) ) W. David Kimbrell Applicant – v. –, 2017 ONSC 142

CITATION : Kimbrell v. Kimbrell, 2017 ONSC 142 COURT FILE NO.: 7425/14 DATE: 20170106 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) W. David Kimbrell Applicant – and – Lorraine Marie Theresa Kimbrell Respondent ) ) ) ) ) ) ) ) ) Self-Represented Self-Represented ) ) ) HEARD: April 12 and September 9, 2016 Raikes J. [ 1 ] The applicant father brings a motion to change the final order of Justice Sheffield dated February 9, 2012 as it relates it to the payment of child support.

He claims that he has overpaid for child support and seeks not only to be relieved of child support arrears which have arisen since FRO became involved but reimbursement of excess child support paid to the respondent; viz. a retroactive adjustment. As each parent now has one child in his or her custody, he further asks that neither pay child support to the other on an ongoing basis. [ 2 ] The respondent mother opposes the applicant’s motion to change. She asserts that he has not overpaid and, in fact, remains in arrears.

She wishes those arrears to be paid and for ongoing child support to be payable to her. [ 3 ] The motion to change was initiated December 22, 2015. The Parties [ 4 ] The parties lived together for approximately two years before they married in May 31, 2002. They separated in April, 2006 and divorced in June, 2009. [ 5 ] David Kimbrell is 65 years old. He is an American who presently resides in Port Huron, Michigan. [ 6 ] Lorraine Kimbrell is 52 years old. She is a Canadian who presently resides in Sarnia, Ontario.

The Children [ 7 ] The parties adopted three children from West Samoa: Ianetta born February 14, 1993; Lily born March 29, 1995; and Kofe born April 9, 1999. Ianetta and Lily are biological sisters. [ 8 ] At the time of his adoption, Kofe was a street urchin in West Samoa. He was adopted after Ianetta and Lily. Kofe suffered from severe Reactive Attachment Disorder and ADHD. [ 9 ] Approximately two months after Kofe was adopted, the parties became biological parents of a daughter, Abigail, born January 3, 2005. [ 10 ] In 2002, the parties were living in Lawrence, Kansas.

They and the children moved in July, 2005 to Mount Dora, Florida. They closed on a house in Santa Fe, New Mexico on December 31, 2005 and moved to New Mexico where they resided as a family until they separated in April, 2006. New Mexico Orders [ 11 ] Upon separation, the three adopted children resided with the applicant, and the parties shared care of Abigail. In early, 2009, the respondent mother was given custody of Ianetta, Kofe and Abigail by court order made in New Mexico.

The applicant continued to care for Lily who resided with him. [ 12 ] The applicant was ordered by the New Mexico court to pay child support to the respondent in the amount of $1470 each month. From the testimony provided at trial, it seems that the litigation in New Mexico was hotly contested. I do not have, and neither party

tendered as part of their case, any of the orders made in New Mexico. [ 13 ] In December, 2010, the respondent mother sought an order from the New Mexico court permitting her to move with the children in her care to Ottawa, Canada. The applicant testified that the respondent misled the New Mexico court in that she asserted that she had a job paying $60-$80,000 per year to go to in Ottawa.

The respondent mother disputes that evidence and maintains that she only indicated to the New Mexico court that she had the opportunity to pursue employment that would pay in that range. [ 14 ] In any event, the New Mexico court made the order permitting the respondent to move to Ottawa with the three children in her care which she did in 2011. The applicant continued to reside in New Mexico but flew to Canada each month to visit with the children on a weekend.

Final Order of Justice Sheffield [ 15 ] The applicant commenced proceedings in Canada which eventually resulted in the final order of Justice Sheffield dated February 9, 2012. [ 16 ] The applicant asserts that the order of Justice Sheffield dated February 9, 2012, which requires him to pay child support of $1470 each month, was made in respect of three children: Ianetta, Kofe and Abigail.

The amount payable mirrors the amount he was ordered to pay for the three children by the court in New Mexico. [ 17 ] The respondent contends that the order made by Justice Sheffield was for child support payable only for Kofe and Abigail as, by then, Ianetta had moved out and was living elsewhere on her own. She agrees that the amount payable for child support is the same as that ordered in New Mexico. The order in New Mexico was based on her estimated income of roughly $22,000 per year, his income at the time and the fact that he had one child while she had three.

She asserts that the amount of child support ordered by Justice Sheffield results from an agreement between the parties that was incorporated on consent into the order. [ 18 ] I note that the order is silent with respect to the names of the children for whom child support was to be paid. Neither party provided to me a copy of any reasons given in respect of the February 9, 2012 order nor any of the underlying documents filed with the court at that time from which I might ascertain the children who were the subject of the child support order. [ 19 ] On this issue, I accept the evidence of the respondent mother as:

a) The terms of the order also address access to the “children”. By February, 2012, Ianetta was 19 years old, an adult, for whom no order for access would be necessary;

b) Other provisions of the order, see for example para 6, deal with matters typical to school-age children like report cards, education and medical assessments and treatment etc.;

c) Para 6f of the order expressly refers to Kofe and Abigail only; and

d) If the applicant was indeed flying to Canada monthly to visit the children, then he had to know that Ianetta was no longer living with the respondent. In this regard, he indicated that he learned this fact in 2013 from Lily. [ 20 ] I find that the order of Justice Sheffield dated February 9, 2012 relates only to Kofe and Abigail. Moves to Sarnia/Port Huron [ 21 ] The respondent lived in the Ottawa area with the two children until she moved to Sarnia. Soon after, the applicant moved to Port Huron in November, 2013.

He has remarried and his wife, Vera, resides with him in Port Huron. [ 22 ] Lily is now living independently. She suffers from mental health issues. She stays with the applicant and his wife from time to time. [ 23 ] Following his move to Port Huron and given his proximity to the children, the applicant was able to see more of Kofe and Abigail. He estimates that Abigail is in his care approximately 20% of the time. He was seeing Kofe on alternating weekends; however, since August, 2015, Kofe has resided in Port Huron with him.

Kofe is enrolled in school in Port Huron and is doing well with good grades and participation in various school sports like football and basketball. 2014 Sea Cadet Camp [ 24 ] In the summer of 2014, Kofe attended Sea Cadet Camp in Kingston for six weeks. That camp was paid for by the Canadian military. Kofe’s accommodation, meals and expenses are covered while he attended the camp. He also received a modest stipend for the work which he did while at camp.

In addition to the stipend, cadets who attend the camp increase in rank and responsibility in their home unit. [ 25 ] According to the respondent, Kofe was enrolled in Sea Cadets to provide structure and discipline. Cadets who attend the summer camps earn the right to do so by their conduct and effort with their home unit. Kofe attended the Sea Cadet camp in Ottawa in 2012 for two weeks, and Sea Cadet camps in Kingston in each of 2013 and 2014 for six weeks. The respondent did not visit Kofe in Kingston while he was on course.

HHBH [ 26 ] Soon after he returned from Sea Cadet camp in August, 2014, Kofe was enrolled by the respondent in the Huron House Boys Home (“HHBH”). He resided at home with the respondent for approximately two weeks before going to HHBH.

[ 27 ] The respondent testified that she decided to enroll Kofe at HHBH earlier in June based on a recommendation from his counsellor. Kofe had been arrested twice for shoplifting and bullying issues. He had behavioural problems and was diverted to the St. Clair Child & Youth Services. Enrolment in HHBH was voluntary as part of a plan of care through family counselling. [ 28 ] HHBH is a residential program. Children reside at the facility seven days per week. Alternate weekend home day visits are permitted if the child demonstrates proper behaviour.

Overnight stays at home are not permitted as a general rule unless merited by the child’s conduct. [ 29 ] Kofe came home once or twice to visit the respondent. He spent part of Christmas Day, 2014 with the respondent. In early 2015, Kofe became more distant and did not want to visit the respondent. They have had no contact or communication since April, 2015. The respondent testified that that was Kofe’s choice. [ 30 ] There was no out-of-pocket cost to the respondent for Kofe’s accommodation, meals or care while he was at HHBH, which is a publicly funded institution.

Kofe Moves to Port Huron [ 31 ] The applicant testified that he had no idea that Kofe was going to be participating in the camp in Kingston in the summer of 2014. He had made plans to spend time with Kofe and had no warning. The respondent testified that Kofe’s acceptance into that camp was made at the last minute but the applicant should have known that this was a possibility. [ 32 ] As for Kofe’s enrolment at HHBH, the applicant indicated he was not consulted nor was he notified by the respondent. [ 33 ] It is clear that the lines of communication between the parties are far from ideal.

This is disappointing given that they have children who depend to some degree on their parents cooperating and communicating as one would expect of reasonable adults. [ 34 ] The applicant began to visit the Kofe at HHBH. He soon arranged for Kofe to visit with him in Port Huron although that was not without some difficulty as he did not have the legal papers necessary to facilitate Kofe’s border crossing.

He got little cooperation from the respondent but eventually was able to secure the documents to permit the Kofe to visit and reside in the United States. [ 35 ] Kofe spent increasing amounts of time with the applicant in Port Huron. By the summer of 2015, Kofe wanted to reside with his father. He has done so since August, 2015. He has had no contact or communication with the respondent by his choice. It is expected that he will reside with the applicant and his wife indefinitely. [ 36 ] Thus, as of August, 2015, each parent had one child in his or her care. That continues to be the situation.

Parties’ Positions [ 37 ] The applicant argues that as of July, 2014, the respondent had little or no cost associated with the care of Kofe because he was either at the Sea Cadet camp for which she paid nothing or enrolled at HHBH for which, again, she paid nothing. He submits that there has been a material change in circumstances as of the summer of 2014 and certainly as of August, 2015 when Kofe came into his care on a full-time basis. [ 38 ] The respondent takes the position that she continued to have a home available to Kofe. He returned and spent two weeks with her after Sea Cadet camp.

His enrolment in HHBH is tied to his behavioural issues over which she has no control. His decision to reside with his father is a choice that he has made which she respects. She does not dispute that there is a material change in circumstances as of August, 2015. Applicant’s Income [ 39 ] I turn now to the financial circumstances of the two parties. That is also relied upon by the applicant to justify a finding that there has been a material change in circumstances. Their incomes are also relevant to the amount of child support payable. [ 40 ] The applicant is an entrepreneur and has been for more than 30 years.

He holds two Masters degrees and two Bachelor’s degrees. He has only ever worked for one company that he did not found himself. [ 41 ] In 1982, he founded an environmental services firm that grew larger. He sold that company. He then built other companies some of which succeeded and others did not. [ 42 ] Upon moving to Port Huron from Santa Fe, he started a company called Environmental Ingenuity. His goal is to use that company to roll up fragments of other companies with a view to putting them together to create synergies and sufficient size that they will be attractive for resale as an entity.

He explained that this activity takes a lot of time, energy and start-up capital to acquire and hold these businesses. [ 43 ] In July, 2015, he received a letter of interest from a private equity funder who expressed interest in providing funding up to $25 million for this venture. A few weeks later, in August, the funder exercised its right to terminate leaving him at square one in his pursuit of funding for this latest venture. [ 44 ] He testified that at present, he is “flat broke”. He receives Social Security in the amount of $1,239 US per month.

He has been receiving Social Security for approximately two years. [ 45 ] He also testified that he last received a pay cheque in May, 2006. He has been living on assets that he accumulated during his lifetime. One of those assets, an 80 acre ranch in New Mexico, was sold for a price of $975,000 in September, 2015. The buyers took

possession of the property and were to pay him $5,017 per month toward the purchase of the property with the balance to be paid on January 22, 2016. He treated the $5,017 per month together with his Social Security payment as income for child support purposes in 2015. [ 46 ] The buyers defaulted in payment of the monthly obligation. Approximately a week before closing, he learned through his attorney that the buyers did not intend to close. The buyers did not close and stayed on the property as squatters. This has led to legal proceedings in New Mexico to get possession of the property.

In the meantime, the mortgage company has threatened foreclosure. It is owed approximately $204,000. [ 47 ] The upshot of the above problem with his property in New Mexico is he has been unable to realize on an asset that he expected to be able to use to fulfil his child support obligations.

Further, he is incurring expenses to recover the property before the mortgage company steps in. [ 48 ] Exhibit 2 is a letter dated January 29, 2016 from Rubicon Mortgage Fund LLC which attaches, inter alia , a complaint for breach of contract in an action commenced in the state court in New Mexico by Ranch Shares, LLC, as plaintiff, and two individuals. The applicant identified this document as the claim being asserted to get possession of the property and payment. [ 49 ] Attached to the complaint and referred to in the complaint is the contract for the sale of real property in the amount of $975,000.

The agreement itself is not dated but the complaint indicates that they entered into the contract on September 22, 2015. The contract indicates that the buyers were to pay a down payment of $25,000 which was non-refundable as well as $3000 per month beginning September 22, 2015 and continuing each month on the 22 nd until they closed the transaction. Those payments were to be applied to the purchase price and were likewise non-refundable. [ 50 ] My first observation is that the $3000 payable seems to me a far cry from $5017 which he indicated he was receiving monthly.

I also note that the $3000 per month covers only a five-month period. It is not rent but a credit against the purchase price when the transaction closed. I am at a loss to reconcile the amount the applicant claimed to be receiving monthly with the amount provided for in the contract. [ 51 ] The applicant also testified that he has “burned through” what savings he had in pursuit of the business he was trying to aggregate through Environmental Ingenuity.

I observe that closing submissions in this case were deferred immediately following close of the evidence because the applicant had to fly out West to pursue what he hoped would be replacement private equity funding for this new venture. Unfortunately, that funding did not come through. [ 52 ] At this point, the applicant claims that he has only his Social Security monthly cheque.

He continues to look for funding and hopes that the litigation in New Mexico will soon free up the property for sale so that it can provide a hedge against his ongoing expenses. [ 53 ] He has provided his US tax returns but they are decidedly unhelpful in assessing his income. For example, his 2013 tax return (Exhibit 7) indicates he had negative income of $2,097,628. This is a flow-through from losses accumulated by another of his companies, G3. His 2014 tax return (Exhibit 8) picks up the expenses incurred for Environmental Ingenuity as well as the G3 losses. It shows his income as -$2,218,874.

His 2015 tax return (Exhibit 9) shows negative income of $2,287,143. I am unable to discern with any degree of certainty what his income for child support purposes was in 2014 and 2015 based on his tax returns and the evidence adduced at trial. [ 54 ] The applicant testified that he is and has been living on what he receives from Social Security and credit card advances. He stopped making payments to FRO in December, 2015 and is now substantially in arrears for child support.

He estimated the arrears at $14,000 and the respondent estimated the arrears at $16,000. [ 55 ] The applicant asserts, and there is no evidence to the contrary, that he is doing everything he can to generate income. He points to the loss of his savings pursuing these opportunities as evidence of his good faith in trying to generate an ongoing source of income. As for the litigation in New Mexico over the ranch, he submits that that is a matter entirely beyond his control and the result of non- performance by the buyer, not a lack of willingness to close on his part.

Respondent’s Income [ 56 ] The respondent has a university education. In 2013, she earned approximately $21,000. In 2014, her income dipped to $9,477.75. She testified that she was unemployed for part of 2014. She was looking into a business venture with another person and depleted her savings to survive. In 2015, her earnings were $22,758.56. She works in sales doing voice-overs for IP solutions to small companies. She started that work in July, 2015. She is still seeking employment that will pay better.

I find that the respondent’s income was: $9477 in 2014, $22,758 in 2015 and the same in 2016. [ 57 ] According to the respondent, the applicant has always been a high earner. She submits that his income for child support purposes in 2014 and 2015 was approximately $73,000 US which she equates to roughly $100,000 Canadian. [ 58 ] I find that the applicant’s income for child support purposes in 2014 and 2015 was approximately $73,000 US which corresponds to his sworn Financial Statement in the Continuing Record.

I have no evidence as to exchange rates in 2014 and 2015 and accordingly, can only estimate that income in Canadian dollars as roughly $90,000. [ 59 ] For 2016, I find that his income is limited to that received from Social Security which amounts to approximately $15,300 US. There is now a significant exchange difference between the Canadian dollar and the American dollar which changes from day to day. It is not possible for me to calculate the amount of his income in Canadian dollars with mathematical precision.

Accordingly, I fix the applicant’s 2016 income at $21,000 Cdn. [ 60 ] The applicant chooses to pursue business ventures which are inherently risky. When those risks pay off, he does very well. When they do not, as recent history has shown, he bears the brunt of that failure which necessitates the liquidation of his assets and savings to

meet his obligations. Could he make more money working for someone else given his experience and education – it is very likely.However, he has pursued this entrepreneurial path with some success for more than 30 years including during the time the parties weretogether. I am not prepared to impute additional income to him. Law – Change of Child Support Order [61] S. 17(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am. gives the court jurisdiction to make an order varying,rescinding or suspending, prospectively or retroactively, a support order.

Where a variation is sought of a child support order, the courtmust be satisfied that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the childsupport order: s. 17(4) Divorce Act. [62] S. 14 of the Federal Child Support Guidelines states: “For the purposes of subsection 17(4) of the Act [Divorce Act], any one of the following constitutes a change in circumstances that givesrise to the making of a variation order in respect of a child support order:

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change incircumstances that would result in a different child support order or any provision thereof;

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in thecondition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

c) in the case of an order made before May 1, 1997, the coming into force of

section 15.1 of the Act, and acted by

section 2 of chapter1 of the Statutes of Canada, (1997).” Subsection 14(

c) does not apply in this case. [63] S. 14(

a) of the Federal Guidelines applies exclusively to applications to vary an order where the amount of child support in theorder was determined based on Guideline table amounts. S. 14(

b) applies exclusively to applications to vary orders where the amount ofchild support in the existing order was not determined based on Guideline table amounts. Only s. 14(

b) requires the exercise of anydiscretion by the court to determine whether the method of satisfying the precondition to variation has been met: Wright v. Zaver, (ON CA), [2002] O.J. No. 1098 (Ont. C.A.). [64] In my view, s. 14(

b) is the applicable subsection in this case. The order of Justice Sheffield is silent as to the application of theGuideline Table amount payable for child support. [65] Ordinarily, a child support order expressly indicates the amount payable, the income on which that amount is based, acommencement date and the names and dates of birth of the children for whom child support is being paid.

With that information set outin the order, it is a simple matter to ascertain whether the amount of child support being paid corresponds to the applicable Table amounton the date the order was made. [66] The order of Justice Sheffield dated February 9, 2012 is found at Tab 2 of volume 4 of the Continuing Record. The order states,inter alia: “3. The Applicant shall pay to the Respondent child support for the children of the marriage, in the monthly amount of $1470commencing March 1, 2012 and on the first of each month thereafter. 13.

For so long as child support is paid the Payor (and Recipient if applicable) must provide updated income disclosure to the other party[each] year within 30 days of the anniversary of this order in accordance with

section 24.1 of the Child Support Guidelines.” [67] Although there is reference to the Child Support Guidelines in paragraph 13 of the order, that provision is a standard paragraphincluded in child support orders to require ongoing financial disclosure so that child support can be varied in future where appropriatebecause of a change in income on the part of the parent paying child support. [68] The amount ordered to be paid by Justice Sheffield corresponds exactly to the amount of child support that was ordered to bepaid by the court in New Mexico. Mr.

Kimbrell testified that the U.S. and Canadian dollar were roughly equivalent at the time of JusticeSheffield’s order; the court simply adopted and incorporated into an Ontario order the amount which had previously been ordered to bepaid in the proceedings between the parties in New Mexico. Mrs. Kimbrell indicated that the amount was a negotiated figure betweenthem which corresponded to the order of the New Mexico court. In either case, the amount of child support payable was not determinedbased on the income of Mr.

Kimbrell and the applicable guideline table in Canada. [69] To justify variation of an order for child support, the applicable test under s. 17(4) of the Divorce Act is “material change”:Bockhold v. Bockhold, 2006 BCCA 472. A “material change” means a change, such that, if known at the time, would likely have resultedin different terms in the order. If the matter relied on as constituting a change was known at the relevant time, it cannot be relied on asthe basis for variation.

The onus of proof lies on the applicant and the standard of proof is on the balance of probabilities: Willick v.Willick, (SCC), [1994] S.C.J. No. 94 (S.C.C.); G. (L.) v. B. (G.), (SCC), [1995] S.C.J. No. 72 (S.C.C.). [70] On a motion to change, the court must accept that the original order was correct. It is not for the court to reconsider thecorrectness of the original decision. Instead, the focus is on whether there has been a material change in circumstances which wouldwarrant a change to the order: Gray v. Rizzi, 2016 ONCA 152; McMurchy v.

McMurchy, 2002 BCCA 629. [71] If the court finds that a variation is appropriate, the court must do so in accordance with the applicable guidelines: s. 17(6.1)Divorce Act. I note that there is no separation agreement nor have any special provisions being made for the benefit of the children thatneed to be taken into account pursuant to s. 17(6.2) of the Divorce Act.

Law- Retroactive Child Support [72] Most of the case law on this subject has arisen in the context of applications to increase child support retroactively. The generalprinciples and underlying rationale apply, however, to cases where the paying spouse seeks to retroactively reduce child support payableto reduce or eliminate arrears that have accrued or to obtain reimbursement of an overpayment. [73] In deciding whether to rescind child support arrears, the court will consider, inter alia, the following factors:

a) The nature of the obligation to provide support, whether contractual, statutory or judicial;

b) The ongoing financial capacity of the payor spouse;

c) The ongoing need of the custodial parent and the dependent child;

d) Unreasonable and unexplained delay on the part of the parent seeking to enforce payment of the obligation;

e) Unreasonable and unexplained delay on the part of the payor spouse to seek appropriate relief from his or her obligation;

f) Where payment of the arrears will cause undue hardship, the exercise of the court’s discretion to grant a measure of relief is basedon a holistic view which weighs the needs of the child and custodial parent, and the current and future capacity of the parent who mustpay the arrears. (See DiFranscesco v. Couto, (ON CA), [2001] O.J. No. 4307 (ON C.A.) at para 23.) [74] Retroactive awards can impair the balance between fairness and certainty by introducing an element of unpredictability. Thatunpredictability can be reduced where the appropriate relief is sought promptly: S. (D.B.) v. G. (S.R.); W. (L.J.) v.

R. (T.A.); Henry v.Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (“D.B.”) [75] In D.B., supra, the Supreme Court of Canada identified four factors to be considered where an award of retroactive support issought:

a) Reasonable excuse for why the support was not sought earlier;

b) Conduct of the payor parent;

c) Circumstances of the child; and

d) Hardship occasioned by a retroactive award. Analysis [76] The first issues to be confronted are whether there has been a material change in circumstances and, if so, when. [77] There is no question that a material change in circumstances has occurred. At the time of the order made by Justice Sheffield onFebruary 9, 2012, both Abigail and Kofe were residing with the respondent. Child support was ordered payable by the applicant to therespondent for the “children”. Only Abigail now resides with the respondent and Kofe resides with the applicant father.

At a minimum,there was a material change in circumstances as of August, 2015 when Kofe began residing with his father. [78] The more difficult issue here is whether there was a material change in circumstances before August, 2015 and, in particular,when Kofe began residing at HHBH or even earlier, when he attended Sea Cadet camp in Kingston in the summer of 2014. [79] In my view, Kofe’s attendance at Sea Cadet camp does not constitute a material change in circumstance. It was not an ongoing orpermanent change. It was of very short duration – six weeks.

That is not the kind of material change contemplated for a variation of childsupport. [80] The same cannot be said of the enrolment of Kofe at HHBH. He began residing there in September, 2015 for an indefiniteduration. His visits home were restricted by the Home and, in fact, he had very few visits between September, 2014 and June, 2015. Hisrelationship with the respondent was effectively non-existent after Christmas, 2014. The situation is analogous to a child that goes awayto university.

In those circumstances, support is typically suspended while the child is away at school and restored when the childreturns home for the summer. [81] The purpose of child support is to assist the parent who has the child in his or her care with the ordinary costs incidental to thecare of the child. The respondent did not have those costs as of the end of August, early September, 2014.

I find that Kofe’s departurefrom the family home to HHBH constitutes a material change in circumstances which would and did affect the respondent and her needfor child support for him. [82] I must now consider what child support ought to have been paid by the applicant for Abigail first in the period betweenSeptember 1, 2014 and July 31, 2015. During that period, the applicant did not have off-setting care costs for Kofe who was at HHBHwhile the respondent continued to have care of Abigail. [83] As indicated above, I have fixed the applicant’s income in 2014 and 2015 at $90,000 Cdn.

That covers the entire period withwhich this calculation is concerned. According to the Federal Child Support Guidelines in place at that time, child support payable by aparent earning $90,000 Canadian for one child was $801. [84] I next consider the period between August 1, 2015 and December 31, 2015. During that period of time, each parent had a child in

his and her care but there was a discrepancy in income. The applicant’s income was $90,000 while the respondent’s income was $22,758.56. According to the Federal Child support guidelines, the amount payable by the applicant in respect of Abigail ($801) would be set-off in part against the amount payable for child support by the respondent in respect of Kofe ($166). The net amount payable by the applicant to the respondent between August 1, 2015 and December 31, 2015 is $645 per month. [ 85 ] In 2016, the incomes of the parties are virtually identical.

Accordingly, it is appropriate that neither pay child support to the other in 2016. [ 86 ] It is certainly to be hoped that the incomes of both parents will rise.

It is therefore necessary that the parties continue to provide ongoing financial disclosure of their respective incomes each year on or before May 15 so that any significant changes may be taken into account and appropriate child support paid. [ 87 ] The next step is to ascertain whether the applicant father paid what he should have paid in aggregate based on the child support amounts indicated above and, if not, did he overpay or underpay. [ 88 ] Exhibit 1 is a document prepared by the applicant which purports to calculate the amount of overpayment that he claimed going back to May, 2011.

This calculation was predicated on an entitlement to a reduction because Ianetta was no longer in the respondent’s care as of May 2011. More important for my purposes, Exhibit 1 sets out amounts which he paid monthly or did not pay in some months. [ 89 ] Between June 1, 2014 and December 31, 2015, the applicant should have paid the following amounts assuming his obligations were to be reduced as calculated above:

a) June – August, 2014: 3 x $1470 = $4,410

b) September/14 – July/15: 10 x $801 = $8,010

c) August/15 – December/15: 5 x $645 = $3,225. The aggregate of these figures is $15,645. [ 90 ] According to Exhibit 1, the payments made by the applicant between June 1, 2014 and December 31, 2015 total $19,580. [ 91 ] Thus, if child support is retroactively adjusted in accordance with his income and the findings above, he overpaid child support by $3,935. [ 92 ] In doing this calculation, I started in June 2014 because Exhibit 1 shows no payment that month or in July, August and September. By his reckoning, he made all required payments pursuant to the order of Justice Sheffield to June 1, 2014.

He was not challenged on that assertion by the respondent. [ 93 ] Therefore, if a retroactive change is made effective September 1, 2014 when Kofe began attending HHBH and another adjustment is made August 1, 2015 when Kofe began residing with the applicant, a strict application of the Guidelines produces a modest overpayment. [ 94 ] I must next consider whether to exercise my discretion to vary past child support payable and, if so, when.

If I vary Justice Sheffield’s order, should the respondent be required to repay any excess paid by the applicant? [ 95 ] In this case, there is no blameworthy conduct by either parent. It is not the case that the applicant was kept in the dark that Kofe was enrolled in HHBH. He became aware of that fact soon after it happened. Likewise, the respondent was aware of Kofe’s move to Port Huron soon after that was completed. [ 96 ] It was certainly open to the applicant to move sooner than he did for a reduction in child support. He commenced this motion on December 22, 2015.

He knew in 2014 that Kofe was no longer living at home with the respondent. He offered no explanation for his delay. [ 97 ] The applicant continued to have an obligation to pay child support for Abigail throughout. That obligation is judicial in nature; viz. it arises from a court order. The respondent’s income has been and continues to be very modest. No doubt any savings of costs for Kofe provided a small measure of benefit to Abigail.

I also note that the respondent could not be certain when and if Kofe would return home from HHBH. [ 98 ] While it was difficult for the applicant to make the payments he did, I do not see on the evidence a significant hardship suffered by him. Repayment of even the modest difference noted above will not materially help his situation and would be a significant burden to the respondent whose income remains low. [ 99 ] Taking a “big picture” view, I find that it is appropriate to:

a) Relieve the applicant of all child support arrears owing according to the order of Justice Sheffield dated February 9, 2012;

b) Require the parties to continue to disclose to the other their incomes in Canadian dollars annually with a view to adjusting the child support payable based on the Federal Child Support Guidelines, including an obligation to provide to the other a copy of their respective tax returns and supporting documents upon request;

c) Suspend payment of child support for 2016 and on an ongoing basis given they have split custody/care of the children and have relatively even incomes;

d) Require that the child support payable be reviewed in January 2018, without prejudice to the right of either party to move earlier if

there is a significant increase or decrease in income or the financial circumstances of the other parent. [ 100 ] In my view, this approach recognizes the material change in circumstances which justify a change in the order of Justice Sheffield dated February 9, 2012, provides certainty and flexibility moving forward and relieves against any hardship that would arise if repayment of any excess support paid was required. I note the applicant’s delay in commencing the motion to change is a factor I have taken into account and it informs this outcome. Order [ 101 ] I order as follows:

a) Paragraph 3 of the order of Justice Sheffield dated February 9, 2012 is hereby varied to read: “Effective January 1, 2016, neither party shall pay child support to the other as they each have a child in their care and their incomes are effectively equal.”

b) Each party shall provide to the other updated income disclosure, including tax returns and supporting documents, by no later than May 15 in each calendar year for so long as any child of the marriage remains in the care of either parent.

c) The amount of child support payable shall be reviewed in January, 2018, without prejudice to the right of either parent to move for child support earlier if there is a significant increase or decrease in income or the financial circumstances of the other parent.

d) Any arrears of child support accrued by the applicant pursuant to the order of Justice Sheffield dated February 9, 2012 are reduced to zero and FRO shall be notified of this order.

e) There shall be no costs of the trial; viz. each party shall bear their own costs of the trial. “Original Signed by Raikes, J.” Justice R. Raikes Released: January 6, 2017. CITATION : Kimbrell v. Kimbrell, 2017 ONSC 142

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: W. David Kimbrell Applicant – and – Lorraine Marie Theresa Kimbrell Respondent REASONS FOR JUDGMENT R. M. Raikes Judge Released: January 6, 2017