Jackson v. Rollo, 2014 ONCJ 306

COURT FILE NO.: 299/08 DATE: 2014-05-31 Citation: Jackson v. Rollo , 2014 ONCJ 306 ONTARIO COURT OF JUSTICE RE: Paul William JACKSON, Applicant Rachel ROLLO, Respondent BEFORE: Justice S. O’Connell COUNSEL: Paul Pellman, for the Applicant Robert J. Charko, for the Applicant E N D O R S E M E N T [ 1 ] The respondent mother seeks child support arrears in the amount of $23, 012.00 from the applicant father, and costs. The applicant father seeks an order that there be no arrears of child support and costs in the amount of $3,500.00. Both parties filed written submissions and support documentation.

Brief Background : [ 2 ] The parties were married on August 22, 1998. There are three children of the marriage, namely, Nicholas Edward Jackson, born June 26, 1997, William Christopher Jackson, born June 30, 1999 and Eric John Jackson, born March 25, 2001. [ 3 ] The parties initially separated in 2002 and finally separated on April 1, 2003. The parties were ultimately divorced on July 3, 2004. [ 4 ] The parties negotiated a separation agreement on November 10, 2009 in which the parties had joint custody of the children, with primary residence to the respondent mother.

The parties agreed that child support would be paid by the applicant father in the amount of $1,500.00 per month for the three children or $500.00 per month per child. This was based on the father’s income being set at $113,000.00 and income imputed to the respondent mother at $30,000.00. The Agreement also provided for an equal sharing of

section 7 expenses. [ 5 ] The applicant father acknowledges in his written submissions that this amount was not consistent with the Child Support Guidelines for Ontario. Indeed, the amount of child support that the mother should have received under the Child Support Guidelines would have been $2,030.00 per month at the time and the parties’ contribution to

section 7 expenses would be in proportion to their respective incomes, not shared equally, given the very significant disparity in their incomes. However, the father submits that the agreement was fair and reasonable. Both parties had counsel and received independent legal advice. [ 6 ] After the separation agreement was signed, there were a number of changes in the children’s living arrangements. Both parties agree to the

schedule of the children’s residence set out below, although differ on one significant aspect of the living arrangements for the period between April 2010 to July 2012:

FROM TO CHILDREN’S RESIDENCE TOTAL MONTHS November 2009 March 2010 3 Shared 5 months April 2010 July 2012 2 with mother /1 with father 28 months August 2012 February 2013 3 with mother 7 months March 2013 June 2013 2 with mother /1 with father 6 months July 2013 August 2013 3 with father 2 months [ 7 ] The father agrees with the

schedule above except he asserts that during the period between April 2010 to July 2012, the parties had a shared parenting

schedule (50/50) with the younger two children while the oldest child was living with him. The mother asserts that the younger two children were in her primary care during that period. Other than this disagreement, it is not disputed that the above material changes to the children’s living arrangements occurred after 2009. [ 8 ] The father fell into arrears for a period of 21 months when he lost his employment and the mother filed the parties’ separation agreement with the Family Responsibility Office. The mother withdrew from FRO in January of 2012, but then re-enrolled in 2013.

It is unclear what FRO states the arrears are currently as apparently two statements of arrears were issued by the agency with significantly different amounts, one at approximately $30,000.00 and a more recent statement showing $3,000.00 owing, although no arrears were paid. [ 9 ] The father moved to Vancouver, British Columbia in the summer of 2012 for employment. He is currently residing there with his common law partner. The oldest child remained with the mother and all three children were primarily residing with the mother until the summer of 2013.

The middle child William moved to Vancouver in the summer of 2013 to live with his father, with this arrangement to be reviewed. [ 10 ] William continues to live with the father in British Columbia and the two children, Nicholas and Eric, are living with the mother in Ontario. The parties entered into temporary minutes of settlement on August 14, 2013 providing that the father shall pay child support to the mother in the amount of $775.00 per month.

This is the set-off amount for two children with mother and one child with father, based on the parties 2012 incomes of $77,000.00 for the father and $32,000.00 for the mother. [ 11 ] Currently, the father is earning $126,000.00 per annum, according to the most recent information received. The mother is earning approximately $32,000.00 per annum according to the most recent information received. At this time, the court does not know if the parties have readjusted the child support owing by the father based on his increased income.

The Applicant Father’s Position: [ 12 ] The father submits that there should be no amount of child support arrears owed by him to the mother. [ 13 ] The father asserts that the appropriate method of calculating child support owing should be based on the amounts agreed to in the parties’ separation agreement.

According to the father, it is not appropriate to use the mother’s deflated line 150 income from 2009 onwards as it was acknowledged that the mother had significant income that was not declared at the time of the separation agreement. [ 14 ] He further submits that the mother erroneously filed a statement of arrears that provided for the full amount of $1,500.00 to be paid by the father even when the oldest child was living with him and the parties had a shared arrangement with respect to the other two children. [ 15 ] The father prepared a detailed chart attached to his written submissions of all of the expenses that he paid for the children, which he deemed were

section 7 expenses. According to the father, he has paid the sum of $47,327.06 in

section 7 expenses and other basics such as closing and haircuts for the children without contribution from the mother. He states that the mother agreed to contribute to these expenses and then refused to after they were paid. [ 16 ] The father also submits that he has paid all of the children’s travel expenses from Burlington, Ontario to Vancouver and for other holidays. The Respondent Mother’s Position : [ 17 ] The mother submits that the support arrears owed to her are well over $20,000.00 if the Child Support Guidelines are applied.

She asserts that the appropriate method to calculate the child support owing is to use the line 150 of each party’s income tax return and to apply the Child Support Guidelines. According to the mother, it is no longer appropriate to rely upon the amounts reached in the agreement based on the income set out for both parties, nor is it appropriate to base the support on income imputed to her of $30,000.00, given the change in circumstances. The amount negotiated was not based on fact or her income tax returns. [ 18 ] She further submits that the parties should contribute to

section 7 expenses in a proportion to each parent’s income given the significant disparity in income, and that both parties should agree to the expense being incurred. According to the mother, the father’s unilateral enrollment of the children in activities was not based on any discussion or agreement with the mother. The expenses he chose to incur should not be used to set off the child support arrears given her very limited budget. She cites as an example the cost of a golf membership for the children.

She states that the father unilaterally enrolled the children in golf memberships and then expected her to pay one half of this expense. [ 19 ] If using the line 150 income for the father, then the mother asserts that she should have received child support for each year as follows:

YEAR SUPPORT OWED2009 $6216.2010 $13,158.2011 $4,188.2012 $9,304.2013(to August) $14,296.TOTAL $47,162. [20] The mother acknowledges receiving the sum of $24,150 between 2009 to August 2012 from the father, so whendeducted from the above, the mother submits that the arrears of support should be fixed at $23,012. The Law and Analysis: [21] The issue that I must determine is first, if any, arrears of child support are owed by the father. If so, how much, ifany, arrears should be paid by the father to the mother. [22] I conclude that there are arrears owing.

The change in the children’s living arrangements after the parties’separation agreement constituted a change in circumstances which warrant a review of the child support in the agreement. An applicationor motion to change child support as a result of a change in circumstances is governed by subsections 37(2.1) and 37(2.2) of the FamilyLaw Act:

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

a) discharge, vary or suspend a term of the order, prospectively or retroactively; (

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.

(2.2) Application of child support guidelines. -- A court making an order under subsection (2.1) shall do so in accordance with the childsupport guidelines. [23] The court has discretion under section 37 (2.1) (

a) of the Family Law Act to retroactively recalculate support basedon the correct income information (as opposed to imputed income), once it has found that there has been a change in circumstances. SeeTrembley v. Daley, 2012 ONCA 780 . This is permitted by s. 37 (2.1) of the Family Law Act.

The changes in circumstanceswarrant a review and change of the provision in the separation agreement, as they are not in line with governing principles as establishedby the Child Support Guidelines. [24] The court also has the jurisdiction to rescind arrears under appropriate circumstances. [25] Even if I accept that the mother’s income remains imputed at $30,000.00, and that during the 28 month period fromApril 2010 to July 2012, there was a shared parenting arrangement for the two younger children while the older child lived with thefather, the father would still owe child support arrears of $8,346.00, according to Divorcemate calculations, taking into consideration the$24,150.00 in support received from the father (the total owed would have been $32,491.00). [26] If I did not accept that the parties had a shared parenting arrangement for the two younger children during the 28month period above, but still imputed income to the mother at $30,000.00, then the father would still owe $19, 446.00, again taking intoaccount the $24,150.00 received (the total owed would be $43,596.00). [27] If I accepted the mother’s position that the child support should be calculated at both parties’ line 150 income afterthe change in the children’s circumstances, as set out in the chart at paragraph 15, then the arrears would be more in line with themother’s position of $20,000.00, even if I accept the father’s position that the living arrangement for the two younger children wasshared from April 2010 to July 2012. [28] This does not take into account the

section 7 expenses that the father states he had paid. I have carefully reviewedthe chart prepared by the father. Many of the expenses claimed, such as clothing, haircuts, underwear, airfare, vacation, shoes, schoolsupplies, and cash are not

section 7 expenses. The braces and dental expenses are appropriate

section 7 expenses. The golf membershipmay well be a

section 7 expense but the mother states that she did not agree to pay for one-half of that expense because she could notafford it and the father unilaterally enrolled the children without her consent. Even if she did consent, the parties’ incomes aresignificantly unequal and the contribution to this expense should be proportionally based on their incomes, in accordance with

section 7of the Child Support Guidelines. [29] The list of special and extraordinary expenses under clauses 7(1) (

a) to (

f) is exhaustive. If a claim does not fallwithin any of the listed categories, then it must be dismissed. See Kilrea v. Kilrea (1998), 82 A.C.W.S. (3d) 952, [1998] O.J. No. 3677,75 O.T.C. 269, 1998 CarswellOnt 3652 (Ont. Gen. Div). The onus is on the parent seeking the special or extraordinary expenses toprove that the claimed expenses fall within one of the categories under

section 7 and that the expenses are necessary and reasonable,having regard to the parental financial circumstances. See Park v. Thompson, , 77 O.R. (3d) 601, 197 O.A.C. 158,

252 D.L.R. (4th) 730, 13 R.F.L. (6th) 415, [2005] O.J. No. 1695, 2005 CarswellOnt 1632 (Ont. C.A.). [30] Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount ofsupport. See Smith v. Smith (1997), 75 A.C.W.S. (3d) 703, [1997] O.J. No. 4833, 48 O.T.C. 316, 1997 CarswellOnt 4493 (Ont. Gen.Div.), paragraph [14] and [16]; D'Urzo v. D'Urzo (2002), (ON SC), 30 R.F.L. (5th) 277, [2002] O.J. No. 2415,[2002] O.T.C. 419, 2002 CarswellOnt 2104 (Ont. S.C.); Park v. Thompson, supra; Zimmerman v. Doe, , 159A.C.W.S. (3d) 407, [2007] O.J.

No. 2896, 2007 CarswellOnt 4721 (Ont. S.C.). [31] It is also clear from the case law that a parent does not have carte blanche to enrol a child in any number of extra-curricular activities and then to look to the other parent to share all of the costs. See Forrester v. Forrester, , 73A.C.W.S. (3d) 479, 11 O.F.L.R. 61, [1997] O.J. No. 3437, 1997 CarswellOnt 3212 (Ont. Fam. Ct.), paragraph [4]; Zimmerman v.

Doe,supra. [32] In my view, if applying the Child Support Guidelines, the child support arrears would be calculated at $20,000.00. [33] However, it is well settled law that the court has the discretion to reduce child support arrears owing, depending onthe circumstances of the case. The Court of Appeal indicates that the discretion to reduce arrears must be exercised judicially. InDiFrancesco v. DiFrancesco (ON CA), [2001] O.J. No. 4307 (Ont.

C.A.) sets out the following factors to beconsidered: a. the nature of the obligation to support, whether contractual, statutory or judicial; b. the ongoing financial capacity of the payor; c. the ongoing need of the custodial parent and the dependent child; d. unreasonable and unexplained delay on part of the custodial parent in seeking to enforce payment of the obligation,tempered, however, in the case of child support with the fact that such support exists for the child's benefit, is charged with acorresponding obligation to be used by the custodial parent for the child's benefit and cannot be bargained away to the prejudice of thechild; e. unreasonable and unexplained delay on the part of the payor in seeking appropriate relief from his obligation; and f. where the payment of substantial arrears will cause undue hardship, the exercise of the court's discretion on looking at thetotal picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of Mr.

Jackson, to grant ameasure of relief where deemed appropriate. [34] Some courts have now held that the four main factors to consider when making a retroactive support order set outin the Supreme Court of Canada’s decision in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v.Hiemstra, 2006 SCC 37, (the recipient's reason for the delay in enforcement, the conduct of the payor, the circumstances of the children,and any undue hardship caused by the award) apply equally to claims to reduce or rescind support arrears. See: Galloway v. Cassino(Barrett) 2008 ONCJ 577; H.F. v. P.

F., 2007 ONCJ 170. [35] I have carefully reviewed all of the circumstances of this case, including the financial capacity of both parties, thefact that William is now living with his father, and the additional expenses paid by the father, including some of the

section 7 expenses. Ihave also considered the travel expenses paid by the father for the children, although I note that it was the father’s decision to relocate toVancouver, at a great distance from the children. I conclude that the arrears should be fixed at $10,000.00. Conclusion: [36] This Court makes the following final order: 1. Child support arrears owed by the father for the time period from 2009 to August 1, 2013, shall be fixed at $10,000.00. Thisamount shall be paid in a lump sum no later than 30 days from the date of this order, or payable at a rate of $400.00 per month,commencing July 1, 2014. 2.

The Family Responsibility Office shall adjust their records accordingly. 3. If either party seeks costs, then brief written submissions, including a bill of costs and offers to settle should be served and filed nolater than July 2, 2014. __________________________ Justice S. O’Connell DATE: May 31, 2014