Degagne v. Goldup, 2011 ONCJ 282

Dryden Registry No. FO-05-000029-01 DATE: 2011·V·30 CITATION: Degagne v. Goldup , 2011 ONCJ 282 ONTARIO COURT OF JUSTICE BETWEEN: NATHAN DEGAGNE, Applicant, — AND — LISA MARIE GOLDUP, Respondent. Before Justice Peter T. Bishop Heard on 26 April 2011 Reasons for Judgment released on 30 May 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended],

section 24.1 . CASES CITED 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. Mark G. Van Walleghem ................................................................ counsel for the applicant father Sarah S. Trach ........................................................................... counsel for the respondent mother [ 1 ] JUSTICE P.T.

BISHOP:— This matter comes before me by way of a motion filed on 25 October 2010 by the respondent, Lisa Marie Goldrup, to change the order of Justice Bishop of 2 May 2005 requesting: 1. The applicant, Nathan Degagne shall provide full financial disclosure pursuant to

section 25 of the Child Support Guidelines to include: (

a) a complete copy of the respondent’s income tax return will all attachments along with a notice of assessment and/or re-assessment for the years 2005 through to and including 2009; (

b) recent paystubs; (

c) sworn financial statement. 2. An order that Nathan Degagne pay child support pursuant to the Child Support Guidelines retroactive to May, 1 2005 (if applicable); 3. Such further and other relief that this honourable court deems just; 4. Costs on a substantial indemnity basis. 1: BACKGROUND [ 2 ] The respondent (mother) and the applicant (father) are the parents of Nicholas Andrew Goldup, born on 12 October 1999.

[ 3 ] The parties filed minutes of settlement that were incorporated into a final order of 2 May 2005 as follows: 1. The respondent shall have custody of Nicholas Andrew Goldrup, born on 12 October 1999. 2. The applicant shall have reasonable and liberal access to the child to include, but not be limited to: (

a) every second weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m.; (

b) every Wednesday evening from 4:00 p.m. until 7:00 p.m., provided that the applicant is not working; (

c) ten days each July and each August, provided that the applicant is not working and as agreed upon between the parties; (

d) shared Christmas holidays with applicant having the child at 1:00 p.m. on Christmas Day, including Boxing Day in the year 2005 and from 1:00 p.m. Christmas Eve to 1:00 p.m. Christmas Day in the year 2006 and alternating each year thereafter; (

e) other access as mutually agreed upon. 3. The applicant’s annual income is approximately $22,000.00. The child support for one child pursuant to the Child Support Guidelines and the applicant’s income is $200.00 per month. 4. Commencing on 1 May 2005 and continuing on the first day of each month thereafter, until the child ceases to a child as defined under the Family Law Act , the applicant shall pay $200.00 in child support to the respondent. 5. The parties shall share equally the extra ordinary expenses of child care. 6.

The applicant will provide a copy of his notice of assessment on a yearly basis on or before 31 May each year to the respondent. 7. There shall be no order as to costs. 8. A support deduction order shall issue. 9. Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Family Responsibility Office and the amounts owing under the support order shall be paid to the Family Responsibility Office, who shall pay them to the person to whom they are owed. Payments are to be made to: Family Responsibility Office, P.O. Box 2204, Station P, Toronto, Ontario, M5S 3E9. 10.

The order bears post judgment interest at the rate of 4% per annum effective from date of this order. [ 4 ] Pursuant to the order of 2 May 2005, the father did not provide financial disclosure. The mother was unaware whether the child support was being paid in accordance with the Child Support Guidelines , O. Reg. 391/97, as amended. [ 5 ] On 10 January 2011, a temporary order was made as follows: 1.

Paragraph 4 of the order of the Honourable Justice Bishop dated May 2, 2005 is changed as follows: “Nathan Degagne shall pay child support to Lisa Goldrup for Nicholas Andrew Goldrup, born on 12 October 1999, in the amount of $356.00 per month commencing on 2 December 2010 in accordance with the tables under the Child Support Guidelines , based on Nathan Degagne’s estimated annual income of $38,740.00”. Child support payable is without prejudice to either party to seek an adjustment upon disclosure of 2010 income. 2.

For as long as child support is to be paid, the payor, Nathan Degagne, must provide updated income disclosure to Lisa Goldrup each year, within 30 days of the anniversary of this order, in accordance with

section 24.1 of the Child Support Guidelines . 3. A support deduction order shall issue. 4. Unless the order is withdrawn from the Family Responsibility Office, it shall be enforced by the Family Responsibility Office and the amounts owing under the order shall be paid to the Family Responsibility Office, who shall pay them to the person to whom they are owed. Payments are to be made to: Family Responsibility Office, P.O. Box 2204, Station “P”, Toronto, ON M5S 3E9 5. Adjourned to 28 January 2011 for settlement conference. Briefs to be served and filed by 21 January 2011. [ 6 ] On 16 December 2010, Justice A.

Thomas McKay granted the following temporary order: 1. The motion is adjourned to 10 January 1022 [ sic ] at 2:00 p.m. for argument. Mr. Degagne shall pay costs to Ms. Goldrup forthwith in the sum of $200.00. Costs are related to support and enforceable by the Family Responsibility Office. 2. No later than 5:00 p.m., 23 December 2010, Mr. Degagne shall provide Ms. Goldrup with the following documents: (

i) income tax returns for the years 2007, 2008 and 2009 together with all related attachments; and (ii) A letter from his employer setting out all real estate commissions earned by Mr. Degagne in 2010 and which in the normal course would be payable in 2010. 3. The settlement conference scheduled for 6 December 2010 is adjourned to 28 January 2010 [ sic ] at 9:15 a.m. 2: ISSUES [ 7 ] The issues before the court are:

(1) What is the appropriate ongoing child support?

(2) Should the child support be retroactive?

(3) Should costs be awarded and if so, on a substantial indemnity basis? 3: EVIDENCE OF LISA MARIE GOLDRUP: [ 8 ] The mother initially asked for financial disclosure pursuant to the original order. The request was ignored or refused. In 2008, she once again requested disclosure to have the guideline amount of child support paid and the father threatened to claim joint custody and increased access.

The father’s claim was eventually abandoned at settlement conference. [ 9 ] The father has had access with the child, who is now eleven years old. [ 10 ] The mother and father do not speak to each other but communicate by e-mail. [ 11 ] The father’s financial status was disclosed in 2005 through counsel. In 2006, 2007 and 2008, no disclosure was made and the mother did not specifically request it.

She was concerned about lawyer’s costs and the father’s re-opening the issue of custody and access. [ 12 ] In May of 2009, there was no disclosure and she had no method of finding out what his true income was. [ 13 ] With respect to access, generally the parties followed the terms of the order of 2 May 2005, although there were occasions when summer access was missed or the father would cancel it. [ 14 ] In late October 2010, the mother retained counsel and the father produced a sworn financial statement showing an income of $52,880.00 per year.

That figure was in error as there had been a partial double calculation. 4: EVIDENCE OF NATHAN DEGAGNE [ 15 ] In late 2006, the mother e-mailed her request for financial disclosure and he stated that he sent it by e-mail with attachments. [ 16 ] Access was sporadic and, in his mind, at the pleasure of the mother and there were no attempts to make-up dates that were missed. [ 17 ] He confirmed that communication with the mother was by e-mail as he would not speak directly with her. [ 18 ] In 2010, the mother requested increased support and the father requested increased access thinking that, if the mother would not claim more child support, he would forgo a claim of increased access as long as he received five extra days of visitation in the summer. [ 19 ] By order of Justice McKay on 16 December 2011, the father was ordered to provide particular financial disclosure but he did not provide a notice of assessment.

He further stated that he did not send any information concerning his financial status to the Family Responsibility Office, nor could he produce any evidence that attachments showing his financial particulars were sent to the mother. [ 20 ] He confirmed a recent holiday to the Bahamas, which was a gift from his parents and also purchased a 2005 Accura MDX at a price of $15,900.00 of which $10,000.00 was financed. 5: DECISION [ 21 ] Having heard all of the evidence, I am finding that there has been a material change in the circumstances since the granting of the order of 2 May 2005 wherein the father’s income has increased annually with one exception over the subsequent years. [ 22 ] The father’s income in 2006 was approximately $8,000.00 per annum and no additional support would be payable.

It is to his credit that he continued making the support payments, notwithstanding the reduction in his income. [ 23 ] The increase in the father’s income is as follows: YEAR INCOME TABLE AMOUNT DEFICIT 2007 $29,162.00 $259.00 $708.00 2008 $26,721.00 $231.00 $372.00 2009 $38,340.00 $350.00 $1,800.00 2010 $26,582.00 $229.00 $348.00 The calculation of the child support deficit is therefore $3,228.00. [ 24 ] I have reviewed the cases of 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, and am mindful that child support is the right of the

child and, when a payor does not increase the amount of support as income increases, the child looses. The child is the one who is entitled to the greater quantum of support in absolute terms. In the case at hand, the father had an absolute duty and responsibility pursuant to paragraph 6 of the order of 2 May 2005 to provide the mother with a copy of his notice of assessment on a yearly basis on or before 31 May of each year. This was not done except for the years 2005 and 2006. [ 25 ] There is no onus on the mother continually to ask for disclosure.

The father’s position that “If she would only ask, I would have given it to her” belies his mean-spirited approach putting his interests above that of the child. The mother does not have to ask. It is an order of the court and his conduct is unacceptable and therefore blameworthy. [ 26 ] The mother was forced to come to court, to commence an application and to incur legal expenses that otherwise could have been avoided.

This case should not have been litigated but should have been settled and it would have been if the father had provided the disclosure in a timely manner. [ 27 ] The mother’s reasons for not demanding or asking for disclosure are understandable as she was not required to do so and did not have the funds to litigate and was concerned about the respondent’s upsetting the status quo with respect to custody and access.

This cannot be considered in any way to be blameworthy and is a reasonable explanation why guideline support was not sought earlier by her. [ 28 ] I fix the date of retroactivity for increased child support as the date when the amount of child support should have been increased as the only reason for that not happening was the father’s inability to communicate with the mother and his stubbornness in not providing disclosure in a timely manner. [ 29 ] Retroactive child support arrears are therefore fixed in the amount of $3,228.00.

The father shall pay the mother ongoing child support in the amount of $356.00 commencing on 1 December 2010 and on the first day of each month thereafter, which is the table amount for one child on an income of $38,740.00. [ 30 ] Child support arrears shall be payable at the rate of $100.00 commencing on 1 May 2011 and payable on the first day of each month thereafter until paid in full. [ 31 ] A support deduction order shall issue. [ 32 ] For as long as child support is to be paid, the payor, Nathan Degagne, must provide updated income disclosure to Lisa Marie Goldrup each year within thirty days of the anniversary of this order in accordance with

section 24.1 of the Child Support Guidelines . [ 33 ] Unless the order is withdrawn from the Family Responsibility Office, it shall be enforced by the Family Responsibility Office in the amounts owing under the order and shall be paid at the Family Responsibility Office at: P.O. Box 2204, Station A, Toronto, ON M5S 3E9. [ 34 ] This order bears post-judgement interest at the rate of 3.0 % per annum effective from the date of this order. Where there is a default in payment, the payment of the following shall bear interest only from the date of default. [ 35 ] The issue of costs is adjourned to 6 June2011 for argument.