Kelly v. Davis, 2011 ONCJ 685

Milton Registry No. 275/10 DATE: 2011·III·22 CITATION: Kelly v. Davis , 2011 ONCJ 685 ONTARIO COURT OF JUSTICE RE: KELLY, Angus Francis Joseph – applicant DAVIS, Diane Ruth – respondent BEFORE: Justice Sheilagh M. O’Connell HEARD: March 21, 2011 E N D O R S E M E N T [ 1 ] JUSTICE O’CONNELL ( endorsement ):— This is my decision on an Interjurisdictional Support Orders Act (ISOA) variation application brought by the applicant, Angus Francis Joseph Kelly, heard on March 21, 2011. [ 2 ] The applicant, Mr. Angus Francis Joseph Kelly, seeks to vary the final order of Justice D. R.

Main of the Ontario Court of Justice, dated April 26, 1993. Mr. Kelly resides in New Brunswick and the Respondent, Ms Kelly Davis, and the child, Michael Leslie Davis (“Michael”), born October 2, 1991, reside in Ontario, hence Mr. Kelly’s variation application under the ISOA. [ 3 ] New Brunswick is a reciprocating jurisdiction under the ISOA and this court has jurisdiction to consider the variation of an Ontario provincial court order made under provincial legislation. The respondent was served and filed responding materials.

She has attended all court hearings in this matter. [ 4 ] The application was adjourned on several occasions to permit the applicant, Mr. Kelly, to comply with the order of Justice Wolder, dated August 31, 2010, to provide financial disclosure for the years 1993 to 2006, inclusive, since he is seeking to reduce his child support payments (and arrears owing) for that period of time. Mr. Kelly has, as of February 22, 2011, provided that financial disclosure, in accordance with the Order of Justice Wolder. The matter was adjourned to March 22, 2011 to permit Mr. Kelly to properly serve Ms.

Davis with the disclosure provided and to attend the hearing and make submissions as Mr. Davis was requesting an oral hearing to make submissions. [ 5 ] Mr. Kelly was aware of the court date as he personally appeared in this court on January 17, 2011 and was aware that his application was being adjourned to February 22, 2011 to permit him to comply with Justice Wolder’s order. He did file his financial disclosure pursuant to Justice Wolder’s Order but failed to serve the disclosure filed on Ms Davis or attend court on February 22, 2011.

On February 28, 2011, a copy of the court’s February 22 nd endorsement was mailed to Mr. Kelly at his last known address, with notice of the March 21, 2011 hearing date, according to the Affidavit of Service prepared by the Clerk of the Ontario Court. On February 28, 2011, the Court Order was also faxed to the ISO Unit in Ontario with notice of the March 22 nd return date. Mr. Kelly did not attend court on March 21, 2011. [ 6 ] Pursuant to Rule 37(7) of the Family Law Rules , an application under the ISOA for support variation shall be decided on written documents unless the court orders otherwise. Mr.

Kelly did not request an oral hearing although he did not appear in court on one occasion. Ms Davis did not formally request an oral hearing, but she has filed responding materials and has attended court to make submissions on the evidence filed. The court is satisfied, based on the written documents filed, that the application can be dealt with justly based on the written evidence. The respondent made submissions on those documents. The applicant chose not to attend, despite being aware of the hearing date and that the respondent would be present to make submissions. The applicant’s claim:

[ 7 ] Mr. Kelly is seeking to vary the child support provisions of the order of Justice Main dated April 26, 1993 as follows: to vary the amount of unpaid support arrears owing under the order above and to terminate his obligation to pay child support to Michael Kelly, born October 2, 1991, effective January 1, 2010. Mr. Kelly does not set out the amount that he is seeking to have the arrears reduced to in his application. [ 8 ] Mr. Kelly is relying on the law of the jurisdiction hearing his case (Ontario), as he has clearly set out in his application. [ 9 ] Mr.

Kelly claims that the material change in circumstances since the order of Justice Main was granted is that he is now in receipt of Worker’s Compensation benefits in the amount of $18,300.00 per annum for a permanent long-term disability. He further submits that Michael, the child, is now 19 years of age (will be 20 years old in October of 2011) and that he is longer a minor and no longer pursuing his education, so therefore no longer entitled to child support. [ 10 ] Mr.

Kelly’s written evidence is that he was injured in a work-related accident in 2001 and has been unable to be gainfully employed since that time and has been receiving Worker’s Compensation benefits for the past 8 years. [ 11 ] As of March 22, 2010, the amount of unpaid support arrears is $30, 013.81. A review of the Family Responsibility Office Director’s Statement of Arrears dated June 26, 2009 indicates that between 1993 and 2009, Mr. Kelly made 5 payments totalling $1,000.00 after the order was made by Justice Main on April 26, 1993.

In 2009, there were further payments totalling $586.19, which appeared to be diverted from a federal source, presumably tax refunds. [ 12 ] The respondent, Ms. Davis filed evidence that Michael continued to be enrolled in a full-time program of education after turning 18, first as a student at John Abbott College, although he has withdrawn from that program and now will be commencing a full-time program in Fanshaw College in September of 2011. He is enrolled in the Police Foundations program and hopes to eventually become a police officer. [ 13 ] A review of the financial evidence filed by Mr.

Kelly indicates that his income for child support purposes has been the following since 1991: 1991 22,098. 2001 9,718. 1992 19,703. 2002 16,705. 1993 7,560. 2003 7,998. 1994 3,528. 2004 28,655. 1995 20,331. 2005 17,410. 1996 17,516. 2006 17,654. 1997 9,055. 2007 17,840. 1998 5,438. 2008 18,127. 1999 26,166. 2009 18,281. 2000 24,800. [ 14 ] Mr.

Kelly should therefore be paying the following child support for the years he is seeking a reduction: Year Guideline Monthly Child Support Guideline Yearly Child Support Court Ordered Child Support 1993 0 0 1,920. 1994 0 0 1,920. 1995 158 x 12 1,896. 1,920. 1996 146 x 12 1,752. 1,920. 1997 11 x 12 132. 1,920. 1998 0 1,920. 1999 218 x 12 2,616. 1,920 . 2000 203 x 12 2,436. 1,920 . 2001 22 x 12 264. 1,920. 2002 143 x 12 1,716. 1,920. 2003 0 1,920. 2004 247 x 12 2,964. 1,920 . 2005 146 x 12 1,752. 1,920. 2006 147 x 12 1,764. 1,920. 2007 147 x 12 1,764. 1,920. 2008 149 x 12 1,788. 1,920. 2009 149 x 12 1,788. 1,920. 2010 149 x 12 1,788. 1,920.

TOTAL 24,420. [15] The child support is calculated is using the Child Support Table for New Brunswick in accordance with

section 2(

b) of the ChildSupport Guidelines for Ontario and

section 35 of ISOA. [16] For those years in which Mr. Kelly earned more than the income upon which $160.00 per month in child support is based (whichis the amount of child support fixed in the original court order), I have not increased the amount of child support owed because Ms.Davis did not bring a motion to increase the child support for those years (1999, 2000 and 2004). Where the responding party does notclaim an increase, the court has no jurisdiction to increase support, even though the evidence may justify such an increase: see Hamiltonv. Ralph, 2006 ONCJ 435, 174 A.C.W.S. (3d) 220, [2006] O.J.

No. 4559, 2006 Cars​well​Ont 7122 (Ont. C.J.). I have therefore fixed thearrears for the years 1999, 2000 and 2004 at $1,920.00 for each year ($160.00 x 12). [17] Therefore the total arrears owing by Mr. Kelly under the Order of Justice Main, even taking into account his reduced incomesince his work-related accident, is $20,502.31 ($22, 164.00 minus the payments made by Mr. Kelly of $1661.19). However, that does notend the analysis. [18] The Court of Appeal indicates that the discretion to reduce arrears must be exercised judicially; DiFrancesco (Couto) v.

Couto,, 56 O.R. (3d) 363, 155 O.A.C. 32, 207 D.L.R. (4th) 106, [2001] O.J. No. 4307, 2001 Cars​well​Ont 3858 (Ont. C.A.),sets out the factors to be considered: (

i) the nature of the obligation to support, whether contractual, statutory or judicial; (ii) the ongoing financial capacity of the payor; (iii) the ongoing need of the custodial parent and the dependant child; (iv) 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 (

v) unreasonable and unexplained delay on the part of the payor in seeking appropriate relief from his obligation; and (vi) 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 the respondent, to granta measure of relief where deemed appropriate. [19] In this case, Mr.

Kelly has provided no evidence as to why he failed to make any child support payments under the Order ofJustice Main since 1993, even when he was capable of making those payments (with the exception of $1,000 in 1993.) He further offersno explanation as to why he waited until 2010, approximately seventeen years later, to seek to vary and reduce the arrears, particularlywhen his work-related accident occurred approximately eight years ago. [20] Mr.

Kelly also offers no explanation as to why he did not pay any child support while in receipt of worker’s compensationbenefits, as he was still obligated to make child support payments in accordance with the table amount for the gross annual income hereceives from worker’s compensation benefits, albeit a reduced amount. Mr. Kelly currently receives approximately $18, 281.00 inworker’s compensation benefits, and has received this amount or greater since 2004. Although this income is very modest, it is stillincome for child support purposes and an income source for enforcement purposes pursuant to

section 1(

d) of the Family Responsibilityand Support Arrears Enforcement Act. [21] The mere accumulation of arrears (in this case more than $30,000.00) without evidence of a past inability to pay is not a changein circumstance or special circumstance. A present inability to pay does not by itself justify a variation and rescission of accumulatedarrears: see Haisman v. Haisman, 1994 ABCA 249 , , 157 A.R. 47, 22 Alta. L.R. (3d) 56, 77 W.A.C. 47, 116D.L.R. (4th) 671, 7 R.F.L. (4th) 1, [1994] A.J. No. 553, 1994 Cars​well​Alta 179 (Alta.

C.A.). [22] Further, a recipient who files a support order with the Family Responsibility Office cannot be faulted for any lack of diligence bythat agency in pursuing enforcement of a court order: see Galloway v. Casino (Barrett), 2008 ONCJ 577, 172 A.C.W.S. (3d) 444, [2008]O.J. No. 4525, 2008 Cars​well​Ont 6740 (Ont. C.J.). [23] The evidence establishes that Michael is still a dependant under the Family Law Act as he is living at home, was enrolled inschool and attending a new full-time college program in the fall of this year at Fanshawe College.

This program is two year foundationalprogram which prepares a student for police college. [24] In accordance with section 3(2)(

b) of the Child Support Guidelines for the Province of Ontario, where a child to whom an orderfor child support relates is over the age of majority (18 in Ontario), the amount of an order for child support is:

a) the amount determinedby the child support guidelines as if the child were under the age of majority; or

b) if the court considers that approach to beinappropriate, the amount that it considers appropriate having regard to the condition, means, needs and other circumstances of the child,and the financial ability of each parent to contribute to the support of the child. There is a presumption in favour of the Table amount andthe onus of showing that this approach is inappropriate is on the party so claiming (Lewi v. Lewi (2006), 80 O.R. (3d) 321, 209 O.A.C.344, 267 D.L.R. (4th) 193, 28 R.F.L. (6th) 250, , [2006] O.J. No. 1847, 2006 Cars​well​Ont 2892 (Ont. C.A.), citingFrancis v.

Baker, [1999] 3 S.C.R. 250, 246 N.R. 45, 125 O.A.C. 201, 177 D.L.R. (4th) 1, 50 R.F.L. (4th) 228, , [1999]S.C.J. No. 52, 1999 Cars​well​Ont 2734).

[ 25 ] In this case, Ms Davis does earn substantially more income than Mr. Kelly and has an income of $4,040.00 per month while her new spouse has an income of $4,044.00 per month, for a total monthly income of $8,094.00. Nevertheless, Ms Kelly and her new spouse have substantial debts totalling $303,704.68, which presumably will be increased by Michael’s post-secondary expenses. [ 26 ] Michael’s post-secondary expenses are estimated at approximately $3,000.00 per year, not including residential fees, according to the written documents filed by Ms Davis.

It is unclear whether Michael will remain at home while attending Fanshawe College or live in residence, which will clearly increase his post-secondary expenses. It is also unclear what further expenses Michael may have should he complete this program and then be accepted into police college. [ 27 ] Michael is contributing to his post-secondary education through income from summer employment and student loans. In 2009, he earned approximately $2,800.00 in summer employment. He currently has personal savings of approximately $160.00.

The case law is clear, however, that student loans should only be required where there is a shortfall. Further, not all of the child’s income from summer or part-time employment should be allocated to their contribution to their post-secondary expenses; the child should have some personal benefit from the fruits of their labour: Rebenchuk v. Rebenchuk , 2007 MBCA 22 , 212 Man. R. (2d) 261, [2007] 5 W.W.R. 87, 389 W.A.C. 261, 279 D.L.R. (4th) 448, 35 R.F.L. (6th) 239, [2007] M.J. No. 130, 2007 Cars​well​Man 59 (Man. C.A.).

Decision: [ 28 ] Given that Michael is 19 years old and will shortly be re-enrolled in a full-time course of education, and having regard to all of the factors set out above, in my view, the presumptive table amount continues to be appropriate for ongoing child support in this case while Michael completes his post-secondary education, although adjusted to reflect Mr. Kelly’s current income. I am also not satisfied that the arrears should be reduced to zero. However, having regard to all of the factors set out above, the arrears owed by Mr. Kelly should be reduced. [ 29 ] I therefore make the following order:

a) The Order of Justice Main dated April 26, 1993 is varied so that the Applicant shall pay child support to the Respondent in the amount of $149.00 per month, effective January 1, 2010. This amount is based on Mr. Kelly’s gross annual income of $18,300, and is in accordance with the Child Support Guideline Table amount for New Brunswick for one child. This amount shall be reviewed in January of 2013 to determine whether Michael continues to be enrolled in a full-time course of post-secondary education and therefore still eligible for child support;

b) The arrears owed by Mr. Kelly pursuant to the Order of Justice Main, dated April 26, 1993 shall be reduced and fixed in the amount of $15,000.00, payable at a rate of $50.00 per month, commencing April 1, 2011. The monthly payment

schedule for the arrears shall be increased to $150.00 per month once the child support ordered above in paragraph a) is terminated. ___________________________ Justice Sheilagh M. O’Connell DATE: March 25, 2011