started default proceedings against Mr. Laprise. On February 8, 2022, I issued a temporary order that decreased Mr. Laprise’s ongoing child support obligations to $244.00 per month. Prior to the February 2022 hearing, FRO was enforcing $598.00 monthly for child support payments, and garnishing his wages.
[10] The Applicant consented to terminating the enforcement of ongoing child support in September 2022.
[11] According to FRO’s Director’s Statement of Arrears dated July 17, 2023, Mr. Laprise owes $19,414.19 in arrears of child support.
[12] As of October 2023, Mr. Laprise has paid a total of $78,129.00, through voluntary payments and monies garnished. Since child support terminated in September 2021, FRO garnished $6,633.53 and he made additional voluntary payments in the amount of $5,661.00.
[13] Regarding the Third Party Assignees, they have an interest in this matter by virtue of Assignments of Support. Nothing remains owing to MCCSS, but OWK is owed the sum of $19,865.77.
ISSUES
[14] The first issue is to determine if a material change in circumstances has been established. If it has, then the second issue is whether the child support order of Robertson J. should be modified and retroactively decreased.
ANALYSIS
[15] I am guided by the Supreme Court of Canada’s decision in Colucci v Colucci 2021 SCC 24. Pursuant to section 17(4) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), Mr. Laprise must first establish that there has been a material change in circumstances warranting a decrease in child support payments. Once this has been established, a presumption arises in favour of retroactively decreasing child support to the date that Mr. Laprise gave notice, up to three years before formal notice of the application to vary.
Issue #1 – Has a material change in circumstances been established?
[16] The material change in circumstances has been established. All three children are adults and none of them pursued post-secondary education. Matthew, Nicholas, and Benjamin ceased to be children of the marriage in June 2017, December 2017, and September 2021, respectively.
[17] I accept Mr. Laprise’s evidence that his income never reached the imputed income of $30,000.00. His uncontroverted evidence is that from early 2009 to April 2011, he did not have steady employment. For the following ten years, he was employed on a full-time basis. His annual income for the years 2019 to 2021 were $24,940.00, $18,391.00, and $20,984.00, respectively. He is no longer able to work on a full-time basis because of scoliosis in his thoracic spine along with degenerative disc disease.
Issue #2 – Should the support order be modified and retroactively decreased?
[18] Mr. Laprise did not give formal notice of the requested change until he served his motion to change on March 29, 2022.
[19] Mr. Laprise argues that his child support obligations should be presumptively modified for three years, effective April 1, 2019. In such an event, based on his income from the years 2019 to the present, Mr. Laprise would owe $1,680.00 in support arrears, which includes $825.00 in FRO fees.
[20] In addition, Mr. Laprise submits that the court should modify the final order to reflect a termination of child support as of the dates on which the three children ceased to be children of the marriage. If the court granted this request, Mr. Laprise would be in an overpayment position of $5,235.00, which factors the $825.00 in FRO fees.
[21] At a minimum, in the interest of fairness, Mr. Laprise asks the court to set the arrears of child support at $0.00.
[22] The Third Party Assignees say that Mr. Laprise’s case is precisely the type of case that Colucci intended to stop. Mr. Laprise falls far short of the requirements stipulated by the Supreme Court of Canada. He made no efforts to communicate with the Applicant, nor did he provide her with any financial disclosure, at any time before bringing the motion to change. There is no justifiable reason to grant Mr. Laprise’s request.
[23] The powers of the court on a motion to vary a child support order are very broad. In Colucci, the Supreme Court says that there is discretion to depart from the presumptive date of retroactivity, where the result would otherwise be unfair. The factors to be considered in exercising this discretion are: (a) understandable reason for the delay; (b) payor’s conduct; (c) circumstances of the children; and (d) hardship. It bears reminding that not all the factors need to be present for the granting of a retroactive award.
Understandable reason for delay
[24] Mr. Laprise says that he was unable to commence a motion to change prior to 2022 because he lacked the knowledge and the financial means to access appropriate legal representation.
[25] I am required to examine whether Mr. Laprise’s reasons for the delay in bringing the claim are understandable, not whether there was a reasonable excuse for the delay: Michel v. Graydon, 2020 SCC 24, at para. 111.
[26] I recognize that Mr. Laprise’s failure to give notice of the requested change and his failure to commence an application to vary without delay, are important considerations. I am also cognisant that Mr. Laprise acted only upon being faced with default proceedings initiated by FRO.
[27] However, Mr. Laprise was confronted with many barriers in his life, but to his credit, despite not having any specialized skills, education, or training, he persevered. He acknowledges that he did not dispute the 2009 order of Robertson J., and this was due to a lack of legal advice. He did not have steady employment at that time. Then, in 2011, FRO suspended his license. He did not have sufficient money to dispute the suspension, but he needed to earn an income. He was eventually able to get a steady job and voluntarily paid child support, in accordance with his financial means. He would walk to work for over one hour, with holes in his shoes, even during the winter months. He wrongfully assumed that his child support obligations would automatically stop once his children reached the age of 18 years old. Clearly, he lacked the sophistication to properly navigate our legal system. Prior to retaining the services of the University of Ottawa Community Legal Clinic, he was unaware that he could start legal proceedings to have his child support obligations modified.
[28] Taken as a whole, Mr. Laprise’s reasons for delay are understandable.
Payor’s conduct
[29] Mr. Laprise has voluntarily paid $63,350.00 in child support, with some payments being made in $25.00 increments, only because that is all that he could afford at that time.
[30] Furthermore, Mr. Laprise did not abandon his children. Even though he faced serious financial adversities, he made good faith efforts to support his children. Throughout their adult lives, the children have resided with him. At present, two of his sons live with him. He continues to parent his children as best he can.
[31] It may have taken some time to provide full financial disclosure, but Mr. Laprise’s personal situation provides an understanding of the reasons for doing so. With the assistance of counsel, he has now disclosed his notices of assessments for every year since 2009.
[32] Mr. Laprise’s conduct is not blameworthy. Throughout the years, he has demonstrated a willingness to support his children, both financially and emotionally.
Circumstances of the children
[33] Mr. Laprise’s adult children would not be negatively impacted if child support were reduced to $0.00. Any additional money to be paid would be going to the Third Party Assignees, and none would benefit the children directly.
[34] If, however, Mr. Laprise was not required to pay the arrears, he would have more disposable income and as such, he would be in a better position to support himself, as well as his children, two of whom reside with him.
Hardship
[35] I accept Mr. Laprise’s evidence regarding his dire financial situation. Both his income and his expenses are modest, and he is unable to purchase winter boots, a comfortable chair, or a bed, which is needed for his back pain.
[36] Mr. Laprise is not hiding any assets. He has none. He can barely meet the necessities of life.
[37] There is no suggestion that the Applicant or children would face hardship if child support was to be retroactively decreased.
Summary
[38] This is not a case where the respondent payor has frustrated the court process or where he has acted unreasonably throughout the litigation. Mr. Laprise was not an absentee father. He was an active father in the lives of his children. Despite his financial difficulties, he has always continued to support his children and I am convinced that he remains committed to supporting them to the best of his abilities. It does not go unnoticed that, although his financial situation was precarious, throughout the years, Mr. Laprise’s voluntary child support payments exceeded $60,000.00.
[39] While Mr. Laprise could be criticized for his failures to give notice or bring an application to vary with dispatch, but one thing that he did not do was to abandon his children, notwithstanding his own personal struggles. Mr. Laprise has met his obligations towards his children, and they have benefited from the support that was due and owing to them.
[40] In my view, it would be fundamentally unjust and unfair to have Mr. Laprise continue paying arrears for another 66 years, which would be the time needed to pay off the arrears of child support. No justice would be served.
[41] In exercising my discretion, I believe that, in Mr. Laprise’s case, a fair result would be to retroactively decrease child support payments to $0.00.
Disposition
[42] Mr. Laprise’s motion is granted. There are no further arrears of child support due and owing to any parties, including the Third Party Assignees.
[43] As no costs were being sought in this motion, none will be awarded.
M. Smith J
Released: November 1, 2023
COURT FILE NO.: FC-22-506
DATE: 2023-11-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sarah Dianne Laprise
Applicant
– and –
Michel Joseph Laprise
Respondent
– and –
MCCSS Legal Services Branch and Ontario Works Kingston
Third Party Assignees
REASONS FOR DECISION
M. Smith J
Released: November 1, 2023