2011 ONSC 5701, 2011 ONSC 5701

CITATION : Nicholls v. Nicholls, 2011 ONSC 5701 COURT FILE NO.: 3485/11 MOTION HEARD: 2011/09/26 SUPERIOR COURT OF JUSTICE - ONTARIO RE: THOMAS EDWARD NICHOLLS , Applicant AND: MARION DARLENE NICHOLLS (WARRINGTON) , Respondent BEFORE: Turnbull, J. COUNSEL: No One appearing for the Applicant Respondent appearing in person HEARD: September 26, 2011 REASONS FOR PROVISIONAL ORDER [ 1 ] The respondent, who resides in Welland Ontario, has brought a motion seeking a Provisional Order pursuant to the Divorce Act , R.S.C. 1985, c. 3 as amended.

She is seeking a variation of the order of Little J. dated June 5, 2003 made in the Court of Queen’s Bench (Family Division) at Selkirk Centre, Manitoba and in particular, a retroactive variation of child support she has been ordered to pay to the applicant. [ 2 ] Little J. ordered the respondent to pay child support to Mr.

Nicholls pursuant to the Manitoba Child Support Guidelines in the amount of $417.00 monthly, commencing June 1, 2003 for the three children of the marriage, who are Amanda Lee Marion Nicholls born November 16, 1989 (now age 21), Stephanie Jessica Junne Nicholls born March 28, 1991 (now age 20), and Sarah Christine Elizabeth Nicholls born March 18, 1992 (now age 19). [ 3 ] That child support was based on the income of the respondent being $22,400.00. [ 4 ] During her sworn, viva voce testimony, Ms. Warrington (formerly Ms.

Nicholls, the named respondent) presented to the court a statement from the Director of Family Responsibility Office (entered as exhibit 5) indicating that the arrears owing to this date under the order of Little J. are $28,669.35 plus a Director’s administration fee of $800.00 for a total owing of 29,469.35. [ 5 ] Ms. Warrington gave evidence under oath.

She has sworn that her income, as verified by her Canada Revenue Agency Notices of Assessment found at tab 3 of the Motion Record are as follow: 2007 --$24,215.00 2008 --$35,817.00 2009 --$24,511.00 [ 6 ] She provided the court with a copy of her 2010 Tax Return (exhibit 4) which has been filed but she has not received a Notice of Assessment from CRA to the time of this hearing. In that document, she swore her income in 2010 was $13,492.14. [ 7 ] Ms. Warrington testified that at the present time, she works part time through a temporary placement agency called Erie Personnel.

She testified that in 2010 she was on Social Assistance for part of the year and worked eventually on a temporary placement basis through Erie. She also attempted to resume school to qualify herself as a Registered Practical Nurse but in due course learned that she did not qualify for the financial funding she needed to pursue that educational endeavour. [ 8 ] In 2007, she testified she worked part of the year for a paint contractor and then was hired at a company called DMI. She worked at DMI through 2008 until she was laid off early in 2009. Thereafter, she received Employment Insurance benefits in 2009.

Amanda [ 9 ] She submitted to the court that the child support order should be retroactively varied to July 1, 2007 when her daughter Amanda ceased living with the applicant. She recalled that Amanda came and resided with her in 2006 when Amanda was living on the street. Amanda lived with her for about five months. This is verified by exhibit 1, which is letter from Eastdale Secondary School in Welland Ontario indicating that Amanda was a student at that school from October 16, 2006 to February 21, 2007. Ms.

Warrington stated that Amanda then returned to Manitoba and lived with her father until she graduated from high school on June 28, 2007. That date of graduation is verified in exhibit 2. [ 10 ] Ms. Warrington testified that Amanda then moved from St. Anne Manitoba and began co-habiting with her boyfriend in Anola Manitoba. [ 11 ] Hence, she submitted that effective July 1, 2007, her obligation to pay child support should have been reduced from the

amount payable for 3 children to 2 children. Stephanie [ 12 ] Ms. Warrington testified that Stephanie has not lived with her father since she was 16. She recalled that Sarah and Stephanie came to spend the summer with her in 2007. When Stephanie left Welland to return to Manitoba at the end of August 2007, her boyfriend was to pick her up at the airport and she went to live him in Richer Manitoba. She stated that they just broke up in the past year. However, she was certain that from the end of August 2007 to the present date, Stephanie has not lived with her father.

Stephanie was able to continue her studies at St. Anne Collegiate as it is only 10-15 minutes from Richer Manitoba. As evidenced in exhibit 2, she graduated from high school on July 1, 2010 and at the present time she is working at Domo Gas Bar and is not attending school. Sarah [ 13 ] Sarah also graduated on July 1, 2010 from St. Anne Collegiate according to exhibit 2. [ 14 ] Ms. Warrington stated that in 2007, when Stephanie and Sarah came to Welland to visit for the summer, Sarah intended to stay on and reside in Welland.

She thus registered in school at Welland Centennial Secondary School from September 4, 2007 to Oct 12, 2007 as evidenced by exhibit 3. When she returned to Manitoba in late October, she lived with her father in the town of Richer which was about a 10 to15 minute drive to St.Anne Collegiate. Ms. Warrington believes that Sarah continued to live with Mr. Nicholls until she moved out to live with her boyfriend approximately 6 months ago. She estimated that occurred in April 2011 and that Sarah continues to live with her boyfriend. At this time, Sarah is neither working or going to school.

Analysis [ 15 ] On the evidence before the court as found in the Director’s Statement of Arrears, the child support arrears payable by the respondent on July 1, 2007 was $20,650.00. That figure includes the credit of $417.00 due on the first day of July 2007 which should be deducted to leave a net owing of $20,233.00. [ 16 ] Thereafter, pursuant to the Child Support Guidelines under the Divorce Act in 2011, Ms. Warrington should have paid the sum of $363.00 per month for July and August, 2007 for only two children, as Amanda had moved out of her father’s home.

Thus, the total owing as of August 31, 2007 was $20,959.00. While the Stephanie and Amanda were visiting their mother in Welland that summer, child support for them would ordinarily still be payable. [ 17 ] In September, Stephanie stopped living with her father. Sarah lived with Ms. Warrington in Welland as evidenced by her registration in high school in this city. Hence, no child support was payable in September 2007 and October 2007. Sarah returned to live with her father sometime late in October. [ 18 ] Therefore, effective November 1, 2007, Ms.

Warrington should only have been responsible to pay child support for Sarah as she was the only daughter living with her father.

Under the Child Support Guidelines under the Divorce Act in 2011, the amount of child support payable for Sarah would be as follows: November and December, 2007 based on payor’s income of $24,215.00: $205.00 per month or $410.00 in total. 2008 based on payor’s income of $35,817.00: $332.00 per month or $3,984.00 for the year. 2009 based on payor’s income of $24,511.00: $217.00 per month or $2,604.00 for the year. 2010 based on payor’s income of $13,492.14: $95.00 per month or $1140.00 for the year. 2011 based on the payor’s 2010 income of $13,492.14: $95.00 per month or $380.00 for the first four months of the year to the end of April 2011 when Sarah moved out of her father’s home. [ 19 ] The total that should then have been paid from November 1, 2007 to April 30, 2011 was $8,138.00.

Without giving credit for amounts paid in that period, the total owing is $29,302.00.

From July 1, 2007 to present, the respondent has paid child support in the amount of $12,630.65 according to the Director’s Statement entered as exhibit 5. [ 20 ] Thus, as of this date, pursuant to the order of Little J., the respondent is in arrears of her court ordered child support in the amount of $16,672.00. [ 21 ] As of April 30 th , 2011, based on the evidence heard by this court, the obligation of the respondent to pay child support should have terminated as none of the girls were dependant on their father and/or living with him. [ 22 ] I have reviewed the applicant’s financial statement filed in this matter which can be found in the Continuing Record.

She is clearly living very modestly and on limited income. She has asked that the court grant her leave to pay arrears of child support at the rate of $100.00 per month commencing the first day of October 2011 and I do not consider that to be unreasonable. It will require her to honour her child support obligations but not in such a way as to not permit her to support herself. [ 23 ] I do not feel that these arrears should be reduced. The respondent has not made a “hardship” application under the Child Support Guidelines.

Furthermore, in her candid testimony to the court, she admitted that she has procrastinated in bringing this matter forward for variation. [ 24 ] I also see no reason that she should not be responsible to pay the $800.00 Administration fee included in the Director’s

Statement in exhibit 5. Conclusion: [ 25 ] It is ordered provisionally that: a. The order of Little J. dated June 5, 2003, as it relates to the respondent’s obligation to pay child support for the children of the marriage, is terminated. b. The respondent shall pay arrears of child support to the applicant fixed in the sum of $16,672.00 plus $800.00 for the Administration fee of the Director of the Family Responsibility Office, in payments of $100.00 per month commencing the first day of October 2011. Turnbull, J. Date: September 30, 2011