Court File and Parties
Date: July 19, 2018
Court File No.: D11552/17
Ontario Court of Justice
Between:
Samantha Alicia Reid Acting in Person Applicant
- and -
Omar Kareem Fortune Acting in Person Respondent
Heard: July 18, 2018
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] This trial was about the respondent's (the father's) child support obligations for the parties' two-year-old son (the child).
[2] The applicant (the mother), in her application, asked that the father pay the Child Support Guidelines (guidelines) table amount of support ($677 each month), but at trial advised the court that she was prepared to accept child support of $500 each month, starting on August 1, 2018.
[3] The father pleaded undue hardship pursuant to section 10 of the guidelines. He asked the court to make a final order that he pay child support to the mother of $300 each month, starting on August 1, 2018.
[4] The parties each filed affidavits and financial statements for this trial and gave oral evidence.
[5] The issues for this court to determine are:
a) Has the father met the undue hardship test set out in section 10 of the guidelines?
b) If so, what amount of child support should the father pay to the mother?
Part Two – Background Facts
[6] The father is 38 years old. The mother is 32 years old.
[7] The parties have never cohabited.
[8] The child has always lived with the mother.
[9] The father has been married to another woman (the wife) since 2010.
[10] The father and the wife have two children together, ages 1 and 11.
[11] The wife worked at McDonald's until just before the birth of her second child. The father said that she earned income in "the low thirties" when she last worked in 2016. During 2017, her only income was from maternity benefits and sick benefits, totaling $13,763 for the year.
[12] The father deposed that the wife continued to receive sick benefits until the end of May, 2018. He said that she presently stays at home with their youngest child and is not earning any income. He is unsure when she plans to return to work – the cost of daycare is a big issue for them.
[13] The father also has a 13-year-old child from another relationship. Pursuant to the final order of Justice Carole Curtis dated August 9, 2012, he pays child support of $450 each month for that child, based on his annual income at that time of $50,000.
[14] The mother issued her claim for custody and child support on September 15, 2017.
[15] On February 15, 2018, the parties resolved the parenting issues on a final basis. The mother has custody of the child and the father has specified access. The parties also consented, on a temporary without prejudice basis, for the father to pay child support of $450 each month, starting on March 1, 2018. The parties agreed that this amount was subject to adjustment regarding the amount and the start date.
[16] The father is in good standing under the support orders.
Part Three – Legal Considerations
[17] Section 1 of the guidelines sets out the objectives of the guidelines as follows:
(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
(d) to ensure consistent treatment of spouses and children who are in similar circumstances.
[18] Undue hardship claims are governed by 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.
[19] It is very difficult to make out a successful undue hardship claim under section 10 of the guidelines. There are three parts to the test:
The person making this claim must show that there are circumstances that could create undue hardship.
If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party's.
If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.
See: Matthews v. Matthews, [2001] O.J. No. 876 (SCJ).
[20] The father must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. See: Hanmore v. Hanmore, 2000 ABCA 57.
[21] The father has the onus of providing adequate supporting documentation to prove his undue hardship claim. See: Van Gool v. Van Gool.
Part Four – Financial Situations of the Parties
[22] The mother works as a retention officer. The court accepts her evidence that she will earn approximately $55,000 in 2018.
[23] The mother has assets of about $30,000 and debts of about $21,000.
[24] The mother rents her home.
[25] The father works as a baggage system technician at Pearson airport. He earned $72,344 in 2018. The father testified that his year-to-date income reflected in his last pay stub filed is indicative of what he expects to earn this year. This projects to an annual income of $72,514. The guidelines table amount at this income level is $677 each month.
[26] The father owns his home. He deposed that he has equity of $170,000. He has an RRSP of $40,000, but it is locked-in and can't be accessed until retirement. He has other assets of $12,000 and debts (other than his mortgage) of about $2,300.
Part Five – Analysis
[27] The court finds, pursuant to subsection 10(2) of the guidelines that the following circumstances cause the father undue hardship:
a) He is currently the sole financial supporter of two children in his home.
b) He has a legal obligation to pay another child $450 each month pursuant to a court order.
[28] The court finds that the hardship caused by these obligations is more than awkward or inconvenient. It is disproportionate.
[29] A software analysis (that will accompany this decision, together with a brief explanation for the parties) reveals that the father has a lower household standard of living than the mother. This is not surprising given their respective incomes and the father's multiple support obligations.
[30] The next step is for the court to exercise its discretion and determine what support amount is appropriate based on the means, needs and circumstances of the parties.
[31] The father has created a difficult financial situation for himself. The court appreciates the financial stress that he is under. He recently had to consolidate his credit cards, debts and line of credit to meet his ongoing financial obligations. He did this by increasing the mortgage on his home. The City of Brampton had threatened to place a lien on his property for $9,692 of unpaid taxes. He was using credit cards to pay off other credit cards. He is trying to keep the three mothers of his children happy.
[32] However, the court's sympathy for the father has its limits. The father created this situation. He keeps having children that he now claims he cannot afford.
[33] The father is also asking the court to order minimal child support in order to maintain his current lifestyle. He is a homeowner, unlike the mother, who can only afford to rent. The father has options to meet his financial obligations. He has sufficient equity in his property to, if necessary, further increase his mortgage to meet his support obligations. He has the option of selling his home and clearing up his debts so that he has sufficient funds to meet his support obligations for the foreseeable future. It isn't what he wants to do, but his child support obligations take priority.
[34] Balancing these factors, the court finds that the father should pay child support to the mother in the amount of $450 each month, starting on August 1, 2018.
Part Six – Conclusion
[35] A final order shall go on the following terms:
a) The father shall pay the mother child support of $450 each month starting on August 1, 2018.
b) The parties shall exchange their income tax returns and notices of assessment by June 30th each year.
c) A support deduction order shall issue.
[36] The court thanks the parties for their civility during the trial.
Released: July 19, 2018
Justice S.B. Sherr