Court File and Parties
COURT FILE NO.: FC-11-936-4 DATE: 2024-04-29 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lanie Hormillosa, Applicant AND Octave Tshiani-Levine, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Steve Duplain, Counsel for the Applicant Self-represented Respondent
HEARD: March 5, 2024
Reasons for Decision
M. Smith J
[1] This proceeding is a Motion to Change a final order, commenced by the Father on May 15, 2018 and later amended in October 2018. Mr. Tshiani-Levine submits that Ms. Hormillosa owes him $13,500 in overpayment of child support, and $26,000 of unpaid child support for the years 2011 to 2014. He disputes Ms. Hormillosa’s claims that arrears of child support are due and owing. Regarding ongoing child support, he asks that it be reduced to $200, retroactive to October 2022, for undue hardship reasons.
[2] Ms. Hormillosa argues that Mr. Tshiani-Levine owes retroactive arrears in the amount of $34,383 and ongoing child support in the monthly amount of $717.
[3] The parties have been in litigation since 2011. The facts of this case are well known to the Court and have been set out in details in two previous reported decisions (Hormillosa v. Tshiani-Levine, 2023 ONSC 4119; Hormillosa v. Tshiani-Levine, 2023 ONSC 4120), as well as a cost decision (Hormillosa v. Tshiani-Levine, 2023 ONSC 6928).
[4] For reasons that follow, this Court awards Ms. Hormillosa the sum of $34,383 for the arrears of child support and ongoing child support in the amount of $717.
Analysis
[5] The parties agree that there is a material change in circumstances since the final order of Mackinnon J. dated February 20, 2014. At that time, child support was based on a shared parenting regime of two children (K and C), on different incomes. Now, C is the only remaining child of the marriage is the youngest child who is under the sole care of the mother. Clearly, a material change in circumstances has occurred.
[6] Therefore, the only issue to determine is the correct amount of child support payable, as of November 2018 to present.
Brief facts
[7] The order of Mackinnon J. provided that “child support shall be determined by the Family Court pursuant to the Divorce Act and Family Law Act.”
[8] Between October 2018 and September 2021, Mr. Tshiani-Levine did not make any support payments.
[9] On September 28, 2021, Williams J. ordered, on consent and on a without prejudice basis, that Mr. Tshiani-Levine pay Ms. Hormillosa $1,000 per month in child support.
[10] Mr. Tshiani-Levine has refused to make any voluntary support payments since February 2023.
[11] The Family Responsibility Office (“FRO”) was able to collect from Mr. Tshiani-Levine the amounts of $233.50 and $10,266.50 in June and August 2023, respectively. The FRO statement of arrears dated February 22, 2024 shows that the balance owed under the support order is $6,000.
Evidence
[12] Based on the evidentiary record before me, the Court makes the following findings:
a. K ceased to be a child of the marriage as of January 2022, which is the period when she was no longer enrolled in post-secondary studies. b. C remains to be a child of the marriage, as he is 17 years old. c. From October 2018 until the end of September 2020, C was shared on a week-on, week-off parenting schedule. d. Ms. Hormillosa’s income between 2017 and 2023 is as follows: i. 2017 - $89,625 ii. 2018 - $88,062 iii. 2019 - $88,734 iv. 2020 - $126,741 v. 2021 - $110,791 vi. 2022 - $113,659 vii. 2023 - $81,000 e. Mr. Tshiani-Levine’s income between 2018 and 2022 is as follows: i. 2017 - $104,438 ii. 2018 - $104,438 iii. 2019 - $104,868 iv. 2020 - $107,693 v. 2021 - $82,948 vi. 2022 - $76,916 f. Mr. Tshiani-Levine remarried in 2022 and they have one child who is almost one years old. His spouse and child live with him. g. Mr. Tshiani-Levine is caring for his nieces (17 and 20 years old) because his brother passed away. Both nieces live with him.
[13] Unlike Ms. Hormillosa, Mr. Tshiani-Levine has not produced his income tax returns or proof of income for 2023 and 2024.
[14] Mr. Tshiani-Levine’s income has decreased since 2020. He claims to have suffered from a medical condition. Other than a letter from his long-term disability (“LTD”) carrier denying LTD benefits, Mr. Tshiani-Levine has not presented any evidence to substantiate his medical condition. It is noted that Mr. Tshiani-Levine has hired a lawyer to pursue the LTD carrier.
[15] Mr. Tshiani-Levine owns a corporation called Getrokin Incorporation, and he claims that he earns no income or generates no business from this corporation. In support of his position that the business does not generate any income, he attaches a document called “Form 22 – Annual Return”. This form is not a financial document. Rather, it is a form that every federal corporation must complete every year providing the following information: corporate name, corporation number, year of filing, date of last annual meeting, and type of corporation. Mr. Tshiani-Levine has not produced any financial information regarding this business.
[16] Mr. Tshiani-Levine owns a rental property which he leases out for $2,200 per month. He claims that this does not cover all his expenses. He values this rental property at $400,000 with a mortgage of $144,000 at the time of purchase. The details of this investment are unknown. Mr. Tshiani-Levine has not produced any financial information regarding this rental property.
[17] Mr. Tshiani-Levine has filed a financial statement dated February 22, 2024 where he states that his yearly expenses total $156,756, with an annual salary of $76,916. While he says that he cannot cover all expenses, he provides no corroborative evidence.
[18] With regards to the previous matters that were before the Court, Mr. Tshiani-Levine was ordered to pay $65,000 in costs, at the rate of $2,000 per month, commencing on January 1, 2024. He has not made any payments towards these costs.
Arrears of child support
[19] The Court accepts the evidence provided by Ms. Hormillosa regarding the amount of arrears of child support. Mr. Tshiani-Levine has not persuaded me that these amounts are incorrect or that Ms. Hormillosa owes him the sum of $13,500.
[20] Mr. Tshiani-Levine argues that from October 2022, the child support payments should be reduced to $200 per month. The Court declines his request for the reasons explained in the child support section below.
[21] At Exhibit “O” of Ms. Hormillosa’s affidavit dated February 27, 2024, she provides a summary of the child support paid and the child support that should have been payable, from November 2018 to present.
[22] Ms. Hormillosa has also provided detailed calculations using DivorceMate. The calculations for the years 2018 to 2020 reveals that the parties would have had a relatively similar household income ratio during the years when C was on a week-about rotating schedule and K was residing exclusively with Ms. Hormillosa.
[23] During the period of 2018 to 2020, Mr. Tshiani-Levine’s income ratio would still have been higher than Ms. Hormillosa, had he paid the child support table amounts. Mr. Tshiani-Levine’s refusal to pay child support during this period of time was improper and unreasonable.
[24] Therefore, the Court agrees with Ms. Hormillosa’s position that relying on the set-off calculations based on provable income from the previous tax year is the most appropriate approach to undertake in these circumstances.
[25] Based on my evidentiary findings above, the Court concludes that Mr. Tshiani-Levine owes the sum of $34,383 to Ms. Hormillosa.
[26] Mr. Tshiani-Levine asks that this amount owed be reduced to nil because of the amount that Ms. Hormillosa’s owes him, as ordered previously by Doyle J. Ms. Hormillosa says that payments have been made and her salary was also garnished. There is insufficient evidence before me to determine if any amounts are due and owing to Mr. Tshiani-Levine from Ms. Hormillosa. The Court is therefore unable to apply any form of set-off as requested by Mr. Tshiani-Levine. In any event, the amounts due and owing by Mr. Tshiani-Levine to Ms. Hormillosa far surpass any claims that he may have.
[27] Mr. Tshiani-Levine also asks for a set-off of the overpayments of child support made between 2011 and 2014 in the amount of $26,000 because he had the exclusive care of the eldest child, S. Ms. Hormillosa was unaware that this claim was being made and there is no evidence before the Court to support Mr. Tshiani-Levine’s allegations of an overpayment.
Child support
[28] Ms. Hormillosa seeks the child support table amount of $717, effective July 1, 2023, based upon Mr. Tshiani-Levine’s annual income (2022 Notice of Assessment) of $76,916.
[29] Mr. Tshiani-Levine submits that child support should be reduced to $200. He relies upon the undue hardship provisions found in paragraph 10 of the Federal Child Support Guidelines. He argues that if the table amounts are applied, it would cause him an unjustifiable prejudice.
[30] In his materials, Mr. Tshiani-Levine relies upon these facts to argue that he finds himself in a precarious financial situation:
a. There are two outstanding costs awards totalling $65,000. b. His income is declining because of his medical condition. c. He has important expenses related to caring for his new spouse, child and two nieces. d. He has exorbitant debts with the bank, credit cards, and his former lawyer.
[31] The Court rejects Mr. Tshiani-Levine’s arguments for the following reasons:
a. First, Mr. Tshiani-Levine has not claimed undue hardship in his Amended Notice of Change. b. Second, the Court is unable to properly assess Mr. Tshiani-Levine’s financial situation without having the benefit of full financial disclosure. He has not provided his current personal income tax returns or any corporation financial information, despite the existence of a business. Also, the information regarding his rental property and his exorbitant debts is scarce. c. Third, the Court is unable to consider Mr. Tshiani-Levine’s medical condition because he has not provided any corroborating evidence to support his claim that he suffers from a disability. To the contrary, the only information available for the Court is that his LTD claim has been denied. d. Fourth, Mr. Tshiani-Levine has been involved in litigation since 2011. He was aware of the risks associated with litigation, including an award for arrears of child support and costs against him. Knowing these risks, he nonetheless assumed additional expenses. e. Fifth, Mr. Tshiani-Levine has failed to establish, from an evidentiary standpoint, clear evidence from which a reasonable finding of hardship can be made. Bald assertions of hardship, without complete financial disclosure, will not suffice. Mr. Tshiani-Levine has not painted a complete picture of his financial situation, including income from all sources, assets, and debts.
[32] The Court therefore concludes that there are no reasons to deviate from the child support table amounts of $717 per month.
[33] The Court is aware that C will be turning 18 years old in June 2024. If he ceases to continue his studies, then the ongoing child support may cease. If a change occurs, it will have to be dealt with at that time.
Disposition
[34] For these reasons, the arrears of child support are fixed at $34,383, for the period of November 2018 to March 1, 2024, payable forthwith.
[35] Effective March 1, 2024, ongoing child support payable by Mr. Tshiani-Levine to Ms. Hormillosa for C, shall be the table amount of $717 per month.
[36] Regarding costs, Ms. Hormillosa shall deliver written submissions, limited to three pages excluding the Bill of Costs and Offers to Settle, within 30 days of the release of these Reasons for Decision. Mr. Tshiani-Levine may then deliver responding written submissions, with the same page restrictions, within 30 days thereafter.