Pinto v. Ponciano, 2016 ONCJ 169

ONTARIO COURT OF JUSTICE DATE: 2016 03 30 Brampton 266-03 CITATION: Pinto v. Ponciano , 2016 ONCJ 169 BETWEEN: MARIA PINTO Applicant — AND — ANTONIO PONCIANO Respondent Before Justice Philip J. Clay Heard on March 7, 2016 Reasons for Judgment released on March 30, 2016 Ms. S. Golestani ……………………………………………………for the Applicant Mother The Respondent acted on his own behalf CLAY J.: MOTION TO CHANGE [ 1 ] The Respondent father (“the father”) brought a Motion to Change the final order of the Honourable Mr. Justice T. Colvin dated September 6, 2012.

He sought to retroactively reduce child and spousal support and to rescind arrears. The Applicant mother (“mother”) filed a Response to Motion to Change in which she asked that the Respondent’s Motion to Change be dismissed with costs. PROCEDURAL BACKGROUND [ 2 ] At the first case conference on October 19, 2015 the parties consented to a disclosure order. At the second case conference on December 9, 2015 amendments were made to the disclosure order and this matter was set down for a

summary hearing on affidavit evidence subject to the right of cross-examination. The matter was scheduled for March 7, 2016. [ 3 ] The father was to provide the balance of his disclosure by December 31, 2015 failing which the mother could move by 14B motion to have the Motion to Change dismissed. I was advised by Ms. Golestani that the father provided most of the disclosure but he failed to provide some items. For example he provided his 2014 Notice of Assessment but not his full Income Tax Return. Ms. Golestani chose not to proceed with a 14 B motion.

[ 4 ] The father was also to file permitted to file a supplementary affidavit by January 29, 2016. He did not do so. Ms. Golestani did file a response affidavit by February 19 notwithstanding that the father did not file his affidavit. As the mother did not have counsel when she filed her Response, the supplementary affidavit set out her position in a much more organized way. [ 5 ] The December 9 order provided that all of the sworn documents in the Motion to Change continuing record would be evidence on the hearing of the motion.

The father’s sworn evidence was in his Change Information form and his Financial Statement both sworn July 8, 2015. The mother had her Response to Motion to Change her affidavit of February 18, 2016 and her updated Financial Statement of March 3, 2016. Ms. Golestani filed an Exhibit Brief containing the relevant documents and a Brief of Authorities. [ 6 ] The Motion to Change was argued and I reserved my decision. FATHER’S EVIDENCE [ 7 ] The father noted that he did not attend court on the date that the final order was made. By the terms of that order he was imputed to have an income of $100,000 per year.

The father had not made any financial disclosure to the mother from the time of their separation agreement in December 2002 until the time that he brought this Motion to Change on July 17, 2015. At the time of the uncontested trial on September 6, 2012 the mother only knew that the father continued to work as a store manager for Highland Farms where he had worked since 2000.

She knew that in 2001 he earned the sum of $57,200 as he was required to pay child and spousal support on that sum pursuant to the terms of their separation agreement. [ 8 ] The father’s disclosure with this Motion to Change showed that in 2012 the father had T-4 income of $79,554 and that he had withdrawn $4,869.00 from his RRSP for a total line150 income of $84,453. [ 9 ] The father said that on December 15, 2012 he resigned his position with Highland Farms. He filed his Record of Employment. He was not entitled to Employment Insurance.

He did not work until February 14, 2013 when he accepted a position at Ferma Foods a supplier of food to grocery store chains such as his former employer Highland Farms. The father did not tell the mother that he had quit his job. He did not tell her of the termination of extended health and dental benefits for her and their child Hailie Ponciano, born October 10, 2000. [ 10 ] The father’s position was that when he left Highland Farms he knew that the two brothers who owned the company were going to split the assets. He intended to take employment as a store manager with Louis Coppa at Coppa’s Fresh Market.

The other brother Charlie Coppa was going to keep the farm and the two grocery stores known as Highland Farms. This asset split was confirmed in a letter prepared for this proceeding by Highland Farms and dated June 30, 2015. That letter also made clear that the asset split did not actually occur until May 2013. [ 11 ] The father said that when he left in December 2012 he did not plan to work until the asset split was completed when he expected that Louis Coppa would hire him. He said that after 2 months he was running out of money and he obtained a job at Ferma Foods.

He said when he took the job he still intended to work for Louis Coppa as soon as he could hire him. Ferma hired him as a merchandiser and he travelled to different stores with a supervisor. He was only paid $14 an hour and he worked a 44 hour week. He filed pay statements from July 2015 that showed that he still had that income which annualizes to $32,032.00 per year. [ 12 ] Soon after taking the Ferma’s job, the father said that he liked the fact that he worked shorter hours and no weekends. He decided to not even pursue a job with Louis Coppa. Since February 14, 2013 the father has not sought any other work.

He has been content to earn $32,032 and then supplement his income with withdrawals from his RRSP. In 2013 he earned $24,626 from Ferma’s and withdrew $9,938 from his RRSP. In 2014 he had a total income of $42,653. He did not provide his income tax return as required and there was no breakdown of his income filed. He testified in cross-examination that his income from Ferma’s had not changed so that the difference between $32,032 and $42,653 was another RRSP withdrawal.

He admitted that over time Ferma’s let him use a company car to get to and from work on weekdays so that he saved money on gas and other operating costs. [ 13 ] The father admitted that he was in arrears with the Family Responsibility Office (“FRO”). He felt that he had overpaid child support given that his income was now so much less than it was when the final order was made. The father also said that he was willing to pay s.7 expenses.

It was noted by both parties that there was a typographical error in the final order as paragraph 3 should have read that the s.7 expenses were to be set at $900 per year not $900 per month.

MOTHER’S EVIDENCE [ 14 ] Ms. Golestani filed the party’s Separation Agreement in her exhibit brief. It stated that the father had an income of $57,200 and that the mother was in receipt of CPP disability benefits. The father was required to pay $788.50 per month in child support as there were two dependent children at that time. He was required to pay $250 per month in spousal support as the mother was permanently disabled. The Agreement provided that the father was to make annual financial disclosure. He did not do so. [ 15 ] The mother filed the Agreement with the court for enforcement.

She then brought a Motion to Change on the basis that the father had not made disclosure and she believed that his income had increased to at least $100,000 per year. The father did not respond to the motion and was found in default. The final order of September 6, 2012 was made on an uncontested basis. The father was imputed to have an income of $100,000 and ordered to pay child support of $880.00 per month for Hailie and 90% of s.7 expenses fixed at $900 per year. Arrears of child support, s.7 expenses and spousal support were fixed.

The father was ordered to pay $299 per month in spousal support and $600 in costs. [ 16 ] The father took no steps to change this order until he brought this Motion to Change on July 17, 2015. He sought a change on the basis of his reduced income due to his loss of his job with Highland Farms. The father left Highland Farms on December 15, 2012. His Notice of Assessment stated that he earned $82,479 that year. [ 17 ] Ms. Golestani stressed that the father made a voluntary decision to leave his employment. He made this decision just 3 months after the final court order was made.

He claims that he left Highland Farms because he knew the company was splitting up and he knew that he would have employment with Louis Coppa. He provided no proof of any job offer from Louis Coppa. The letter from Highland Farms showed that the company was not split until May 2013 some 5 months after the father left his full-time long term secure employment to allegedly pursue work there. The father found work at much less income in February 2013. There is no evidence that he made any effort to secure a job with Louis Coppa and there is no proof of any job search.

By his own admission the father was content to take a much less responsible job at far less than half his former income. [ 18 ] Ms. Golestani stated that the father’s Motion to Change should be denied on the basis that there was no material change in circumstances. She argued that a payor cannot simply quit a good paying job to take a much lower paying one and then seek to have their child support reduced. She noted that the father did not take any steps to change the order until enforcement efforts forced his hand.

There was a three year delay between the time that he quit his job and the time that he sought to reduce his support. [ 19 ] Ms. Golestani asked that the court maintain the Imputation of income to the father of $100,000 per year. The final order was made effective January 1, 2012. In 2012, his last year with Highland Farms, he earned $82,479 and he quit two weeks before the end of the year. [ 20 ] With respect to the s.7 expenses the mother produced receipts to show the actual costs for the years since the final order. The s.7 costs were not to be collected by the FRO.

The order had set an annual limit of $900 a year and had set out that the father was to pay 90% of the expenses which is $810 per year. The mother had taken a part-time baby-sitting job to try and supplement her disability income as with the support in arrears she could not afford to spend much on s.7 costs. The mother’s position as set out in her affidavit is that the father should be required to pay the full $810 for each year from 2012 to 2015 which amounts to $2,430.

The mother effectively states that if the father had paid regularly and on time that the child could easily have been involved in activities up to the annual limit. As it was the mother had to look for inexpensive options for Hailie and the amounts actually spent were as follows: 2012 $587.50 2013 $651.97 2014 $218.96 2015 $305.92 Total $1,764.35

[ 21 ] The mother’s alternative position was that the father is responsible for 90% of these expenses and that amounts to $1,587.92. [ 22 ] The mother stated that the only s.7 expense that Hailie would have in 2016 was swimming. In 2015 the mother spent $172.87 for Hailie to obtain her Bronze Cross and First Aid and then $133.25 for Hailie to obtain her Bronze Medallion. This totals $306.12 (though $305.92 is listed for 2015 s.7 above.) Ms.

Golestani requests an order that would set out an amount for s.7 costs and a monthly payment that could be enforced by the FRO. [ 23 ] The mother had concerns about whether the father had kept Hailie on his extended health and dental and life insurance policies. The father had failed to disclose whether the life insurance was still in place. In cross-examination the father said that his extended health and dental policy required a 25% employee contribution and cost $80 per month. He testified that the private life insurance policy was still in place and it cost him $41.05 per month to maintain it.

It appeared that the father had was complying with the terms of the Separation Agreement in that regard. ISSUES 1. Has there been a material change in circumstances since the final order of September 6, 2012? 2. Should the father be able to have support reduced when his income change is due to intentional underemployment? 3. What income, if any, should be imputed to the father for the purposes of child and spousal support? 4. Should the mother be reimbursed for her s.7 expenses, and if so, should they be enforced through the Family Responsibility Office?

THE LAW [ 24 ] Motions to change child support are governed by s. 37 (2.1) of the Family Law Act which provides as follows; Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may, (

a) discharge, vary or suspend a term of the order, prospectively or retro-actively; (

b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (

c) make any other order for the support of a child that the court could make on an application under

section 33. 1997, c. 20, s. 6. [ 25 ] If a court finds that there has been a material change in circumstances then the court must determine what upon what income the payor should pay child support. The Child Support Guidelines (CSG) provide for the imputation of income under s. 19 (1) which reads as follows; 19.

(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include, (

a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[26] The leading case on income imputation is the decision of the Ontario Court of Appeal in Drygala v. Pauli (ON CA), [2002] O.J. No. 3731 (OCA). That case considered the

interpretation of s. 19 (1) (

a) and established a three-part test asfollows; 1. Is the spouse intentionally underemployed or unemployed? 2. If so, is the intentional underemployment or unemployment required by virtue of his reasonable educational needs, the needs of thechild of the marriage, or reasonable health needs. 3. If the answer to #2 is negative, the court must decide whether it should exercise its discretion, and if so, what income is properlyimputed in the circumstances. [27] The Court of Appeal held that once a party establishes underemployment, the onus shifts to the payor to show one of theexceptions of reasonableness.

Parents can take jobs with less money, as long as the decision is reasonable. [28] In Drygala the court found that:

a) there is no need to find a specific intent to evade child support obligations before income be imputed. The key is whether theunderemployment is voluntary and reasonable;

b) the payor is intentionally under-employed if they choose to earn less than they are capable of earning; and

c) imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support theirchildren, in order to meet this legal obligation, a parent must earn what she is capable of earning. [29] The same court in Lawson v. Lawson, (Ont. C.A.) cited Dryagla and stated that; Section 19 (1) (

a) of the Guidelines is perceived as being a test of reasonableness. The court must have regard to a the parent’s capacityto earn income in light of such factors as employment history, age, education, training, skills, health, available employment opportunitiesand the standard of living earned during the marriage. The court looks at the amount of income the payor could earn if he or she workedto capacity. ANALYSIS Material change [30] Ms. Golestani argued that the father has not proven that there has been a material change in circumstances since the final orderwas made.

She argued that the father’s unilateral decision to reduce his income cannot be the basis for an argument by him that there hasbeen a material change in circumstances. [31] The final order was made on an uncontested basis and as the father had made no financial disclosure since the time of theSeparation Agreement in 2002 there was no information before the court in 2012 as to the father’s actual income. The court was aware

that the father earned $57,200 in 2002 and that he continued to be employed by Highland Farms the company for which he had worked since 2000. The court must have found that the father would have had salary increases over the years and Justice Colvin found that it was reasonable to impute an income of $100,000. There may have been other factors involved in the income imputation decision.

It is important to note that the father did not appeal the decision and did not move to set it aside when he became aware of it. [ 32 ] To the extent that the final order made the support increase retroactive to periods of time well before September 6, 2012 the decision is presumed to be correct. Therefore, support payments for any period before September 6, 2012 should not be changed. In fact the father did not seek any change to the amount of his support before February 14, 2013.

He sought a change in support retroactive not to the time that he quit his job but to the time when he obtained new employment at a much lower income. [ 33 ] There was no doubt that there had been a material change in the father’s income. The only question is whether this unilateral change should be a bar to the father ever seeking a review of his support obligations. Ms. Golestani did not file any law to support her argument that a unilateral change could not found a support review.

In fact, the cases filed on the issue of underemployment all proceeded on the basis that the allegedly underemployed spouse brought Motions to Change. The courts did not find that no change had occurred. Rather the courts focused on whether the change was reasonable and therefore whether support should be based upon the new income alleged by the payor or some other imputed income. [ 34 ] In this matter, I find that there was a material change in circumstances when the father quit his job on December 15, 2012.

Intentional underemployment [ 35 ] There was really no issue in this case as to whether the father was intentionally under employed. As noted above since Drygala the term “intentional under employment” does not require a finding that the payor intentionally reduced his income to avoid child support. It is enough to find that the income reduction was itself intentional. In this matter, the father quit a job he had held for 12 years just three months after the mother obtained the final support order. She asks the court to infer that he did so to avoid or reduce support.

While the timing of his quitting employment was suspicious it is not necessary for me to find that his intention was to avoid support. I need only find that his intention was to quit the job in order to find intentional underemployment that permits the court to impute income pursuant to s. 19 of the CSG. [ 36 ] The father earned $82,479 in 2012. He was a valued 12 year employee of his company, and as such, he had received significant raises in income over the years from $57,200 in 2002 to $82,479 ten years later.

The only rationale the father gave for leaving this job was that the company was going to split up and he had decided which of the two owners he wanted to work for in the future. There was no evidence that he was under any pressure to leave. He simply chose to quit and to wait until the corporate split took place at which time he thought that he would be hired to work a similar job in one of the successor companies. The father made a reckless decision.

He did not have any written offer of employment and he had no firm knowledge of when the split would occur and when or if he would be able to return to earning his previous salary. [ 37 ] It is a particularly aggravating fact that the father left his job without considering its effect on his ability to pay support to his disabled spouse and dependent daughter. He did not even contact his former spouse to tell her that he had left his job and that she and their daughter would no longer have the use of his extended health and dental plan.

The father claimed that he contacted FRO on February 14, 2013 to tell them where he was then working. The mother was never given any information by the father. After twelve years of his failure to disclose his income, despite written requests from the mother, she had finally obtained an increase to her support. Just three months after she obtained that order the father quit his job terminating her benefits and putting her ability to obtain the court ordered support at risk.

The father’s conduct in this matter was inexcusable. [ 38 ] The father’s evidence was that he had no income for two months and realized that he had to get a job. He accepted a job in which he was only paid $14 an hour for annual income of $30,032. His evidence was that initially he saw this job as one to tide him over to the time when he could go back to his managerial job at the successor company. He soon discovered that he enjoyed having a less stressful job with weekends off. He made no effort to obtain the job with the successor company once it was created after the split in May 2013.

In fact, he made no effort to find any employment after February 2013. [ 39 ] The mother seeks an order that the imputed income of $100,000 should continue indefinitely. I find that as there is no evidence before the court that the father ever earned more than $82,479 in his full-time work that it would not be reasonable to impute $100,000 to him after September 6, 2012.

[40] The courts have long held that a payor spouse does not have the right to choose to earn less income when they are obliged to paychild and/or spousal support. In Drygala the payor left a tool and die job that he did not like and that he did not feel he was good at toattend university on a full-time basis. The trial decision found that he should be imputed to earn the income that he was earning at thetime he quit his job. Notwithstanding that, the father did not make proper financial disclosure the court of appeal found that the payor’scurrent circumstances at the time of trial needed to be reviewed.

The court found that the father could work on a part-time basis andimputed to him an income based on his pre-university income but with part-time hours. [41] In terms of the amount of income to impute there is case law to support the proposition that the salary level prior to the quitting ajob should be imputed to the payor see Thompson v. Gilchrest, 2012 ONSC 4137 and Lindsay v. Jeffrey, [2014] ONCJ 1. InThompson the court stated; The onus is on the payor parent to justify the decision to reduce his income. Given that Mr.

Thompson’s position was that supportshould simply be calculated based on the income he actually receives, he led no evidence of comparative employment beyond his effortsto seek employment in Atlantic Canada. The result is that the Court has little more than his past earning history to consider. I find, asJudges in other cases have, that his previous income is a rational basis on which to impute income, as it is the amount that Mr.

Thompsonwould have continued to earn but for his decision to leave his job. [42] There are strong policy reasons for continuing to impute to a payor who quits a job to the income that he was earning when hehad that job. To do so sends a strong message to payors that they cannot so easily frustrate court orders. I have no hesitation in finding inthis case that the father should be required to pay support in 2013 based upon the amount he earned in 2012.

The more difficult questionis at what point the court must consider the new reality that the father no longer earns his 2012 income and may never be able to earn itagain. [43] The father had a very secure job. He had had significant raises in his income over the years. The father’s rationale for leavingwhen he did was that essentially the same job was about to become available to him in the new company. He said when he left hethought there would be a brief period of no income but he was not too concerned because he had savings.

It is noted that the father didhave $54,370.68 in RRSP’s in 2002 according to the Net Family Property statement filed with the Separation Agreement. There was noevidence as to whether those funds went up or down in the intervening years. What was known was that he withdrew RRSP funds in2011, 2013 and 2014 and still had $20,000 in RRSP’s left. The father felt fairly financially secure and his evidence was that when he quithis job he did not anticipate a significant loss of income for any lengthy period of time. [44] The mother did not accept the father’s rationale.

She emphasized that he had not made financial disclosure, that he ignored theMotion to Change process and then he quit his job once he became aware of the uncontested final order. [45] No matter what the father’s rationale was in December 2012 it is now clear that shortly after February 14, 2013 he decided thathe liked his new job. The reality is that the father made a decision to earn $30,032 when he knew that he could have obtained a job withthe successor company that would pay him about $85,000 per year. He did not pursue any job that paid him more than $14 an hour.

Theissue is whether I should assume that the father could always get a job making $85,000 a year so that he should be imputed to have thatincome for as long as he has a support obligation. [46] The facts here do not favour the father. He did not look for other work so he had no evidence that it was not available. Heprovided no evidence as to how long he could have expected to continue working at the managerial salary he had in December 2012. Thefather was born on May 19, 1963 so he was only 49 years old when he quit his job and he will only be 53 this May. He provided noevidence of any health issues.

He failed to provide any information as to his current living arrangements but the mother’s evidence wasthat he had remarried and that he had taken a trip with his spouse to Portugal every year. The mother’s lack of knowledge of the father’ssituation was due to the fact that she had no contact with him and he had not seen Hailie in 4 years. The father had supplemented hisincome with RRSP withdrawals and he still had savings left.

The evidence could lead to the conclusion that the father was relativelyyoung and healthy and that he had a modest financial cushion available to him if he left his $14 an hour work to seek a job morecommensurate with his knowledge and experience. [47] The only evidence that may indicate that the father could not be sure of continuing to earn the same income was the fact that thecompany did split up and the job he would have had after that took place would not be exactly the same as the one he had held for 12years.

The father basically said he was being pro-active in deciding which successor company to join as he knew the status quo wasending. He did not provide any evidence though as to any risks to his income that might be present as a result of the corporate split. Income imputation

[ 48 ] I find that the father should be imputed to have an income from September 1, 2012 to August 31, 2015 of $85,000 per year. [ 49 ] As to the amount of income I note that the father earned $84,453 in 2011 albeit $4,869 of that income was due to RRSP withdrawals. I also note that he earned $82,479 in 2012 and that was for 50 weeks as he quit his job on December 15, 2012. If I add two more weeks of income he would have earned $85,778 in 2012.

It is reasonable to expect that if he had not left his job the father would have earned $85,000 per year. [ 50 ] As to the length of time for which this income should be imputed I note that the father provided no financial disclosure to the mother at all prior to serving this Motion to Change in August 2015. Until that time she had no reason to believe that the order that she had obtained in September 2012 might be subject to change as a result of altered circumstances.

For whatever reason, the father chose to do absolutely nothing about the fact that he earned $14 an hour and yet was required to pay support on $100,000 a year. Only he knew about his decisions and their potential ramifications upon the support he had to pay. In these circumstances, I find that it is unreasonable to retroactively reduce the amount of support that the mother and child were entitled to receive.

I acknowledge however that by reducing the income from $100,000 to $85,000 post September 6, 2012 that I have reduced the amount of child support but as set out above I find no evidence that the father ever earned $100,000. [ 51 ] Once the father brought this motion and made some financial disclosure the mother was on notice that circumstances had changed and she could anticipate that the support amount might change. Ms. Golestani referred to the fact that the father did not comply with the entire disclosure order.

I find that even if there were some items missing that the father’s income could be determined on the basis of the disclosure provided. [ 52 ] Support payors should pay support on the income that they earn or could reasonably earn. They should maximize their income earning capacity: see Drygala . The case law is clear that a support payor does not have the right to choose to earn significantly less income because they prefer their new work or they like the lifestyle it affords them. The father earns $32,032 at $14 an hour. The mother says he must be paid some cash income but she has not been able to prove it.

The father conceded that he now gets the use of a company car and gas to go to and from work which is certainly a benefit to him. The father said he expected some changes in his job and some increased income. [ 53 ] I find that ordering the father to pay support on income he has not made since 2012 does send the message to the father and to like-minded individuals that one cannot frustrate a court order by quitting your job. If that was the father’s intention, as the mother believes, he has paid a high price for his irresponsible conduct.

I find though that at some point the court needs to recognize that the father has not worked in his former capacity for over three years. While he is still only 52 years old it may not be reasonable to assume that he could immediately find work that pays him $85,000 per year. Even if the father could find such a job tomorrow he will still have paid support for over 2.5 years on income he chose not to make. [ 54 ] I find that I should impute income to the father of $57,200 per year beginning September 1, 2015.

This is the amount that the father admitted earning in December 2002 when he signed the Separation Agreement. At that time he knew that he had to support his disabled spouse and two children at that level of income. If there had never been a Motion to Change and an uncontested order the father would still be paying support on the income he earned 13 years ago so I find to impute income to any lower amount would not be reasonable. The amount of table child support on this income is $519 per month and it will begin on September 1,

Section 7 expenses [ 55 ] The final order provided an upper limit of s. 7 expenses at $900 per year and provided that the father was to pay 90% of the said expenses. I understand the mother’s position that without any contribution from the father she could not afford to register Hailie in activities to the extent that she would have liked. She said she looked for modest cost activities. I find that the expenses were properly supported and that the father should pay 90% of the cost of same as I have imputed his income to be $85,000 per year until August 2015.

Even if the proportionate amount would work out to less than 90% given that the imputed income in this order is less than that in the final order I will not change it. The reality is that had the father paid for s.7 expenses at the time the child could have been involved in more activities and the father’s total costs would be higher. I find that I cannot order that the father pay $810 per year (90% of $900) as the mother requests.

I find that I should only reimburse the mother for actual costs incurred not the costs that she might have incurred. [ 56 ] The father shall pay to the mother 90% of the costs actually incurred from 2012 to 2015 inclusive and that is the sum of $1,587.92. The father shall pay off these arrears at the rate of $75 per month beginning April 1, 2016 and continuing until they are fully

paid. [ 57 ] With respect to future s.7 costs I find that the father should pay his proportionate share of 2016 swimming expenses. The father’s income in 2016 is imputed to be $57,200. I reviewed the mother’s financial statement of September 15, 2015. She lists her monthly income as including self-employment earnings of $520, CPP disability of $1,322 and spousal support of $299 which I will increase to $311. The total income for s. 7 sharing is $2,153 per month or $25,836 per year. The father earns 69% of the party’s total income of $83,036. The swimming expenses for 2016 are estimated to be $306.12.

The father’s 69% share is $211.22. I find that the father should pay the sum of $17.60 per month to the FRO beginning on January 1, 2016 for these expenses. I find that the father should pay 69% of any other s.7 expenses for the child directly to the mother within 30 days of a receipt or invoice for same. Spousal support [ 58 ] The final order provided that spousal support was to be set at $299 per month beginning January 1, 2012. This figure was obtained by applying the consumer price indexing to the $250 per month originally agreed upon. Ms. Golestani calculated the increase for the years after the final order.

The calculations were set out in a chart in the mother’s affidavit. She stated that the amount of spousal support should be as follows;

a) For the period January 1, 2013 to December 31, 2013 the sum of $301.70;

b) For the period January 1, 2014 to December 31, 2014 the sum of $307.60; and

c) For the period January 1, 2015 and on the first day of each and every month thereafter the sum of $311 per month. [ 59 ] The arrears of spousal support amount to $279.60 and shall be paid forthwith. The new amount of $311 per month will begin on September 1, 2015. ORDER [ 60 ] The final order of the Honourable Mr. Justice T. Colvin dated September 6, 2012 shall be changed as follows:; Paragraph 8 shall be deleted and replaced with the following; 1. The father shall pay to the mother for the support of the child Hailie Ponciano, born October 10, 2000 the following;

a) For the period October 1, 2012 to August 31, 2015 the sum of $762 per month based upon an imputed income of $85,000 per year; and

b) Beginning on September 1, 2015 and continuing on the first day of each and every month thereafter the father shall pay the sum of $519 per month. The said support is based upon the father’s imputed income of $57,200. Paragraph 3 of the said final order shall be deleted and replaced with the following; 2.

a) The father shall pay to the mother through the FRO the sum of $17.60 per month for the said child’s proven .7 expenses beginning January 1, 2016;

b) The father shall pay directly to the mother 69% of any future s.7 expenses; and

c) The mother shall provide full particulars of the expense including invoices and receipts as soon as they are available. With the exception of the swimming expenses which shall be paid directly through the FRO all other expenses shall be paid directly by the father to the mother within 30 days. 3. The father shall pay to the mother arrears of s.7 expenses in the amount of $1,587.92. He shall pay this sum at the rate of $75 per month beginning on April 1, 2016 and continuing on the first day of each and every month until the sum is fully paid.

Paragraph 2 of the said final order shall be deleted and replaced by the following; 4. a)The father shall pay spousal support to the mother in the amount of $311 per month beginning January 1, 2016 and payable on the first day of each and every month thereafter.

b) The said spousal support of $311 per month shall be increased by the change in the consumer price index with the next increase to be on February 1, 2017. 5. The father shall pay to the mother arrears of spousal support in the amount of $279.60 forthwith and the said arrears shall be enforced through the FRO. 6. S.D.O. to issue. 7. The parties may address the costs of this matter as follows;

a) The mother may file a costs submission limited to three pages double spaced in addition to her bill of costs and any offer to settle filed. She shall file by April 15, 2015.

b) The father may file a response submission limited to three pages double spaced by April 29, 2016. Released: March 30, 2016 Justice Philip J. Clay