r v. Heus, 2013 ONSC 2369

CITATION : Kramer v. Heus, 2013 ONSC 2369 COURT FILE NO.: 515/97 DATE: 2013-04-22 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Dottie Kramer ) ) ) Self Represented Applicant ) ) ) - and - ) ) ) Brian Heus ) ) ) Self Represented Respondent ) ) ) ) ) HEARD: April 19, 2013 The Honourable Mr. Justice Robert Nightingale REASONS FOR JUDGMENT [ 1 ] Dottie Kramer brings this Application against Brian Heus for child support for their daughter Swaizie Rai Lauzon, age 15, born September 26, 1997. Ms. Kramer has had custody of the child pursuant to an Order of the Honourable Judge Scott of September 29, 1998.

No child support was ordered to be paid at that time by Mr. Heus because of his inability to pay but he was required to notify Ms. Kramer in writing within 10 days of any change in his financial situation and provide her with particulars. [ 2 ] Ms. Kramer’s evidence was that she now has no source of income herself and she lives with Swaizie and her husband who she married in October 2010 in a rental accommodation in St. Catharines. Swaizie is a special needs child with a disability and will likely remain in high school until age 21.

[ 3 ] In her opening submissions, she indicated that she had not asked the Respondent for support in the past because of his having four other children with his present spouse and her believing he was not working. She brought this Application claiming child support retroactive to January 1, 2010 as she believed he was working in 2010. [ 4 ] The financial disclosure provided by Mr. Heus in his income tax Notices of Assessment indicated that he earned $36,941 in 2010 and $42,114 in 2011. [ 5 ] Mr. Heus also gave brief evidence in which he admitted that he didn’t help Ms.

Kramer out much in the past with child support for Swaizie suggesting he gave her sporadic but very minimal amounts of cash, a bike and a bed. He readily admitted that he knew he should be paying child support for Swaizie but simply stated that because he is now responsible for his four children, ages 5 to 8, with his present spouse, he was not able to pay support for Swaizie. [ 6 ] His evidence is that he has been in receipt of disability income from the Ontario Disability Support Plan since February 1, 2010.

He had some minimal employment income on a part-time basis before that time but has not been able to work since and is taking medication for high anxiety.

No medical evidence confirming the nature and extent of his disability was provided to the Court. [ 7 ] His financial disclosure confirms that he received $25,139 in ODSP payments in 2012 but there was no evidence before me as to whether there was and, if so, what the breakdown of that amount would be allocated for himself and his four children. [ 8 ] His present spouse, although initially gainfully employed, no longer works but she receives child tax credit income for their four children of approximately $12,000 to $15,000 per year. [ 9 ] His income noted in his Notices of Assessment of $36,941 for 2010 and $42,114 for 2011 was for his ODSP payments.

He stated that his financial statement sworn in November 9, 2012 was still accurate as of the date of the hearing which confirmed his ODSP monthly income of $2114 and $3400 of monthly expenses which was for his spouse and four children. The difference was covered by the child tax credit income being received by his wife. His bank overdraft in November 2012 of approximately $1000 is the same amount now. [ 10 ] Ms. Kramer, after hearing the sworn evidence of Mr.

Heus regarding the ODSP source of hi income in 2010 and 2011, in her submissions confirmed that she was no longer asking for retroactive child support but was only asking for child support for Swaizie in the Guideline amount of $201 per month based on Mr. Heus’s ODSP annual income of $25,139 from the date she commenced this application on October 24, 2012. The first court date was December 5, 2012. Analysis [ 11 ] The evidence is clear and Mr. Heus did not dispute that his total income for the purpose of calculating child support under the Ontario Child Support Guidelines is his ODSP annual income of $25,139.

The child support monthly Guideline amount for Swaizie based on that income is $201 per month. [ 12 ] Mr. Heus in his Answer to this Application did not suggest he was unable to pay child support in accordance with the Guidelines but simply stated that Ms. Kramer in the past had refused payment from him. He did not raise or suggest the issue of undue hardship with respect to his child support obligations. [ 13 ] In his evidence he agreed he had to pay child support but stated he had four other children but gave no evidence to suggest that payment of the Guideline amount would be an undue hardship for him.

No evidence was provided to the Court with respect to his family’s standard of living including why his present spouse is not working. [ 14 ] He had at no time applied for a determination of undue hardship on his

part if he was obligated to pay the Guideline amount of child support nor was there any evidence from him suggesting that his household standard of living would then result in a lower standard

of living than that enjoyed by Ms. Kramer. [15] Accordingly, as Mr. Heus has not sought to invoke the undue hardship provisions of

Section 10 of the Child Support Guidelines,it is not appropriate for this Court to consider that in this Application. [16] In any event, undue hardship is an excessive, extreme, improper, unreasonable and unjustified hardship. It must be more thanawkward or inconvenient and is a tough threshold to meet. Swift v. Swift (ON SC), [1998] O.J. No. 501 [Gen.Div.]. [17] Even if Mr. Heus had formally requested relief from the monthly Child Support Guidelines by invoking the undue hardshipprovisions of

Section 10 of the Child Support Guidelines, he has not provided any evidence of any significance that would be necessaryto satisfy the provisions of that requirement. In particular, there is no evidence that any hardship, even if there was one, would be“undue”. [18] Moreover, he has essentially paid no support for his 15-year-old daughter of his first relationship in the past and he must do so now. Reid v. Nelson (2002) (ON CJ), 30 R.F.L. (5th) 153.

Conclusion [19] Accordingly, the Respondent Brian Heus shall pay to the Applicant Dottie Kramer child support for Swaizie Rai Lauzon, bornSeptember 26, 1997 in the amount of $201 per month commencing December 5, 2012 which child support is based on the Respondent’sannual income of $25,139. [20] If the parties wish to make submissions regarding costs of this application, they can do so by providing their written submissionsof no more than two pages in length to the Trial Coordinator at St. Catharines within seven days from the date of this decision. ___________________________ The Honourable Mr. Justice R. J.

Nighitngale Released: April 22, 2013 COURT FILE NO.: 515/97 DATE: 2013-04-22

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Dottie Kramer Applicant - and – Brian Heus Respondent REASONS FOR JUDGMENT The Honourable Mr. Justice R. J Nightingale Released: April 22, 2013