Arthur v. Arthur, 2014 ONCJ 175

ONTARIO COURT OF JUSTICE DATE: 2014·04·08 COURT FILE No.: Brampton 491/06 Citation: Arthur v. Arthur , 2014 ONCJ 175 BETWEEN: THERESA ARTHUR Applicant — AND — EMMANUEL KWASI ARTHUR Respondent Before Justice Philip J. Clay Heard on April 4, 2014 Reasons for Judgment released on April 8, 2014 Matthew Fordjour .............................................................................. counsel for the applicant Jide Oladejo ................................................................................... counsel for the respondent CLAY J.:

SUMMARY HEARING PROCEDURAL BACKGROUND [ 1 ] The Applicant originally issued an Application on March 28, 2006. The Respondent filed an Answer and the matter proceeded. That Application resulted in temporary orders for custody and child support. [ 2 ] The original Application was dismissed on May 20, 2008 and the temporary orders were vacated. [ 3 ] On May 11, 2012 another Application was filed by which the Applicant sought ;

a) sole custody of the parties youngest child Neviah Arthur born February 19, 2001

b) child support pursuant to s. 3 and 7 of the Child Support Guidelines for all four of the parties children namely Curtis Arthur born May 3, 1988, Ashford Arthur born September 14, 1992, Annabelle Arthur born February 28, 1994 and Neviah Arthur born February 19, 2001

c) retroactive child support for to January 1, 2010 including a retroactive contribution to each child’s s. 7 expenses. [ 4 ] The Respondent filed an Answer in which he sought:

a) Joint custody of the child Neviah

b) No child support order for the elder three children as monies were being paid directly to or for their benefit.

[ 5 ] This matter was scheduled for a

summary hearing on January 9, 2014 by order dated October 1, 2013. The hearing was subsequently adjourned on consent to April 4, 2013. ADMISSIONS [ 6 ] The parties agree that the child Curtis is no longer eligible for ongoing child support as he has completed his education and is employed. [ 7 ] The parties agree that the child Ashford has resided with the Respondent since May 31, 2013. [ 8 ] The Respondent withdrew his claim to joint custody of the child Neviah.

He also advised the Court that he was not seeking an access order in this proceeding as he was content to address issues of contact with the child outside of the court proceeding. ISSUES BEFORE THE COURT 1) What is the current income of the parties? 2) Has the Respondent established his claim of undue hardship? 3) What is the appropriate amount of table child support? 4) Should the child support order be made retroactive and if so from when? 5) Should there be an order for s.7 expenses? EVIDENCE [ 9 ] This

Summary hearing was to resolve all of the outstanding issues in this Application. Therefore all sworn documents in the Continuing Record were received as evidence in this hearing. [ 10 ] As circumstances had changed over time the parties were required to provide updated affidavits.

The following affidavits were received after the October 1, 2013 order setting this matter for trial: Applicant`s Affidavit of December 4, 2013 Respondent`s affidavits of December 17, 2013 and March 27, 2014 The affidavit of the adult child Ashford Arthur dated March 27, 2014 [ 11 ] In addition each party filed an updated Financial Statement. The Applicant`s was dated March 25, 2014 and the Respondent`s March 27, 2014. [ 12 ] The order of October 1, 2013 provided that counsel could cross-examine the other party on the affidavit evidence filed.

INCOME OF THE PARTIES The Applicant [ 13 ] The Applicant worked on a full time basis as a personal support worker. Her 2010 income was $41,971.00, and her 2011 income $48,222.31. She filed a Notice of Assessment that showed her 2012 income to be $31,383. Subsequently she filed a T-4 showing her

2012 income from her only employer to be $47,243.60. She then attached to her updated Financial Statement a Notice of Re-Assessment showing 2012 income to be $31,819.00. The reassessment showed the exact amount of tax deducted on the T-4 (which the employer no doubt submitted to the Canada Revenue Agency.) [ 14 ] Prior to the T-4 being produced and the discrepancy noticed the Applicant was ordered to provide an affidavit that explained why her 2012 income was so much lower than the previous two years and so much lower than her projected 2013 income.

Her affidavit of December 4, 2013 said that the difference was that she was not able to get overtime in 2012. [ 15 ] The T-4 and the re-assessment were then filed and much was made of the discrepancies in cross-examination.

The Applicant stated that she was paid $47,243.60 from her employer in 2012, she had her taxes prepared by a tax preparer, she did not bring her 2012 Income tax return to court, she did receive the Notices of Assessment from the C.R.A, she could not explain the $16,770 deduction from income that was allowed on her Notice of Assessment but disallowed on the re-assessment, and she had filed a Notice of Objection concerning past taxes with the C.R.A. The Applicant filed her 2013 T-4 which showed income of $41,877.11. [ 16 ] It was suggested by Mr.

Oladejo that the Applicant had attempted to mislead the court by showing her income to be close to $30,000 when a temporary child support order was made in October 2013. He even suggested that the Notices of Assessment were “forged” to try to show lower income.

He submitted that the Applicant`s affidavit and the inability to explain the 2012 income were proof that the Applicant`s evidence in general should be given little to no credibility. [ 17 ] After considering all of the evidence and the manner in which the Applicant gave evidence I am of the view that the Applicant did not have a good understanding of what the documents filed meant or how the tax system worked. She stated unequivocally that she earned the $47,243.60 shown on the T-4. She had initially provided her Notice of Assessment as she was required to do.

In her December 2013 affidavit without reference to her 2013 T-4 she attempted to explain the big difference in income between 2012 and the earlier years. On balance I cannot find that she intentionally misled the court. The fact is though that the court was misled and I find that at the very least she was negligent in not looking for her T-4 or taking other steps to verify her income before swearing an affidavit that put down the differences to lack of overtime. [ 18 ] The Notices of Assessment do raise questions.

On the surface it appears that the Applicant`s tax preparer claimed deductions to which she was not entitled. It appears that the 2012 T-4 was not filed with the C.R.A. Ultimately the Applicant is responsible to the C.R.A. for the income tax return that she signed and she is responsible to the court for the evidence that she filed. That evidence was that she earned $47,243.60 in 2012. In giving her evidence she made no effort to maintain that her income was lower and I am satisfied that she lacked the knowledge or sophistication to create a false Notice of Assessment.

Furthermore it does not make sense to falsify the document if the correct T-4 and correct Notice of Assessment for 2013 will be filed. The Applicant needs to review her position with her tax preparer, if possible with the assistance of counsel. The temporary order that was based upon incorrect 2012 income will be rescinded by the final order to be made. Respondent`s income [ 19 ] The Respondent is employed by Pitney Bowes as a service technician.

In 2010 he earned $48,564.00 in 2011 $55,370 in 2012 $55,852, and in 2013 $57,783 (of which $5,000 was a redemption of an R.R.S.P.) [ 20 ] The Applicant`s position was that the sum of $5,000.00 should be imputed to the Respondent which she maintained was the cash income that he made as a D.J. The Applicant attached to her affidavit material posters and brochures which referred to concerts and parties that D.J. Emma and SoundMasters had organized and performed at. She said that when the parties were together (they separated in 2003) the Respondent was actively involved in his D.J. business every weekend.

She gave evidence that within the last two years she had attended parties that were organized for the Ghanian community in the G.T.A. and the Respondent was there as a D.J. [ 21 ] The Respondent admitted that he used to do a lot of work as a D.J. but said that he stopped doing so in or about 2005/06. At that time he made about $150 to $200 a week in gross income. He said that he was too old to continue in this young man`s business. He had not kept up with the music and the people attending the parties were his kid`s age.

He also said that his work as a service technician was now much more complicated as all office equipment is now networked and he had to take a lot of training courses to keep up. The Respondent said that he was well known in the Ghanian community for his D.J. work and that he now mentored “at risk youth” who were interested in learning how to D.J. He said that he did this mentoring under a name, SoundMasters, that he set up in 2010. He said that when he was a D.J. he always used the name D.J. Emma.

He said that he allowed his name and phone number to be used on posters as many of the street kids did not have reliable contact numbers and he could always get a message to one of them. [ 22 ] I find that the Respondent’s explanation for his continued involvement in the music business strains credibility but I am not prepared to completely reject his sworn evidence. He described music as his “profession” in his evidence. He was well known and the concerts being organized seemed well beyond the abilities of the street kids to put together.

I can accept that he did have a mentoring role and that he had cut back significantly on his involvement in the music business due to his age, his demanding work and his family obligations. Nevertheless he certainly needed money and he was doing some work for which one might think he would want to be compensated. However he may well have felt an obligation to his community to give back and to help young people. He was able to be very specific about the kids he had mentored.

He said that the award he had received for entertainment in his community was in recognition of his leadership role. [ 23 ] It is the responsibility of a party asking the court to impute income to prove that it is likely that that income is being earned. I find that the Applicant was able to prove that the Respondent still had a hand in the music business but that she was not able to prove that he earned any significant income from it. I do not find that the Applicant was intentionally under-employed as Mr. Fordjour submitted. He worked a full time job, had three children at home and was 50 years of age.

To hold that he was required to work late nights on weekends to create money from which to pay support is not reasonable in the circumstances. I am not prepared to impute any income to the Respondent based upon the totality of the evidence.

Undue hardship [24] The Respondent sought a finding pursuant to s. 10 of the C.S.G. of undue hardship. That

section reads as follows: Undue hardship 10.

(1) On the application of either spouse or an applicant under

section 33 of the Act, a court may award an amount of child support thatis different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making therequest, or a child in respect of whom the request is made, would otherwise suffer undue hardship. O. Reg. 391/97, s. 10 (1). Circumstances that may cause undue hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include, (

a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses andtheir children during cohabitation or to earn a living; (

b) the parent or spouse has unusually high expenses in relation to exercising access to a child; (

c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is, (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; (

e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age ofmajority or who is enrolled in a full time course of education; (

f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness ordisability. O. Reg. 391/97, s. 10 (2). Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if itis of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of childsupport under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse. O. Reg.391/97, s. 10 (3). Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of livingtest set out in

Schedule II. O. Reg. 391/97, s. 10 (4). Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, areasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable atthe end of that time. O. Reg. 391/97, s. 10 (5). Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doingso. O. Reg. 391/97, s. 10 (6). [25] The

section involves a 2 step test. The first part requires a finding by the court that the party trying to rely on the section, or achild for whom the request is made, would suffer undue hardship. The categories in s.10 are not exhaustive. [26] The first step is to determine if there is undue hardship. If undue hardship is found then the court must look to the second part ofthe test which is to determine if the person making the claim has a lower household standard of living than the support recipient. [27] In the case of Min v. Soe 2008 ONCJ 646 , [2008] O.J. No. 5679. (Ont.

S.C.J.), Blishen J. wrote: Section 10(2) sets out anon-exhaustive list of circumstances that may cause undue hardship. Even if any of the circumstances set out in s. 10(2)(

a) to (

e) areestablished, this does not necessarily establish undue hardship. A line must be drawn between "hardship" and "undue hardship" and thiswill be determined mainly on the particular circumstances of the case. [28] Undue hardship is something which causes the payor or his children deprivation. Deprivation has been held to be in respect tofood, clothing, shelter or some medical or other health need. [29] I find that the best approach to this issue was taken in Matthews v. Mathews (2001), (ON SC), 14, R.F.L.

(5th) 129 (S.C.J.). The court held as follows: I do agree with Rotherby J. in Nishnik that s. 10 of the Guidelines requires a multi-step analysis. I would go one step further and say that three distinct issues must be dealt with in turn: 1. The first question that must be answered is whether an order in the Guideline table amount (or such other amount as determined under s. 3 to 5, 8 or 9) would cause the applicant to suffer undue hardship. The non-exhaustive list of circumstances that may cause a party to suffer undue hardship is set out in s. 10(2).

Each of those considerations relates to the circumstances of the spouse making the application. One can conclude, therefore, that information relating to the financial circumstances in the responding spouse's household would not be relevant to a determination of this issue; 2. If the answer to the first question is yes, s. 10(3) requires the court to consider the standards of living of the households of both parties. If the person claiming undue hardship has a higher standard of living than the responding spouse based on the payment of support pursuant to the Guidelines, the application must be denied.

On this issue, the income of all income earners in both households is relevant; 3. If the applicant is successful on the first two issues, then the final stage of the analysis would be to determine the appropriate amount of child support payable. This requires an examination of the needs and means of both parties, among other things… [ 30 ] The Respondent relied upon s. 10 (2) (d). He had three other children for whom he was legally required to pay support-his son Denzel (16) daughter Nana Amma (15) and his son Emmanuel Jr. (9).

The Respondent said that his daughter Nana Amma lived with her mother and he paid child support of $250 a month for her. He did not provide a written agreement or court order setting out that amount. He said that his daughter had a spinal deformity and that he had paid $3,000 for a special brace for her (the insurance company had paid the other half of the $6,000 cost). He did not have written proof of the cost but stated that he had asked the insurer for it.

His evidence was so specific on this point that I find it likely that he did make the payment notwithstanding that the receipt was not provided. [ 31 ] The Respondent said that Emmanuel Jr. also had special needs. He said the child was born prematurely and had developmental delays. He said that his wife Isabella Arthur, the child’s mother would not allow him to inform the Applicant of the specifics of her son’s medical condition. The Respondent said that he paid $500 quarterly for Emmanuel’s medication and $250 a month for his babysitting.

The Respondent had no receipts for the medical cost and simply said he gave the money to his spouse, the child’s mother. His evidence on this point was less clear than in other areas and medical costs must be explained when there is government health coverage and an employment plan. The child care costs were not directly supported either. The affidavit of March 27, 2014 attached a letter from the San Romanoway Revitalization Association that set out that for a full calendar year a breakfast, afterschool and summer camp program totalled $625.00.

I find it likely that the Respondent and his spouse did pay additional monies to have their son met at the bus stop as he testified but the amount was uncertain. [ 32 ] The wording of s. 10 (2) (

d) does not require that the children have quantifiable special needs. All three of the children were under the age of majority and the Respondent’s obligation for their support was a factor that could be considered under ss. (d) (i). If one or more of those children also had special needs that factor should be taken into consideration. In some cases a finding of special needs could arguably take a case of hardship and turn it into one of undue hardship.

However there could also be undue hardship simply as a result of being financially responsible for three children under the age of majority in addition to the three children of the relationship between the parties. [ 33 ] The issue of whether the Respondent could make a case of undue hardship rested solely on his responsibilities for his children. The Respondent also made an issue of the amount of debt that he had as evidenced by his sworn Financial Statement. However, the parties’ separation occurred in 2003 and that debt was not linked to the cohabitation of the parties.

I find that the debts did not come within s. 10 (2) (

a) of the C.S.G . [ 34 ] A finding of undue hardship is necessarily very case specific. In this matter the Respondent earned $52,783. He had withdrawn $5,000 from his modest R.R.S.P. account (he only has $4,000 remaining) to support his family in 2013. He has a legal obligation to support 6 children. Three of those children live with him and his spouse. Her only income as disclosed by her 2013 T-4E was E.I. for a return to work program that ended in February 2014.

I find that the Respondent may have had a significant one time outlay of monies for his daughter Nana Amma but he states that he is paying table child support for her of $250 a month which is much lower than his C.S.G. obligation for one child in her mother’s household. I find that Emmanuel Jr. does have some child care costs as evidenced by the documents filed and evidence given. He may well have expensive medication costs too but that was not proven.

The Respondent’s obligation on his income of $57,783 for two dependent children in the care of the Applicant would be $858.00 per month (less the offset for Ashford living with him). Although the evidence is not overwhelming I find that based upon the criteria set out in s. 10 (1) that it would be an undue hardship for the Respondent and also his three other dependent children for him to pay the full table amount at this time. [ 35 ] The provisions of s. 10 (5) permit the court to set a reasonable time limit upon the reduced amount of child support due to undue hardship.

If the Respondent’s claim for undue hardship was permitted by the provision of s.10(3) I would do so in this case. The Respondent’s three other children are Denzel (16), Namma Amma (15) and Emmanuel (9). Once the child Namma Amma attains the age of 18 years on June 12, 2017 the Respondent will have only one child under the age of majority. Furthermore that child Emmanuel will then be 12 and will no longer require child care. The only child of his relationship with the Applicant that will likely still be eligible at that time would be Neviah who would then be 16.

There will be no undue hardship at that time and he must pay the full table amount of child support upon his income. [ 36 ] As noted above a finding of undue hardship in and of itself does not permit a court to make an order for support different than that set out in the C.S.G. and the applicable table. The second part of the test required by s. 10 (3) and (4) is the Standard of Living analysis under

Schedule II to the C.S.G . Mr. Oladejo filed a test which was attached to the March 27, 2014 affidavit of his client. That test showed the Respondent’s household to have a lower household income ratio than the Applicant’s ratio. However as was reviewed in submissions that test was flawed. I will set out the errors and the corrections that need to be made.

Respondent Step 1 : (

A) The S.O.L. test is for household income. The test completed did not include Isabella Arthur’s income. The incomes used were the 2013 incomes of the parties which were appropriate. Isabella Arthur received $23,903.00 in E.I. income that year as set out in the Respondent’s 2013 tax return. (Even if her subsidized return to work program is over she should be imputed income at minimum wage which annualizes to $22,880.00 so the 2013 income is reasonable) The Respondent’s annual income was $57,783. (

B) The 2013 tax

summary showed that the tax actually paid by the Respondent was $7,993.13 and by Isabella $234.18 (

C) The correct number was used $891.12 (

D) The correct number was used $2,356.20 The Annual income of the Respondent under this step is $57,783-$7,993.13 - $891.12 - $2,356.20 = $46,542.55 The annual income of Isabella is $23,903.00 – 234.18 = $23,668.82 Step 2 : The child support shown in the test filed was that actually paid for part of 2013 pursuant to a temporary order. The test would be skewed if annual income is used but only some months of child support deducted. The child support should be annualized to the amount that should have been paid under the C.S.G .

The Respondent did not pay the correct amount under the CSG for the parties’ children in 2013.

He should have paid a set off amount of $484.00 per month to the Applicant which is $5,808.00 for the year and he swore that he paid $250 per month for Nama Amma which is $3,000 for a total of $8,808.00. (I should note that I have not deducted any amount for s.7 expenses for the children that the Respondent does not share with the Applicant as this is a prospective analysis and there was no evidence as to the expenses going forward other than the likelihood that 9 year old Emmanuel would require some before and after school care that cost $625.00 per year.

In the end result even if some s.7 expenses were set out the Respondent would still have had a higher ratio.) Step 3 The cumulative child support paid or notionally to be paid is to be deducted leaving an adjusted income of $46,542.55 - $8,808.00 = $37,734.00 for the Respondent Isabella had no child support obligation so her adjusted income is $23,668.82 The total household income is $46,542.55 + $23,668.82 = $70,211.37 Step 4 The low income measure for a household with two adults and three children is $23,979. Step 5 The adjusted amount of the Respondent’s income is $70,211.37 divided by $23,979.00 = 2.92.

The household ratio of the Respondent is 2.92 Applicant Step 1 The information set out in the analysis filed accurately set out the information from the Applicant’s T-4. Once again the Step 1 deductions were set out but not actually deducted. After deductions the annual income was $32,933.82. Step 2 The child support set out for deduction was not annualized. As the child support paid for Ashford was set off against the Respondent’s child support for Annabelle and Neviah the Applicant should not have paid any child support in 2013 (note that this is because the set off amount is used for the Respondent above.

If the total amount of the child support before set off had been used above then the amount paid by the Applicant before the set off would be set out.) The amount of child support received by the Applicant must be set out. The Respondent should have paid $5,808.00 to the Applicant.

Step 3 When the adjusted income is added the amount is ($32,933.82 + $5,808.00) $38, 741.82 Step 4 The low income measure for 1 adult and two children is $17,649.00 Step 5 The low income ratio is ($38,741.82 divided by $17,649.00) 2.19 Step 6 The comparison of the Household income ratios shows that the Applicant has a lower ratio than the Respondent. [ 37 ] It is clear from this analysis that as the Respondent has the higher household income ratio he is not entitled to have his child support reduced due to the provisions of s. 10 (3) even if he is able to otherwise establish undue hardship under s. 10 (1). [ 38 ] The ongoing support to be paid by the Respondent to the Applicant beginning June 1, 2013 shall be the set off amount of $484.00 per month.

Retroactive child support

Should there be any retroactive order? [ 39 ] The Applicant’s evidence was that in 2008 the Respondent convinced her to not pursue her Application for a final order of child support for the then 4 eligible children because he said that he would pay her the correct amount directly. [ 40 ] The Applicant’s affidavit of December 4, 2013 stated that the Respondent had not paid support regularly since they separated in 2003 and that he only paid support when he felt like it.

She added that she decided to request child support from January 1, 2010. [ 41 ] In her Application signed April 9, 2012 the Applicant stated that the Respondent was paying $800 per month for the four children when the matter was still in court. He then reduced it to $600 per month and then down to $400 a month. She stated that he had not paid any child support to her in 2012. Under cross-examination it was suggested to the Applicant that the Respondent had always paid some support and if he did not pay any amount that she considered appropriate she could always apply to court as she had done so in the past.

The Applicant was not clear on the dates that the child support was reduced but she did state that it reduced to $400 not long after the Application was dismissed and that she was not receiving support when she brought the Application in April 2012. [ 42 ] The law of retroactive child support is governed by the Supreme Court of Canada’s decision in D.B.S. In this matter the Applicant had a temporary court order for child support. She chose, perhaps with strong encouragement from the Respondent, to not pursue that Application for a final order.

On her evidence the child support dropped quickly from May 2008 dismissal to the sum of $400 a month. She knew from her previous application and court orders that the Respondent was paying far less than the C.S.G. mandated upon his income. For whatever reason, the Applicant made a decision to not return the matter to court until April 2012. Both parties said that there was no effective communication between them. There was no evidence that the Applicant asked for the child support to be increased prior to bringing her Application.

There was no effective notice in this matter that would justify a retroactive order prior to the actual notice given by the service of the Application upon the Respondent on May 26, 2012. The Applicant’s evidence was that the Respondent had paid no child support in 2012. The Respondent did not dispute that. While the Applicant may have acquiesced in receiving less than adequate child support she clearly did not acquiesce to no child support being paid and I find that she took timely steps to have an Application issued.

I find that in all of the circumstances of this matter a child support order should be made retroactive to January 1, 2012. What amount of child support should be ordered and for what period? [ 43 ] In January 2012 the parties’ four children all lived with the Applicant. However Curtis was then 24 years old, finishing the third year of a computer programming course, paying his way through school and working part-time. Mr.

Fordjour said in his opening statement that the Applicant was not seeking child support for Curtis after 2011. [ 44 ] In 2012 the Respondent earned $55,852.00 and child support for three eligible dependents would be $1,086.00 per month. This would continue until Ashford went to reside with his father at the end of May 2013. I need to determine if the table amount pursuant to the C.S.G. should simply be applied in this time frame or whether some other approach should be taken. Mr. Olajedo’s position was that no retroactive child support should be ordered.

He did not address the quantum of such support if his position was not adopted. I find that pursuant to the principles set out in D.B.S . the court has discretion available in setting the quantum of retroactive support that are not available in setting ongoing support. I am mindful of the fact that child support claims post Application are not really claims for retroactive support. In this case the period January to June 2012 is truly a retroactive claim as the Application was not served until May 26, 2012.

However, this matter took some time to resolve and in the time period up to June 2013 the amount the Respondent should pay was not clear. On the specific facts of this case I have chosen not to distinguish in my analysis between pre and post-Application child support claims. [ 45 ] There was no standard of living test prepared for this time period. At this time the Respondent had two children Denzel and Emmanuel living with him. His spouse Isabella came to Canada in 2011.

Her Notices of Assessment filed show her 2011 income to be $4,510.00 and her 2012 income to be $15,299.00 significantly less than the 2013 E.I. training program income that she earned in 2013. [ 46 ] In 2012 the Applicant’s T-4 statement which I have accepted as her income for C.S.G . purposes showed income of $47,243.60. This appeared to be the year that the Respondent paid $3,000 for Namma Amma’s spinal brace. Then 7 year old Emmanuel would likely have had the same or greater child care costs. [ 47 ] In

summary I find that it would be an undue hardship for the Respondent to be required to pay the full table amount of child support for the 2012 to May 2013 period. The next question is what amount should be ordered. I have found that the Respondent must pay set off support of $484.00 per month from and after June 1, 2013. Clearly the amount to be paid to the Applicant when Ashford still resided with her must be more than the amount paid to her when the Respondent was responsible for Ashford’s care. The amount must be between $484.00 per month and the full table amount of $1,086.00.

I find the sum of $600.00 per month to be appropriate for the period January 1, 2012 to and May 31, 2013. [ 48 ] There were without prejudice orders for support made on March 22, 2013 (by way of consent), June 21, 2013 (after Ashford changed residences) and October 1, 2013 (when the Respondent’s without prejudice reduced amount for undue hardship was set aside due to his failure to produce a standard of living test.) I have chosen not to attempt to quantify a lump sum for arrears prior to this final order as I do not know what was paid to the F.R.O. pursuant to the temporary orders.

Any monies that were paid shall be credited to the Respondent’s payments under the final order.

Section 7 claims [ 49 ] The Respondent sought an order for s.7 expenses in her Application. Both parties filed affidavit material addressing the special expense that they had paid for their children. Neither party quantified the total amount paid. Neither party set out the income of the adult children for whom they had paid post-secondary costs. Neither party set out detailed information as to the contribution of the adult children to their post-secondary expenses. In fact, neither party argued at the motion for ongoing special expenses for the adult children

or arrears of s. 7 expenses for any children. [ 50 ] It was clear from the evidence that the eldest child Curtis had largely financed his own education. Ashford and Annabelle received O.S.A.P. assistance. As the parties did not communicate outside of the litigation the party with whom a child resided appeared to provide some assistance to post-secondary expenses for the child living in their home. They appeared content with this arrangement. I find that the children are able to pursue post-secondary education without financial assistance from their non-resident parent.

I make no order for s.7 expenses for the children Annabelle and Ashford. [ 51 ] There was no specific claim advanced for s.7 expenses for the child Neviah. However, it is appropriate that the parties contribute proportionally to their respective incomes to her future expenses. The Respondent’s 2013 income was $57,783.00 but $5,000 of that was a withdrawal from an R.R.S.P. in 2013 that he will not be able to continue doing. In determining the proportions I will only use earned income. The Respondent’s 2013 employment income was $52,783 and the Applicant’s $41,877.

The Respondent shall pay 56% of the s.7 expenses of the child Neviah if he has been provided with advance notice of the expense and cost. Costs [ 52 ] There were no sealed offers to settle filed with the court. There was divided success on this Motion to Change. This is not an appropriate case for costs. Final Order 1. The Applicant shall have custody of the child Neviah Arthur born February 19, 2001. 2.

a) The Respondent shall pay to the Applicant for the support of the children Ashford Arthur born September 14, 1992, Annabelle Arthur born February 28, 1994 and Neviah Arthur born February 19, 2001 the sum of $600 per month beginning January 1, 2012 and payable until May 31, 2013.

This sum is not based upon the Respondent’s 2012 income of $55,852.00 but reflects a reduction in the table amount for the applicable period for reasons given. b)(i)The Respondent shall pay to the Applicant for the support of the children Annabelle Arthur and Neviah Arthur the sum of $ 861.00 per month beginning June 1, 2013 based upon his 2013 income of $57,963.00. ii) The Applicant shall pay to the Respondent for the support of the child Ashford the sum of $377.00 per month based upon her 2013 income of $41,877.00. iii) The above noted payments shall be offset such that the Respondent shall pay to the Applicant child support in the amount of $484.00 per month beginning June 1, 2013 and payable on the first day of each and every month thereafter.

c) amounts paid to the F.R.O. pursuant to the temporary orders shall be considered as payments made pursuant to this order. 3.

a) The Applicant’s claim to s.7 expenses for all children with the exception of Neviah Arthur is dismissed.

b) i) The Respondent shall pay 56% of the reasonable s.7 expenses for the child Neviah Arthur. ii) The Applicant shall provide the Respondent with full particulars of any s.7 expense for which she seeks his contribution and consult with him about that expense at least 30 days prior to incurring same. iii) The Respondent shall not be required to contribute his proportionate share for an expense unless and until the Applicant contributes her share. Released: April 8, 2014 Justice P.J. Clay