G.F., Applicant v. C.C., Respondent, 2017 ONSC 4821

CITATION : G.F. v C.C. , 2017 ONSC 4821 COURT FILE NO.: 07-937 DATE: August 11, 2017 SUPERIOR COURT OF JUSTICE - ONTARIO RE: G.F. v C.C.

BETWEEN: G.F., Applicant and C.C., Respondent BEFORE: Honourable Mr Justice Martin James COUNSEL: Self-Represented Applicant Self-Represented Respondent DATE HEARD : July 31, 2017 ENDORSEMENT [ 1 ] This motion was brought by the applicant, G.F., for the following relief: a. an order of contempt of court respecting the respondent’s failure to provide updated financial information; b. an order changing the custody and access provisions for the parties’ eldest daughter, K., now 17 years old; c. an order authorizing the applicant to travel outside of Canada without the respondent’s consent; d. an order amending the access arrangements for the parties’ other two children, G. and T.. [ 2 ] This endorsement deals with the first three items above.

The access arrangements for G. and T. were adjourned to be dealt with on a future date because of time constraints. [ 3 ] The parties are subject to an order previously made that they are required to obtain leave before bringing any motions. The applicant was granted leave to bring this motion.

Issue # 1--The respondent’s failure to provide updated income information [ 4 ] The parties agreed pursuant to minutes of settlement in 2013 that they would exchange financial information annually by June 1 st and that child support would be adjusted on July 1 st each year based on the previous year’s income. [ 5 ] In 2016, the respondent did not provide the applicant with a notice of assessment confirming his 2015 income.

The applicant is in a dispute with the CRA respecting an allegation by the respondent that CRA provided confidential tax information to the applicant. [ 6 ] When the applicant brought this motion pursuant to leave which was granted in December 2016, the respondent was unable to file responding material because he was unable to provide the income information required by the rules of court. He was granted permission to file his responding material on condition that he would complete and file his 2015 tax return and provide a copy of the notice of assessment to the applicant upon receipt.

The applicant says that she did not receive a copy of any CRA documentation until a tax

summary was delivered shortly before the hearing of this motion. The respondent cannot prove he provided a copy of his notice of assessment within a reasonable time following his receipt of same. When he finally did provide a copy to the applicant, it was in a redacted form. He says he was given oral permission by Justice Ray to provide a redacted copy of his tax assessment from CRA. There is no endorsement to this effect by Justice Ray. [ 7 ] The current child support payable to the applicant stems from the order of Justice Ray dated October 29, 2015 when he ordered that the respondent is to pay guideline child support of $882 per month based on an annual income of $43,288.

[ 8 ] The respondent’s 2015 income was actually $48,906, an increase of over $3,500 from the previous year. The respondent did not disclose this information as required in June, 2016. The table amount of child support payable for three children based on $48,906 is $936.

Arrears of child support have accumulated from July 1 st , 2016 to the present date which I calculate to be $756 ($936 -$882=$54 X 14 months=$756). [ 9 ] Effective September 1 st , 2017, the child support payable by the respondent shall be changed from $882 to $936 per month based on his annual income of $48,906 as disclosed by his tax assessment statement for the 2015 tax year. [ 10 ] I find that the respondent is in contempt of the court order respecting his obligation to provide annual financial disclosure.

It is no coincidence that the income he failed to disclose is higher than the income upon which his child support was being calculated. His actions were intentional and deliberate. He has not shown a reasonable excuse for failing to provide his financial information. [ 11 ] The respondent is ordered to file his 2016 tax return forthwith and to provide a copy of his notice of assessment or equivalent document issued by CRA to the applicant immediately upon his receipt.

The respondent is prohibited from altering or deleting any information contained in the CRA notice of assessment and it is to be provided to the applicant in an unaltered form. [ 12 ] The respondent says that his 2016 income was less than the amount he earned in 2015. Ordinarily, this would result in a reduction of child support payable. Due to the fact that the respondent intentionally chose not to file his tax return in contravention of the existing child support order, the respondent should not be entitled to a retroactive adjustment.

If the 2016 notice of assessment indicates that the respondent’s income has changed, the parties will adjust child support in accordance with the respondent’s most recent income tax information the month following the month that the respondent delivers a copy of his notice of assessment to the applicant. [ 13 ] In subsequent years, the respondent must provide a copy of his notice of assessment or equivalent CRA document to the applicant by June 1 st each year.

The applicant is also obliged to provide annual financial disclosure as well. [ 14 ] Having found the respondent deliberately withheld his income information as long as he could in direct contravention of a clear court order, and considering the strenuous efforts undertaken by the applicant to get the respondent to comply with his obligations and the numerous court appearances that have been required, the applicant is entitled to financial compensation by way of a costs award payable by the respondent which I will address later in this endorsement.

Issue # 2—Custody and Access for K. [ 15 ] Prior to the involvement of Family and Children Services of Renfrew County, K. resided with the respondent. As a result of a protection hearing, the applicant assumed primary parenting responsibilities. [ 16 ] Pursuant to the order of Justice Selkirk on April 3, 2016, the parties were directed to bring proceedings in the Superior Court of Justice to seek an amendment to the current custody and access order for K. to reflect changed living arrangements. In simple terms, this meant that the parties were to formalize the fact that K. was now living with the applicant.

For reasons which are not clear, the parties did not update K.’s custody and access arrangements by way of a consent order and the applicant was required to bring a motion. The applicant shall have legal custody of K. even though she is 17 years old and would ordinarily be beyond the age of parental authority. K. has a chronic medical condition and a declaration of custody may assist the applicant in dealing with health care providers and education officials. Because K. is now 17 years old, the respondent acknowledges that his access should be subject to her wishes.

Again, it is not clear why this was not done on a consent order basis. Issue # 3—Dispensing with Travel Consent from the respondent [ 17 ] The parties have a history of non-cooperation even though their children often suffer the consequences of their frequent inability to get along. Now that all three children are residing primarily with the applicant, I see no justification to require the respondent’s consent, especially when he uses the need for consent to frustrate family plans that are obviously for the children’s benefit.

His refusal to agree to a late request to travel to Disneyworld last Christmas is the latest example of an apparent inability to put the children first. An order shall issue dispensing with the necessity of obtaining permission or authorization from the respondent for the applicant to travel with their daughters. [ 18 ] Since the respondent is not providing primary parenting responsibilities, as an access parent the respondent must obtain permission from the applicant in advance of travelling with their children, which consent shall not be unreasonably refused by the applicant.

Disposition [ 19 ] There will be a finding of contempt of court against the respondent for failure to provide updated income information as required. I am satisfied that he failed to do so intentionally.

There is a clear pattern of non-cooperation between the parties and in my view the respondent’s assertion that he wasn’t filing his tax returns because of his dispute with CRA does not justify his non-compliance with the existing court order. [ 20 ] The respondent shall pay forthwith to the applicant the sum of $756 representing child support arrears for the period July 1 st , 2016 to and including August 31 st , 2017.

This amount shall be collected by the Family Responsibility Office. [ 21 ] Commencing September 1, 2017, the respondent shall pay child support of $936 per month for K., G. and T. based on an income of $48,906 until he provides evidence of any change in his income as indicated in paragraph 12 above, at which point the parties should be able to agree to a consent order amending the amount payable based on the revised income information. [ 22 ] The respondent’s access in relation to K. shall be in accordance with her wishes.

The applicant must cooperate in facilitating the respondent’s access in accordance with K.’s wishes.

[ 23 ] The applicant may travel with the children without obtaining permission or consent from the respondent.

Details and advance notice of the travel plans shall continue to be provided as previously agreed to. [ 24 ] The applicant shall not unreasonably refuse to provide her consent for the respondent to travel with the children should he wish to do so. [ 25 ] Except as specifically changed by this order, the terms of the previous orders shall continue in full force and effect. [ 26 ] The respondent shall pay costs to the applicant for this motion fixed in the sum of $2,500 forthwith, no HST shall be payable in addition to this amount, and these costs shall be recoverable through the Family Responsibility Office because this motion was primarily about issues related to child support.

The respondent has acted unreasonably and forced the applicant to expend considerable time and effort to compel the respondent to meet his obligations. This warrants a substantial costs order in favour of the applicant. [ 27 ] The balance of the motion shall proceed on a date to be set by the trial coordinator for 2 hours. ___________________________ James, J. DATE: August 11, 2017 CITATION : G.F. v C.C. , 2017 ONSC 4821 COURT FILE NO.: 07-937 DATE: August 11, 2017

SUPERIOR COURT OF JUSTICE - ONTARIO RE: G.F. and C.C. BETWEEN: G.F., Applicant and C.C., Respondent BEFORE: Honourable Mr Justice Martin James COUNSEL: Self-Represented Applicant Self-Represented Respondent ENDORSEMENT James, J. DATE: August 11, 2017