Fournier v. Grenier, 2011 ONCJ 487

North Bay Registry No. FC197-01 DATE: 2011·VIII·23 CITATION: Fournier v. Grenier, 2011 ONCJ 487 ONTARIO COURT OF JUSTICE BETWEEN: LORRAINE FOURNIER, Applicant, — AND — RENÉ GRENIER, Respondent.

Before Justice Louisette Duchesneau-McLachlan Reasons for Judgment released on 23 August 2011 SUPPORT ORDERS — Variation — Form of order — Retroactive adjustment of child support — Grounds — Blameworthy conduct ofpayor — Breach of payor’s duty to make annual disclosure of income — Eight years ago, court made consent order whereby payor fatherwas required to provide mother with copy of his annual income tax return and notice of assessment — Mother claimed that father neverprovided copies of those returns, but father testified that, 4 years ago, mother and her boyfriend instructed him to stop giving them anyfurther copies of his returns — Court observed that, 8 years ago, payor had willingly assumed specific obligations after gettingindependent legal advice when he signed signing minutes of settlement that became part of court order — Payor had to follow terms ofthat order because, without knowledge of his gross annual income from year to year, how else could mother make informed decisionwhether to ask for variation in support provisions? — He knew that he had to follow terms of order because, by his own testimony, hehad resisted mother’s request to make support payments directly to her rather than through Family Responsibility Office preciselybecause he wanted to follow letter of court order — Yet, he was now defending his failure to make annual income disclosure as orderedon grounds that he chose to follow mother’s alleged instruction rather than terms of court order — Under those circumstances,reasonable man would have consulted lawyer and, if necessary, gotten consent variation to previous order — Payor’s conduct in this casewas blameworthy and justified retroactive adjustment of his child support payments on basis of his income during relevant years.

CASES CITED Connelly v. McGouran, 2007 ONCA 578, 227 O.A.C. 121, 41 R.F.L. (6th) 1, [2007] O.J. No. 3201, 2007 Cars​well​Ont 5291 (Ont. C.A.). D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 351 N.R.201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J.No. 37, 2006 Cars​well​Alta 976. Marinangeli v. Marinangeli, , 66 O.R. (3d) 40, 174 O.A.C. 76, 228 D.L.R. (4th) 376, 38 R.F.L. (5th) 307, [2003] O.J.No. 2819, 2003 Cars​well​Ont 2691 (Ont. C.A.). Stamoulos v.

Pavlakis, 1999 BCCA 393, 126 B.C.A.C. 28, 67 B.C.L.R. (3d) 254, [1999] 12 W.W.R. 718, 206 W.A.C. 28, 175 D.L.R.(4th) 423, 50 R.F.L. (4th) 302, [1999] B.C.J. No. 1451, 1999 Cars​well​BC 1402 (B.C.C.A.). Walsh v. Walsh, , 69 O.R. (3d) 577, 183 O.A.C. 179, 46 R.F.L. (5th) 455, [2004] O.J. No. 254, 2004 Cars​well​Ont356 (Ont. C.A.). J.N. Marcel Léger .......................................................................... counsel for the applicant mother William A. Sangster .................................................................... counsel for the respondent father [1] JUSTICE L.

DUCHESNEAU-McLACHLAN:— These parties were married on 28 May 1994 and separated in March

of 2001. [ 2 ] The parties have two children. [ 3 ] In June of 2003, the parties agreed to the terms of a final order made by this court. [ 4 ] At the beginning of 2010, this matter was once again before the court for a variation. [ 5 ] As a result of the intervention of the Office of the Children’s Lawyer, the issues of custody and access have been resolved. [ 6 ] Today, I heard evidence and submissions on the monetary issues. [ 7 ] The order of 26 June 2003 provided inter alia as follows: (

a) The respondent shall continue to pay child support for the children and shall pay the amount of $560.00 per month, commencing on 1 May 2003 and payable on the 1st day of each and every month thereafter, based on the respondent’s imputed income of $39,200.00 as the respondent’s income fluctuates between $36,000.00 and [the sum of] $42,000.00 annually. (

b) If the respondent’s income from all sources is less than $36,000.00 or more than [said] $42,000.00 it is deemed to be a material change of circumstances. (

c) The respondent has paid the lump sum of $650.00 to the applicant, representing his share of day- care costs from the parties’ date of separation to present. Accordingly, the respondent has no arrears of child support or extraordinary expenses that are owed to the applicant. (

d) The respondent shall pay to the applicant the sum of $33.00 per month, towards the extraordinary expenses of the children, payable in 12 monthly post-dated cheques, commencing on 1 June 2003. Any such add-ons herein are specifically excluded from enforcement by the Family Responsibility Office. (

e) The respondent shall provide to the applicant a copy of his annual income tax return and notice of assessment, if obtained, by 1 May of each and every year. (

f) Each party shall maintain the children on their medical/dental/drug benefit plan that is available through their respective employment. [ 8 ] The applicant testified that she had not received any of the respondent’s tax returns or notices of assessment as required save and except through this litigation. [ 9 ] The respondent testified that he had provided the applicant with his tax returns for the years 2004, 2005 and 2006 but that the respondent and her then boyfriend had told him that they were doing okay and that he did not have to produce his returns for 2007 or any future years. [ 10 ] The applicant testified that she had a house fire and therefore could not produce anything that the respondent may have given her prior to the fire. [ 11 ] The applicant further testified that she had often, indeed on almost every access exchange, requested further help from the respondent. [ 12 ] The respondent denies this, although he does acknowledge that, in September of 2008, the applicant did tell him she needed more financial help. [ 13 ] The respondent explains that he did not come through for her since this request was made at the time that his daughter admitted to him that she had given false statements to the police against him regarding allegations of sexual assault against him involving herself and with the knowledge of her mother. [ 14 ] The respondent indicated that he was outraged at this disclosure since he and his family had been through a very bad experience as a result of these allegations and in fact that he had to agree to supervised access as a result of these allegations. [ 15 ] The respondent admits that he should have looked at a variation as of September of 2008. [ 16 ] As to the monthly payment of $33 for extraordinary expenses, the applicant claims to have received this sum for 20 months and the respondent states that he paid for a least two years or 24 months. [ 17 ] The respondent claims that he stopped payment as the children were no longer in any extracurricular activities and as the recipient never asked for more cheques. [ 18 ] The respondent also testified that he had discontinued the health benefits for the two children as advised by his employer’s insurance plan since he would have to pay $1,500 per year for this coverage when the mother had similar coverage for the children. [ 19 ] Upon being advised by his then lawyer, Judy Shea, that it was his obligation to pay for such coverage, after this motion to change was commenced in 2010, the respondent states that such coverage was reinstated. [ 20 ] I should also note at this point that, in August of 2010, this court varied the ongoing support to $725 per month for two children commencing on 1 August 2010 based on gross annual income of $48,002 as indicated by the then counsel for the respondent. [ 21 ] Mr.

Léger, on behalf of his client, referred this court to the decision of the Ontario Court of Appeal in Connelly v.

McGouran, 2007 ONCA 578, 227 O.A.C. 121, 41 R.F.L. (6th) 1, [2007] O.J. No. 3201, 2007 Cars​well​Ont 5291 (Ont. C.A.). The court,upon rendering its judgment, relied on Walsh v. Walsh, , 69 O.R. (3d) 577, 183 O.A.C. 179, 46 R.F.L. (5th) 455,[2004] O.J. No. 254, 2004 Cars​well​Ont 356 (Ont. C.A.); Marinangeli v. Marinangeli, , 66 O.R. (3d) 40, 174 O.A.C.76, 228 D.L.R. (4th) 376, 38 R.F.L. (5th) 307, [2003] O.J. No. 2819, 2003 Cars​well​Ont 2691 (Ont. C.A.); Stamoulos v.

Pavlakis, 1999BCCA 393, 126 B.C.A.C. 28, 67 B.C.L.R. (3d) 254, [1999] 12 W.W.R. 718, 206 W.A.C. 28, 175 D.L.R. (4th) 423, 50 R.F.L. (4th) 302,[1999] B.C.J. No. 1451, 1999 Cars​well​BC 1402 (B.C.C.A.); and the majority judgment of Justice Michel Bastarache for the SupremeCourt 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, [2006] 2S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L.(6th) 1, [2006] S.C.J. No. 37, 2006 Cars​well​Alta 976, as quoted in Connelly v.

McGouran. [22] It is clear that a court must “pay significant emphasis” on the payor’s conduct in determining the extent of retroactivitythat must be applied.

How can a recipient make an informed decision on whether to request a change in support provisions withoutknowledge of the payor’s gross annual income from year to year? [23] When a payor has agreed to specific obligations upon receiving independent legal advice by signing minutes of settlementthat are subsequently approved by a court and given effect by way of a court order, that payor must follow the terms of the order. [24] In this case, the respondent testified that the applicant wanted him to give her a cheque and that he would not do sobecause he made his payments through the Family Responsibility Office and that he wanted things to be done right and according to thelaw. [25] How then can this same respondent claim that he did not follow the court order because the recipient just told him not toprovide his tax returns?

One would think that a reasonable man would have consulted with his lawyer and if necessary obtained aconsent variation to the 2003 order. [26] Furthermore, although the respondent denies receipt of two written requests for proof of income in October andDecember of 2007, the recipient was able to show a post office receipt signed by him for her request of 1 June 2009 and he himselftestified as to the request in September of 2008. [27] As to child support, I therefore accept the calculations presented by Mr.

Léger on behalf of his client so that I fix theamount of arrears of child support from 2003 to 31 December 2010 at $14,872.

These arrears shall be paid at the rate of $200 per monthstarting on 1 September 2011. [28] On the basis of his present gross annual income of $54,129.00, the respondent shall pay the sum of $814.00 per month fortwo children starting on 1 January 2011 by way of ongoing support. [29] With respect to extracurricular activities, the June 2003 order shall be maintained so that the respondent shall continue topay $33 per month to the applicant but through the Family Responsibility Office starting on 1 September 2011.

I calculate the arrears asof today as being $2,630 since I am giving the respondent credit for 24 months. The respondent is expected to pay this sum at the rate of$50 per month, starting on 1 September 2011. [30] I am satisfied that the respondent has been assisting the children with activities and transportation for same and that manyexpenses claimed by the recipient are not to be considered extraordinary.

They are ordinary expenses to be covered through the ongoingchild support. [31] I note that the recipient has been receiving monthly sums through a disability pension for her daughter who has beendiagnosed with juvenile diabetes. She notes that, at present, this sum is $430 monthly although it varies from time to time. As Iunderstand, this monthly amount is meant to cover any expenses in relation to the daughter’s health issues that are not covered by theProvince’s health insurance or the parties’ additional insurance through their employers. [32] There shall be a support deduction order.

Any standard clauses are to be included in the final order.