Court File and Parties
Court File No.: D71293/14 Date: January 30, 2017 Ontario Court of Justice
Between:
INGRID ANNMARIE WATSON Applicant
- and -
LEROY WATSON Respondent
Counsel:
- James A. Hunter, for the Applicant
- Acting in Person, for the Respondent
Heard: January 23 and 24, 2017
Justice: S.B. Sherr
Reasons for Decision
Part One - Introduction
1This trial was about child and spousal support.
2The parties have two children together, ages 10 and 8 (the children).
3The applicant (the mother) asks that the respondent (the father) pay her child support, retroactive to January 1, 2013, based on the line 150 income set out each year in his income tax returns. She seeks ongoing child support, including special and extraordinary expenses, pursuant to section 7 (section 7 expenses) of the Child Support Guidelines (the guidelines), based on the father's 2016 income of $198,129. She also seeks indefinite spousal support of $3,961 each month, starting on January 1, 2013.
4The father submitted that he should pay child support of $1,000 each month, starting on January 1, 2017. He also proposed to pay 50% of the children's eligible section 7 expenses. He claimed that it would cause him undue hardship to pay any more support. He asked that the child support arrears that have accumulated under temporary court orders be rescinded. He also asked that the mother's claim for spousal support be dismissed.
5The court had to determine the following issues:
a) What is the father's income for support purposes? In particular, should his income be reduced due to allowances he receives for living and working in Fort McMurray, Alberta?
b) Should the court reduce the father's support obligation due to undue hardship, pursuant to section 10 of the guidelines, or because the amount set out in section 3 of the guidelines is inappropriate, pursuant to section 4 of the guidelines?
c) Is the mother entitled to spousal support?
d) If so, what should be the amount and the duration of the spousal support ordered?
e) When should the support orders start? Should the court make an order for retroactive child or spousal support?
f) What credits should the father receive on account of support paid to date?
Part Two – Background Facts
6The mother is 39 years old. She is employed as a personal support worker and earned $35,172 in 2016.
7The father is 45 years old. He is employed as a Power Line Technician in Fort McMurray Alberta. His annual income is in dispute.
8The parties were both born in Jamaica. They met there in 2000. The father came to Canada in 2003. The parties married on January 1, 2005. The father sponsored the mother and she came to Canada permanently on June 19, 2005. They have the two children together.
9This is the mother's first marriage and the father's second marriage. The father was divorced from his first wife in 2002. The father has had other relationships, and has children with four other women.
10The parties initially separated in April 2010. They had several reconciliation attempts from 2011 until February 2014. The mother claims that she separated from the father at the end of 2012. The father claims that the final separation was on April 7, 2013. They both acknowledged several reconciliation attempts in 2013 and in early 2014.
11The parties are still married.
12The mother has no other children.
13The father has six other children. He has twin 18-year-old children from his first marriage who live with him. He has a 12-year-old son who lives with his mother in Toronto, a 10-year-old daughter who lives with her mother in Brampton, a 17-year-old daughter, who lives with her aunt in Jamaica and a 3-year-old daughter who lives with him and her mother in Fort McMurray.
14In April 2012, the father obtained employment where he worked in both Alberta and Ontario. He would work 21 days in Fort McMurray and 7 days in Ontario. By the end of 2012, the father obtained employment where he was working full-time in Alberta.
15In the fall of 2012, the father started a relationship with the mother of his 3-year-old child. He lived with this mother during 2013 and the child was born in Fort McMurray. This mother had to return to Jamaica with their child later in 2013, due to immigration issues. She and the child returned to Fort McMurray in February 2016 to live with the father.
16The parties made a temporary property arrangement in May 2013. The matrimonial home was sold. The mother received $33,000 from the sale proceeds and it was agreed that the father would either transfer his van to her, or provide her with funds in the equivalent value.
17The mother issued her application on July 22, 2014. It did not include a claim for spousal support. The same day, the case management judge, Justice Carole Curtis, on a motion without notice, made a temporary custody order in favour of the mother and granted a temporary restraining order against the father.
18On September 30, 2014, Justice Curtis ordered the father to pay temporary child support of $3,032 each month, starting on October 1, 2014, based on his estimated 2013 income of $219,606. She also made a temporary access order.
19On January 9, 2015, Justice Curtis changed the temporary child support order. The father was ordered to pay child support of $2,974 each month, starting on October 1, 2014, based on his estimated 2014 income of $213,261.
20On August 5, 2015, Justice Curtis again changed the temporary child support order. The father was ordered to pay child support of $2,492 each month, starting on January 1, 2015, based on his projected 2015 income of $179,315.
21On December 10, 2015, on consent, Justice Curtis finalized the parenting issues. The mother has final custody of the children and the father has final access to them once each month, on notice to the mother.
22On March 14, 2016, Justice Curtis again changed temporary child support. The father was ordered to pay child support of $2,223 each month, starting on January 1, 2015, based on his estimated 2015 income of $159,247. The restraining order was terminated and instead, Justice Curtis made an order prohibiting the father from contacting the mother or attending her home, workplace or the children's school, pursuant to clause 28 (1) (c) of the Children's Law Reform Act.
23The mother amended her Application to seek spousal support on June 30, 2016.
24The father is $27,411.65 in arrears under the temporary support orders of Justice Curtis as of January 1, 2017.
Part Three – Incomes
25The mother's income was not in dispute. Her annual income has been as follows:
- 2013 - $8,462
- 2014 - $10,010
- 2015 - $22,343
- 2016 - $35,172
26The father's line 150 employment income, less union dues has been as follows:
- 2013 - $218,433 ($219,606 - $1,172)
- 2014 - $211,322 ($212,536 - $1,214)
- 2015 - $163,396 ($164,546 - $1,150)
- 2016 - $196,827 ($198,129 - $1,302)
27The father submitted that his 2016 income above does not reflect what he will earn on an ongoing basis. He claimed that he earned additional overtime income in 2016, due to the fire in Fort McMurray.
28The father deposed that his annual income is $113,000. He also receives a living allowance of 15% of his income, an incentive allowance of 10% of his income and a community skills allowance of 10% of his income. The father asks that the additional allowances be deducted from his income for the purpose of calculating child support.
29Paragraphs 15-20 of the guidelines set out how a person's income should be determined. Paragraph 18 of the guidelines (corporate income) is not relevant to this case.
30Section 15 of the guidelines provides that, except where a court accepts the parties' written agreement concerning a spouse's annual income, a spouse's annual income is determined in accordance with sections 16 to 20.
31Section 16 of the guidelines sets out the general rule that income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency ("line 150 income") and adjusted in accordance with Schedule III of the guidelines. This section reads as follows:
Calculation of annual income
16 Subject to sections 17 to 20, a spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.
32Section 17 of the guidelines permits a court to depart from line 150 income where the court is of the opinion that the determination of the spouse's line 150 income would not be the fairest determination of income.
33Sub section 17(1) of the guidelines allows a court to consider patterns or fluctuations in a spouse's income over the last three years. It reads as follows:
Pattern of income
17 (1) If the court is of the opinion that the determination of a spouse's annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
34The father's income has varied over the past three years. His average annual income has been $190,515. This average is very close to his 2016 income, particularly when one takes into account that his 2015 income was reduced because he spent part of that year in receipt of Workers Compensation benefits and is not reflective of what he usually earns.
35The father has historically worked many overtime hours. The court does not accept that the father's 2016 income was inflated due to the special circumstances of the Fort McMurray fire. The court finds that the father's 2016 income of $196,827 is the best evidence of his income moving forward.
36Subsection 6 (6) of the Income Tax Act, provides that certain benefits relating to special work sites or remote work locations are to be excluded from income. The requirements to make these benefits non-taxable were set out by the court in paragraph 35 of Webster v. Webster, 2014 BCSC 730 as follows:
(1) that the allowance is not in excess of a reasonable amount;
(2) the employee must work at a special work site, a location where the duties performed are of a temporary nature;
(3) the employee must maintain at another location a self-contained principal residence available for his occupancy to which he cannot reasonably be expected to return daily from the special work site;
(4) his duties must require him to be away from his principal residence at least 36 hours, including travel time: See interpretation bulletin IT-91R4 dated June 17, 1996 "Employment at Special Work Sites or Remote Work Locations".
The whole purpose of a tax-free living allowance is to compensate individuals for the extra costs associated with working away from home. The allowance has two components – one relates to the maintenance of a second residence and the other relates to the cost of travel necessitated by the fact the individual works away from home. As Justice Wilkinson pointed out at para. 13 of the Kyle decision, a living allowance is neither income nor an expense. It is not included under the heading "Total Income" in the T-1 General form nor is it an expense "deductible" from income. While a living allowance may constitute "means" within the meaning of the Divorce Act for spousal support purposes, it does not qualify as income under the Guidelines or as an expense pursuant to s. 19(1)(g) of the Guidelines.
37Many courts have considered whether to impute income to payors for non-taxable living-out and travel allowances received from employers. See: Calver v. Calver, 2014 ABCA 63; Briggerman v. Briggerman, 2000 BCSC 900; Paytner v. Sackville, [1998] S.J. No. 56 (Sask. Q.B.).
38The principles for courts to consider in making this determination were reviewed in paragraphs 37 and 38 of Webster, supra, as follows:
37I take the following principles from the authorities:
(a) generally, a living-out allowance paid for the recovery of work-related travel and living expenses will not be treated as income under the Guidelines;
(b) living-out allowances are intended to compensate the recipient spouse for the extra costs associated with working away from home;
(c) In all the cases where courts have excluded living-out allowances from the recipient spouse's Guideline income, there has been some evidence that the recipient actually incurred extra costs associated with working away from home, although the recipient was not required to account for the whole amount of the allowance; and
(d) under s. 19(1) of the Guidelines, the court has a broad discretion to impute such amount of income to a spouse as it considers appropriate in the circumstances.
38The circumstances in which the court may impute income to a spouse specifically enumerated in s. 19 of the Guidelines are non-exhaustive: Nielsen v. Nielsen, 2007 BCCA 604. A court may, in an appropriate case, determine whether a living allowance, or some part of it, should be added back to a spouse's income.
39This case is distinguishable from the cases above because the allowances the father receives are taxable and included every year in his line 150 income. The father's circumstances don't meet the necessary criteria to make his allowances non-taxable. Unlike the cases where the payors had to maintain two homes to work in a remote community, the father has chosen to make his home and raise his new family in Fort McMurray.
40The guidelines do not provide for a reduction of income based on taxable allowances received. The court will not adjust the father's income for these allowances.
41That said, this determination does not prevent the court from taking into consideration additional expenses the father has for living and working in Fort McMurray when determining spousal support or when exercising its discretion under section 4 of the guidelines.
Part Four - Should the court exercise its discretion to reduce support under either section 4 or section 10 of the guidelines?
42Section 4 of the guidelines sets out how to calculate child support when a payor earns annual income of over $150,000 as follows:
Incomes over $150,000
4 Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is
(a) the amount determined under section 3; or
(b) if the court considers that amount to be inappropriate,
(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;
(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and
(iii) the amount, if any, determined under section 7.
43Subsection 3 (1) of the guidelines reads as follows:
Presumptive rule
3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
44Subsection 3 (3) of the guidelines sets out that the court must apply the table support from the province where the payor resides. The court has used the Alberta tables.
45The father submits that the support determined under section 3 of the guidelines is inappropriate because:
a) He is heavily taxed.
b) He has 6 other children to support.
c) His partner earns limited income.
d) His has high travel costs to see his children.
e) His taxable allowances are designed to compensate him for the higher costs of working and living in Fort McMurray and he should receive some credit for this.
46Section 4 of the guidelines only provides limited relief to the father. It still requires him to pay the table amount of child support up to $150,000 and the amount, if any, determined under section 7 of the guidelines. The monthly table amount for 2 children at an annual income of $150,000 is $2,099. The father only wants to pay child support of $1,000 each month. Accordingly, the court also considered whether the father has a viable claim for undue hardship under section 10 of the guidelines which reads as follows:
Undue hardship
- (1) On the application of either spouse or an mother under section 33 of the Act, a court may award an amount of child support that is 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 the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
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 and their 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 of majority 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 or disability.
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 it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support 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.
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 living test set out in Schedule II.
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, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
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 doing so.
47The mother submits that the amount of support that would be ordered under section 3 of the guidelines is not inappropriate and it follows that the father is unable to establish an undue hardship claim pursuant to section 10 of the guidelines.
48In determining whether to exercise its discretion under sections 4 or 10 of the guidelines, the court makes the following findings of fact:
a) The father is paying child support of $300 each month for his child in Brampton pursuant to a court order.
b) The father claimed that he is paying $300 each month for another child in Toronto – not pursuant to a court order. The evidence supported that he paid close to this amount in 2016, but that he paid far less for support in 2015 ($1,350) and in 2014 ($2,250). The court does not find it to be a coincidence that his higher payments in 2016 coincide with this case being sent to trial. The court finds that these payments are irregular and will only give the father credit for paying $200 each month for the support of this child.
c) The father claimed that he is paying about $300 every other month for his 17-year-old child in Jamaica, but provided scant evidentiary support of this. He only provided evidence of making total payments of $190 in 2016 to the child's aunt. The court is not convinced that the father is paying child support for this child and he won't receive any credit for this.
d) The father has additional travel costs to see his children because he is living in Alberta. The father testified that he travels to Toronto 2 to 3 times each year. He provided flight costs, which appear to average about $600 each trip. The father would also like to bring the children to Alberta for one month in the summer. The court finds that the father has additional travel costs of about $3,000 each year.
e) The father claimed that he has additional monthly expenses because he lives in Fort McMurray. The Court of Appeal recognized that residents of Fort McMurray have higher costs of living in Calver, supra. I was prepared to take these additional costs into consideration if the father had provided any evidence supporting this. However, with the exception of the travel costs considered above, the only evidence that the father was able to provide of higher costs was where he had to travel to Edmonton for hernia surgery in 2014, because there was no specialist in Fort McMurray. The father provided no other evidence that his living expenses are higher in Fort McMurray than they would be in Toronto.
The father claimed that food costs are higher in Fort McMurray, but he deposed in his financial statement that he is only paying $500 per month for groceries – comparable to Toronto. He claimed that his water, hydro and gas costs are higher in Fort McMurray, but a review of the actual expenses claimed in his financial statement are comparable to those he would incur if he was living in Toronto.
f) The father has 3 children living with him. His 18-year-old twins work part-time at a fast-food restaurant. They earn about $100 each week during the school term and will earn more on holidays. The court projects, conservatively, that they are each capable of earning $3,000 annually, which could be used to defray their expenses. The father does not receive child support from their mother.
g) The father's partner also works in a fast-food restaurant. She earns $15 per hour and works 35 hours each week. This projects to an annual gross income of $27,300 and a net annual income of approximately $23,000.
h) The father and his partner pay for daycare for their 3-year-old daughter of $1,340 each month. The father would be entitled to tax benefits and credits for these payments. The net annual amount of this expense would be approximately $12,000.
49The Alberta Court of Appeal in Ewing v. Ewing 2009 ABCA 227, [2009] A.J. No. 712, reviewed the following considerations from the leading case of Francis v. Baker 1999 CanLII 659 (SCC), [1999] 3 SCR 250, in determining whether the court should exercise its discretion under section 4 of the guidelines:
i. There is a presumption that the Table applies to all incomes, including incomes over $150,000. A party seeking to deviate from the Table has the onus of rebutting the presumption. (paras. 41, 43)
ii. Children can expect the Table amount on the first $150,000 and a fair additional amount for that portion that exceeds $150,000. The closer the amount is to $150,000, the more likely it is that the Table amount will be awarded. (para. 41)
iii. Where the presumption is rebutted, the Guideline figures can be increased or reduced under section 4. (para. 42)
iv. The test for deviation from the Table amount is that the evidence in its entirety must be sufficient to raise a concern that the Table amount is inappropriate. The evidence for departure from the Guidelines must be clear and compelling. A party seeking deviation is not required to testify or adduce evidence and no unfavourable conclusion should be drawn from a failure to do so. It is recognized that a party may not possess the required relevant evidence. (para. 43)
v. The actual situation of the children is central, and the condition, means, needs and other circumstances of the children must be considered in the assessment of the initial determination of inappropriateness and the determination of appropriate support. (para.44) No single element of legislative purpose is to be given more weight than the actual circumstances of the children (para. 39). A proper construction of section 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual "condition, means, needs and other circumstances of the children" on the other. (para. 40)
vi. To determine appropriateness the court must be armed with sufficient information, and trial judges have discretion to determine on a case-by-case basis whether a child expense budget is required to provide that information and they have the power to order it. (para. 45) Custodial parents are not required to produce child expense budgets in all cases under section 4.
vii. Although frequently child support results in a benefit to the wife, the legislative objective is maintenance for the children rather than household equalization or spousal support. (para. 41)
viii. While standard of living can be considered in assessing need, at some point support payments will meet even a wealthy child's reasonable needs. When the Table amount is so in excess of the child's reasonable needs it must be considered a functional wealth transfer to a parent, or de facto spousal support. (para. 41)
ix. The test for whether expenses are reasonable will be met by the paying parent if the budgeted expenses are so high as to "excee[d] the generous ambit within which reasonable disagreement is possible": Bellenden v. Satterthwaite, [1948] 1 All E.R. 343 at 345. (para. 49).
50Many of the cases decided under section 4 of the guidelines involve situations where the payor's income is so high that the payor argues that the support amount calculated under section 3 of the guidelines bears no reflection to the actual needs of the children. That is not the case here. The payor is arguing that the court should exercise its discretion to reduce support because he cannot afford to pay the amount of support determined under section 3 of the guidelines.
51The court finds that the father has not met his onus to show that the amount of support determined under section 3 of the guidelines is inappropriate.
52The father clearly enjoys a much better lifestyle than the mother. He owns a large two-story home in Fort McMurray. It has 5 bedrooms, 4 washrooms and a finished basement. He is able to travel to Toronto 2 to 3 times each year and to Jamaica once or twice each year. In contrast, the mother can only afford a two-bedroom apartment. The children do not have their own rooms. The mother testified that her room is so cold in the winter that she needs to sleep in the children's room. She said that she has had to cut back on buying clothes for the children and at times has had to resort to food banks. Her only asset is her van. She has over $10,000 of credit card debt. The mother would like to upgrade her education and go into a nursing program. However, she has had to delay her education as she needs to work to pay her bills. Payment of support in accordance with section 3 of the guidelines will provide the children with a more comparable standard of living with the children living with the father.
53It follows that if the father cannot prove that the amount determined under section 3 of the guidelines is inappropriate, he cannot meet the more difficult legal test for undue hardship under section 10 of the guidelines. The father did not satisfy the necessary criteria for the court to exercise its discretion to reduce support under section 10. He did not:
a) Provide adequate supporting documentation to prove his undue hardship claim. See: Van Gool v. Van Gool, 1998 CanLII 5650 (B.C.C.A.).
b) Prove hardship that is exceptional, excessive or disproportionate, not merely awkward or inconvenient. See: Hanmore v. Hanmore 2000 ABCA 57.
c) Prove that his standard of living is lower than that of the mother. See: Matthews v. Matthews 2001 CanLII 28118 (ON SC), [2001] O.J. No. 876 (SCJ).
54It will be discussed below that the father also has a spousal support obligation to the mother. The factors set out in paragraph 48 above will be taken into consideration in determining the amount of the spousal support award.
Part Five – Section 7 Expenses
55The mother asked for an order requiring the father to pay his proportionate share of expenses for tutoring and piano for the children. The piano expenses were $2,818 and the tutoring expenses were $3,300 in 2016. The mother submits that these are eligible section 7 expenses.
56The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 2005 CanLII 14132 (ON CA), 77 O.R. (3d) 601, (Ont. C.A.).
57In awarding section 7 expenses, the trial judge calculates each party's income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of section 7 of the guidelines, determines whether the claimed expenses are necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation." If the expenses fall under clauses 7(1) (d) or (f) of the guidelines, the trial judge determines whether the expenses are "extraordinary". Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits. See: Titova v. Titov, 2012 ONCA 864.
58The relevant provisions of the guidelines read as follows:
- (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
The guidelines define "extraordinary" as follows:
(1.1) For the purposes of paragraphs (1)( d ) and ( f ), the term "extraordinary expenses" means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account;
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
59The court finds that the claimed expenses are reasonable and necessary for the children. The children are struggling in school and benefit from the extra tutoring help. The piano lessons assist in their social development.
60However, the analysis does not end there. The onus was on the mother to establish that the tutoring and piano expenses were extraordinary. She was unable to do so. The father will be required to pay significant support - sufficient enough that the mother will be able to reasonably cover the claimed expenses. In the circumstances of this family, the claimed expenses are ordinary and not extraordinary.
61The mother indicated that her daughter will likely require orthodontic work in the near future. The father indicated that he has some orthodontic coverage under his medical, dental and extended health plan. He advised the court that all his children are covered under this plan and he agreed to continue to have the children covered as beneficiaries. An order will go requiring him to do so. The court finds that this will be for the provision of the children's necessities pursuant to subsection 34 (2) of the Family Law Act.
62The father will be required to pay 80% of any orthodontic expense for the children that is not covered by a medical plan.
Part Six – Calculation of Child Support Since This Case Started
63Any support claimed after an application is issued is prospective support, not retroactive support. Ordinarily, once entitlement to support has been established, an applicant who has provided notice of a support claim, and who then proceeds reasonably to a disposition of the claim, is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. To do otherwise would only provide parties with an incentive to delay the final hearing. See: Mackinnon v. Mackinnon, 2005 CanLII 13191 (ON CA), 2005 13 R.F.L. (6th) 221 (Ont. C.A.).
64The father's prospective child support obligation began on August 1, 2015 and has accumulated as follows:
a) 2014 – 5 months @ 2,921 each month = $14,605
b) 2015 – 12 months @ $2,279 each month = $27,348
c) 2016 – 12 months @ $2,726 each month = $32,712
d) 2017 – 1 month = $2,726
Total = $77,391
Part Seven – Entitlement to Spousal Support
7.1 Legal Considerations
65Section 30 of the Family Law Act states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
66Subsection 33 (8) of the Family Law Act sets out the purposes of spousal support and subsection 33 (9) sets out considerations for the determination of the amount, if any, and duration of spousal support. The court has taken these subsections into consideration in making its decision.
67Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow, 1999 CanLII 715 (S.C.C.).
68The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that before applying the Spousal Support Advisory Guidelines (SSAG), entitlement to support must first be established.
69On its own, a mere disparity of income that would generate an amount under the SSAG does not automatically lead to entitlement. See: Lee v. Lee, 2014 BCCA 383; R.L. v. L.A.B., 2013 PESC 24. However, in practice, entitlement will generally be found in cases where there is a significant income disparity at the time of the initial application. See: Spousal Support Advisory Guidelines: The Revised User's Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson.
7.2 – Analysis
70The mother established an entitlement to support on both a compensatory and non-compensatory basis.
71The mother's compensatory claim for spousal support is based on the roles she assumed during the marriage. The father was the financial breadwinner for the family. He paid the household expenses. For the most part, the mother stayed at home during the marriage, raised the children and managed the household. There were also two periods of time in the relationship where the mother looked after the father's twin children. The roles the mother assumed permitted the father the opportunity to pursue job opportunities that have led to the income and lifestyle he is able to enjoy today.
72These roles delayed the mother in upgrading her education or developing work skills and seniority. The mother continues to be the primary caregiver for the children. This role will compromise her ability to earn income in the future. She will be the parent who needs to be available to meet with teachers, take the children to medical appointments and arrange their activities. It will likely affect the jobs she can take and the hours she can work. The time pressures on her will make it difficult for her to upgrade her education.
73The mother also has a non-compensatory claim for spousal support based on her need for support and the father's ability to pay it. The mother has a limited ability to earn income. Her income in 2016 was by far the highest she has ever earned. Her only work experience has been in retail (in Jamaica) and as a personal support worker.
74The mother's standard of living has been reduced because of the breakdown of the relationship. She has been unable to afford more than a two-bedroom apartment for the children, while the father lives in a large home that he owns. The father is able to frequently travel, while the mother cannot repair her van due to lack of money and has had to rely at times on food banks. She will likely continue to suffer an economic disadvantage from the breakdown of the marriage.
Part Eight - Duration and Amount of Spousal Support
8.1 Legal Considerations
75The Court of Appeal in Fisher, supra, stated that the SSAG, while only advisory, are a useful starting point to assess the quantum and duration of spousal support, once entitlement is established. The court wrote at paragraph 103:
103In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.
76Amount and duration are interrelated parts of the SSAG formula. See: Domirti v. Domirti, 2010 BCCA 472. Using one part of the formula without the other undermines its integrity and coherence. Extending duration beyond the formula ranges, for example, may require a corresponding adjustment of amount by means of restructuring (see SSAG Ch. 10) or a finding that the facts of the case require an exception (see SSAG Ch. 12). See: Spousal Support Advisory Guidelines: Revised User's Guide, supra, Chapter 7).
77In Mason v. Mason, supra, the Ontario Court of Appeal cautioned against courts defaulting to the middle range of the SSAG in a spousal support determination. Each case requires a contextual analysis. It wrote in paragraph 122:
122Further, in The Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version, the authors note, at p. 1 of the Introduction, that one of the challenges of the SSAGs "is the problem of unsophisticated use." The authors continue by stating:
For too many, using the Guidelines means just plugging the income figures into the software program, getting the range and choosing the mid-point. There is more to the advisory guidelines than this, and using them in this way can lead to inappropriate results.
78A strong compensatory claim suggests support in the higher end of the ranges for both amount and duration. See: Wharry v. Wharry, 2016 ONCA 930, paragraph 95.
79In general, awards in highly compensatory cases tend to be at the longer end of the durational range and those in many non-compensatory cases (e.g. where the purpose of the award is to provide a transition from the higher, marital standard of living) at the shorter end of the duration range. See: Spousal Support Advisory Guidelines: Revised User's Guide, supra, Chapter 7.
80In Wharry, supra, the court did not set a termination date for support when the SSAG set a durational range between 7 and 14 years. The court found that it was not possible to assess on the record when the appellant would have had a reasonable opportunity to recover from the economic disadvantage resulting from the role she played during marriage, and resulting from the breakdown of the marriage. The court stated that it would have to deal with the termination date by a variation application at some future point which would take into account the duration of support suggested by the SSAG, and the amount of support paid (see: paragraph 103).
81The needs of a second family can be a factor in ordering spousal support in the lower end of the SSAG ranges. See: Gray v. Gray, 2014 ONCA 659; Correa v. Demke, 2016 ONCJ 216. On the other hand, the Ontario Divisional Court in Dean v. Dean, 2016 ONSC 4298 strongly emphasized that first families are to be given priority and spousal support was not reduced.
82The depth of need can be a strong non-compensatory factor pushing the amount of support higher in the range. See: Bastarache v. Bastarache, 2012 NBQB 75.
8.2 Analysis
83The mother presented software calculations that showed SSAG ranges of $2,669 each month at the low range, $3,222 each month in the middle range and $3,767 each month at the high range. This range of support is for an indefinite (unspecified) duration, subject to variation and a possible review, with a minimum duration of 4 years and a maximum duration of 10 years from the date of the separation.
84There were a number of flaws in the mother's presentation of the software calculations. It emphasizes the need for counsel to become very familiar with how to properly input the information to accurately calculate spousal support. The flaws were:
a) The mother did not input the Schedule III adjustments for the father's union dues. Accordingly, his income figure inputted in the calculations was too high.
b) The mother did not give any consideration to the father's additional access costs.
c) The mother did not give any consideration to the father's payment of support to his other children.
d) The mother did not account for the 3 children living with the father, including his net daycare costs for his 3-year-old child.
e) The mother did not account for the father's partner living with him.
f) The mother did not account for the partner's net income.
g) The mother did not account for the income of the twin children living with the father.
85Based on the findings set out in paragraph 48 above, the court prepared new SSAG calculations that are attached to this decision. The following was inputted:
a) The father's Schedule III adjustment for union dues, reducing his income.
b) The sum of $6,000 the father pays for the support of his other 2 children in Ontario, as a cash flow adjustment.
c) The sum of $3,000 for the father's additional travel costs for access, as a cash flow adjustment.
d) The fact that 3 children are living with him.
e) The fact that his partner lives with him.
f) His partner's projected net annual income of $23,000, as a cash flow adjustment.
g) The $6,000 income that his 18-year-old twins are capable of earning, as a cash flow adjustment.
86Based on these adjustments, the SSAG ranges are $404 each month for the low range, $926 each month for the middle range and $1,514 each month for the high range.
87The court has considered that the mother has a strong compensatory claim for support. Much of her disadvantage lies ahead of her, namely the labour market consequences for the parent of ongoing child care. It is an important factor in not time-limiting support on an original application for spousal support. See: Ideas of Spousal Support Entitlement (2015), 34 Can. Fam. L.Q. 1, by Professor D.A. Rollie Thompson.
88The court considered that the father had pre-existing support obligations before having his family with the mother, but also considered that he assumed support obligations for his 3-year-old child, when he already had support obligations to the mother and the children. The father provided little evidence that he was paying much child support for this child while she lived in Jamaica. He chose to bring this child and her mother to Canada while this case was being litigated and increased his expenses. He is fortunate that the court will not take the stricter approach to second families that the Ontario Divisional Court took in Dean, supra.
89The court also considered that the father has direct pension and benefit deductions that affect his income stream. While he receives the benefits of these deductions, it affects his cash flow. On the other hand, the software does not take into consideration any Child Tax Benefit the father receives for his 3-year-old child. The court received no evidence about this and did not include this benefit in the software calculation.
90The court considered that the mothers of the father's other children have the right to make significant support claims against him. It is alarming that he is only paying $500 each month in total for his other 2 children in Ontario. If these other mothers ever sought proper support, the support numbers in this decision would have to be revisited, as they are based on the present amount of support the father is paying for his children. That said, there is no evidence that these mothers, after this length of time, are inclined to seek more support from the father.
91Balancing all of these considerations, the court will order the father to pay spousal support to the mother of $550 each month. This is at the lower end of the SSAG ranges. The software analysis shows that this will leave the father's household with 56.0% of the parties' net disposable incomes. It will ensure that the children have a comparable standard of living to the children living with the father.
92This determination takes into account the economic factors set out in paragraph 48 above. If not for these factors, the court would have ordered much higher spousal support because of the mother's strong compensatory claim.
93The spousal support order will be indefinite, but will be subject to review (with respect to both entitlement and amount of support) at the request of either party after five years from this date. This is similar to the approach taken in Zivic v. Zivic, [2014] O.J. No. 6272 (SCJ); Dupuis v. Desrosiers, 2013 ONCJ 720, [2013] O.J. No. 6014 (OCJ) and by this court in Kuznetsova v. Flores, 2016 ONCJ 203. There will likely be several changes that take place during this period. The father has 3 older children who may cease to be eligible for support. The father's income is variable. The mother will be expected to use her best efforts to become self-supporting. The court, on any review, may impose a time limit for her support.
94The prospective spousal support accrued since July 1, 2016 is $3,850 (7 months @ $550 each month).
Part Nine – Retroactive Support
9.1 Legal Considerations
95The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:
Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
The conduct of the payor parent.
The circumstances of the child.
The hardship that the retroactive award may entail.
96None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.
97Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S. par. 97).
98Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).
99Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121). In this case, the mother gave the father effective notice of her claim for child and spousal support in the letter sent by her lawyer to the father's lawyer, dated May 8, 2013.
100Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. (D.B.S. par.123). This principle is very relevant to this case.
101It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. (D.B.S., par. 95).
102A court order is presumptively valid when assessing conduct. However, the larger the difference between the order and what should be paid, the less reasonable it becomes to rely upon it. (D.B.S., par. 65).
103A reasonably held belief that the payor is meeting their obligations is a good indicator that there is no blameworthy conduct. (D.B.S., par. 108).
104Courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable guideline tables is not required — nor is it recommended. There are two ways that the courts can affect the quantum of retroactive awards (D.B.S., par. 128). The first involves exercising the discretion that the guidelines allow. Courts may exercise their discretion with respect to quantum in a variety of other circumstances under the guidelines. See: ss. 3(2), 7, 9 and 10 of the guidelines (D.B.S., par. 129). The second is by altering the time period that the retroactive award captures. While the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award.
105The Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 decided that D.B.S. factors apply, as modified, for spousal support purposes. The court found that there is no presumptive entitlement to spousal support and, unlike child support, the spouse is, in general, not under any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. The court found that D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits and that the same flexibility is appropriate when dealing with retroactive spousal support.
9.2 Analysis
106The mother retained a lawyer in early 2013 to seek property division and child and spousal support. This was confirmed in the letter sent from her lawyer to the father's lawyer on May 8, 2013.
107Despite this early request, the mother delayed in bringing the case to court. She was only able to provide a partial excuse for this delay.
108The mother claimed she delayed bringing her application because the father was intimidating her not to go to court. There is some merit to this claim. The father presented at trial as forceful and angry at the mother for hiring a lawyer and taking the case to court. In cross-examination, he challenged her for spending money on a lawyer to seek support from him, instead of spending this money on the children. He presented as being persecuted by the mother.
109The court also accepts the mother's evidence that the father is highly manipulative. She presented a text the father sent to her on November 6, 2016, with a photo of him in a hospital bed, with the comments, "Dad is not waking up, I know you don't care, but for the children" …
Who is this, what happened to him?" This was part of his continued campaign to make the mother feel guilty for seeking support from him. The father appears to be a man used to getting his own way. This is reflected in the paltry support payments he has made to the mothers of the 3 children not in his care. He was angered that this mother had not fallen into line.
110However, it appears that the primary reason for the mother's delay in seeking support from the father was her hope that the father would reconcile with her. A court action would have ended the relationship. The evidence indicates that the parties were attempting reconciliation during 2013. The mother and children traveled to Jamaica with the father in 2013. The mother traveled with the children to see the father in Alberta in December of 2013. In January, 2014, the father was assisting the mother in purchasing a van. In February, 2014, the father spent a week in Toronto and stayed with the mother and the children.
111The mother acknowledged that she brought the case to court in July 2014 because she was concerned about the parenting arrangements. She was concerned that the father would remove the children from daycare and take them to Alberta.
112The father engaged in blameworthy behaviour by paying child support far below the level required by law. He has only been paying the mother support of $1,000 to $1,100 each month, although the court took into consideration the mother's admission at trial that the father provided adequately for her and the children until the end of 2013.
113The circumstances of the children were disadvantaged by 2014 (at a minimum). They were living in a cramped apartment. The mother was relying on food banks.
114A retroactive child support order will cause the father some hardship. However, the court's sympathy for the father's financial predicament is tempered by the fact that despite having the ability to pay much more support (and despite having been ordered by the court to pay much more support), he has paid less than 50% of the support required by the guidelines to the mother. The father has now fathered 8 children by different 6 different mothers and has shown little financial accountability to the children who do not live with him.
115This is the first mother who appears to have made the father live up to his legal obligations. The father may need to adjust his lifestyle to meet them. He may have to travel less and spend less. In the past, he has rented out his finished basement. He might have to do this again. Perhaps he will have to sell his home and obtain less expensive accommodation. He has created this problem. The children should not pay the price.
116Balancing all of these considerations, the court will make a modest retroactive support order. The father shall pay child support starting on March 1, 2014. This is the first day of the first month after the parties last attempted a reconciliation.
117The mother's retroactive claim for child support comes to $14,605. This calculation is based on the father's guidelines table payment of $2,921 per month for 5 months (March to July of 2014), on his 2014 income of $211,322.
118The analysis for retroactive spousal support is different. The delay in bringing a claim takes on more importance when spousal support is being sought. The mother did not claim spousal support when she issued her application, despite having senior counsel. She did not amend her application for spousal support until June 30, 2016. She did not provide a viable excuse for her delay in applying for this relief, when she had already sought retroactive child support. The father did not engage in blameworthy conduct as it was reasonable for him to assume until June 20, 2016, that the mother had chosen not to seek spousal support from him.
119In these circumstances, the father's interest in certainty has greater weight and the court will not order retroactive spousal support. The spousal support shall be payable starting on July 1, 2016.
Part Ten – Support Credits for the Father
120The mother provided a chart setting out the support the father has paid from March 1, 2014 until December 31, 2016 as follows:
- 2014 - $10,230
- 2015 - $14,428.11
- 2016 - $14,960.52
Total paid: $39,618.63
121The father provided his own chart for payments made in 2014. He did not dispute the amounts the mother said he has paid since the start of 2015.
122The father claimed that he paid $18,838.47 for child support in 2014.
123The court prefers the evidence of the mother on this issue for the following reasons:
a) The court found the mother to be a more credible witness than the father. She answered questions to the best of her ability in a straight-forward manner. The father was often evasive and argumentative when questioned.
b) The father definitively claimed that he had not used two credit cards belonging to the mother. After an effective cross-examination, it became apparent that he had extensively used one of the mother's credit cards for his own benefit and occasionally used another one of her cards.
c) The father paid off the amounts he incurred on the mother's credit cards. However, he characterized these payments as child support for the years 2013 and 2014, even though the amounts incurred were for his personal benefit.
d) The father tried to claim an amount he paid to the mother for the van in 2014 as child support. Again, after cross-examination, it became very apparent that the van payment was part of the parties' temporary property settlement.
e) The father attempted to claim the amounts he paid for the van's insurance as child support, even though he was the owner of the van.
f) The father claimed amounts for apartment insurance paid on the mother's home, even though she was unaware he paid these amounts and did not agree to them in lieu of child support. He will not be given credit for these payments.
Part Eleven – Calculation of Support Arrears
124The court finds that the father owes the mother $56,577.37 as of this date, calculated as follows:
- Prospective child support (par. 64) - $77,391
- Retroactive child support (par. 117) - $14,605
- Prospective spousal support (par. 91) - $3,850
Total support accrued $95,846.00
Less support paid (see par. 120) $39,618.63
Balance owing as of January 1, 2017: $56,227.37
125The court will not make an order for monthly payment of arrears. The father has not complied with the temporary court orders for support. He gave the court no reason to believe that he will voluntarily comply with this order. The Family Responsibility Office will determine how to enforce it. They can certainly place a lien on his home in Fort McMurray.
Part Twelve – Conclusion
126The court is aware that the father will be very unhappy with this result. He believes that he should not be required to pay more than $1,000 each month. He resents that the mother is seeking more from him. However, the law requires him to pay much more support for the children and the mother.
127The court wants to emphasize that even though it did not reduce the amount the father has to pay for ongoing child support, his economic obligations resulted in the court ordering spousal support at the lower end of the SSAG ranges and in only ordering a short period of retroactive child support, and no retroactive spousal support.
128A final order shall go on the following terms:
a) The father shall pay the mother ongoing child support in the sum of $2,726 each month, starting on February 1, 2017, based on his annual income of $196,827.
b) The father shall pay the mother ongoing spousal support in the sum of $550 each month, starting on February 1, 2017.
c) Either party is entitled to review the spousal support award, both with respect to entitlement and quantum after 5 years from this date, without the need to establish a material change in circumstances.
d) The father shall maintain the children on any medical, dental or extended health plan that he has available to him through his place of employment.
e) The father shall pay 80% of the children's orthodontic expenses that are not covered by his medical, dental and extended health plan.
f) The father's support arrears are fixed in the amount of $56,227.37, as calculated in these reasons for decision. The father shall be further credited with any support payments he has paid in January 2017, only as reflected in the records of the Director of the Family Responsibility Office.
g) The parties shall exchange their income tax returns and notices of assessment by June 30th each year.
h) The father shall immediately notify the mother when any of his children are no longer eligible for support.
i) A support deduction order shall issue.
129If either party finds a mathematical error in this decision, or an inputting error in the software calculations attached to this decision, they may serve and file written submissions by February 21, 2017. The other party will then have until March 6, 2017 to serve and file a written response. Any submissions should be delivered to the trial coordinator's office on the second floor of the courthouse. The father may deliver them by fax.
130If either party seeks their costs, they shall serve and file their written costs submissions by March 13, 2017. The other party will have until March 31, 2017 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office. Again, the father may deliver them by fax.
Released: January 30, 2017
Justice S.B. Sherr
