Honigan v. Lincoln, 2011 ONCJ 637

Toronto (North York) Registry No. D51626/10 DATE: 13·IV·2011 CITATION: Honigan v. Lincoln , 2011 ONCJ 637 ONTARIO COURT OF JUSTICE TORONTO NORTH FAMILY COURT B E T W E E N: ) ) CARLENE HONIGAN ) ) ) ACTING IN PERSON ) APPLICANT ) ) - and - ) ) GENE LINCOLN RESPONDENT ) ACTING IN PERSON ) ) ) ) ) ) ) ) HEARD: APRIL 11 and 12, 2011 JUSTICE S.B. SHERR REASONS FOR DECISION Part One – Introduction

[1] The applicant (the mother) seeks child support for Amare, born on June 24, 2007. She has asked the court to make the support order retroactive to when Amare was born. [2] The respondent (the father) opposes the mother’s request for retroactive support and asks that child support be reduced from the child support guideline (the guidelines) table amount based on his claim of undue hardship. Part Two – Background [4] The mother is 40 years old. She resides with Amare and a child from another relationship, De-Shaun, age 16.

The mother is employed full-time as a case worker for the Ministry of Community and Social Services. She also works part-time as a supervisor for Shopper’s Drug Mart. The mother receives child support of $300 per month from De-Shaun’s father. [5] The parties had a relationship from 2003 until 2007. They never cohabited. Amare is the only child that they had together. Amare has always lived with the mother. [6] The father is 51 years old. He is employed as a community worker at Regent Park in Toronto. [7] The father has six children from a previous relationship with Sonia Stainrod. The father co-habited with Ms.

Stainrod for 18 years until they separated in 2003. Two of the children from this relationship are adults and live on their own. Three of the children, ages 22, almost 17 and 8, live with Ms. Stainrod. The 22-year-old child has not attended school on a full-time basis and has not been eligible for support pursuant to the Family Law Act for the past three years. [8] A 16 year-old-child from this relationship (Tameika) has been living with the father since January of 2011. [9] The parenting and support arrangements between the father and Ms. Stainrod are informal.

They never went to court or entered into a written separation agreement. [10] The mother issued an application for child support on March 10, 2010. The father did not defend this claim. This case was endorsed “dismissed as abandoned” on April 28, 2010 when no one attended at court. [11] The mother issued a second application for child support on July 26, 2010. [12] On September 9, 2010, Justice Carole Curtis made a temporary order that the father pay child support to the mother in the sum of $479 per month, based on his annual income of $51,830.

The start date in the order was September 1, 2010. [13] The father did not begin paying child support until January of 2011. Part Three – Evidence of the mother [14] The mother testified that she asked the father for child support for the first time in August of 2007. She said that she would broach this topic with him every few weeks. The father would tell her that he would try to “do better”, but wouldn’t.

[15] The mother stated that she has received minimal child support from the father. She said that she received $1000 in 2008, $500 in 2009 and $400 in 2010. [16] The mother testified that she did not pursue legal action against the father because she didn’t want to go through what she expected would be a long court process.

She also stated that she was worried that the father would stop seeing Amare if she pursued support through the court. [17] The mother stated that she met with the father after she issued the first court application and, based on his promises to pay more support and see Amare more often, she let this application lapse. She testified that when the father did not follow through on his promises, she started the second court application. Part Four - Evidence of the father and Ms.

Stainrod [18] The father testified that shortly after Amare was born, he asked the mother how much money she wanted each month for child support. He said that she asked for $200 monthly and that he paid this amount faithfully until she brought her second application for child support in July of 2010. He said that he would usually pay this amount to the mother in cash. He testified that the mother did not seek a higher amount of support from him until she brought the first court application. [19] In support of his undue hardship claim, the father and Ms.

Stainrod both testified that Tameika has lived with the father since their separation in 2003. Both also testified that they entered into an oral agreement in 2003 which provided that the father would pay child support to Ms. Stainrod of $800 each month. They both testified that this agreement has never changed and, with the exception of a few late payments in 2008, the father has always paid his support to Ms. Stainrod. [20] The mother challenged this evidence. She testified that Tameika did not live with the father while she dated him (2003-2007). She also stated that the father did not pay Ms.

Stainrod $800 per month during their relationship. The mother denied ever agreeing to accept $200 per month from the father for child support. Part Five – Incomes of the parties [21] The respective incomes of the parties since 2007 were not in dispute. [22] The mother’s income since 2007 has been as follows: 2007 - $53,428 2008 - $45,008 2009 - $58,221 2010 - $58,650 [23] The father’s income since 2007 has been as follows: 2007 - $50,615 2008 - $53,173 2009 - $51,830 2010 - $50,578

2011 - $50,879 [24] The court accepts the mother’s evidence that she receives child support of $300 each month from De-Shaun’s father. [25] Ms. Stainrod earned between $35,000 and $40,000 each year as an insurance adjuster from 2007-2010. Part Six – Credibility of the father and Ms. Stainrod [26] I had serious reservations about the credibility of both the father and Ms. Stainrod with respect to material issues in dispute in this case. Both of them claimed that Tameika had lived with the father since their separation in 2003. This was clearly not the case.

On further questioning, it was established that Tameika had attended school in Pickering until the end of 2010. Ms. Stainrod lives in Pickering. The father lives in Toronto and works in downtown Toronto. Eventually, Ms. Stainrod confirmed that Tameika lived with her during the week and saw her father on weekends. It was not until January of 2011 that Tameika changed to a school closer to her father. Ms. Stainrod confirmed that at this point, the parenting arrangement with the father was reversed; Tameika now stays with her father during the week and with her on weekends. [27] I also did not find Ms.

Stainrod or the father credible when they testified that the father has been paying Ms. Stainrod child support of $800 each month since 2003. Neither produced any proof (such as a bank account entry) that this was the case. The father filed one bank account entry for September of 2010. It showed small withdrawals from the account- nothing approaching the $800 that he claimed he was paying to Ms. Stainrod. I even adjourned the case for one day to give the father a further opportunity to file proof of these support payments. No further bank accounts or money orders were provided. [28] Ms.

Stainrod and the father appear to have an amicable relationship and I have no doubt that some support is being paid to Ms. Stainrod. However, I am far from satisfied that the amount being paid comes anywhere close to the $800 per month claimed. [29] The father claimed that he consistently paid the mother $200 per month from July of 2007 until she started her second application in July of 2010. However, he could only provide proof of three payments for $200 each. He did not provide any bank account entries showing a withdrawal of cash to correspond to the amounts that he claimed he paid to the mother.

His evidence on this issue was not credible. I accept the mother’s evidence with respect to how much child support the father paid. [30] The father also lost credibility with the court by failing to pay any child support from July of 2010 until the Family Responsibility Office began deducting support through his employer in January of 2011- even after Justice Curtis ordered him to begin paying child support starting on September 1, 2010. He could not provide a viable explanation for this failure to pay his child support.

This supported the mother’s argument that he stopped paying support because he was upset that she had started court proceedings. [31] The mother through her employment with the Ministry of Community and Social Services prepares affidavits for counsel in child support collection cases. She testified that she is very familiar with the child support guidelines and what level of support is appropriate. She stated that she would never have agreed to accept only $200 per month for child support. I find her evidence more credible than the father’s.

Part Seven – Retroactive child support 7.1 The Law [32] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 , outlined the factors that a court should take into account in determining retroactive support applications. Briefly, there are four points that the court raised: 1. Reasonable excuse for why support not considered earlier. 2. Conduct of the payor parent. 3. Circumstances of the child. 4. Hardship occasioned by the retroactive order.

[33] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility ( D.B.S. par. 5 ). [34] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached.

Once that has been done the payor can no longer assume that the status quo is fair ( D.B.S. par. 121 ). [35] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned.

Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. ( D.B.S. par.123). 7.2 Delay [36] The recipient will generally lack a reasonable excuse for delay where he or she knew higher payments were warranted but chose to do nothing about it ( D.B.S. par. 101 ). [37] This principle applies to the mother. She presented as an intelligent and forceful person who would not hesitate to assert her rights or be intimidated by the court process. She testified that she was aware that the father was not paying adequate support.

She knew or ought to have known at an early stage that the father was only going to pay minimal support on a voluntary basis and that if she was going to collect the appropriate amount of child support she would need to start a court action. [38] The mother claimed that she frequently sought more child support from the father. However, despite acknowledging that she often exchanged e-mails with the father, she could not produce any documentary evidence showing that she had sought more support from him.

The e-mails filed showed that she would not hesitate to criticize the father for his access shortcomings; one would think that if she was f requently seeking increased child support, that she would have included this request in at least one e-mail. [39] I accept that the mother verbally broached the child support issue with the father on occasion. However I also find that she made an informed choice not to move the issue forward until she issued the first court application. [40] I accept the mother’s evidence as to why she abandoned the first court application.

She clearly did not want to have to litigate this matter with the father. 7.3 Blameworthy Conduct [41] The delay factor is offset by the father’s blameworthy behavior. He knowingly paid very little child support for Amare. He knew or ought to have known that he was paying inadequate child support. Essentially, he was keeping quiet, hoping that the mother would not pursue more support. He has tried to get away with paying as little support as possible. He preferred his own financial interests to those of the child.

This is blameworthy conduct. [42] The father totally abandoned his child support responsibility to Amare after July of 2010. He did not comply with Justice Curtis’s temporary support order. He was also dishonest with the court about Tameika’s living arrangements and how much money he has paid to both the mother and to Ms. Stainrod. 7.4 Circumstances of the child [43] Amare has been disadvantaged by not receiving adequate support. The mother has had to assume his full financial support. She has had to work at two jobs to pick-up the financial slack caused by the father’s failure to adequately support him.

Amare has lost valuable time with his mother as she has had to work at two jobs to make ends meet.

7.5 Hardship [44] The court recognizes that a huge lump sum retroactive award would create hardship for the father. He has no assets from which to pay a lump sum payment. He has credit card debt. He will have to make significant financial adjustments to his lifestyle to meet his child support obligations. [45] The father, to a large extent, is the author of his own misfortune.

He chose to ignore his financial obligations to Amare, creating a significant arrears claim. [46] The court recognizes, though, that the father still has four children that he is legally obligated to support. [47] The court finds that the father’s hardship arising out of a retroactive order can and should be addressed through an affordable monthly repayment plan for the arrears. 7.6 Concluding comment [48] Weighing the respective considerations set out above, I find that the mother is entitled to retroactive child support and that the start date should be January 1, 2009.

Part Eight – Undue Hardship [49] Undue hardship claims are governed by

section 10 of the guidelines which reads as follows: Undue hardship 1 0.

(1) On the application of either spouse or an mother under

section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. Circumstances that may cause undue hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include, (

a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living; (

b) the parent or spouse has unusually high expenses in relation to exercising access to a child; (

c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is, (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; (

e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education; (

f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse. Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards ofliving test set out in

Schedule II. Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, areasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable atthe end of that time. Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons fordoing so. [50] It is very difficult to make out a successful undue hardship claim under

section 10 of the child support guidelines. There are threeparts to the test: 1) The person making this claim must show that there are circumstances that could create undue hardship. 2) If this is the case, the person making the claim must show that his or her standard of living is lower than that of the respondingparty’s. 3) If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount,based on the means, needs and circumstances of the parties. See: Matthews v. Matthews (ON SC), [2001] O.J.

No. 876 (SCJ). [51] The father must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, notmerely awkward or inconvenient. Hanmore v. Hanmore 2000 ABCA 57 . [52] The father makes his undue hardship claim pursuant to clause 10(2)(

d) of the guidelines; he still has a legal obligation to supportthree of his children with Ms. Stainrod and he states that he will have a lower standard of living than the mother if required to pay thetable amount of child support required by the guidelines for Amare. [53] I have examined the father’s undue hardship claim in two stages. The first stage covers the period from January 1, 2009 untilDecember 31, 2010 (when Tameika lived with Ms. Stainrod).

The second stage is the period since the start of 2011, when Tameika cameto live with the father. [54] With respect to the first stage, the father failed to provide adequate evidence to support his claim for undue hardship. The onuswas on him to provide documentation showing that he has been paying the support claimed to Ms. Stainrod. He provided nodocumentary evidence although obtaining such documentation should not have been difficult.

At the trial management conference thefather was required to serve and file, by year, any documentary evidence he was going to rely upon to show that he has paid support toeither Ms. Stainrod or the mother. He is an intelligent man who was well aware that this documentation was going to be important toprove his claim and yet he chose not to present it.

I draw an adverse inference as a result. [55] I find that while it will be difficult for the father to pay the table amount of child support for this stage, it will not be excessive ordisproportionate. [56] Without accurately knowing the amounts actually paid by the father to Ms.

Stainrod during this stage, I am not in a position toassess if the father would have had a lower standard of living than the mother. [57] Lastly, even if the father had satisfied the first two parts of the undue hardship test, I would not have exercised my discretion tolower child support for this stage due to his blameworthy conduct described above. [58] The undue hardship analysis is different for the second stage. The father now has one child living with him. I find that paying the

guideline table amount of child support would constitute an undue hardship for the father and would be excessive. Software analysis shows that the father’s standard of living will be lower than that of the mother’s if he has to pay the table amount of child support. [1] The court will exercise its discretion to lower the child support payments to $350 per month, starting in January of 2011. Part Nine – Conclusion [59] The father will be credited with the support the mother stated that he paid in 2009 and 2010.

Accordingly, the arrears created by this order up until the end of 2010 are $10,452, calculated as follows: 2009 - 12 months at $479 per month = $5,748 2010 - 12 months at $467 per month = $5,604 Total: $11,352 Less Support Paid: 900 Arrears as of December 31, 2010 $10,452 [60] The court will permit the father to pay these arrears at the rate of $75 per month. However, this low payment will be conditional on the father keeping the ongoing and arrears support payments in good standing. If he fails to do this, the entire amount of arrears shall become due and payable. Further, if Tameika returns to live with Ms.

Stainrod or if any of Ms. Stainrod’s children become ineligible for support, the mother may move to court to increase the amount of arrears payments. [61] A final order will go on the following terms:

a) Commencing on January 1, 2009, the father shall pay to the mother the table amount of child support in the sum of $479 per month, based on an annual income of $51,830. The father will be credited for $500 for support paid in 2009.

b) Commencing on January 1, 2010, the father shall pay to the mother the table amount of child support in the sum of $467 per month, based on an annual income of $50,578. The father shall be credited for $400 of support paid in 2010.

c) Commencing on January 1, 2011, the father shall pay to the mother child support in the sum of $375 per month. This sum is lower than the table amount of child support due to undue hardship.

d) The father shall be credited with any monies received on account of support by the Family Responsibility Office in 2011.

e) Commencing on May 1, 2011, the father shall pay to the mother the sum of $75 each month on account of support arrears. However, if the father is more than 30 days late on any ongoing or arrears support payment, the entire amount of arrears shall immediately become due and payable.

f) The mother may move to court to increase the monthly arrears payments if the father’s daughter (Tameika) no longer lives with him or if any of his children with Sonia Stainrod becomes ineligible for support.

g) The father shall provide the mother annually, by June 30 th of each year, with a complete copy of his Income Tax Return and Noice of Assessment.

h) SDO to issue.

___________________________ Justice S.B. Sherr Released: April 13, 2011