Palache v. Patterson, 2011 ONCJ 97

Brampton Registry No. 1834/98 DATE: 2011·II·25 CITATION: Palache v. Patterson , 2011 ONCJ 97 ONTARIO COURT OF JUSTICE BETWEEN: MONIQUE PALACHE ( formerly Monique Patterson ), Applicant, — AND — DONOVAN PATTERSON, Respondent. Before Justice Juliet C.

Baldock Heard on 14 February 2011 Reasons for Judgment released on 25 February 2011 SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Deviation from table amount — Undue hardship — Evidence — Onus on claimant — Just over 2 years ago, court ordered father to pay monthly support for 2 children (now 18 and 12 years old), 50% of their special expenses and monthly reduction on arrears in special expenses — At that time, payor was married to 2nd wife with 2 children — Payor now made motion to vary ongoing support, special expenses and arrears in those expenses, claiming that he was no longer living with his wife and that his obligation to pay child support for 2 children of that union gave rise to undue hardship — But payor’s arrangement with 2nd wife was very informal — He had no valid court order or written separation agreement with her and those entries in his bank statements that were not redacted showed irregular or inconsistent amounts of withdrawal and could not show to whom money was paid — In fact, court doubted whether payor had actually separated from his 2nd wife at all — Payor failed provide enough evidence to demonstrate undue hardship within meaning of subsection 10(2) of Child Support Guidelines .

STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended],

section 7 , subsection 10 (2), clause 10(2) (

c) and clause 10(2)( e ). Monique Palache .................................................................................................. on her own behalf Donovan Patterson ............................................................................................... on his own behalf [ 1 ] JUSTICE J.C.

BALDOCK:— This is the respondent’s motion to change the order of Justice Jane Kerrigan Brownridge, dated 30 October 2008, with respect to the quantum of child support, the contribution to extraordinary expenses and arrears of extraordinary expenses accumulated under that order. [ 2 ] The order requires the respondent to pay the sum of $1,209.00 per month ongoing support for two children, namely Jasmine Patterson (“Jasmine”) (born on 30 July 1992, now 18 years of age) and Naithan Patterson (“Naithan”) (born on 31 May 1998, now aged 12), together with $100.00 per month for arrears of expenses under

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended, then owed and fixed in the amount of $3,637.78. In addition, he was to pay 50% of

section 7 expenses on a go-forward basis. At the time that order was made, the respondent was married to his second wife, Louise Patterson and resided with her and their young child Aidan as well as Zoe, his wife’s daughter from a previous marriage.

The respondent testified that he has since adopted Zoe. [ 3 ] The respondent’s position is that his circumstances have changed in that he is no longer living with his wife and is thereby obligated to pay child support for both Zoe and Aidan, giving rise to undue hardship. [ 4 ] He testified that, as of January 2009, he has been paying $1,700.00 per month to his wife, being a base of $1,200.00 plus $500.00 per month towards Aidan’s day care. He acknowledged that, in fact, Aiden is enrolled in a private school that provides

kindergarten and day care. [ 5 ] The applicant and the respondent are both teachers employed by the Dufferin Peel Catholic School Board. Although, since the commencement of this action, the respondent has quoted different figures as being his salary, there is no real issue with respect to his annual income, which is the same as or approximately equal to that of the applicant, the current amount being approximately $92,000.00.00 per year. [ 6 ] The guideline amount payable for two children is $1,316.00 per month. The respondent’s claim raises two issues: 1.

Does the respondent have an obligation to pay support for two other children? If so, does this constitute undue hardship? And should this serve to reduce the level of support from the guideline amount otherwise payable for Jasmine or Naithan or both? 2. Is the parties’ oldest child Jasmine entitled to be supported? If so, should it be at the same level as Naithan, given her age and circumstances? 1: THE RESPONDENT’S OBLIGATIONS TO ZOE AND AIDEN [ 7 ] The applicant clearly believes that the separation between the respondent and his wife is a fiction.

She testified to several family outings wherein the respondent took his other two children and their mother along with Jasmine and Naithan. She also questioned the respondent about a recent trip to Cuba that included his wife and two children. [ 8 ] The applicant called as a witness the respondent’s brother’s fiancée, Ms. Darlene Brown, to give evidence where the respondent has been living. I found Ms. Brown to be a credible and straightforward witness. I accept her evidence that the respondent stayed in the home that she [Ms. Brown] shares with her fiancé from the winter of 2008 to sometime in the fall of 2010.

He slept in their unfinished basement and made some financial arrangement with his brother to cover his expenses. She could not say whether the respondent had actually made any payments but believed the agreement was for $400.00 per month. She also said that there was no specific date when he ceased residing there but, rather in the fall, the respondent began staying elsewhere sporadically until he stopped living at her home altogether. She also said he was welcome there at any time. [ 9 ] Based on her testimony, I find that the respondent was indeed separated for the period that he resided at Ms. Brown’s home.

The respondent testified that, since moving out, he has been relying on the hospitality of family members, staying in various places for a few days at a time. He stated that he is currently living with his nephew and contributing whatever he can to that household. His nephew was not called to testify and thus the respondent’s true matrimonial situation and whether it is temporary or permanent remains unclear. [ 10 ] The respondent acknowledged that he went on a trip to Cuba in December 2010 and that he was accompanied by his wife and their children.

It is his position that, although separated, they continue to have a friendly relationship and do things together as a family. He states that the trip was financed largely by “Air Miles” points. When asked about a trip to the UK where he met up with his other family for a time, he said that this was paid for by family members, as was the car that he currently drives. [ 11 ] His credit card statements show payments for travel costs that precede the trips referred to.

He provided a somewhat convoluted explanation for this involving a prepaid Visa card, which I found questionable. [ 12 ] Subsection 10(2) of the Child Support Guidelines sets out certain situations that may give rise to undue hardship, including, at clause ( c ), any legal duty that the payor may have under a judgment, court order or written separation agreement for the support of any person and, at clause ( e ), any legal duty that the payor may have to support a child, other than the child who is the subject of the application, who is under the age of majority. [ 13 ] The respondent testified that his arrangement with his wife is a verbal agreement only and therefore he has been unable to provide a valid court order or written separation agreement. [ 14 ] He did produce a form of affidavit in his own handwriting, bearing a signature that appears to be “Louise Patterson” but it is undated and unsworn.

It is therefore of no evidentiary value. [ 15 ] As evidence of his ongoing payments to his wife, he also produced copies of bank statements with many redacted entries. The visible entries do not show a regular or consistent amount of withdrawals nor does it show to whom the funds were paid. [ 16 ] I find that the respondent’s claim does not fit within the parameters of clause 10(2) (

c) of the Child Support Guidelines . [ 17 ] I accept that he has an obligation to support his two children Aiden and Zoe but that obligation existed at the time that the previous order was made. He may have been separated since sometime in late 2008, but the obligation itself is insufficient for the court to conclude that undue hardship exists without both a clear quantification of that obligation and a comparison of household incomes. [ 18 ] The respondent has not provided the court with sufficient evidence to establish his obligation to his second family at the level of $1,700.00 per month.

If he is paying that amount voluntarily, he is to be commended for doing so, but that does not satisfy the requirement that his obligation is in that amount. Factors such as the degree of shared parenting and his wife’s income for the purposes of determining contributions to extra expenses would have an impact on the actual amount of his obligation. [ 19 ] The applicant has raised the issue of whether the respondent is in fact legally obligated to support Zoe. The respondent did not produce any court document confirming that he adopted her but, in this regard, I accept his evidence and, in any event, even if he

had not adopted the child, he would be obligated to support her if he had demonstrated a settled intention to treat her as his own child. [ 20 ] I have no doubt that meeting his obligations for his two families is onerous. However, in the absence of any court order or signed separation agreement, I consider only the respondent’s obligation for the payment of guideline child support without regard to any “add on” or

section 7 expenses. Furthermore, I am not persuaded that the respondent continues to be separated as he gave no satisfactory reason for moving out of Ms. Brown’s home when clearly he would still be able to stay there if he wished. In short, the respondent has not provided sufficient evidence to demonstrate undue hardship within the meaning of subsection 10(2) of the Child Support Guidelines . 2: JASMINE’S CURRENT CIRCUMSTANCES [ 21 ] I accept the evidence of both parties that their daughter is a very talented and accomplished athlete. She has secured a scholarship to a university in Springfield, Massachusetts.

The total amount that she receives is $35,000.00 a year. This covers most of her tuition and residence. However, the applicant has had to pay the balance of the fees and Jasmine’s books as well as providing her with a modest allowance and a cellular telephone, equipped for text messaging only, during the school year.

The applicant seeks, among other things, a 50% contribution from the respondent for these items which, exclusive of travel, cost approximately $6,300 per year. [ 22 ] I note that the difference between the child support payable for one and two children is $496.00. [ 23 ] Given that Jasmine is home for three months of the year and earns a modest income during that time, I find that her expenses, other than tuition and books are adequately covered by the base amount of child support and decline to order any ongoing contribution to such costs. 3: NAITHAN’S EXPENSES [ 24 ] He too shows promise in his field of hockey.

I accept that the current cost for this is $395.00 per year for the registration plus equipment and team fees. [ 25 ] Given the parties’ respective incomes, I find that this is a reasonable expense. The respondent should be contributing his share. 4: ARREARS OF

SECTION 7 EXPENSES [ 26 ] As to the amount claimed by the applicant for extra expenses incurred since the last court order, the respondent acknowledges that he has not made any payments whatsoever. To his credit, he appears to have kept the base amount up to date and there are no arrears owed save and except any amount remaining with respect to those fixed by that order. [ 27 ] As to the claim for payment of the arrears owed for

section 7 expenses, the respondent has received some benefit by virtue of the commencement date for the revised ongoing support, which will be effective on 1 March 2011 rather than being retroactive to the change in his income. He should therefore pay what is required of him pursuant to the existing order. The applicant filed material in support of her claim for arrears of

section 7 expenses which I calculate as follows: Jasmine — Year Expense Annual Cost Respondent’s contribution 2009 Soccer $195.00 $95.00 Track Club $450.00 $225.00 2010 Tuition/books* $1,433.00 $716.50 TOTAL: $2,078.00 $1,039.00 *First half for 2010-2011 academic year Naithan — 2009 Hockey $385.00 $192.50 Equipment $450.00 $225.00 In Line Hockey $195.00 $95.00 2010 Hockey $395.00 $192.50 Equipment $200.00 $100.00 Team Fees $1,100.00 $550.00 TOTAL $2,725.00 $1,362.50 I therefore fix arrears of

section 7 expenses owed by the respondent at $2,401.50. [ 28 ] As to ongoing

section 7 expenses, I accept that these are as follows:

Jasmine — Tuition, books, etc ., for balance of the 2010-2011 academic year $1.555.00 Tuition books for the first half of the 2011-2012 academic year $1,433.00 Total annual expense (to the end of the 2013-2014 academic year) $2,988.00 The respondent’s contribution being: $1,494.00 ($124.50 per month) Naithan — Hockey registration $395.00 Allowance for updating equipment $200.00 Team fees $1,100.00 TOTAL: $1,695.00 The respondent’s contribution being: $847.50 ($70.63 per month) [ 29 ] For these reasons, I make the following order: 1.

The order of Justice Kerrigan Brownridge, dated 30 October 2008 is hereby varied. 2. The respondent shall pay for the support of two children, Jasmine Patterson (born on 30 July 1992) and Naithan Patterson (born on 31 May 1998) the sum of $1,316.00 per month commencing on 1 March 2011 based on an income of approximately $92,000.00 per year. 3. Arrears of

section 7 expenses arising after 30 October 2008 are hereby fixed in the amount of $2,401.50. 4. The respondent shall continue to pay $100.00 per month, which is to be applied towards such arrears once the arrears fixed by the order of 30 October 2008 have been paid in full. 5. Commencing on 1 March 2011, the respondent shall, in addition, pay $197.50 per month for the following

section 7 expenses: (

a) for Jasmine, $124.50 per month; and (

b) for Naithan $73.00 per month. 6. Payment of guideline child support and ongoing

section 7 expenses for Jasmine shall terminate in the event Jasmine ceases to attend a full-time programme of education or on 31 May 2014, whichever first occurs. 7. The applicant shall keep the respondent informed as to Jasmine’s progress and attendance at school and shall notify him in the event of any change in her academic status. 8. The applicant shall provide the respondent with copies of receipted invoices or other proof of payment for all the above noted extra expenses as and when such costs are incurred. 9. There shall be no order as to costs.