Miller v. Tennant, 2011 ONCJ 622

Brampton Registry No. 728/11 DATE: 2011·XI·29 CITATION: Miller v. Tennant , 2011 ONCJ 622 ONTARIO COURT OF JUSTICE BETWEEN: ZARDIA MILLER Applicant, — AND — DALE TENNANT Respondent. Before Justice Steven R. Clark Motion to Change the Final Order of Justice Waldman, dated 5 November 1999 Reasons for judgment released on 29 November 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended],

section 7 . 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. Applicant mother, Zardia Miller............................................................................... self-represented Respondent father, Dale Tennant............................................................................... self-represented JUSTICE S.R.

CLARK:— 1: INTRODUCTION [ 1 ] The applicant mother, Zardia Miller (hereinafter referred to as “the applicant”) brings a motion to change, dated 31 May 2011, the final order of Justice Geraldine F.

Waldman dated 5 November 1999. [ 2 ] The order provides that the respondent father, Dale Tennant (hereinafter referred to as “the respondent”), pay $368.00 per month, commencing on 1 December 1999, based on annual income of $18,705.00 for three children. [ 3 ] Two of the three male children are no longer eligible for child support, given their ages (24 and 21) and given they are not presently enrolled in post-secondary education.

The third child, however, Shane Tennant, age 18, born on 26 September 1993, is still eligible, as he is enrolled full-time at Humber College in a three-year electrical engineering program. [ 4 ] The applicant is seeking the guideline amount on an ongoing basis according to the respondent’s current income.

She is also seeking retroactive child support for the last 11 years back to 2000, since the respondent has never provided her with his annual financial disclosure despite her apparent previous requests for same. [ 5 ] She is also seeking a 50% contribution toward Shane’s extraordinary expenses for tuition and other attendant school expenses under

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended. She indicates that these expenses total $3,100.00. During the case conference held in this matter on 30 September 2011, the applicant indicated that she was not necessarily pressing this aspect of her claim, as long as the court gives due consideration to the issues of arrears and ongoing child support. She has not provided any documentation supporting any of the school expenses. [ 6 ] Furthermore, she is making a claim that the respondent include Shane as a beneficiary under his employee benefits package.

[ 7 ] On the other hand, the respondent’s position is as follows: • He has now made the necessary arrangements to have Shane covered under his employee benefits package. • He acknowledges his responsibility to pay the table amount for ongoing child support based on current income, but because of work slowdowns, he will likely only earn approximately $30,000.00 in 2011. • Regarding arrears of child support, he submits that the applicant has not requested any financial information from him in over 10 years. The original order does not provide for same. He would have done so if required or requested.

Accordingly, he has not displayed any blameworthy or deceitful conduct in keeping with the principles outlined in the extant case law and has met his obligations faithfully. A retroactive payment at this point would be inequitable and would not benefit the child. He has made regular payments in the amount of $368.00 per month to the Director of the Family Responsibility Office (FRO) since the date of the order, even through the years of 2005 and 2008, when he was unemployed and had a significant decrease in income.

Furthermore, he has paid child support for the two older children even though they were no longer legal children of the marriage, effective 27 April 2005 and 25 October 2008. He paid child support for the two older children up to May 2010, resulting in overpayments of 42 months for one of the boys (Marcel) and 17 months for the other (Meckel). • Regarding the

section 7 expenses, the applicant has not provided any documentation supporting her claim, nor any income tax returns from Shane’s employment, if any. Furthermore, he submits that Shane should be responsible for contributing toward some discretionary portion of his post-secondary expenses since he is now 18 years old. 2: ANALYSIS [ 8 ] At the case conference, the court explained to the parties that the current case law provides that it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given. (See 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..) In any event, the court finds that there has been an unreasonable delay in seeking support that militates against an award all the way back to the year 2000. The court is not satisfied that the applicant has demonstrated that she raised this issue with the respondent in a meaningful way before 2010.

This is likely because she knew that she was receiving child support for all three children even though the two older ones may well have been disentitled since 2005 and 2008. [ 9 ] Furthermore, even if the court were to consider retroactivity for the years 2008 and 2009, there would be very little difference from what the respondent was already paying for these years. In 2008, the respondent earned $23,104.00. In 2009, he earned $9,910.00. Totalling these two figures, the average is $16,507.00.

The respondent would only have been required, therefore, to have paid child support in the amount of $339.00 per month rather than the $368.00 per month he was already paying. The differential is, therefore, relatively insignificant. [ 10 ] Of greater significance and relevance, however, are the years 2010 and 2011. The court is prepared to make an order retroactive to the start of 2010. [ 11 ] The respondent’s reported income for 2010 was $47,298.48. The table amount for one child is $436.00 per month. The total child support owing for this year, therefore, is $5,232.00.

He has only paid a total of $3,524.00. ($368.00 x 8 months (January to August) = $2,944.00, and $145.00 x 4 months (September to December) = $580.00). The balance owing for arrears in 2010, therefore, is $1,708.00. [ 12 ] For 2011, the respondent advised that he has been subject to work “slowdowns” this year and will have missed approximately 20 days by year’s end, for which he will not be paid. He further advised that, as of 23 December, he will be “laid off” until the end of the calendar year, 31 December.

He believes that regular hours will resume in the new year. [ 13 ] He has provided a copy of his most recent pay stub, dated 24 November 2011, showing income to date of $36,218.02, plus $2,510.66 for overtime, totalling $38,728.68. [ 14 ] The final month, from 24 November to 23 December, excluding overtime, therefore, should yield a further $3,292.54. The total gross income for 2011, therefore, will be $42,021.22. [ 15 ] This is obviously significantly more than the $30,000.00 that he represented that he would only be earning this year.

The court finds that he was being less than truthful in advancing his position. [ 16 ] The court accepts the applicant’s position that the respondent unilaterally stopped paying child support in the amount of $368.00 per month as of September 2010. He only paid $145.00 per month from this point forward. [ 17 ] Since the two older children ceased to be entitled to child support as of 27 April 2005 and 25 October 2008 and even though the respondent continued to pay $368.00 per month until the end of August, 2010, any overpayments have already been considered and accounted for by FRO.

Whether any amounts for arrears may or may not be owed by him for 2008 and 2009, the court finds that it is effectively a “wash” for these two years and no further calculations will be made. [ 18 ] On the basis of the respondent’s projected income for 2011 of $42,021.22, the table amount for one child is $386.00 per month. Therefore, the total child support payable for 2011 will be $4,632.00. The respondent will have paid up to the end of November 2011, $1,595.00 ($145.00 x 11 months).

Therefore, the total amount owing for arrears of child support in 2011 up to 30 November is $3,037.00. [ 19 ] The total arrears owing for 2010, $1,708.00, plus $3,037.00 2011 equals $4,745.00.

[ 20 ] As of 1 December 2011, therefore, the respondent will be required to pay $386.00 per month for ongoing child support on annual income of $42,021.22, and thereafter on the first of each successive month. [ 21 ] Furthermore, on arrears fixed at $4,745.00 as of 30 November 2011, the respondent shall pay $214.00 per month toward these arrears commencing on 1 December 2011, and on the first of each successive month thereafter, until paid in full. [ 22 ] The respondent’s monthly child support obligation as of 1 December, 2011, therefore, will be $600.00 ($386.00 ongoing plus $214.00 for arrears). 3: ORDER [ 23 ] The court makes the following final order: 1.

The final order of Justice Waldman, dated 5 November 1999, is varied as follows: The respondent father, Dale Tennant, shall pay to the applicant mother, Zardia Miller, child support for the child, Shane Tennant, born on 26 September 1993, in the amount of $386.00 per month, on annual income of $42,021.22, commencing on 1 December 2011, and on the first of each month thereafter. 2.

The said respondent father shall pay to the said applicant mother $214.00 per month toward arrears of child support fixed at $4,745.00, commencing on 1 December 2011, and on the first of each successive month thereafter, until fully paid. 3. A support deduction order shall issue. 4. The parties shall exchange financial disclosure annually, including copies of income tax returns, notices of assessment, and notices of reassessment by 1 July, commencing in 2012. 5.

The said applicant mother shall furnish the said respondent father with all supporting documentation confirming the said child’s enrolment as a full-time post-secondary school student, upon request. 6. There shall be no order for costs. [ 24 ] Courts administration shall prepare the final order and mail a copy of same to the parties by regular mail.