COURT FILE NO.: North Bay File No. FS-22-0048 DATE: 2023-07-07 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JENNIFER DUNFORD Applicant – and – TYLER DUNFORD Respondent
M. Young, Counsel for the Applicant K. Klein, Counsel for the Respondent
HEARD: May 26, 2023
reasons for decision
WILCOX J.
INTRODUCTION
[1] The parties cohabited from 2008, were married January 19, 2009, and separated on July 14, 2020. They have three children, Isabel Ann Dunford, born April 8, 2012, Stella Dawn Dunford, born June 16, 2013, and Angus Reginald Dunford, born February 20, 2015.
[2] The Applicant mother’s application is dated March 31, 2022 and seeks a divorce and corollary relief. The Respondent father’s Answer/Claim by Respondent is dated May 3, 2022 and also seeks corollary relief.
[3] The Order of Boucher, J. dated July 8, 2022 was made on consent. It provides that:
The Respondent, Tyler Dunford, shall pay child support to the Applicant, Jennifer Dunford, for the children, Isabel Ann Dunford, born April 8, 2012, Stella Dawn Dunford, born June 16, 2013, and Angus Reginald Dunford, born February 20, 2015, in the amount of $2,540 per month starting on August 1, 2022. This is based on an annual income of $247,164 for the Respondent, Tyler Dunford and annual income of $79,628 for the Applicant, Jennifer Dunford with an offset for shared parenting time and is in accordance with the Guidelines.
[4] The Respondent brought a Notice of Motion dated May 2, 2023 seeking:
An order that the Respondent father’s child support obligations shall be based on his new employment contract commencing April 3, 2023, in the amount of $125,000.00 or in other such amount as this honourable court deems appropriate, pursuant to Section 31, 33, 34, and 41 of the Family Law Act.
An order that the Respondent father and Applicant mother shall pay their pro rata share of the children’s special and extraordinary expenses based on the Respondent father’s current income of $125,000.00 and the Applicant mother’s reported income, pursuant to Section 7 of the Federal Child Support Guidelines and other relief.
[5] The Applicant then brought a Notice of Motion dated May 17, 2023, seeking:
An Order that the Respondent, Tyler Dunford, shall pay child support to the Applicant, Jennifer Dunford, for the children, namely, Isabel Ann Dunford, born April 8, 2012, Stella Dawn Dunford, born June 16, 2013, Angus Reginald Dunford, born February 20, 2015, in the amount of $2,163.00, commencing on June 1, 2023, based on the Respondent’s income for 2022 in the amount of $228,590.00 and the Applicant’s income for 2022 in the amount of $85,247.00 and a shared parenting regime.
An Order that the Respondent, Tyler Dunford, shall pay spousal support in the amount of $1,772.00 per month, commencing on June 1, 2023, pursuant to Section 15.2 of the Divorce Act. This amount of support would be reviewed on an annual basis.
An Order that child and spousal support shall be determined using the parties’ incomes from his/her Notice of Assessment income Line 15000, from the year prior.
In the alternative, an Order that the child and spousal support shall be determined using the average of the parties’ last three years of income on his/her Notice of Assessment income Line 15000, i.e. the Applicant’s income shall be $75,321.00 and the Respondent’s income shall be $234,558.00.
PROCEDURE
[6] In reviewing the materials after the hearing, a procedural problem was identified.
[7] The Respondent’s Notice of Motion seeks to have his child support and his pro rata share of section 7 expenses be based on his new employment contract income which started April 3, 2023. There is no mention in it of the existing order.
[8] His affidavit in support of his motion refers to “a consent order made August 24, 2022, by Justice Boucher” requiring him to pay set-off child support of $2,540.00 per month. That order is not attached. As an aside, that date is in error.
[9] The Applicant’s Notice of Motion seeks orders for child support and spousal support without reference to any existing order. Her responding affidavit refers to “the order of Justice P.J. Boucher dated July 8, 2022” attached as Exhibit F.
[10] The Respondent’s reply affidavit attaches as Exhibit A the endorsement of Justice P.J. Boucher making an order on consent resolving a number of issues, including child support, but not spousal support. That endorsement refers to the making of “the following order on consent” including a child support order.
[11] At no place in the notices of motion, the affidavits, the endorsement, or the submissions is the child support order referred to as final.
[12] The procedure followed, using Form 14 Notices of Motion, is explicitly to be used for seeking a temporary order or a change in a temporary order. Final orders are to be changed using the Motion to Change procedure in Family Law Rule 15.
[13] Throughout, it was my understanding that the motions dealt with a temporary order. It was only while reviewing the materials in the writing of this endorsement that I realized that Boucher, J.’s order for child support is, on its face, a final order.
[14] This oversight was no doubt contributed to by the difficulties, discussed with counsel at the outset of the hearing, of accessing the electronic documents, which hindered preparation for the hearing.
[15] The Applicant’s motion for spousal support does not specify whether it would be temporary or final. In submissions, however, her counsel referred to the Applicant’s claim for “interim spousal support”, and it was argued on that basis. This follows from the fact that the motion for spousal support was under Rule 14 and it would require a trial to determine spousal support on a contested, final basis.
[16] Therefore, there is a question of how to handle this procedurally. Keeping in mind the primary objective of the Family Law Rules, Family Law Rule 1(7) and Rules of Civil Procedure 1.04 and 2 with respect to the effect of non-compliance with the rules, I would propose to treat the motions with respect to child support as motions to change the final order of Boucher, J., and the Applicant’s motion for spousal support as a motion for a temporary order. Counsel shall schedule, through the Trial Coordinator, a conference with me to address this.
INCOMES
[17] It is uncontroversial that the Applicant works as a teacher for the Near North District School Board and that the Respondent works in mining for KL Gold/Agnico Eagle Gold.
[18] The Applicant had been employed as a teacher since 2009, working part-time until separation and full-time afterwards. She gave her income as:
2017 $22,511.52 2018 $43,787.84 2019 $41,603.22 2020 $61,088.00 2021 $79,628.00 2022 $85,247.00
[19] The Applicant agrees that child support should be adjusted going forward. Both sides were content to use her 2022 income of $85,247.00 in the revised support calculations. The issue is the income to use for the Respondent.
[20] The Respondent deposed that he had been on a mining contract, getting living and travel allowances which were included in his income for support purposes. His 2020 income of $227,920.00 had included $46,847.00 in allowances. His 2021 income of $247,164.00 had included $48,300.00 in allowances. His 2022 income of $228,590.00 included $48,820.00 in allowances. He went on to say, that, as of April 3, 2023, he was no longer on a mining contract. Instead, he is a salaried employee. Attached to his affidavit of April 25, 2023, was a letter from his employer offering him the new position. His salary would be $125,000.00 per year with no travel or accommodation allowances, but with a “discretionary bonus incentive plan” of up to 14% of his base annual salary. The new employment agreement contains the following paragraph:
All other terms and conditions of your original employment agreement (Offer of Employment) shall remain in force and unchanged unless explicitly provided for in this letter. Any terms or conditions provided for in this letter shall supersede those made previously either implicitly or explicitly whether verbal or written. Any further changes to your employment agreement shall be valid only if made in writing. Any previous bonus entitlements (i.e., hourly bonus) will cease as of the date of transfer.
[21] He alleged that the higher income had been an anomaly, which he had flagged ahead of time. Indeed, it is noted in his Answer and in correspondence in the months preceding it. The wife’s application appears to confirm this, in that it says his income was:
2017 $121,185.00 2018 $123,535.00 2019 $149,268.00
[22] He had received a letter dated June 29, 2022 from his employer, indicating that the Agnico Eagle 4 Shaft project in Kirkland Lake was scheduled to be completed in the fourth quarter of 2022. This was followed by the correspondence from the employer offering the salaried position.
[23] The Respondent’s new employment commenced on April 3, 2023. Until then, his income would have been of the previous arrangement that he was paying child support pursuant to. In his materials were three pay stubs:
7/2023 1/4/2023 - 15/4/2023 8/2023 16/4/2023 – 30/04/2023 9/2023 1/5/2023 – 15/05/2023
[24] These are coincident with the start of the new position and show his year-to-date amounts. In them, there is no change from 7/23 to 9/23 in his bonus, BNS-RTN, travel, PHOL Pay, VACPY and Overtime. Only his PHOL WRK and his regular earnings have changed. The PHOL increased by $1,081.68 from 7/23 to 8/23 then held unchanged in 9/23. The regular earnings amount is the same in each of the two-week periods. That indicates that most of the items were earned in the first three months of the year under the old arrangement and are not continuing to accumulate under the new one. That allows us to identify his current, steady income.
[25] The Respondent’s evidence was that the information that he had indicated that it is unlikely that he will make more than a 5% bonus, in which event he would be earning an annual income of $131,250.00. Using that and the Applicant’s income of $85,247.00, DivorceMate calculates set-off child support to be $730.00 per month.
LAW
[26] The Respondent seeks to decrease the child support that he pays to correspond with his new income as of April 3, 2023.
[27] The Applicant submitted that there are three options for determining the Respondent’s income for use in the support calculations. One would be to take each side’s line 15,000 income from the previous years and adjust the support accordingly, annually on an ongoing basis. The second would be to use a three-year average of a party’s earnings. The third would use a forecast of the respondent’s 2023 income, adjusting his 2023 support payments accordingly.
[28] Section 15.1 of the Divorce Act provides for the making of an order for child support. It requires that such child support orders be made in accordance with the Child Support Guidelines (the guidelines).
[29] In the guidelines, section 15 states that a spouse’s annual income is determined by the court in accordance with sections 16 to 20. Section 16 says that, 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. Section 17 allows the court, where it 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, to determine an amount that is fair and reasonable in light of any in variations in income over in the last three years. Section 18 responds to situations wherein section 16 does not otherwise reflect all the money that is available from corporate sources for child support. Section 19 provides for the imputing of income in various circumstances. Section 20 applies where a spouse is a non-resident. These provisions must be read in light of the objectives in section 1 of the guidelines which refer to fairness, the reduction of conflict, efficiency and consistency.
[30] Subsection 2(3) of the guidelines requires that, where any amount is determined on the basis of specified information, the most current information must be used.
[31] The approach to ascertaining income for support purposes was summarized by D.L. Chappel J in McBennett v. Danis in paragraph 293 as follows:
… The intention of section 16 of the Guidelines is to direct the court to ascertain the payor’s income based on the sources set out in the T1 form (Coghill v. Coghill, 2006 CarswellOnt 3890 (S.C.J.), at paras. 24-27). By virtue of section 2(3) of the Guidelines, the court is required to determine issues relating to income based on the most current information available. This requires the court to ascertain, if possible, the payor’s estimated actual annual income in each year for which the quantum of support is being determined, and to make support decisions based on that income (V.(L.R.) v. V.(A.A.), 2006 BCCA 63 (C.A.); Lavergne v. Lavergne, 2007 ABCA 169 (C.A.); Chalifoux v. Chalifoux, 2008 ABCA 70 (C.A.), at para. 24; Vanos v. Vanos, 2010 ONCA 876 (C.A.), at paras. 13 and 14; Morrissey v. Morrissey, 2015 PECA 16 (C.A.), at paras. 17-22).
[32] In practice, this exercise has been recognized by the courts to be context specific. In some cases, as a matter of convenience or settled routine, support has been based on the previous year’s income where it is a known quantity and the actual income for the current year is not, subject to retrospective adjustment.
[33] The topic of what income is to be used for the purpose of establishing the amount of support is discussed at length in Payne’s Child Support Guidelines in Canada, 2020. The authors repeatedly state that the objective is to find the fairest and most reliable indicators of an individual’s current annual income. (See pages 144 and 146.)
[34] The weight of authority is on the side of using the current income where it is known. Although there can be circumstances in which past income is useful in predicting future income, this source indicates that that is not appropriate where the current income is known. That is especially so where, as here, there has been a dramatic change, up or down, in a payor’s income.
CHILD SUPPORT
[35] In view of the above, I order that paragraph 1 of the Order of P.J. Boucher of July 8, 2022 be amended such that the Respondent shall be required to pay to the Applicant set-off child support for the three children of $730.00 based on the Applicant’s annual income of $85,247.00 and the Respondent’s annual income of $131,250.00, commencing April 1, 2023. I also order that Section 7 expenses be shared in proportion to incomes, 40% by the Applicant and 60% by the Respondent, commencing April 1, 2023.
SPOUSAL SUPPORT
[36] The Applicant sought midrange spousal support. Spousal support had not been dealt with earlier, specifically at the case conference on July 8, 2022, when the current order for child support was agreed to. The Applicant alleged that she had contributed to the Respondent’s earning capacity and compromised her own during the relationship and suffered economically from the separation.
[37] Her counsel candidly revealed that the Applicant expected a drop in child support, negatively affecting her budget, which a spousal support order would help compensate for. Also, the Respondent had been paying many of her bills until the transfer of the matrimonial home to her in August 2022.
[38] In summary, the Applicant’s claims for spousal support would be on both a compensatory and a non-compensatory basis.
[39] The Respondent denied that the Applicant had a compensatory claim, or a strong non-compensatory claim. His counsel submitted a lengthy list of reasons for this position.
[40] The considerations and principles governing interim spousal support awards are set out in the Divorce Act and in the caselaw on point that has developed over many years. (See for example Sne v. Sne, 2023 ONSC 566, paras. 46-49.) The following summary of the approach to take set out in Rushton v. Cuff, 2020 ONSC 490 at paragraph 36 has been cited with approval subsequently:
It is trite to say that on a motion for interim spousal support, the intent is to address hardship or inequity between the parties on a means and needs basis; it is not a place to conduct an exhaustive analysis as to the quantum of spousal support. As mentioned above, this is largely because spousal support can involve a complicated analysis of a number of factors and it is inappropriate to conduct that type of analysis on the basis of conflicting affidavits after one hour of argument on a busy motions day. The court must base its decision on mostly uncontested facts that are either common ground or unquestioned; otherwise, the court must be cautious about going beyond a means and needs analysis in determining spousal support.
[41] “A claimant need only establish a prima facie case for relief”. Singh v. Singh, 2013 ONSC 6476, para. 11. On the record before me, I am not persuaded that the wife has done so. Therefore, the motion for temporary spousal support is dismissed.
COSTS
[42] Costs are left to the discretion of the trial judge.
The Honourable Justice James A. S. Wilcox
Released: July 7, 2023