Kolodziejczyk v. Kozanski, 2011 ONCJ 6

Brampton Registry No. 404/99 DATE: 2011·I·05 CITATION: Kolodziejczyk v. Kozanski , 2011 ONCJ 6 ONTARIO COURT OF JUSTICE BETWEEN: JOLANTA KOLODZIEJCZYK, Applicant, — AND — JAKUB KOZANSKI, Respondent. Before Justice Manjusha B.

Pawagi Heard on 13 December 2010 Reasons for Judgment released on 5 January 2011 SUPPORT ORDERS — Variation — Threshold test (Change in circumstances) — Nature of change — Evidence — Onus on proponent of request to vary — more than 9 years ago, court had ordered payor father to make monthly support payments for his daughter (now college student, almost 21 years old) — Except for 4 sporadic voluntary payments, he totally ignored order, even though his driver’s licence had been suspended and his income tax refunds had been garnisheed in attempt to get his attention — With his arrears standing at over $56,000, he now made motion to reduce debt to $12,600 (to be paid at monthly rate of $50) and to terminate his contribution toward child’s day care retroactively to date of child’s 14th birthday — But he offered no evidence to support claim for undue hardship nor did he explain why it took him more than 9 years to make his motion to vary or why he basically made no voluntary payments during that time — His attempts to explain away evidence of very comfortable lifestyle over that period were simply not credible — Motion judge concluded that payor failed to meet threshold test of demonstrating change in circumstances that would justify reduction of his arrears — Admittedly, child had not been in day care since age 14, but it would be unfair to allow payor father retroactively to vary day-care portion of original order because mother could not now ask for other special expenses under

section 7 of Child Support Guidelines over last 6 years that she might have wished to seek instead of day care — Judge did vary order but principally to direct payor to make not only ongoing payments for basic child support and special expenses but also to make sizeable monthly contribution to reduce amount of arrears. STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended],

section 7 . Christina Roncossek ..................................................................... counsel for the applicant mother Jakub Kozanski .................................................................................................... on his own behalf JUSTICE M.B.

PAWAGI:— 1: NATURE OF THE CASE [ 1 ] This is the respondent Jakub Kozanski’s motion to change the order of Justice Jane Kerrigan Brownridge, dated 5 July 2001, which ordered him to pay child support for his daughter Samantha Kozanski, born on 13 April 1990, in the amount of $511 per month ($336 for child support and $175 for day care) commencing on 13 June 2000 based on his imputed annual income of $38,800. Mr. Kozanski is seeking an order reducing the arrears to $12,600 (to be paid at the rate of $50 per month) and terminating his

contribution toward day care from the date Samantha turned 14 years old. His is content to keep the ongoing child support at $336 per month. The applicant, Jolanta Kolodziejczyk, seeks an order dismissing his motion to change. 2: FACTS [ 2 ] Mr. Kozanski’s arrears as of 12 November 2010 are $56,309.47 according to the Director’s statement of arrears filed on 23 November 2010. When the order was made, Samantha was 11 years old. She is now 20 years old and a full-time student at Sheridan College. In the nine years that the order has been in effect, Mr.

Kozanski made a total of four voluntary payments totalling about $3,200. The first voluntary payment was not until 13 April 2006, five years after the order was made and about one year after his driver’s licence was suspended by the Family Responsibility Office (FRO). There were a few other involuntary payments made from the garnishing of his income tax and GST refunds. [ 3 ] In oral testimony, he gave his employment history as follows: In 2000, he made $24,000 per year as a tow truck driver.

He left that in 2001 and 2002 to make about $15,000 per year as a superintendant of a building first in Don Mills, then in Rexdale. He said the switch was because an apartment came with the job (but the $15,000 per year was calculated as including the benefit of the apartment, without including that benefit, his salary is actually $4,656 per year). In 2003 and 2004, he made about $40,000 per year as a tow truck driver. His driver’s licence was suspended sometime in 2005. He said that he received no correspondence from FRO regarding the suspension.

He said he only found out about it when he tried to upgrade his licence. In 2005-2006, he then went to work as a dispatcher for various transportation companies making in the range of $18,300 to $19,760 per year. In September 2006, he started working as a dispatcher for MTM Logistics making $960 per week, or $49,920 per year. In December 2007, he went to Transport Logistics because of better benefits and made $900 per week, or $46,800 per year. In April 2009, he stopped working because of gout in most of his joints, which made it difficult to walk.

His present income is from his company’s long-term disability benefits and it is a tax- free income of $28,680 per year. He lives with his common-law partner and their four sons (all under the age of 12). [ 4 ] The applicant Jolanta Kolodziejczyk’s position is that the respondent’s motion to change should be dismissed as he has not demonstrated a change in circumstances. His current income (grossed up to account for taxes) approximates the income upon which the original order was made.

As for the fluctuations in his past years of income, the applicant points to the respondent’s lifestyle to support her position that his arrears ought not to be reduced, and points to the fact that child support was not increased in about 2006 when his income increased. [ 5 ] The applicant further submits that the arrears also should not be reduced even though Samantha stopped attending day care when she was 14 because of the respondent’s egregious lack of compliance with the original order and his delay of nine years in bringing his motion to change. She seeks a contribution to Samantha’s

section 7 [1] post-secondary expenses of $4,000 per year on a ⅓ basis (where he, the applicant and Samantha would all contribute ⅓). 3: ANALYSIS [ 6 ] The respondent does not provide any evidence to support a claim for undue hardship. The respondent also does not provide any evidence why he did not bring his motion to change until nine years after the order was made. He testified merely that he did not know what to do. However, he is not an unsophisticated litigant. He has incorporated a business in the past.

He has been working all of this time (until recently when he went on disability benefits). [ 7 ] The respondent’s answers to the applicant’s evidence of his comfortable lifestyle are not credible. For example, he testified that the 1990 20 ft.

Capri power boat that was in his garage all winter and which he advised the boat club that he owned, was actually owned by “a friend”; he testified that the 24 June 2009 photo on Facebook of his partner Monika equipped with skydiving gear, captioned, “Monika is getting ready to jump” refers to a different Monika, “a friend in England” who jumped that day, while his Monika just posed for a picture with the gear for fun; he testified that the 20 July 2009 Facebook photo of himself on a motorcycle was a motorcycle owned by “a friend”; and he testified that the above-ground swimming pool that he recently put in his backyard was a present from his “son’s godfather.” [ 8 ] The respondent provides no explanation of why he basically made no voluntary payments for the last nine years (with a few small exceptions). [ 9 ] Thus, the respondent has not met the test of demonstrating a change in circumstances that would justify a reduction of his arrears.

Samantha has received basically no support since the order was made nine years ago. Although she has not been in day care since the age of 14, it would be unfair to permit the respondent to vary the day-care portion six years retroactively, since the applicant cannot now ask for other

section 7 expenses for the last six years that she may have wished to seek instead of the day care. 4: ORDER [ 10 ] The order of Justice Kerrigan Brownridge dated 5 July 2001 shall be varied as follows: The respondent shall pay $1,200 per month commencing on 15 January 2011: $336 per month for child support; $100 per month for

section 7 expenses (post-secondary expenses); and $764 per month towards arrears. When Samantha is no longer eligible for child support, the entire $1,200 per month shall go towards arrears until the arrears are paid in full. [ 11 ] Submissions for costs may be made in writing. The applicant’s submissions to be provided by 20 January 2011 and the respondent’s submissions by 27 January 2011.