Kindred v. Bergerman, 2012 ONCJ 489

COURT FILE No.: Brampton 10044/08 DATE: 2012·07·18 Citation: Kindred v. Bergerman , 2012 ONCJ 489 ONTARIO COURT OF JUSTICE BETWEEN: ERIN KINDRED Applicant — AND — MATTHEW BERGERMAN Respondent Before Justice P.W. Dunn Interjurisdictional Support Orders Act, 2002 In Chambers 18 July 2012 Reasons for Judgment Elisabeth Sachs ...................................................................... for the applicant P.W.

DUNN, J.: [ 1 ] This is an Application under the Interjurisdictional Support Orders Act, 2002, (“the Act”) for a change in an order dated 31 July 2008. [ 2 ] In the earlier proceeding, Erin Kindred was the applicant and Matthew Leo Bergerman, the respondent. Justice D.L.Wilkins in the Court of Queen’s Bench of Alberta gave final orders on 31 July 2008. [ 3 ] In this proceeding under the Act, Mr. Bergerman is the moving party and Ms. Kindred the responding party. [ 4 ] The orders of 31 July 2008 required Mr.

Bergerman to pay $780. a month child support for Nicholas Kindred, born 11 July 1998, with payments to begin 1 August, 2008, based on an income imputed to Mr. Bergerman of $88,702. The orders also required Mr. Bergerman to pay retroactive child support in the amount of $51,244. to and including July 31, 2008. [ 5 ] Ms. Kindred filed the Respondent’s Answer to the Application, dated 29 June 2012. [ 6 ] The court is accepting Ms. Kindred’s analysis of the financial relationship between the parties. 2008: [ 7 ] Mr. Bergerman’s 2008 Tax

Summary indicated an income of $54,047. He also received $3,494. a month for a cost of living adjustment which came in total to $10,482. A gross up of non-taxable income of $4,932. was also included, for a total grossed up income in 2008 of $69,461. [ 8 ] According to the Alberta Guidelines, Mr. Bergerman should be required to pay $609. a month (not $780. a month). [ 9 ] Mr. Bergerman made no payments in 2008. [ 10 ] The court fixes arrears at 31 December 2008 at $53,680. (i.e. $51,244. by the order of 31 July 2008, plus $609. for the following five months, less one payment of $609.).

2009: [ 11 ] Although Mr. Bergerman’s disclosed income for 2009 was $0. he received $41,933. in 2009 in non-taxable pension benefits. It is Ms. Kindred’s position that the gross receipt of money by Mr. Bergerman in 2009 was $51,383. [ 12 ] Mr. Bergerman paid $0. in child support in 2009. [ 13 ] Mr. Bergerman should have paid $438. a month, or $5,256. for the year. Hence the court fixes the arrears for 2009 at $5,256. based on Mr. Bergerman’s 2009 disclosed pension receipt and adjusting the total arrears accordingly. 2010: [ 14 ] Mr. Bergerman’s income is fixed at $72,473.

The Notice of Assessment for the year was $14,711. plus a non-taxable pension payment of $41,933. together with a gross up of $15,829., which led to an income being imputed to Mr. Bergerman of $72,473. [ 15 ] Mr. Bergerman paid $0. in 2010 for child support. [ 16 ] Mr. Bergerman should have paid $636. a month in child support ($636. x 12 = $7,632.). [ 17 ] The court fixes arrears for 2010 at $7,632. based on Mr. Bergerman’s actual 2010 income employment (2010 Notice of Assessment) and deposed pension receipt and adjusting the total arrears accordingly. 2011: [ 18 ] Mr.

Bergerman’s income is a non-taxable pension of $36,247. [ 19 ] The court imputes a gross income to Mr. Bergerman of $45,000. [ 20 ] Mr. Bergerman should pay $378. a month ($378. x 12 = $4,536.). [ 21 ] However, Mr. Bergerman did pay $5,913. in 2011. [ 22 ] Mr. Bergerman overpaid $1,377. and deserves a credit for that amount ($5,913. - $4,536. = $1,377.). 2012: [ 23 ] Mr. Bergerman’s income was $45,000. [ 24 ] Mr. Bergerman should have paid $359. a month for child support from 1 January 2012 to 1 June 2012 or $2,154. [ 25 ] Since Mr.

Bergerman paid $2,063. (from 1 January 2012 to 1 June 2012) the arrears are fixed at $91. as of 30 June 2012.

SUMMARY: Year Arrears/Owed Payments Balance owing 2008 $54,289. $609. $53,680. 2009 $5,256. $0 $5,256. 2010 $7,632. $0 $7,632. 2011 $4,536. $5,913. ($1,377.) overpayment 2012 (from $2,154. $2063. $91. 1 January to ________ 1 June, 2012) $66,659. ($ 1,377.)

$65,282. [ 26 ] The arrears would be $65,282. as of 30 June 2012. [ 27 ] Due to Mr. Bergerman’s financial circumstances, THE COURT WILL FIX THE ARREARS AT $40,000. as of 30 June 2012. [ 28 ] Mr. Bergerman is to pay $359. a month child support from 1 July 2012 and regularly monthly thereafter, based on an income imputed to him of $45,000. [ 29 ] Mr. Bergerman is to pay forthwith Ms. Kindred’s costs of $1,250. Released: 18 July 2012 __________________________ Justice P.W. Dunn