COURT FILE NO.: FC-05-765-4 DATE: 2024/01/04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HARJINDER CHAYRA Applicant – and – MELANIE L. TEXEIRA Respondent
Self-represented for the Applicant Self-represented for the Respondent
HEARD: In writing
AMENDED REASONS FOR DECISION
The text of the original Reasons for Decision dated November 30, 2023, was amended on October 3, 2024, and the description of the amendment is appended.
Audet J.
Overview
[1] In 2021, the Applicant father brought a variation application before the Family Court sitting at Derby, in the United Kingdom (“the U.K. Family Court”), seeking an order rescinding arrears of child and spousal support which accrued pursuant to a Final Order of the Ontario Family Court dated March 10, 2009, and reducing ongoing spousal support payable pursuant to that order (“the 2009 Order”).
[2] This matter is brought before this Court for confirmation of the provisional order made by the U.K Family Court on August 31, 2022. This hearing before me is pursuant to s. 31 to 38 of the Interjurisdictional Support Orders Act, 2002, c. 13.
[3] Pursuant to the 2009 Order, the Respondent mother was granted sole custody of the parties’ four children, who at the time were 17, 14, 12 and 10. The Court ordered the father to pay child support for the four children in the amount of $2,501 per month based on a imputed annual income of $118,000, as well as an additional amount of $420 per month on account of extraordinary expenses, and spousal support in the amount of $1,100 per month, for an indefinite duration. Although the father had paid monthly support of almost $3,000 somewhat consistently since 2005 pursuant to a temporary order, after the 2009 Order was made he never voluntarily paid any support.
[4] It is not disputed that shortly after the order was made, the father essentially disappeared from the children’s lives. His whereabouts became unknown, and he stopped paying support. It is quite obvious, reading the mother’s affidavit, that the father has intentionally evaded his support obligations for years, with very little concern over how his actions would impact the children and the mother. The mother eventually became aware that the father was residing in the U.K and the 2009 Order was registered for enforcement with the U.K authorities. This is what prompted the father to file the variation application which was heard by the U.K Family Court in the summer of 2022.
[5] By that time, the father’s arrears amounted to £290,012.63 (pound sterling) (approximately $442,240 CAN at the August 31, 2022 exchange rate of 1.5249). The mother had diligently notified the Family Responsibility Office as each child ceased to be dependant, and the child support payable for each child was terminated in due course, and retroactive adjustments to arrears and ongoing child support made by the FRO.
[6] The mother was not present at, nor did she participate in, the U.K proceeding (as is normally the case). However, upon being served with the U.K Family Court’s decision in accordance with the relevant provisions of the ISO Act, she filed an Answer and supporting evidence which I have considered in the confirmation hearing.
[7] I will not repeat the conclusions of the U.K Family Court, which are clearly set out in its provisional decision. Suffice it to say that the U.K Family Court accepted that the father’s actual income for most of the year during which arrears accrued was not $118,000, as imputed by the Ontario Court back in 2009, but rather in the range of $87,000 CAN. The U.K Family Court then proceeded to review the amounts of child and spousal support that would have been payable by the father based on that income and reduced the arrears owing to reflect a $87,000 income for the three years preceding the father’s variation application, without more. In other words, the U.K Court did not “rescind” any of his accrued arrears; it just recalculated them retroactively for a period of three years, based on a different income.
[8] I find that the method used by the U.K Family Court to recalculate arrears was reasonable in the circumstances. Based on its calculations, the Court reduced child support arrears by £3,202.64 ($4,883.70 CAN) and spousal support arrears by £22,276.96 ($33,970.14 CAN). In her Answer to this application, the mother indicated that she was willing to accept a reduction in arrears, although she did not indicate any amount. For those reasons, the arrears owing by the father for the mother on account of past child and spousal support arrears (up to August 31, 2022), in the total amount of $38,853.84 CAN, is confirmed.
[9] As for ongoing spousal support (from August 31, 2022) the U.K Family Court reduced the father’s ongoing spousal support from $1,100 to $384.10 (£251.89) per month, using a $87,000 income for the father and a $30,000 income for the mother.
[10] I do not know the exact number of years that the parties cohabitated together. However, since the parties’ first child was born in 1991, the parties moved from England to Ottawa in 1992 (according to the mother’s affidavit), and a temporary order was made in 2005. From this I conclude that the parties were together for some 15 years. This was a long-term relationship which yielded four children.
[11] The mother’s entitlement to spousal support in this case is strongly compensatory. She was left to fend for herself and to support all four children on her own, for more than ten years (until the (then) 10-year-old child became independent), with what appears to have been minimal income. She indicated that she recently completed her paralegal training, and although her income in 2022 was very decent ($63,000), during the years 2020 and 2021 her income comprised of minimum wages.
[12] Arrears have been accruing under the 2009 Order for 14 years. In light of the mother’s very strong compensatory claim, I am of the view that the father has an ongoing obligation to support her for another six (6) years, which will amount to a total of 20 years.
[13] Based on the father’s $87,000 income, and the mother’s $30,000 income for the years 2020 and 2021, the ranges of support suggested by the Spousal Support Advisory Guideline would have been $1,069 (low), $1,247 (mid) and $1,425 (high). If we use the mother’s 2022 income of $63,000, the ranges of support suggested would be $450 (low), $525 (mid) and $600 (high).
[14] Although the method used by the U.K Family Court to calculate the father’s spousal support obligations was very different that the one required by Ontario laws, in the end the amount arrived at (£251.89 or $384.10 CAN) is reasonable in light of the mother’s current income and the father’s limited ability to pay due the significant arrears he is required to pay off. The new amount of spousal support (£251.89) is owed from August 31, 2022, onwards.
ORDER
[15] As a result, the following order shall issue:
- The Provisional Order of the Family Court sitting at Derby, in the United Kingdom, dated August 31, 2022, is hereby confirmed.
- The Applicant father’s obligation to pay spousal support to the Respondent mother shall terminate on August 31, 2028.
Madam Justice Julie Audet
Released: October 4, 2024
APPENDIX
Paragraph [5] previously stated:
[5] By that time, the father’s arrears amounted to 290,012.63 Euros (approximately $397,202 CAN). The mother had diligently notified the Family Responsibility Office as each child ceased to be dependant, and the child support payable for each child was terminated in due course, and retroactive adjustments to arrears and ongoing child support made by the FRO.
Paragraph [5] now reads:
[5] By that time, the father’s arrears amounted to £290,012.63 (pound sterling) (approximately $442,240 CAN at the August 31, 2022 exchange rate of 1.5249). The mother had diligently notified the Family Responsibility Office as each child ceased to be dependant, and the child support payable for each child was terminated in due course, and retroactive adjustments to arrears and ongoing child support made by the FRO.
Paragraph [8] previously stated:
[8] I find that the method used by the U.K Family Court to recalculate arrears was reasonable in the circumstances. Based on its calculations, the Court reduced child support arrears by 3,202.64 Euros ($4,386.33 CAN) and spousal support arrears by 22,276.96 Euros ($30,510.52 CAN). In her Answer to this application, the mother indicated that she was willing to accept a reduction in arrears, although she did not indicate any amount. For those reasons, the arrears owing by the father for the mother on account of past child and spousal support arrears (up to August 31, 2022), in the total amount of $34,896.85 CAN, is confirmed.
Paragraph [8] now reads as follows:
[8] I find that the method used by the U.K Family Court to recalculate arrears was reasonable in the circumstances. Based on its calculations, the Court reduced child support arrears by £3,202.64 ($4,883.70 CAN) and spousal support arrears by £22,276.96 ($33,970.14 CAN). In her Answer to this application, the mother indicated that she was willing to accept a reduction in arrears, although she did not indicate any amount. For those reasons, the arrears owing by the father for the mother on account of past child and spousal support arrears (up to August 31, 2022), in the total amount of $38,853.84 CAN, is confirmed.
Paragraph [9] previously stated:
[9] As for ongoing spousal support (from August 31, 2022) the U.K Family Court reduced the father’s ongoing spousal support from $1,100 to $345 (251.89 Euros) per month, using a $87,000 income for the father and a $30,000 income for the mother.
Paragraph [9] now reads as follows:
[9] As for ongoing spousal support (from August 31, 2022) the U.K Family Court reduced the father’s ongoing spousal support from $1,100 to $384.10 (£251.89) per month, using a $87,000 income for the father and a $30,000 income for the mother.
Paragraph [14] previously stated:
[14] Although the method used by the U.K Family Court to calculate the father’s spousal support obligations was very different that the one required by Ontario laws, in the end the amount arrived at (251.89 Euros or $343 CAN) is reasonable in light of the mother’s current income and the father’s limited ability to pay due the significant arrears he is required to pay off.
Paragraph [14] now reads as follows:
[14] Although the method used by the U.K Family Court to calculate the father’s spousal support obligations was very different that the one required by Ontario laws, in the end the amount arrived at (£251.89 or $384.10 CAN) is reasonable in light of the mother’s current income and the father’s limited ability to pay due the significant arrears he is required to pay off. The new amount of spousal support (£251.89) is owed from August 31, 2022 onwards.
These reasons were amended after it was brought to my attention that I had mistakenly used Euros instead of Pound Sterling for the currency used by the U.K. Court. The slight difference in the exchange rate (when using Pound Sterling instead of Euros) does not affect my conclusion that the Provisional Order of the U.K. Court ought to be confirmed.
COURT FILE NO.: FC-05-765-4 DATE: 2024/10/04 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HARJINDER CHAYRA Applicant – and – MELANIE L. TEXEIRA Respondent Amended REASONS FOR decision Audet J.