Wright v. Christie, 2011 ONCJ 109

Toronto (North York) Registry No. DR-52433-10 DATE: 2011·III·07 CITATION: Wright v. Christie , 2011 ONCJ 109 ONTARIO COURT OF JUSTICE BETWEEN: GERTRUDE WRIGHT, Applicant, — AND — KEVIN CHRISTOPHER CHRISTIE, Respondent. Before Justice Stanley B.

Sherr Heard on 3 March 2011 Reasons for Judgment released on 7 March 2011 CONFLICT OF LAWS — Support of dependants — Choice of law — Quantum of support — At confirmation hearing, Ontario court noticed that quantum of child support in provisional order made in England was significantly higher than amount that payor father would be required to pay under Ontario law — It appeared, however, that English court had almost no information about father’s income when it made its provisional order, whereas Ontario court had benefit of evidence about father’s income — In any event, Ontario statute ( Interjurisdictional Support Orders Act, 2002 ) required that confirming court in Ontario apply Ontario law (in this case, Child Support Guidelines ) for assessing quantum of child support — Accordingly, Ontario court’s confirmation order was based on table amount set out in Child Support Guidelines , depending on father’s income bracket — There was no dispute about his income last year but evidence for his income for current year was sketchy — Most recent paystub recorded his earnings for first 7 weeks of year, but that figure was inflated by overtime pay that was unlikely to continue into rest of year — Because of inability to project his income for current year, court resorted to averaging formula in subsection 17(1) of Guidelines and settled upon $42,000 as fair and reasonable figure for his income bracket, for which Guidelines prescribed monthly table amount of $636 for 2 children.

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

section 7 and subsection 17(1). Family Law Rules , O. Reg. 114/99 [as amended], subrule 37(8) . Interjurisdictional Support Orders Act, 2002 , S.O. 2002, c. 13, subsection 8(2), clause 11(1)( b ),

section 13 , subsection 14 (1) and subsection 14(2) . CASES CITED Vanos v. Vanos , 2010 ONCA 876 , [2010] O.J. No. 5539, 2010 Cars​well​Ont 9680 (Ont. C.A.). No appearance by or on behalf of the applicant, Gertrude Wright Pamela S. Jacobson ............................................................... duty counsel, assisting the respondent JUSTICE S.B. SHERR:— 1: INTRODUCTION

[ 1 ] The applicant has brought a support application for the children, Jada, born on 15 January 1997, and Kade, born on 3 January 2003, pursuant to

Part II of the Interjurisdictional Support Orders Act, 2002 , S.O. 2002, c. 13 (the Act). The applicant is the maternal grandmother of the children. [ 2 ] The respondent is the father of the children. The mother of the children died on 28 December 2004. [ 3 ] The applicant obtained a provisional order in the Family Proceedings Court in Manchester City, England, on 24 August 2010 (the Manchester order). This order requires that the respondent pay child support to the applicant in the sum of 310 pounds sterling per child [1] until the children cease full-time education.

The Manchester court did not provide reasons for its decision to this court. [ 4 ] The provisional order, together with supporting documentation, was forwarded by the designated authority in England to the designated authority in Ontario (the ISOA Unit — Family Responsibility Office), for the purpose of facilitating this application, with a request that the provisional order be confirmed pursuant to the Act . [ 5 ] The respondent was served with this application on 13 December 2010. He sought an oral hearing pursuant to subrule 37(8) of the Family Law Rules , O. Reg. 114/99, as amended.

This request was granted. [ 6 ] This hearing was held on 3 March 2011. I reviewed the documentation sent from England, which included a signed deposition of the applicant’s evidence, the applicant’s statement of means, a statement of grounds upon which the making of the Manchester order could have been opposed and the provisional order. I also reviewed the affidavit of the respondent sworn on 14 February 2011, his financial statement and answer to application.

The court heard viva voce evidence from the respondent. 2: THE EVIDENCE [ 7 ] On 5 October 2006, the mother’s cousin, Denise Evans, obtained an order for custody of the children from Justice Juliet C. Baldock of the Ontario Court of Justice in Peel. The court also ordered no access to the respondent and permitted Ms. Evans to travel with the children outside of Canada or to authorize that the children could travel outside Canada with the applicant. [ 8 ] Justice Baldock imputed income of $27,000 per annum to the respondent and ordered him to pay Ms.

Evans child support of $403 per month pursuant to the Ontario Child Support Guidelines , O. Reg. 391/97, as amended (the guidelines). [ 9 ] The children moved to England to live with the applicant at some point in 2008. The respondent continued to pay child support to Ms. Evans. He was eventually notified by the Ontario Family Responsibility Office (FRO) that Ms. Evans had terminated the support order.

In November of 2008, the FRO refunded support that the respondent had paid after the termination of the order. [ 10 ] The respondent was unaware that his children were residing in England until he was served with this application. [2] He has not seen his children since 2006. [ 11 ] The respondent has been employed with Metro Canada Logistics since 7 September 2004 as a clamp operator. He earned gross income of $36,193 in 2007, $41,230 in 2008 and $37,103 in 2009. [ 12 ] The respondent’s gross income in 2010 was $27,655.82.

He missed 6 weeks of work in 2010 because of a lower back injury and a severe asthma attack. Because of his medical issues, he was not as available as he had been in previous years to accept overtime hours. The respondent provided acceptable evidence that his medical issues were legitimate. The court further accepts the respondent’s evidence that he received fewer overtime hours in 2010 because of the downturn in the local economy. [ 13 ] The respondent has been working full-time since the beginning of 2011. He earns $16.07 per hour for his basic hours and $24.10 per hour for overtime hours.

He filed his pay stub of 19 February 2011, which set out that he has earned gross income of $7,839.97 for the first 7 weeks of 2011. He testified that he has received an unusually high amount of overtime so far this year, but that the overtime hours will not continue at anywhere approaching the current pace. 3: ANALYSIS [ 14 ] This hearing was conducted pursuant to the procedure set out in

Part II — New Orders of the Act (Claimant outside of Ontario). [ 15 ]

Section 13 of the Act reads as follows: 13. Choice of law rules.— The following rules apply with respect to determining entitlement to support and the amount of support: 1. In determining a child’s entitlement to support, the Ontario court shall first apply the law of the jurisdiction in which the child ordinarily resides, but if the child is not entitled to support under that law, the Ontario court shall apply Ontario law. 2.

In determining the claimant’s entitlement to support, the Ontario court shall first apply Ontario law, but if the claimant is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence. 3. In determining the amount of support for a child or for the claimant, the Ontario court shall apply Ontario law. [ 16 ] Paragraph 3 of

section 13 of the Act sets out that the law of Ontario is to be applied in determining the amount of child

support to be paid by the respondent. [ 17 ] Subsection 14(1) of the Act provides this court with the authority to make a final support order. This court is not limited to the options of either confirming or rejecting the Manchester order. Subsection 8(2) of the Act sets out that the provisional order and documents received from the reciprocating jurisdiction form part of the support application for a new order. Clause 11(1) (

b) of the Act sets out that the provisional order and documents received from England form part of the information for this court to consider in making its order. [ 18 ] Subsection 14(2) of the Act permits this court to make a retroactive order. [ 19 ] The support amount in the Manchester order is significantly in excess of the amount that the respondent would be required to pay to the applicant pursuant to Ontario law. On the basis of the documents received from England, it appears that the Manchester court had virtually no information about the respondent’s income when making its decision.

This court had the benefit of evidence from both the applicant and the respondent to assess the amount of child support that should be paid. The amount of support in the Manchester order will not be confirmed. This court will make a new support order as set out in subsection 14(1) of the Act . [ 20 ] Child support is calculated in Ontario using the guidelines. The guidelines provide that the basic amount of child support to be paid (the table amount) depends on the respondent’s income and the number of children.

An examination of the applicant’s statement of means does not reveal any expenses that would qualify as special or extraordinary expenses under

section 7 of the guidelines, which would have required an analysis of the applicant’s income. [3] [ 21 ] This court finds that the respondent’s income in 2010 was $27,655.82. The guideline table amount for two children based on the respondent’s 2010 income is $412 per month. [ 22 ] The respondent, to his credit, suggested a start date of 1 September 2010 for his child support obligation.

I find that this is fair since the respondent did not receive a request for child support until he was served with this application on 13 December 2010, the applicant did not issue her claim in England or seek support from the respondent until 10 August 2010, the Manchester order does not include a start date for support prior to the date of the order (24 August 2010) and the applicant did not make a claim for retroactive child support in her application. [4] [ 23 ] Determining the respondent’s income from 1 January 2011 is a little more difficult.

Ontario courts generally use the most recent income information to assess income. See Vanos v. Vanos , 2010 ONCA 876 , [2010] O.J. No. 5539, 2010 Cars​well​Ont 9680 (Ont. C.A.). The difficulty here is that the year-to-date pay stub produced by the respondent in 2011 is for a very short time-frame and I accept the respondent’s evidence that it does not accurately reflect the overtime hours that he can expect to earn during 2011.

The respondent’s 2010 income is also of little help since medical and economic issues that no longer exist resulted in the respondent earning far less than his usual annual income. [ 24 ] If the court were of the opinion that the respondent’s most recent income tax return (2010) would not be the fairest determination of income, the guidelines provide that the court may examine the respondent’s income over the past three years and determine an amount that is fair and reasonable in light of his income pattern; see subsection 17(1) of the guidelines. [ 25 ] I have considered the respondent’s last three years of income (particularly the pattern of overtime), the absence of his medical limitations that existed in 2010, the fact that he has already earned significant overtime in 2011 and the recent improvement in the Canadian economy, [5] and determine that it is fair and reasonable to assess an annual income of $42,000 to the respondent for child support purposes starting on 1 January 2011. [ 26 ] The guideline table amount for two children at this income is $636 per month. [ 27 ] This order will automatically create child support arrears.

The respondent proposed that these arrears be repaid in the sum of $150 per month. His common-law spouse does not work and he helps support two of her children. In these circumstances, the repayment suggested by the respondent is appropriate. 4: THE ORDER [ 28 ] A final order will go on the following terms: (

a) The respondent shall pay the applicant child support of $412 per month commencing on 1 September 2010, for the two children based on his 2010 income of $27,655.82. (

b) The respondent shall pay the applicant child support of $636 per month on the first day of each and every month commencing on 1 January 2011 based on his ongoing income of $42,000 per annum. (

c) The arrears created by this order of $3,553 (= $412 x 4 months plus $636 x 3 months) may be repaid in the sum of $150 per month on the first day of each and every month commencing on 1 April 2011.