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ONTARIO COURT OF JUSTICE DATE: 2023 06 05 COURT FILE No.: Halton FO-13-171

BETWEEN:

MARGARET TAMO Applicant

— AND —

JOHN ARTHUR HUSBAND Respondent

Before Justice S. Cleghorn

Heard on May 9, 10, 11, 2023 Reasons for Judgment released on June 5, 2023

Counsel: Richard Diamond...................................................................... counsel for the applicant(s) Avra Rosen............................................................................ counsel for the respondent(s) Kelly Eckert..................................................................... co-counsel for the respondent(s)

Overview

1Ms. Tamo and Mr. Husband had a brief relationship; they lived together from July 2010 until July 2012. They have one son, H.

2Before moving in together, they entered a Cohabitation Agreement, dated June 24, 2010. The parties agreed that there shall be no spousal support payable and no property division upon a breakdown of their relationship. Additionally, each would keep whatever property they owned either before they began cohabitating or at the time of their separation.

3The parties agreed upon the terms of a consent final order that issued on April 13, 2015. The order provides for the following:

Joint decision-making responsibilities
The primary residence of H. is with Ms. Tamo. This clause was reviewable in 5 years to discuss if the residence should move to a shared one.
A defined parenting schedule for Mr. Husband. Holidays were addressed in the order.
Child support was payable by Mr. Husband to Ms. Tamo in the amount of $2,521.00 per month, the table amount given his annual income of $320,000.00.
Ms. Tamo had an annual income of $150,000.00. Her portion towards Section 7 expenses was 32%. Mr. Husband’s share was 68%.
Mr. Husband was to pay the fixed amount of $711.00 per month towards the cost of the nanny.
Future Section 7 expenses were to be agreed upon in advance.

4Mr. Husband’s employment income fluctuates. The parties have historically reconciled the Table support to ensure the exact amount was paid whenever a trigger event occurred, for example, when Mr. Husband received a bonus.

5Ms. Tamo has been gainfully employed throughout her adult life and earned a substantial employment income. Sadly, in November 2011, Ms. Tamo was diagnosed with brain cancer. It was agreed that the details surrounding her cancer were not relevant to the issues before the court. As such, very limited evidence was proffered on this issue. It does not have any impact on her parenting abilities and her income is known. Her income now consists of monies she receives through disability insurance, some of which is taxable and another portion of which is untaxable. In short, her net monthly income from the insurance benefits is $8,800.00.

6In September 2020, the parties agreed to try a shared schedule and agreed to an offset of child support. However, according to Ms. Tamo, this was a short-lived arrangement. In November 2020, Ms. Tamo claims Mr. Husband moved to Florida to escape the restrictions of the pandemic. H. remained in her primary care.

7Ms. Tamo brought a Motion to Change the final order of Justice Starr dated September 28, 2015.

8At the start of the trial, Ms. Tamo abandoned her claim to vary the order from joint decision-making responsibility to sole decision-making responsibility. The parties also filed Minutes of Settlement addressing the parenting schedule. As a result, as of May 2023, H. will enjoy a shared week about schedule with his parents.

9Specific admissions were made, including that: H. will attend a private school for grades 9 through 12. Additionally, Mr. Husband concedes he did not have H. in his care 40% of the time in either 2022 or 2021. And, finally, the parties agreed that the week that H. was in summer camp is to be deducted from the calendar year when calculating the amount of time each parent had H. in their care.

10This trial was mainly about child support. It is further narrowed to the year 2021 when the father’s employment was terminated, and he realized a significant financial gain from stocks he held with Softchoice LP (“Softchoice”) from the initial public offering (“IPO”), that he received at the start of his employment. Mr. Husband’s income was $545,000.00. The “IPO” upon his termination, resulted in additional funds of $6,944,000.00.

11Ms. Tamo claims for retroactive child support for 2021 of $55,000.00 per month. Mr. Husband’s position is that H. is a child who lives a high standard of living and wants for nothing. Therefore, he seeks to exclude the “IPO” income earned as a non-recurring event.

12Of less importance to the parties are the years 2020 and 2023. The mother claims she had H. in her care for most of those years. Mr. Husband claims he had H. at least 40% of the time and seeks an offset of Table support. Once the parenting schedule for both years has been decided, I must determine the correct amount of child support that should have been paid.

13Lastly, the parties have always agreed that H. would attend a private high school. H. was registered in grade 8 with both parents’ participation in the enrollment process. The mother seeks the father’s contribution toward that expense. The father takes the position that grade 8 was only on the table when the parties were discussing a global resolution. When that global resolution broke down, he told Ms. Tamo he was no longer in agreement for H. to attend private school. In short, Mr. Husband believes the decision was not made on consent, and he should not be required to contribute to the cost of tuition for H.’s grade 8 year at the private school.

Incomes of the Parties and Child Support Paid

14To provide context to the decision, at the outset, I will set out what I find the parties' incomes to be and then provide a further analysis of how I have arrived at these figures in this decision. Both parties have filed Divorce Mate calculations using the parties’ income tax returns. I prefer the evidence of Mr. Husband and am using his figures for support as it is a more inclusive calculation. In addition, Mr. Husband has included losses from rental properties each party owns. Ms. Tamo believes her losses should be included but that Mr. Husband’s losses should not. However, I chose to deal with the parties' incomes on a level playing field.

15In 2021, Mr. Husband’s income was $7,499,984.00. Ms. Tamo’s income was $224,409.00. The total child support paid was $34,308.00. Mr. Husband’s position is that his income should be set at $557,203.00 and an offset applied.

16A second issue concerning 2021 is whether the damage award received by Mr. Husband because of his termination should be included in his income. It was a non-taxable payment of $225,000.00 for mental distress. Mr. Diamond, counsel for Ms. Tamo, relies upon case law that deals with damages for wrongful termination and a payment made for compensation to have the award included in Mr. Husband’s income. I have excluded the damage award as it falls into the category of mental distress and not wage replacement. In making this determination, I rely upon Section 4(2) (3) of the Family Law Act, which clearly states:

Excluded Property

(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

17Turning next to 2022, Mr. Husband’s income was $446,896.00. Ms. Tamo’s income was $132,929.00. The total child support paid was $48,218.00. The Table amount for one child based on Mr. Husband’s 2022 income is $3,437.00 per month.

18Lastly, for 2023, it is anticipated that Mr. Husband’s income will be $236,664.00 and Ms. Tamo’s income will be $163,454.00. Table support paid up until April 30, 2023, was $10,300.00. The Table amount for one child is $2,117.00 per month.

19Having set out the parties’ incomes, I will now address the issues that require judicial determination in chronological order.

Did Mr. Husband have H. in his care 40% of the time in 2020?

20The evidence presented by both parties was of little assistance in deciding this issue.

21Neither Ms. Tamo nor Mr. Husband tracked when H. was in their care in 2020. It would appear from the limited evidence proffered at trial that the parents had a good parenting relationship. They were both flexible with who would care for H., and their decisions appeared to be made based on H.’s preferences. The family spent time together, including joint holidays.

22Ms. Tamo attempted to recreate when she may have had H. in her care. She did this by filing photographs, texts, and emails. Based on these artifacts from 2020, Ms. Tamo then created a calendar.

23The difficulty with the evidence provided is that it is based on Ms. Tamo’s memory alone. Given the passage of time, not surprisingly, her recollection of events from day to day that year is less than reliable. I cannot accept her account of where H. was on any given day in 2020 based on the calendar she constructed for several reasons. First, some photographs could have been taken on a change-over day. This would result in parenting time to Ms. Tamo when it should be credited to Mr. Husband. Secondly, there are photographs where H. is not in them. Based on pictures without H., I am unsure how to conclude that Ms. Tamo had H. in her care. Third, Mr. Husband filed text exchanges evidencing that H. asked to spend the night with his father on dates when Ms. Tamo maintained H. stayed with her.

24Mr. Husband also prepared a chart. His chart shows the days “when he might have been available to parent H.” I cannot accept the chart put forward by Mr. Husband for several reasons as well. First, Mr. Husband has no recollection of actual parenting time. Secondly, he made the chart based on his flight schedule. Mr. Husband was subject to quarantine periods during 2020 upon his arrival into Canada from the United States. Obviously, during a quarantine period, Mr. Husband could not parent. Third, Mr. Husband concedes he was not counting his parenting days in 2020.

25Mr. Husband’s second argument is that he should get credit for times when he “loaned H. to Ms. Tamo.”. But, of course, this cannot be accepted by the court. If Mr. Husband decided that H. should spend time with his mother, for whatever reason, when he could have parented H., then that time is to be credited to Ms. Tamo.

26Lastly, Mr. Husband’s evidence is that he disagrees with Ms. Tamo’s calendar as it contains inconsistencies, and he should be credited with 40% of the time.

27What I find most telling are the texts and emails filed in which Mr. Husband makes clear his intention to remain in Florida to avoid the Covid restrictions in Ontario. Mr. Husband testified that he “could not handle lockdown” and chose to be in Florida. He texted Ms. Tamo, “Not living in lockdown.”

28Although I do not accept the mother’s calculation that H. was in her care for 72% of the year for the reasons stated above, I cannot find that Mr. Husband has discharged his onus of proving that he was parenting H. at least 40% of the time. As between them, I prefer Ms. Tamo’s evidence that Mr. Husband spent a large portion of the year in Florida, without H. Importantly, that evidence finds support in the text messages and emails that became exhibits at trial.

29As a result, I am satisfied that Ms. Tamo was providing the primary care for H. while Mr. Husband enjoyed specified parenting time.

30Mr. Husband paid child support in 2020 of $42,121.00. He used the offset formula to calculate that amount. His income was $496,000.00. The Table amount should have been $3,790.00 per month or $45,480.00. Mr. Husband owes retroactive child support of $3,359.00 for 2020.

What was Mr. Husband’s 2021 Income for child support purposes?

31Each party had an income report generated by experts concerning Mr. Husband’s 2021 income. Ms. Tamo retained the services of Valuations Limited, who calculated Mr. Husband’s 2021 income for support purposes as $7,510,968.00. That report breaks down Mr. Husband’s income and reads as follows:

Stock option plan: On December 31, 2014, Mr. Husband was granted 475,901 stock options. The options were exercised in June 2021 when Softchoice went public, and Mr. Husband received $3,565,099.00 of stock option income.
Mezzaine sharing bonus units: On December 31, 2014, Mr. Husband was granted 300 units which entitled him to a bonus upon a “Liquidity Event." As a result of the June 2021 IPO, Mr. Husband received $567,084.00 of income from these units.
Share purchase plan: He can make a one-time purchase of Softchoice shares, up to $200,000.00. He acquired 51,445 shares, to reach the $200,000.00 maximum. We understand that he acquired 51,445 shares initially and acquired 841 additional shares through payroll. In 2021, Mr. Husband sold some shares (27,972.77 shares) and reported a capital gain of $564,885.00.
Car and cell phone allowance totaling $12,600.00 per annum.

32The report was generated with reference to the Federal Child Support Guidelines. Adjustments for taxable capital gains and losses were made, deductions for carry charges and employment expenses were calculated, discretionary expenses were reflected, and gross ups on non-taxable income were done. As a result, the income arrived at for support purposes for Mr. Husband’s was $7,510,968.00.

33Mr. Husband retained the services of Marmer Penner Inc. to calculate his income for 2019 through to 2021. Two scenarios were created. In the first scenario, the money he obtained from the sale of his Softchoice stock as part of the IPO was included for 2021, resulting in a total income of $7,489,000.00. Scenario two excludes the proceeds from the stock sale, and results in an income in 2021 of $545,00.00.

34The difference between the two reports, including the IPO income, is nominal. The reports were filed on consent, and neither party cross-examined the respective experts. As there is no evidence that one report may be more accurate than the other, l have taken the difference between the two reports. For 2021 I find that Mr. Husband’s earned $7,499,984.00.

35Having determined the money received by Mr. Husband in 2021, the next issue to be decided is whether the proceeds from his sale of the Softchoice stock should be included as part of his income for child support purposes?

36There is a straightforward answer to this question because Schedule III of the Ontario Child Support Guidelines specifically addresses the treatment of monies received when an individual sells stock acquired through a stock option program connected to their employment. The relevant provision provides:

Employee stock options with a Canadian-controlled private corporation

(1) Where the parent or spouse has received, as an employee benefit, options to purchase shares of a Canadian-controlled private corporation or a publicly traded corporation that is subject to the same tax treatment with reference to stock options as a Canadian-controlled private corporation, and has exercised those options during the year, add the difference between the value of the shares at the time the options are exercised and the amount paid by the parent or spouse for the shares and any amount paid by the parent or spouse to acquire the options to purchase the shares, to the income for the year in which the options are exercised.

Disposal of shares

(2) If the parent or spouse has disposed of the shares during a year, deduct from the income for that year the difference determined under subsection (1).

37Given this provision, the court does not need to engage in a review of the case law concerning the imputation of income. Unlike in many other situations, the question is not a matter for the exercise of judicial discretion. The answer is prescribed by a regulation that this court must follow. Accordingly, the funds received by Mr. Husband in 2021 connected to the stock options he exercised that year form part of his income for child support purposes in that year. The amount of child support that would be due in 2021, following the table amount, would $650,628.00 or $54,219.00 per month.

Incomes over $150,000.00

38Having determined the amount of income Mr. Husband earned in 2021, the next issue to be decided is what is the appropriate amount of child support to be paid. Under section 4 of the Ontario Child Support Guidelines, if the payor’s annual income exceeds $150,000, the court may deviate from the amount prescribed by section 3 if it “considers that amount to be inappropriate” and order the payment of an amount that it “considers appropriate.” To decide whether the amount that would be payable by Mr. Husband as child support for 2021 under section 3 would be “inappropriate” and that some lesser amount would be “appropriate” the court must consider the objectives of child support and the case law interpreting section 4.

39It is important to address at the outset that what must be determined is the appropriate amount of child support when the payor in a wealthy family has a single anomalous year of extraordinarily high income. Much of the case law on Section 4 deals with high-income earners who consistently earn the same amount year after year. Mr. Husband has always had a high income and he has paid the Table support based on that income. What is to be determined is what is the appropriate amount when there is an exceptional income year for a payor, like Mr. Husband? There is no evidence from either party to suggest Mr. Husband will again earn anywhere close to the amount he earned in 2021. In such circumstances, the guidelines do not furnish an easy answer. As the Supreme Court of Canada observed in Francis v Baker, when explaining the provision in the Federal Child Support Guidelines at paragraph 40:

A proper construction of s. 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. Furthermore, this balancing must take into account the ordinary meaning of the word “inappropriate”, as well as its use elsewhere in the statute.

Section 4 of the Ontario Child Support Guidelines

Section 4 of the Ontario Child Support Guidelines provides:

Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000, the amount of an order for the support of a child 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 parent’s or spouse’s income, the amount set out in the Table for the number of children under the age of majority to whom the order relates,

(ii) in respect of the balance of the parent’s or 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 parent or spouse to contribute to the support of the children, and

(iii) the amount, if any, determined under section 7. O. Reg. 391/97, s. 4.

40I begin, as Francis v Baker instructs, with the language from section 4 (b)(ii), referring to the “condition, means, needs and other circumstances” of the child “entitled to support.”

41The evidence at trial provided the court with a rather insightful glimpse into H.’s standard of living. The evidence establishes that H. enjoys a very high standard of living and has since his parents separated. The parties resided together for a short duration after H.’s birth, not long enough to establish a familial standard of living. H.’s standard of living has been based on Ms. Tamo’s income, supplemented by the child support paid by Mr. Husband.

42H. has lived primarily with his mother in Oakville. He has participated in every activity or sport he has ever expressed an interest in. H.’s main area of interest is playing recreational hockey. Of course, hockey takes up most winter months with practices, games, and tournaments. When H. is not playing hockey, he travels the world with Ms. Tamo. He spends time with Mr. Husband in Florida. Mr. Husband and Ms. Tamo have cottages, and H. enjoys summer days at the cottages of both parents. Ms. Tamo gave an example of how H.’s wants are met. When she and H. recently travelled to Turks and Caicos, he enjoyed riding a scooter around the resort. Ms. Tamo then bought two scooters for use at her cottage. The evidence clearly establishes that all of H.’s “needs” are currently being met.

43Ms. Tamo filed a Childcare Budget dated April 19, 2023. She has included half the cost of the fixed expenses for her home. H.’s food costs at $900 per month, $140 per month for his share of household supplies, $1,770 as his share of car expenses, a clothing budget of $475 per month. I have omitted the cost of private school tuition for H., as he attended public school in 2021. I have also omitted the hockey expenses as the evidence established that Mr. Husband assumed that expense. According to Ms. Tamo’s monthly Childcare Budget, $1,000 is spent per month as H.’s vacation costs. I have omitted the monthly summer camp expense listed ($1,600.00), as Ms. Tamo testified that it was an error. Although the amount recorded was correct, Mr. Husband paid for it. As a result, H.’s total monthly expense are approximately $8,051.

44To provide context for the fixed expenses, Ms. Tamo’s financial statement sworn May 1, 2023, lists the value of her home at $1,500,000.00. The mortgage is $765,861.00. In addition, she owns two vehicles, a 2009 Porsche valued at $28,000.00 and leases a Yamaha AR195 at $45,000.00; the value at the time of leasing was $101,806.78. The lease cost was $76,745.86 on November 30, 2020. I note these assets and debts as they comprise much of H.’s monthly expenses.

45In his financial statement, sworn May 1, 2023, Mr. Husband notes the value of his home in Burlington as $2,000,000.00. There is no mortgage. Mr. Husband has four cars, a 2022 Acura MDX, valued at $53,000.00; a 2015 Lexus RX350, valued at $8,000.00; a 2010 Lexus ES 350, valued at $2,000.00 and a 2006 Monterey 194 FS Bowrider, valued at $8,000.00.

46A Child’s Budget must be viewed with caution. As Bastarache J. noted for the Court in Francis v Baker at paragraph 47:

I also acknowledge that, as Abella J.A. pointed out, there are inherent problems with child expense budgets. Indeed, in Dergousoff, supra, Cameron J.A. made the following comments on p. 86:

Unfortunately, such statements, in general, have become notoriously unreliable and have been largely discredited as “wish lists,” artificially tailored, as they so often are, to the preconceived end of showing that monthly expenses out run monthly income. This is not so much a commentary on the mother’s statement as it is upon the practice of treating such statements as argument rather than evidence.

47The Child’s Budget is a resource to assist the court in arriving at a reasonable amount of child support along with all the other evidence presented. At the same time, when dealing with very high-income earners, it must be recognized that what is “appropriate” for a particularly wealthy family is very different from what is “appropriate” for individuals who earn less than $150,000.00. The budget for wealthy families includes luxuries that are not achievable for most members of society. This sentiment is captured in Francis v Baker at paragraph 49:

In my opinion, a proper balance is struck by requiring paying parents to demonstrate that budgeted child 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 (C.A.), at p. 345.

48Put another way, a child’s budget for wealthy families can sometimes exceed what can be fairly described as a list of “needs” and come to resemble something more akin to a list of “wants.” And fortunately for the children of wealthy families, those wants can often be achieved. It is trite to state that the basic needs of wealthy children are more than easily met.

49H. has a similar standard of living between the two homes, the “conditions” are the same. H. enjoys the same standard of living when he is with his mother or his father. In that regard, the circumstances here are very different than those in Francis v Baker. In that case, the standards of living were found to be very different. The father was wealthy and living a luxurious life. In contrast, the wife was struggling financially while trying to raise the couple’s two young children. This is not the situation that the parties in this case find themselves in. I mention this distinguishing factor as it speaks to the “conditions, means, needs, and other circumstances” when the circumstances of this case are compared to those in Francis v Baker.

Objectives of Child Support

50The objectives of the Ontario Child Support Guidelines are set out in section 1 and read:

The objectives of this Regulation are,

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances. O. Reg. 391/97, s. 1; O. Reg. 25/10, s. 1.

51There is no dispute between the parties that since the separation in 2010, the objectives of child support have been met. H. has had a similar standard of living in both homes. This has worked well for the family. Prior to this trial, despite the separation, the family spent holidays together as a unit. I can only assume that conflict was at a minimum and money was not an issue.

52Given H.’s high standard of living since separation, it is evident that an appropriate amount of support has been paid by Mr. Husband over the years.

53The only year in dispute is 2021. There is no evidence before the court to suggest that H. will not continue to receive the appropriate amount of child support from Mr. Husband in the current and upcoming years.

54Unfortunately, as money often does, a single anomalous year of extraordinary earnings by Mr. Husband has led this family into conflict. The Table support is of minimal assistance. The parties are at opposite ends of the spectrum. Mr. Husband’s position is that no further support should be payable above his employment income and Ms. Tamo’s position is that she should receive $650,000.00.

What does the word “appropriate” mean when deciding child support?

55Having reviewed Section 4 and the objectives of child support, I now turn to the meaning of the word “appropriate”.

56Mr. Diamond, on behalf Ms. Tamo, relies upon the Supreme Court of Canada decision, S(D.B.) v G(S.R.)(DBS), which holds that child support is the right of the child. The analysis is far more complicated than that proposition suggests. The right of the child must also include an analysis under Section 4 and consideration of the objectives of the Child Support Guidelines. The legislation has carved out an exception for individuals who earn above $150,000.00. And clearly contemplates that Table support may not be appropriate for payers who earn above that threshold. It is up to Mr. Husband, the payor, to rebut the presumption that Table support is appropriate and establish that it would be inappropriate to order child support as prescribed by the table.

57Counsel for both parties rely on the Supreme Court of Canada’s decision in Francis v Baker. The principles that emerge from that decision were helpfully summarized by the British Columbia Court of Appeal, in Metzner v Metzner, at paragraph 30:

It was Parliament's intention that there be a presumption in favour of the Table amounts in all cases (para.42);
The Guidelines figures can only be increased or reduced under s.4 if the party seeking such a deviation has rebutted the presumption that the applicable Table amount is appropriate (para.42);
There must be clear and compelling evidence for departing from the Guidelines figures (para.43);
Parliament expressly listed in s.4(b)(ii) the factors relevant to determining both appropriateness and inappropriateness of the Table amounts or any deviation therefrom (para. 44);
Courts should determine Table amounts to be inappropriate and so create more suitable awards only after examining all circumstances including the factors expressly set out in s.4 (b)(ii) (para.44);
Section 4(b)(ii) emphasizes the "centrality" of the actual situation of the children. The actual circumstances of the children are at least as important as any single element of the legislative purpose underlying the section (para.39). A proper construction of s.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)
While child support payments unquestionably result in some kind of wealth transfer to the children which results in an indirect benefit to the non-paying parent, the objectives of child support payments must be kept in mind. The Guidelines have not displaced the Divorce Act which has as its objective the maintenance of children rather than household equalization or spousal support (para.41).
The court must have all necessary information before it in order to determine inappropriateness under s.4. If the evidence provided is a child expense budget, then "the unique economic situation of high income earners" must be considered.
The test for reasonableness of expenses will be a demonstration by the paying parent that the budgeted expense is so high "as to exceed the generous ambit within which reasonable disagreement is possible": Bellenden v. Satterthwaite, [1948] 1 All E.R. 343 (Eng. C.A.), at 345.”

58There is a consistent pattern in the case law that deals with high income earners and Section 4. The payors who consistently earn the high income are more likely to pay the Table amount. A sampling of the case law includes: Metzner v Metzner, Francis v Baker, Pakka v. Nygard, Omand v Omand, Simon v Simon, Tauber v Tauber.

59Guided by the objectives of the Guidelines, Section 4 and the case law interpreting that provision, the evidence before the court is that Mr. Husband has consistently paid child support based on his income, which has been relatively high over the years. There is no evidence to suggest that H. has ever been denied basic child support. Further, the evidence has established that H. has and continues to enjoy the same standard of living in both households.

60I am unsure that H. has the time in his teenage schedule to travel more than four or five times per year or do any more activities than he already does.

61All of H.’s needs were met in 2021. There was no travel given the worldwide pandemic. In addressing H.'s condition, means, needs and other circumstances, there is no evidence that H. lacked for anything in 2021.

62Evidently, the mother is seeking $650,000.00 for herself and H. To allow such an amount is not reasonable and, in my opinion, amounts to a wealth transfer to Ms. Tamo. The amount requested by Ms. Tamo is more than H.’s reasonable needs require and, therefore, no longer qualifies as child support. In short, to order that sum as child support would be entirely unjustifiable. In my view, that would unquestionably be inappropriate.

63That conclusion is informed by the evidence, which establishes that nothing more than Table support in all past years has been more than sufficient to meet the “conditions, means, needs and other circumstances” of H. Mr. Husband’s income in 2021 was a one-time event. As such, Ms. Tamo cannot increase H.’s standard of living, for example, by purchasing a more extravagant home. First, H. would then have a higher standard of living in his mother’s home than in his father’s. Secondly, Ms. Tamo will not be able to sustain it as Mr. Husband is not going to earn a multi-million-dollar income in future. Mr. Husband is near retirement age. His evidence is that he fully intends to find employment in his field, but his age is a factor that may work against him.

64The only “needs and other circumstances” from this one-year event can be narrowed down to material things and experiences H. can be exposed to. For example, H. could travel more than four or five times per year if the shared parenting schedule, his hockey, and schooling permitted. However, the reality is that these constraints necessarily limit how much H. can travel. To be sure, Ms. Tamo could purchase him more things with added child support, but he currently wants for nothing. In short, I am hard-pressed to identify anything that he might need that he does not have.

65Despite Section 4 and my findings detailed above, the objectives of child support entitle H. to enjoy some benefit from the substantial income Mr. Husband’s earned in 2021. H. should share, in a realistic way, the increase in income Mr. Husband received.

When does child support amount to nothing more than a wealth transfer?

66The analysis is not complete without addressing whether the Table amount is “inappropriate” because it amounts to a wealth transfer.

67Ms. Tamo’s position is that H. should enjoy an increase in his standard of living for 2021 and that the full amount of Table support should be paid.

68I was left with the distinct impression from Ms. Tamo’s pleadings and evidence that she regrets signing a cohabitation agreement. In her Motion to Change, she wrote,

I am the poster child for why someone should have never signed a cohabitation agreement when I moved in with the Respondent. I have always had pride and thought of myself as a hardworking and fair person. Yet here I am, with zero recourse for Spousal Support during this difficult time which is on me, but for H. to be denied basic child support, that is just something I’m not willing to walk away from.

69Ms. Tamo testified that she believes Mr. Husband should pay for a portion of her ski and golf club memberships and travel expenses because she exposes H. to these activities.

70Ms. Tamo also testified that she wanted the Table child support for 2021 so that she could use the money to save for the future. In her Motion to Change, she wrote:

The applicant will need a significant amount of support to not only [to] provide for the child for the current year, but also to save for future expenses and support these activities for H. in the years to come and ensure he gets the financial support he needs.

71In terms of future expenses, Ms. Tamo testified she would like Mr. Husband to pay for H. to have a golf membership of his own when he turns 19. There is no evidence before me that H. is even interested in golf. Ms. Tamo also testified she wanted a ski membership for H. There is no evidence H. is interested in skiing or that his hockey even allows him the time to ski.

72Her evidence at trial is that the lump sum child support payment will provide security for her and H.

73However, child support is based on an annual income for a specific reason. It is to meet the immediate needs of a child; not to save funds for future events.

74What is clear is that travelling the world is important to Ms. Tamo. In her Motion to Change, she wrote;

We have gone to Vietnam, Ireland, Whistler, England, Turks and Caicos and several beautiful places across the globe. We also try and travel with my family as much as possible since I started a relationship with my birth mother not too long ago. H. and I typically travelled 4-5 times yearly since he was born.

75Ms. Tamo testified that it is important for her to travel with her biological mother whom she recently reconnected with. She feels that Mr. Husband should pay a portion of her travel expenses as she is the one exposing H. to the world.

76I mention these sections from the Motion to Change and Ms. Tamo’s evidence as it speaks to her want for spousal support and her want to have a portion of her expenses covered. She clearly feels hard done by in signing away her rights to claim for spousal support. She regrets the decision she made by signing the Cohabitation Agreement. By receiving a substantial payment for child support because of Mr. Husband’s one-time increase in annual income in 2021, Ms. Tamo hopes to obtain financial security and fund her continued ability to travel and to do so extravagantly.

77To order child support for 2021 of $650,628.00, in all the circumstances, would amount to little more than a wealth transfer to Ms. Tamo. Therefore, the amount of child support Ms. Tamo is seeking for 2021 cannot be fairly said to fall within the parameters what would be “appropriate.” In short, the equivalent of $55,000 per month in child support would be “inappropriate” and “unsuitable.”

78Mr. Husband has rebutted the presumption that the Table amount is appropriate and has made the case that child support of $55,000.00 would be inappropriate and far exceed the objectives that child support is meant to achieve.

79The parties have acted in H.’s best interests in the past and will undoubtedly continue to do so in the future. They proactively saved enough money that has been deposited into a RESP to cover the cost of a university degree. I mention this as both parents are focused on ensuring H.’s current and future needs are met where it concerns the need for them to make financial contributions.

80Taking into consideration the above, based on the Child’s Budget of $8,051.00 per month, given that Mr. Husband had an anomalous annual income in 2021, H. is also entitled to enjoy some benefit from that single exceptional year. Therefore, a reasonable amount grounded in the evidence is to double the Child’s Budget for 12 months. This means support should have been payable for $16,102.00 or an annual amount of $193,224.00. Mr. Husband paid $28,221.00. Therefore, there is a retroactive amount owing of $165,003.00.

Child Support Paid in 2022

81Ms. Tamo concedes that Mr. Husband made an overpayment of child support in 2022 of $1,688.00. As a result, Mr. Husband is entitled to a credit. Given the concession, the parties did not spend significant time proffering evidence on this issue.

Private school for 2022-2023

82H. was enrolled in private school in September 2022 for grade 8.

83Ms. Tamo has assumed the cost of that, which totaled $40,882.00. The price includes tuition and a computer.

84The evidence from both parties is consistent. There was an agreement to enroll H. in the private school for grade 8. Both parties participated in enrollment, attended meetings, and filled out the required paperwork.

85While the enrollment process was underway, the parties negotiated to resolve all outstanding trial issues on a final basis. When the negotiations fell apart, Mr. Husband withdrew his consent.

86It would have been unfair to H., at that point, to tell him that his parents put him through an enrollment process to attend grade 8 at a new school, and because his parents cannot get along now, Dad says “no.”

87At the critical time, before the enrollment process began, consent was provided. A parent cannot provide consent and then unreasonably withdraw it. Therefore, by withdrawing his consent at the 11th hour, Mr. Husband behaved unreasonably.

88Mr. Husband shall pay his proportionate share towards the private school expense for grade 8.

89In 2022, Mr. Husband’s income was $446,896.00. Ms. Tamo’s income was $132,929.00. As a result, Mr. Husband is responsible for 77% of the cost; his share amounts to $29,026.22.

Is Mr. Husband entitled to offset support for 2023?

90When Mr. Husband’s employment was terminated, he had to enter a non-competition clause for 12 months. As part of his package, he receives a salary of $263,664.00. The Table, therefore, is $2,117.00 per month.

91From January until May 7, 2023, Ms. Tamo testified she had had H. in her care 101 of 120 days.

92The parties have agreed to start the week about schedule as of May 8, 2023. H. starts his week with Ms. Tamo on May 14 (the Minutes incorrectly have noted the Sunday as May 12). She is projected to have H. for an additional 127 days this year.

93If the schedule is followed, Ms. Tamo will have H. in her care for 247 days out of 365 or 68% of the year.

94Mr. Husband disputes some days that Ms. Tamo has testified H. was in his care. He says six days should be credited to him. This would mean Ms. Tamo had H. in her care for 241 days out of 365 or 66% of the year.

95Under either scenario, Mr. Husband has not met the onus of establishing that he will have H. in his care 40% of the time for the current year. Section 9 of the Child Support Guidelines requires that the child’s residence throughout the entire year be considered and is determinative:

9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared parenting time arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

96From January to April, Mr. Husband paid $10,360.00. The correct amount of child support until April 30, 2023, is $8,468.00. Mr. Husband is entitled to a credit of $1,892.00. The Table amount shall be payable as of May 1, 2023, in the amount of $2,117.00.

Final Order to Issue

97A final order shall issue as follows:

ORDERS:

Pursuant to the Minutes of Settlement filed, paragraph 3 of the Order of Justice Starr dated April 13, 2015 is varied as follows: The child, H., shall have equal parenting time with Margaret Tamo and John Husband, on a week-about schedule, with transitions occurring at 6:00 p.m. each Sunday, commencing May 7, 2023, with H. being in the care of John Husband.
John Husband shall pay retroactive child support for 2020 fixed in the amount of $3,359.00.
John Husband shall pay retroactive child support for 2021 fixed in the amount of $165,003.00.
John Husband shall pay retroactive Section 7 expenses for 2022 fixed in the amount of $29,026.22.
John Husband shall receive a credit for child support payable in 2022 of $1,688.00.
John Husband shall pay child support to Margaret Tamo for the child, H., based on his 2023 anticipated income of $263,664.00 in the Table amount of $2,117.38 starting May 1, 2023 and on the first of the month thereafter until further order of the court. To be deducted from the payment of May 2023, is a credit to John Husband in the amount of $1,892.00.

98If costs are an issue, Ms. Tamo may serve and file written cost submissions, limited to 5 pages, double-spaced, along with any offer to settle and the bill of costs, by June 30, 2023. John Husband may serve and file written cost submissions limited to 5 pages, double-spaced, along with any offer to settle and the bill of costs by July 28, 2023. If no submissions are received than an order shall issue that there are no costs payable by either party.

Released: June 5, 2023 Signed: Justice S. Cleghorn

Overview

Incomes of the Parties and Child Support Paid