Lapointe v. DePerry, 2025 ONSC 452
Court File No.: FS-13-0049-01
Date: 2025-01-21
Ontario Superior Court of Justice
Between:
Brenda Lapointe
Responding Party
(self-represented)
and
Blaine DePerry
Moving Party
(Counsel: M. Baker)
Heard: January 21, 2025, at Thunder Bay
Justice: H. M. Pierce
Binding Dispute Resolution
[1] The parties agree to have the issue of variation of child support and arrears of child support determined by binding dispute resolution.
[2] Mr. DePerry is the moving party. He seeks an order terminating child support effective August 24, 2016.
[3] On August 24, 2016, Mr. Justice Shaw imputed income to the father, Mr. DePerry, of $37,898 and ordered him to pay child support of $732 per month for the support of Phoenix Lapointe-DePerry, born December 15, 2002, Kiara Lapointe-DePerry, born March 4, 2004, and Tiana Lapointe-DePerry, born June 29, 2007, all of whom were in their mother’s sole custody under the terms of the order.
[4] Although Mr. DePerry’s affidavit also seeks an order expunging arrears accruing between October 1, 2013 and August 24, 2016, his counsel at the hearing confirmed that he is not pursuing variation of Justice Shaw’s interim order dated June 27, 2013, which ordered him to pay child support in the amount of $732 per month for the parties’ three children based on annual income of $37,898. As the final order of Justice Shaw made in 2016 overtakes the interim order made in 2013, this is a correct position in law.
[5] The parties agree that Phoenix ceased living with her mother in June 2023 and that thereafter, child support for her should terminate. The father also agrees that the parties’ two youngest children remain eligible for child support, assuming that he has the ability to pay. An order will issue terminating child support for Phoenix on June 30, 2023.
[6] Mr. DePerry submits that since he has now assumed care of a child born to a subsequent partner, the court should factor in his ability to pay for that child. I do not agree with this submission. He was aware of his obligation to support his daughters before his son was born; he is not excused from his obligation to his first family just because he decides to start a second family.
[7] Justice Shaw’s order of 2016 places the onus on Mr. DePerry to disclose his income to Ms. Lapointe annually. As Ms. Lapointe points out, any change in income was within his knowledge.
[8] Mr. DePerry submits that the court should average his annual income in order to determine his ability to pay support. However, the onus is on him to prove his income.
[9] Since there is no income disclosure for 2016, I conclude there was no change in his income for 2016 after Justice Shaw’s order was made. Mr. DePerry was obliged to pay child support from September to December that year of $732 x 4 months = $2,928. Accordingly, there will be no variation in child support payable for 2016.
[10] As well, Mr. DePerry did not prove his income for 2017. Therefore, there is no evidence upon which to conclude that he suffered a change in income for that year. Accordingly, no variation in child support is granted for 2017. He is liable to pay child support of $732 x 12 months = $8,784.
[11] Mr. DePerry has proven that he had no income for 2018. Therefore, he is not liable to pay child support for 2018. No child support is due to be paid for 2018.
[12] In 2019, he proved annual income of $3,434, an amount below the Child Support Guidelines. Therefore, he is not liable to pay child support for 2019. No child support is due and payable in 2019.
[13] In 2020, Mr. DePerry earned $18,862. He was therefore liable to pay child support for three children of $312 per month x 12 months = $3,744.
[14] In 2021, Mr. DePerry earned $20,293. He was liable to pay child support for three children of $368 per month x 12 months = $4,416.
[15] In 2022, Mr. DePerry proved income of $14,726. His obligation to support his three daughters was $171 per month x 12 months = $2,052.
[16] In 2023, Mr. DePerry’s income was $16,333. During the first six months of that year, he was obliged to support three children at the rate of $229 per month x 6 months = $1,374. An order terminated child support for Phoenix effective June 30, 2023. Thereafter, Mr. DePerry is obliged to pay $212 per month for two children x 6 months = $1,272.
[17] Mr. DePerry has not proven his income for 2024. Therefore, there is no basis upon which I can find a change in income since 2023. He is therefore liable to pay child support for 2024 for two children at $212 x 12 months = $2,544.
[18] Child support shall continue at the rate of $212 per month for two children payable on the first day of each month commencing January 1, 2025 and monthly thereafter until varied.
[19] Mr. DePerry shall be credited with any payments collected by the Family Responsibility Office for the periods of time indicated, with arrears of child support fixed accordingly. In the event of an overpayment of child support, Ms. Lapointe is not obliged to refund any overpayment to Mr. DePerry.
[20] Orders to issue accordingly.
“original signed by”
H. M. Pierce
Released: January 21, 2025
Cited Legislation
Cited Case Law
None.