Sinclair v. Kuti, 2012 ONCJ 595

COURT FILE No.: Brampton 1474/02 DATE: 2012·09·24 Citation: Sinclair v. Kuti , 2012 ONCJ 595 ONTARIO COURT OF JUSTICE BETWEEN: LYNN SINCLAIR Applicant — AND — EDWARD KUTI Respondent Before Justice J.C. Baldock Heard on August 29, 2012 Reasons for Judgment released on September 24, 2012 Lynn Sinclair ....................................................................................................... on her own behalf Frank G.

Felkai, Q.C. ........................................................................................ for the respondent BALDOCK, J.: [ 1 ] This is the respondent’s motion to change the support provisions of an order for child support. [ 2 ] A temporary order was made February 24, 2005 wherein the respondent was to pay child support for two children, Ashley Sinclair, born December 8, 1990 and Edward Kuti, born July 1, 1997, now aged 21 and 15 respectively. [ 3 ] It is acknowledged that Ashley is not the biological child of the respondent. [ 4 ] The order required the respondent to pay $570 per month for the two children, based on an imputed income of $40,000.

A final order was made on May 2, 2005 but this order made no reference to child support, save and except to state that it was made without prejudice to the right of the applicant to apply at any future time and to seek retroactive support. [ 5 ] The respondent takes the position that: (

a) he did not receive notice of the original application; (

b) he should not have had to support Ashley; and (

c) the effect of the final order was to supplant the temporary order, thus making no support payable. [ 6 ] In the alternative, he seeks a retroactive variation, based on his actual income, applied to one child only. [ 7 ] The respondent has spent periods of time incarcerated but has been employed since 2007. His income was: 2007 - $10,672 2008 - $ 7,572 2009 - $22,069

2010 - $43,340 2011 - $47,315 2012 - $54,300 (estimate) [ 8 ] He currently resides in Alberta with his wife and son. [ 9 ] Prior to 2007, the respondent’s income was below the threshold for support. [ 10 ] The applicant argues that the respondent was responsible for supporting Ashley until she moved out of the home in October, 2006, and that periods of incarceration should not relieve the respondent from his support obligations, as incarceration was a result of his own actions and the cost of raising a child should not fall solely upon the applicant as a consequence. [ 11 ] She seeks to have income imputed for those years and asks the court to award support back earlier than the date of the temporary order – the final order clearly states it was without prejudice to her right to seek retroactive support. [ 12 ] I deal firstly with the issue of the temporary versus final order. [ 13 ] In my view, the second order, being a final order for custody, would not normally have the effect of terminating a temporary order for support, but as it did address the issue by including the “without prejudice clause”, it does so in this case, and clearly it was the intent. [ 14 ] I must then consider whether the “without prejudice clause” in the 2005 order now gives the applicant mother the right to seek child support retroactively, i.e. from the date of separation in November 2002. [ 15 ] I find that it does give the applicant that right.

However, the degree of retroactivity is in my view discretionary. As so much time has now elapsed, almost ten years since the separation and seven years since the order was made, it would be unreasonable to extend retroactivity beyond the date of the final order. [ 16 ] The respondent is not prejudiced by my conclusion as he will be given credit for payments made. Furthermore, while the respondent has an obligation to provide support prior to 2005, he was clearly in no position to do so. [ 17 ] I disregard the respondent’s argument that lack of notice should in any way relieve him of his obligation.

He was, or should have been aware of his support obligation and made himself available for service. [ 18 ] As to the respondent’s responsibility for Ashley, the parties resided together from when Ashley was two years old until she was nine.

She was part of the family unit and entitled to support from the respondent until November 2006, when she moved out on her own. [ 19 ] The respondent has demonstrated that he now has the ability to earn income in the $40,000 to $50,000 range, and his support obligation should reflect his actual income from 2010 onwards. [ 20 ] Prior to that, I impute income to the respondent at the modest level he earned in 2009, being $22,000, which equates to minimum wage. [ 21 ] I disregard any periods of incarceration as the respondent was the author of his own deeds and that does not detract from his support obligations. [ 22 ] I therefore calculate support retroactive to May 2005, as follows: Previous Year’s Year Months Children Incomes Attributed Support Payable 2005 8 2 $ 0 $ 0 $ 0 2006 10 2 $22,000 10 @ $335 = $3,350 2 1 $22,000 2 @ $188 = $ 376 2007 12 1 $22,000 12 @ $188 = $2,256 2008 12 1 $22,000 12 @ $188 = $2,256 2009 12 1 $22,000 12 @ $188 = $2,256 2010 12 1 $22,000 12 @ $188 = $2,256 2011 12 1 $43,430 12 @ $390 = $4,680

2012 9 1 $47,315 9 @ $437 = $3,933 The total amount which should have been paid is $21,363. [ 23 ] The respondent shall be given credit for all payments made from and after May 1, 2005, pursuant to the temporary order of February 24, 2005. [ 24 ] Commencing October 1, 2012, the respondent shall pay the sum of $437 per month based on his 2011 income of $47,315. [ 25 ] Commencing January 1, 2013, and thereafter, the respondent shall pay the sum of $512 per month based on his estimated 2012 income of $54,300. [ 26 ] Any arrears remaining shall be paid at the minimum rate of $100 per month, without prejudice to the right of the Director, Family Responsibility Office to garnish any Federal or Provincial income or sales tax refunds, including G.S.T., to which the respondent may otherwise be entitled. [ 27 ] The temporary order of February 24, 2005 is otherwise set aside and is of no force or effect. [ 28 ] As success is somewhat divided, this is not a case for costs.

Released: September 24, 2012 __________________________ Justice J.C. Baldock