Churchill v. Churchill, 2011 ONCJ 776

Brampton Registry No. 493/04 DATE: 2011·XII·07 CITATION: Churchill v. Churchill , 2011 ONCJ 776 ONTARIO COURT OF JUSTICE BETWEEN: SHELLY ANN CHURCHILL, Applicant — AND — CRAIG WILLIAM CHURCHILL, Respondent Before Justice Juliet C. Baldock Under the Interjurisdictional Support Orders Act Oral Hearing 30 November 2011 Reasons for Judgment released on 7 December 2011 Shelly Ann Churchill ........................................................................................... on her own behalf [ 1 ] JUSTICE J.C. BALDOCK:— This is a motion to vary an order for child support made by Justice Patrick W.

Dunn on April 7, 2008, in the amount of $773.00 per month for three children. [ 2 ] That order was based on an income of $40,000.00 per year. [ 3 ] The respondent resides in the Province of Nova Scotia and has commenced this motion as an application under the Interjurisdictional Support Orders Act, 2002 , S.O. 2002, c. 13 (ISOA). [ 4 ] The applicant mother filed an answer and was granted an oral hearing. [ 5 ] The respondent (applicant on motion to change) has provided income tax and T.4 information upon which I am satisfied that his income for recent years was: 2010 $23,807.00 2009 $13,675.00 2008 $31,591.00 2007 $33,431.00 He is currently in receipt of social assistance. [ 6 ] According to the applicant mother, who attended this ISOA hearing, his obligation was reduced to support for two children effective June 1, 2009, at which time it should have changed to $206.00 per month, based on his 2009 income.

Thereafter, effective March 1, 2010, his obligation was reduced to the support of one child at the rate of $202.00 per month, based on his 2010 income. [ 7 ] All support should have terminated effective June 1, 2011, if the applicant mother’s time line is used, or in March 2011, if I accept the evidence of the respondent father. [ 8 ] The father’s material seeks an adjustment on an earlier time line than that offered by the mother.

In her submissions, the mother was somewhat vague when each child became ineligible for support and no affidavit or documentary evidence was provided to confirm that the children (or any one of them) either resided with her or continued in school beyond the dates set out in the father’s material. [ 9 ] She also did not dispute the claim that, in July 2008, the parties entered into an agreement in the Small Claims Court whereby the mother was to pay the father the sum of $10,000.00 for a debt, which sum was to be set off against any arrears of child support, subject to the approval of the Ontario Court of Justice on a support variation application.

[ 10 ] The arrears of support owed as of July 2008 are not clearly established, but as of December 31, 2009, the balance outstanding was $10,557.75. [ 11 ] Applying the set off, this reduces the balance to $557.75 as of that date.

However, reducing the payment to that applicable to two children as of June 1, 2009 would result in a reduction of $3,402.00 ($773 - $206) x 6 months and thereby creates a credit in favour of the father of $2,844.25. [ 12 ] Thereafter (using the mother’s time lines for eligibility), the respondent should have paid $206.00 for January and February of 2010 and $202.00 per month for March 2010 through May 31, 2011, for a total of $3,442.00. Applying the credit of $2,844.25, this leaves a balance owing of $597.75.

The Nova Scotia Maintenance Enforcement Program collected $82.88 in March 2010, and a further $157.00 in March 2011, for a total of $239.88. [ 13 ] I therefore find that the arrears currently owed amount of $357.87, less any amounts collected by the Nova Scotia Maintenance Enforcement Program after March 1, 2011. [ 14 ] Had the adjustments been made using the respondent father’s time lines, the arrears would be zero.

However no evidence was provided to establish the dates he suggests. [ 15 ] I am somewhat troubled by the fact that the applicant mother did not take any steps to notify the Enforcement Program of the change in each child’s eligibility, but then the respondent father took no steps to vary the order until March 2011. [ 16 ] Accordingly, I fix arrears of support at $357.87. Given the respondent’s limited financial circumstances, such arrears shall be payable monthly in the amount of $100.00 per month commencing April 1, 2012, with a final payment of $57.89 payable July 1, 2012.

Released: 7 December 2011 ____________________________ Justice Juliet C. Baldock