Ontario Superior Court of Justice
Court File No.: FS-03-013979-01
Date: 2025-04-14
Between
Stephanie Patricia Danylko
Self-represented, for the Applicant
Applicant
-and-
George Anthony David Pace
Self-represented, for the Respondent
Respondent
Heard: in person April 7, 2025, Thunder Bay
Justice: H. M. Pierce
Reasons on Motion to Change
Background
[1] The respondent, David Pace (“the respondent”), moves for an order varying paragraph 3 of the divorce order of Justice Wright granted June 7, 2004, that ordered him to pay child support to the applicant, Stephanie Danylko (“the applicant”), for the support of their daughter, Allyson, born November 9, 1995. The order fixed child support in the amount of $773 per month, based on imputed annual income of $100,000.
[2] Since the child finished high school in June of 2014 and did not continue to post-secondary education, the parties agree that child support terminates effective June 30, 2014. An order will issue accordingly.
[3] On May 13, 2024, in enforcement proceedings in the Ontario Court of Justice, Justice Isbester fixed child support arrears based on Justice Wright’s order at $85,832.30 and ordered Mr. Pace to pay arrears at the rate of $300 per month. If the quantum of child support in Justice Wright’s order is varied, the finding of arrears that are based on that order will also be varied.
Issues
[4] There are three issues for determination by the court: whether child support should be varied between the order of Wright J. in 2004 and the termination of child support in 2014; secondly, if so, in what amount; and thirdly, what, if any, credits is the respondent entitled to for arrears of child support accruing during that time?
[5] The applicant opposes any variation of child support.
Evidence and Findings
[6] During the relevant period, the respondent was self-employed running hot dog carts at various business locations and during special events around Thunder Bay. This was a small operation, a cash business. He sold hot dogs, sausages, pop, chips, popcorn, candy and the like.
[7] The transcript of the hearing before Justice Wright is filed on this motion. At the time of that hearing, the respondent had failed to comply with court orders for financial disclosure. He failed to meet the onus on him to prove his income.
[8] The transcript reveals that Justice Wright queried the applicant about what she thought the respondent’s income was. She indicated that it was over $100,000 per year but couldn’t say what his net income would be.
[9] The respondent told the court that the applicant meant gross sales. Justice Wright held that he was going to order child support in the absence of proof of income, and it would be up to the respondent to bring his proof of income to court so that the child support could be adjusted in accordance with income. It is obvious from the transcript that Justice Wright intended this to be a temporary order that could and would be revisited once Mr. Pace proved his income. It was an order intended to get the respondent’s attention.
[10] Justice Wright imputed income to the respondent based on the applicant’s assertion that the respondent’s gross business income was $100,000 annually. He ordered the respondent to pay the applicant child support of $773.00 per month commencing February 1, 2004.
[11] Two things occurred. The respondent, who was unrepresented, did not return to court to have the child support adjusted based on his actual income.
[12] The applicant withdrew enforcement of child support from the Family Responsibility Office (“FRO”) and then re-filed, seeking arrears of support between 2004 and June 30, 2014.
[13] The applicant accepted the nominal payments of cash that the respondent gave her from time to time. He believed, incorrectly, that she was satisfied with these ad hoc payments. The respondent did not keep records of these payments and the applicant did not give him receipts.
[14] The respondent did not file income tax between 2004 and 2006. However, he did file taxes in the succeeding years. In my view, a pattern of earnings emerges from these documents which points to his probable income between 2004 and 2006. I accept the tax information as the best evidence of the respondent’s income.
[15] Two other factors corroborate his proof of income. First, Mr. Pace made an assignment in bankruptcy in 2007. It is doubtful he would have done so with a flourishing business.
[16] Second, a witness, Jason Creighton, who worked for Mr. Pace at the hotdog carts between 2004 and 2006, testified at trial. He said that the staff routinely stole the cash from the hotdog carts during those years, admitting that he, too, had engaged in theft. He also observed that the cash receipts were often rolled over to purchase food that was subsequently used in the business.
[17] I conclude that Justice Wright’s order greatly overstates the respondent’s imputed income from the hotdog business; thus, the interim child support order was too high. In my view, had the respondent made proper and timely disclosure, his child support would have been adjusted annually in accordance with his proven income. I have calculated the child support payable based on actual income in each year.
[18] I conclude that the child support order should continue in effect as ordered for the balance of 2004 and then be adjusted in accordance with the respondent’s income thereafter. I have calculated his income for 2005 and 2006 based on his average income for the years following, as proven by his tax returns.
[19] In the seven years that the respondent disclosed his tax returns and was liable to pay child support, his average annual income was $19,245. I conclude that this would have been a reasonable income to impute to him during the years 2005 and 2006 when he did not file income tax. The monthly child support, based on that income, would have been $155; annualized, the respondent would have been required to pay $1,860 per year.
Calculation of Child Support
[20] I calculate Mr. Pace’s liability for child support as follows:
| Year | Income | Monthly Child Support | Annual Child Support |
|---|---|---|---|
| 2004 | (Imputed) $100,000 | $773 (11 months) | $8,503 |
| 2005 | $19,245 | $155 | $1,860 |
| 2006 | $19,245 | $155 | $1,860 |
| 2007 | $9,157 | nil | nil |
| 2008 | $22,838 | $182 | $2,184 |
| 2009 | $20,784 | $166 | $1,992 |
| 2010 | $18,542 | $145 | $1,740 |
| 2011 | $20,655 | $165 | $1,980 |
| 2012 | $18,037 | $137 | $1,644 |
| 2013 | $16,773 | $112 | $1,344 |
| 2014 | $17,088 | $118 (6 months) | $708 |
| Total | $23,815 |
[21] The child support order of Justice Wright dated June 7, 2004, is varied based on the monthly amounts of child support due and the respondent’s income, above.
Credits
[22] When the FRO began enforcement in August 2022, it calculated accrued arrears and charges at $156,175.30, based on Justice Wright’s original order. The applicant admits that this is an incorrect amount and sought to correct it.
[23] The FRO records, filed in the enforcement proceedings, credited the respondent with payments of $7,128.32 between February 2015 and August 29, 2022. Neither party has filed an updated statement from FRO since that time.
[24] The parties agree that the respondent should be credited with the sum of $6,200 paid to the applicant on account of arrears and as ordered by Justice Isbester in the enforcement proceedings in 2024.
[25] The applicant also acknowledges two additional payments of $170 and $934.98 received in November 2024.
[26] Total credits against arrears are therefore $14,433.30.
[27] Subtracting the credits of $14,433.30 from the respondent’s liability to pay, revised to $23,815, I fix arrears of child support at $9,381.70, to be reduced by any further payments made to FRO on account since August 29, 2022, and not otherwise accounted for in these reasons. The respondent shall pay the arrears at the rate of $100 per month unless otherwise ordered. Justice Isbester’s order of May 13, 2024, is varied accordingly.
Respondent’s Current Circumstances
[28] Mr. Pace is unemployed. His financial statement sworn October 6, 2022, contains pay stubs from public assistance for August, September and October. He has also filed medical records indicating that he was hospitalized in August 2022 for a heart attack. He testified that he was refused ODSP, a decision which he says is under appeal.
[29] There is no definitive evidence that the respondent cannot work, although I conclude he is of modest means. I therefore decline to expunge the remaining arrears as found in these reasons.
Disposition
[30] Orders to issue accordingly.
“original signed by”
H. M. Pierce
Released: April 14, 2025