COURT FILE NO.: FC-13-1861-1 DATE: September 6, 2023
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DIANNE PEARL DOUGLAS, Applicant – and – RENE ALBERT FAUCHER, Respondent
Counsel: Cecil J. Lyon for the Applicant Marc Coderre, for the Respondent
HEARD: Dec 20, 2021; Feb 17, 2023.
REASONS FOR DECISION JUSTICE M. JAMES
Facts
[1] This is a motion to change brought by the respondent, Rene Faucher, seeking shared decision-making and equal shared parenting time and child support based on s. 9 of the Federal Child Support Guidelines (the “Guidelines”). Initially, he also sought a retroactive adjustment to child support based on an approximately 60-40 parenting time split for 2017 and 2018 and compensation for his increased parenting costs as a result of his disability. Subsequently Mr. Faucher dropped his request for compensation for his increased parenting costs and argued in favour of set-off child support based on the parties’ incomes.
[2] The applicant, Dianne Douglas, responded by requesting sole decision-making power and for an order authorizing the continuation of the current shared parenting arrangements. The request for sole-decision making does not appear in the list of issues itemized in Ms. Douglas’s factum and the issue was not pressed at the hearing.
[3] The parties were married in 2002, separated in 2013 and were divorced in 2015.
[4] They have three children- Edward born August 31, 2004, Charlotte born May 1, 2006, and Quinn born January 21, 2008.
[5] The respondent was catastrophically injured playing hockey and has been a quadriplegic since 2010. His recovery and rehabilitation took about two years. His home and his vehicle have been modified to accommodate his disability. He works for a Crown corporation and earns approximately $160,000 per year.
[6] Ms. Douglas works for an IT firm and earns approximately $200,000 per year. Her income has increased significantly since 2015.
[7] In 2014 the parties commissioned a full parenting assessment by Sally Bleeker. Her report is dated June 6, 2014, and recommended a phased transition to a 50-50 parenting regime to commence in September 2018.
[8] The parenting time arrangements were set out in a consent final order dated January 12, 2015. Their agreement included equal parenting time during the summer and other holidays and joint decision-making on most issues.
[9] A subsequent order by MacKinnon J. on December 11, 2015, dealt with the parties’ support obligations and property issues. Ms. Douglas agreed to accept child support at a reduced amount.
[10] In 2016 the parties implemented the first phase of the transition to equal shared parenting by extending Mr. Faucher’s parenting time to every second weekend from Fridays at 6 pm until Monday morning or Tuesday morning if the Monday of his weekend was a holiday. He also had an overnight session every Wednesday. Mr. Faucher says that when P.D. days and holidays are included, this amounted to 41% of the parenting time as of 2017.
[11] Mr. Faucher says he currently has the children in his care about 42% of the time: a) In week 1, on Monday until 5 pm and Wednesday from 5 pm until Thursday at 5 pm; b) In week 2, on Wednesday at 5 pm until Thursday at 5 pm and Friday at 5 pm until Monday or Tuesday if Monday is a P.D. day. Since the pandemic he has had the children with him during the day on his Mondays; and c) Holidays are shared equally.
[12] Ms. Douglas refused to complete the transition to equal parenting time in September 2018.
[13] Mr. Faucher’s motion was launched in February 2019. The motion was to be heard in April 2020 but was delayed initially at the request of the applicant’s counsel due to pending surgery and later due to the COVID 19 pandemic.
[14] The hearing date was further delayed when Ms. Douglas requested a Voice of the Child report that was eventually prepared by Ms. Valerie Morinville. Her 21-page report was released in April 2021. Her conclusions included the following: a) Edward, Charlotte, and Quinn were all very articulate. They engaged easily and were candid and thoughtful. They find the ongoing discussions about the parenting schedule upsetting, and they would like their parents to stop involving them in the conflict; b) The children reported that their mother and her partner speak negatively about Mr. Faucher in their presence which is upsetting; c) All three children suffer from anxiety to varying degrees, likely due at least in part to parental discord; d) Edward would like his parents to stop talking to him about the schedule. He feels well supported in both homes. He doesn’t want more schedule changes; e) Charlotte would like her parents to stop talking to her about the schedule. She feels as if she is being asked to choose. She thinks a 2/2/5/5 schedule would work but is less keen to implement a week about arrangement; f) Quinn finds transitioning one night a week a burden but is not opposed to adding a Thursday night with his father.
[15] A date was set for the hearing of the motion on October 20, 2021. On October 15, 2021, Ms. Douglas delivered a 45-page affidavit (not including voluminous exhibits) and a financial statement in response to Mr. Faucher’s affidavits of May 31, 2021, and July 8, 2021. Ms. Douglas also opposed Mr. Faucher’s request to deliver a responding affidavit which necessitated a ruling. The parties agreed to a two-month adjournment.
[16] The motion was heard on December 20, 2021. While the decision was on reserve, Mr. Faucher was hospitalized in January 2022 due to an infection and his discharge date was uncertain.
[17] At a teleconference on March 24, 2022, counsel advised that Mr. Faucher was still in the hospital and suggested that the motion be put on hold pending further developments.
[18] Mr. Faucher was discharged from hospital in June 2022.
[19] At a teleconference on July 20, 2022, Ms. Douglas contended that the factual issues in dispute warranted an opportunity to conduct questioning limited to the issue of parenting times under the authority of Ierullo v. Ierullo, (2006), 32 R.F.L. (6th) 246 (Ont. C.A.). Counsel were given three weeks to agree on a timeline to conduct questioning and to thereafter provide a further update to the court.
[20] Six months later a third teleconference was convened at the request of the court on January 12, 2023. No questioning had taken place. At that time both lawyers agreed that “in court cross-examinations” would be preferable to questioning and subsequently a date was set for the cross-examinations to take place on February 17, 2023. No further evidence has been provided since then.
Issues
[21] Has Mr. Faucher parented the children for at least 40% of the time?
[22] Is it in the best interests of the children to complete the transition to equal parenting time?
[23] Should there be a retroactive child support adjustment?
[24] Is a child expense budget a requirement in the circumstances of this case?
Position of the Parties
i) Mr. Faucher
[25] Mr. Faucher says there is no good reason why the parties did not transition to the equal parenting time that Ms. Douglas agreed to in the consent order in 2015 and that Ms. Bleeker had recommended.
[26] Mr. Faucher seeks to adjust child support based on the subtractive (set-off) method as of January 2017.
[27] As a result of his accident and annual expenses, Ms. Douglas should be paying him more than the set-off amount, but his request is for only retroactive set-off child support. He estimates his additional expenses due to his disability are about $10,000 per year.
[28] He says he has overpaid child support by $14,016 in 2017, $14,160 in 2018 and $4,524 in 2019. At the time that Mr. Faucher launched his motion, he did not have income information for Ms. Douglas for 2020. Subsequently, Ms. Douglas disclosed that her income in 2020 was $165,308 and in 2021 it was $191,797.
ii) Ms. Douglas
[29] Ms. Douglas is opposed to increasing Mr. Faucher’s parenting time because he fails to communicate with her, his parenting style suffers from a lack of discipline in matters such as homework and screen time and he has shown a lack of involvement in the children’s extra-curricular activities.
[30] Mr. Faucher’s parenting time is less than 40%. The summer holiday period should not be taken into account when calculating the percentage of their respective parenting times.
[31] In a s. 9 Guidelines situation, Mr. Faucher should have, but has not, prepared a child expense budget.
Discussion and Analysis
[32] Since the parties were previously married and there are existing final orders that address both parenting time and child support, s. 17 of the Divorce Act is the governing law. Section 17 provides that a court may make an order varying, rescinding, or suspending, retroactively or prospectively, a parenting order.
[33] Regarding child support, the court must satisfy itself that there has been a change of circumstances as provided for in the applicable guidelines before a variation may be made.
Parenting Time
[34] When the initial child support order was made by Justice MacKinnon on consent in December 2015, Ms. Douglas occupied the position of primary parent and Mr. Faucher’s parenting time was less than 40%.
[35] Mr. Faucher says that his parenting time has exceeded 40% since about September 2016 and that s. 9 set-off provisions of the Guidelines should apply. He is requesting that the parenting provisions of the existing order be enforced. He is not seeking to vary them. As the party seeking to prove that his parenting time exceeded 40%, Mr. Faucher has the onus of proof.
[36] Both parties agree that the overnight method of calculating parenting time is appropriate, but they disagree on their respective percentages of parenting time.
[37] Mr. Faucher provided a summary of his parenting time based on actual overnights. He tracked his actual parenting time closely. His records appear to be detailed and thorough. In cross-examination he was able to refer to specific examples in support of his position.
[38] Ms. Douglas utilized Custody X Change software to calculate parenting times on a prospective basis. Calculating parenting times on a prospective basis may not accurately account for what actually happens in the future. Ms. Douglas says that starting in September 2016, Mr. Faucher’s parenting time was 36.6% and if holidays are included, his time increases to 37.2%. Ms. Douglas did not count professional development days because they “tend to be randomly spread throughout the year and have never materially affected the overall percentages.” It is worth noting that at different times the children were in different schools with different P.D. days so tracking them accurately would be a challenge unless contemporaneous records were maintained which Mr. Faucher appears to have done.
[39] Mr. Faucher says that Ms. Douglas manipulated the chart showing her parenting time calculations to suggest that Mr. Faucher’s parenting time was less than 40%. For example, in addition to not including P.D. days, the chart at Exhibit A of her affidavit of January 31, 2023, does not include Mr. Faucher’s holiday parenting time during the summer of 2021.
[40] Ms. Douglas referred to the case of Cozzi v. Smith, 2013 ONSC 3190 in support of the proposition that summer holiday time shouldn’t be counted in the parenting time calculation. I do not find that submission persuasive. In Cozzi, it appears that summer holidays were not included in the regular parenting schedule which is different than this case. Also in Cozzi, the suggestion that summer holidays should not be included appears in one line in one paragraph without reference to any case authorities (see para. 249).
[41] I prefer Mr. Faucher’s evidence respecting their respective parenting times for the following reasons: a) His calculations were based on what appeared to be specific overnight counts over a period of years; b) He did not exclude summer holidays and professional development days from the calculations; c) He demonstrated in oral testimony that he had a good recollection of specific situations involving holidays; and, d) He did not calculate parenting times on a prospective basis.
[42] Although it would have been preferable to have specific information confirming that the parenting schedules have not changed, there is no evidence that Mr. Faucher’s parenting time is less now than the 2017 to 2021 period except for Mr. Faucher’s hospitalization in 2022. Subsequent to the delivery of her Form 15B Response to Motion to Change, Ms. Douglas provided additional and updating evidence in her affidavits dated October 15, 2021, September 21, 2022, and January 31, 2023. There is no indication in these affidavits that the parenting schedule changed in the 2022-2023 period. Also, in February 2023 the parties provided testimony on the specific issue of parenting time and there was no suggestion that, except for his period of hospitalization, Mr. Faucher’s parenting time was less in 2022 and 2023 than previously. Based on both the evidence that has been provided, and the lack of evidence that the situation has changed, I find that on a balance of probabilities that Mr. Faucher’s parenting time exceeded 40% from 2017 to the present time.
[43] I find that it would be inappropriate to make any adjustments to the parenting time analysis due to Mr. Faucher’s hospitalization. He was unable to provide childcare from the third week of January 2022 until June 2022. He says he was ready to be discharged in April, but a shortage of homecare workers delayed his discharge from hospital for about two months. This was a temporary, unavoidable situation. In my view this issue is more appropriately addressed in the context of child support obligations rather than disturbing the parenting time analysis.
Should the Parties Transition to Equal Parenting Time Now?
[44] Mr. Faucher says that the court-ordered transition to equal parenting time that was supposed to have taken place in 2018 ought to be implemented immediately. He says that adding an overnight at his home every Thursday would bring his parenting time to about 50%.
[45] He has provided evidence of his ongoing involvement in the lives of the children and says he is fully capable of caring for the children. He is in favour of a 2/2/5/5 schedule or a schedule that takes into account the children’s reluctance to shift to a week about arrangement.
[46] In her response, Ms. Douglas contends that there has been a material change of circumstances that warrants a variation of the existing parenting order, that is, the current arrangements are adequate and the transition to equal parenting time recommended by Ms. Bleeker is no longer appropriate. She says that Mr. Faucher has failed to do the work necessary to facilitate joint parenting, that five years have passed since Ms. Bleeker’s assessment and the children’s current situation, views and preferences ought to be taken into account. Ms. Douglas says that Mr. Faucher does not always consider the children’s needs first and has parenting deficits. Increasing his parenting time is not in the children’s best interests.
[47] Ms. Douglas does not explain why she did not seek court approval for her decision not to proceed to equal parenting time in anticipation of the 2018 transition.
[48] The parenting order was made on consent more than eight years ago in early 2015. Now the eldest child, Edward, is 19 years old and in university. Charlotte is 17 and going into grade 12 and Quinn is 15 and going into grade 10.
[49] In my view, the current arrangements ought to be maintained for the following reasons: a) The children are settled into their current routine. Mr. Faucher has not presented a convincing argument why, after several years of an approximate 60-40 parenting time split, it is important to change the children’s routines to move to equal time parenting. No one anticipated that it would take from 2019 until 2023 to have the parenting time issue adjudicated. Even assuming that it would have been preferable to transition to equal parenting time in September 2018, disturbing a status quo of long duration would require persuasive evidence that I do not find is present in the circumstances of this case; b) There is not a clear consensus among the children regarding whether there should be a change and if so, what that change should look like. As I suggested in a previous decision in this case, the parties should be receptive to the individual preferences of the children, especially now that they are older. Parenting time is not necessarily a package deal and it is possible to have different arrangements for different children; c) The children appear to be doing well under the current arrangement. I do not see how the best interests of the children would be enhanced by adding one additional overnight each Thursday with Mr. Faucher to bring his parenting time to about 50%; d) Edward is no longer a minor. In relation to Charlotte in particular and to a lesser extent Quinn, courts are generally reluctant to make orders in parenting disputes telling teenagers that they must live with one parent or the other at the times specified by the court. They are not parties to the proceeding. They tend to do what they want.
[50] I acknowledge that a material change in circumstances is a necessary precondition to changing a final order regarding parenting time which, in this case, required equal parenting time to start in September 2018. While I do not accept Ms. Douglas’s explanation regarding a material change in circumstances, in my view the protracted duration of the status quo following September 2018 was not, and could not, have been anticipated and is an important consideration in not acceding to Mr. Faucher’s request to transition to equal parenting time now.
[51] In concluding that due to the passage of time an equal parenting time order is not in the children’s best interests, I should not be taken as endorsing or approving of Ms. Douglas’s deliberate flouting of the parenting order. Also, my decision is not based on alleged parenting shortcomings on the part of Mr. Faucher. I note that Ms. Douglas has consistently criticized Mr. Faucher’s parenting as far back as 2013. Mr. Faucher’s parenting style may be different than hers, but there is a paucity of uncontested evidence that he is less effective as a parent.
Retroactive Child Support
[52] Although Mr. Faucher would like to keep the parenting times from the January 2015 order in place, he would like to change the child support provisions of Justice MacKinnon’s order to accord with the set-off provisions of s. 9 because his parenting time has exceeded 40% for years. Justice MacKinnon’s order provided as follows:
Commencing September 1, 2015, through and including January 1, 2016, the Respondent shall pay child support to the Applicant for (Edward, Charlotte, and Quinn) in the amount of $2,539.00 per month.
Commencing in February 2016 and payable each month thereafter, the Respondent shall pay to the Applicant $650.
The child support arrangement…is without prejudice to either party’s right, at any point in the future, to argue that the child support including the arrangement as set out above…should be different than is set out herein.
[53] The order also provided for additional payments on account of bonuses that may be paid to Mr. Faucher as well as the sharing of expenses for hockey, baseball and summer camps at 50% each. Income information was to be exchanged annually.
[54] Mr. Faucher says he was not aware of changes to Ms. Douglas’s income during the period from 2016 until he received financial disclosure after commencing this motion to change. He thought that Ms. Douglas earned about $80,000 per year.
[55] A retroactive support claim can arise in varied circumstances and take many forms. In this case, Mr. Faucher’s claim consists of both an overpayment element on his part and an underpayment element on the part of Ms. Douglas. His claim purports to take both elements into account through the set-off mechanism of s. 9 of the Guidelines. He says that since Ms. Douglas’s income is greater than his, the difference in their incomes should result in a net amount due from Ms. Douglas. In addition, he should be reimbursed for the monthly payments he made on the basis that his parenting time was less than 40% when in fact his parenting time exceeded 40%. This reimbursement will return the parties to a neutral position from which to perform the s. 9 calculation.
[56] Ms. Douglas is seeking a variation of child support on a different basis. She says that Mr. Faucher should be paying full table amount child support because his parenting time is less than 40%. This contention is contrary to my findings.
[57] In 2017 Mr. Faucher made $168,445 and Ms. Douglas made $166,238.
[58] In 2018 Mr. Faucher made $154,330 and Ms. Douglas made $190,583.
[59] In 2019 Mr. Faucher made $165,471 and Ms. Douglas made $146,804.
[60] In 2020 Mr. Faucher made $160,990 and Ms. Douglas made $165,308.
[61] Mr. Faucher’s 2021 income was estimated to be $160,392 in his financial statement sworn on April 21, 2021.
[62] In her financial statement sworn on October 15, 2021, Ms. Douglas estimated her 2021 income to be $191,797.
a) Mr. Faucher says he has overpaid child support as follows (see Ex. D, Aff. of July 8, 2021): b) 2017- $14,016 c) 2018- $14,160 d) 2019- $4,524 e) 2020- $4,524 (estimated)
[63] Mr. Faucher has not supplied particulars of his claim for the years 2021 and 2022 although it seems likely that there was an overpayment based on his having the children in his care for more than 40% of the time and Ms. Douglas having the greater income.
[64] A court hearing an application for retroactive child support must consider whether the delay in seeking a variation is reasonable in the circumstances, the payor parent’s conduct, the circumstances of the child, and whether any hardship would result from a retroactive award (D.B.S. v. S.R.G., 2006 SCC 37 at para. 113). Subsequently, in Michel v. Graydon, 2020 SCC 24 the Supreme Court of Canada said that proof of a lack of hardship was not a necessary element to ground a claim for retroactive child support (para. 31).
[65] I do not think that Mr. Faucher can be faulted for not having requested a re-examination of child support sooner. He acted relatively quickly following Ms. Douglas’s refusal to agree to equal parenting time in September 2018. The amount of child support he was paying was significantly less than the table amount which would be a disincentive to action. The evidence that he was parenting for more than 40% of the time had to be accumulated over time. Ms. Douglas does not dispute Mr. Faucher’s contention that she did not provide timely disclosure of the increases to her income despite an order that she do so annually. She refused to implement the transition to equal parenting time which almost certainly would have resulted in implementing a s. 9 set-off arrangement. Since both parties are relatively affluent, there is a lack of evidence that there was a significant disparity in the children’s standard of living when moving from household to household.
[66] In my view, Mr. Faucher is entitled to a retroactive adjustment. I have found that Mr. Faucher’s parenting time exceeded 40% since about 2017 with the result that he has overpaid child support by a large margin. The parties were supposed to transition to equal parenting time in 2018 and this would have eliminated any controversy about the propriety of using s. 9 to determine child support. Ms. Douglas used her contention that her parenting time exceeded 60% and her resistance to transitioning to equal parenting time to foreclose discussion regarding adjusting child support in Mr. Faucher’s favour. Ms. Douglas should not benefit from having refused to follow the order.
[67] Justice MacKinnon’s order at para. 17 anticipated that the child support arrangements may have to be adjusted in the future as the parenting arrangements evolved when she stipulated that her order was without prejudice to either party to request a change.
[68] Two related questions arise as a result of the above conclusion- the date of commencement and the amount of the retroactive award.
[69] Dealing firstly with the date of commencement, as a general rule entitlement to an adjustment is tied to the date upon which the claimant gave effective notice of his or her claim and limited to the three years preceding the giving of notice (D.B.S. v. S.R.G., Ibid, at paras. 118 and 123).
[70] In this case any uncertainty respecting the timing and adequacy of notice is overcome by Mr. Faucher’s motion launched on February 11, 2019, where he requested that child support be determined pursuant to s. 9 of the Guidelines with a proposed commencement date of September 1, 2016. The date upon which the motion was served is not readily discernable, but service must have promptly followed issuance because Ms. Douglas’s Response was sworn on March 20, 2019.
[71] I would exercise my discretion to hold that the date of January 1, 2018, is an appropriate starting point for the calculation of a retroactive child support adjustment. I acknowledge that there is nothing particularly significant about this date, but it falls within a range of reasonable possibilities. It operates to Ms. Douglas’s advantage because January 1, 2018 is subsequent to the date that Mr. Faucher says he exceeded 40% of the total parenting time.
[72] Retroactive child support is not exceptional. Requiring a parent to catch up on what ought to have been paid creates a systemic incentive for payor parents to meet their obligations in the first place. Blameworthy conduct is not a necessary trigger to the obligation to pay a retroactive award. Where present, blameworthy conduct weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award (Michel v Graydon, paras. 31 and 119).
[73] I do not have adequate information to make an accurate assessment of who should pay how much child support after 2020 although I anticipate that Ms. Douglas will have a substantial liability. Mr. Faucher’s post - 2021 income information is not in evidence. Instead, I will provide a framework for the correct amounts to be calculated including ongoing support.
[74] Notwithstanding that the amount due will be substantial, there are good reasons not to allow a discount, including the following considerations: a) Had Ms. Douglas complied with parenting order and transitioned to equal parenting time, it is likely that a re-ordering of the parties’ respective child support obligations would have occurred in conjunction with the change; b) Ms. Douglas has been able to increase her net worth from $32,693.69 in 2019 to $86,812.60 in 2021, due mostly to the increase in her RRSP. By comparison, Mr. Faucher’s net worth has increased from $25,700 in 2019 to $173,500 in 2021 due mostly to the increase in value of his residence and his acquisition of a more valuable vehicle designed to accommodate his disability; c) Requiring payment in full will not result in severe hardship due to Ms. Douglas’s relatively high income; and, d) Unmet child support obligations, whether they are in the form of arrears or have not been judicially recognized, are a valid debt that ought to be paid, similar to any other financial obligation, regardless of whether the quantum is significant (Michel, para. 78).
Child Expense Budgets
[75] Ms. Douglas states that the respondent has not provided a child expense budget pursuant to the requirements of s. 9(b) of the Guidelines and in the absence of a budget, set-off child support should not be ordered. Mr. Faucher says he is not seeking an arrangement that would require the applicant to pay more than the set-off support.
[76] Section 9 of the Guidelines provides as follows:
- Shared Custody - When a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account. a) the amounts set out in the applicable tables for each of the parents or spouses; b) the increased costs of shared custody arrangements; and c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
[77] In Contino v. Leonelli-Contino, 2005 SCC 63 the Supreme Court of Canada examined the underlying policy considerations that govern the operation of shared parenting arrangements that exceed the 40% threshold. The majority accepted that the applicable tables provide a starting point (the set-off element) but emphasized that subsections (b) and (c) are equally important elements. The increased costs of shared custody can be identified by comparing child expense budgets prepared by each parent and by considering the condition, means, needs and other circumstances of each parent and the child or children. The utility of subsections (b) and (c) is to:
provide the judge with better insight when deciding whether the adjustments to be made to the set-off amount are based on the actual sharing of child-related expenses. This is where discretion comes into play. The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to significant variation in the standard of living experienced by the children as they move from one household to another… One of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households… As far as possible, the child should not suffer a noticeable decline in his or her standard of living (paras. 50 and 51).
[78] Neither Mr. Faucher nor Ms. Douglas prepared a specific child expense budget, but they provided evidence of their childcare expenses. It is to be noted that there is no specified form for demonstrating the increased costs of either parent in a shared parenting arrangement. The court in Contino recognized that affidavits and financial statements from both parents can provide the necessary evidence to meet the requirements of s. 9. The process of arriving at a fair disposition is highly contextual.
[79] Mr. Faucher has provided evidence of the additional costs associated with his disability. This evidence engages subsection (c) in particular, that is, the “condition, means, needs and other circumstances” of Mr. Faucher as a parent whose parenting time exceeds 40%. Some of these costs do not appear to be related to childcare, for example, his battery powered wheelchair, but other expenses are directly related. There is evidence that the respondent travels outside of the Ottawa region with the children. Mr. Faucher says this necessitates that he be accompanied by an unsubsidized attendant because if he travels outside of the Ottawa region for family vacations and children’s sports, he is required to hire private care for his morning and bathroom needs at between $38 to $52 per hour. He estimates this cost at about $1,200 per year. He has a four-bedroom bungalow that has been substantially modified. Housekeeping assistance, shovelling, lawncare and general maintenance that he cannot perform are estimated at $4,500 per year. He has a modified van that he says is important for his work and his parenting (rides to and from school, sports etc.). The accessibility modifications to the van cost approximately $36,000. He says he pays $10,690 in “hard costs” that are “not refundable and directly connected to my condition and related to being able to have my children in my care to look after them properly and attend to their activities, chores, homework and tasks.”
[80] Ms. Douglas’s financial statements are detailed and well-prepared. They itemize expenses that relate exclusively to the children—sports equipment and skate sharpening, music lessons, hockey tournaments, children’s phones, driving lessons, children’s haircuts, counselling, tutoring, school fees, miscellaneous children’s activities, and children’s clothing. These expenses are presented on a monthly basis and then extrapolated to an annual cost when at least some of the expenses are not incurred throughout the year. This results in the possibility that expenses are somewhat overstated.
[81] I find that specific child expense budgets are not necessary to permit a proper s. 9 assessment in the particular circumstances of this case. In coming to this conclusion, I have also considered the following: a) This is not an initial support order. The parties have had a child support arrangement in place for several years. They are aware of their childcare expenses and addressed them in their affidavits and financial statements. b) The 2015 support order in favour of Ms. Douglas was for a negotiated amount that was significantly less than the table amount otherwise payable by Mr Faucher. This altruistic gesture was made possible because Ms. Douglas was not suffering the kind of financial hardship that would have made this concession impossible; c) Both parties are well educated. Ms. Douglas has a M.Ed. and Mr. Faucher has a MBA. Both parties had and have the benefit of legal advice from experienced family law specialists. They would have been aware of the law respecting child support obligations when they agreed to the final order in 2015 that provided for Mr. Faucher to pay base child support of $650 plus a portion of his annual bonus rather than table amount child support; d) Both households have incomes well above the median family income in Canada; and e) There is no evidence that the children have experienced significant differentials in their standard of living at either home nor is there a substantial risk of a differential developing in the future because of the high level of income achieved by both parties.
Disposition
[82] Paragraphs 11 to 13 of the order of Justice MacKinnon dated 11 December 2015 are varied to provide set-off child support based solely on the incomes of the parties commencing January 1, 2018.
[83] The retroactive child support payment that is payable shall be determined by crediting Mr. Faucher with an amount equal to his child support payments since January 1, 2018, not including payments on account of extraordinary expenses (the “overpayment credit”). The parties shall perform a set-off calculation based on their incomes to determine how much ought to have been paid for the period January 1, 2018, to and including December 2022. The overpayment credit and the net amount determined by the set-off calculation shall be added together. From this amount will be deducted an adjustment for the period from February to June 2022 [1] when Mr. Faucher was hospitalized. This deduction shall reflect the fact that Ms. Douglas had the children in her care exclusively for approximately five months. The deduction will equal five months of table amount child support based on Mr. Faucher’s 2022 income. The result of these calculations (plus the 2023 adjustment referred to in the next paragraph) shall be the amount of the retroactive payment that is due. It shall be paid in 24 equal monthly instalments starting October 1, 2023, without interest. Any amount remaining unpaid on September 30, 2025, shall bear interest at the rate set by the court until paid.
[84] Child support for 2023 shall be determined on a set-off basis based on the parties’ 2022 income. Any necessary adjustment for the period from January to October 2023 will be added to the retroactive child support amount on the assumption that Ms. Douglas has the higher income. To the extent that Mr. Faucher continued to pay monthly child support in 2023, he shall receive a credit for these payments, and they will be added to the retroactive claim award.
[85] Effective July 1, 2024, child support shall be adjusted to reflect the parties’ 2023 income based on their Notices of Assessment which will be exchanged by May 31 each year. Thereafter child support will adjust annually based on the parties’ Notices of Assessment for the previous year.
[86] Mr. Faucher’s request to implement equal parenting time is dismissed.
[87] Ms. Douglas’s request for sole decision-making is dismissed. There is insufficient evidence to warrant this change.
[88] If the parties are unable to agree on costs, Mr. Faucher may deliver a brief cost outline and draft bill of costs within 21 days and Ms. Douglas shall have 21 days to respond. No right of reply.
M.S. James J.
Released: September 6, 2023
Schedule
This illustration below is intended as an aid to better understand the retroactive child support calculation described in the Reasons for Decision. The income amounts are for illustrative purposes only. The use of actual amounts is required to determine correct net amount payable. The applicable timeframe for this illustration is from September 01, 2018, to December 31, 2022. This illustration does not include adjustments to account for the period of January 1, 2023, to September 30, 2023, as provided for in the Reasons for Decision.
| Month/Year/Amount | Rene Owes | Dianne Owes |
|---|---|---|
| Credit support payments paid . $650 x 60 months = $39,000.00 | $39,000.00 | |
| 2018 Jan – Dec $541 x 12 months = $6,492 Rene $154,000.00 Dianne $191,000.00 | $6,492 | |
| 2019 Jan - Dec $58 x 12 = $696.00 Rene $165,000.00 Dianne $161,000.00 | $696.00 | |
| 2020 Jan – Dec $58 x 12 = $696.00 Rene $161,000.00 Dianne $165,000.00 | $696.00 | |
| 2021 Jan – Dec $394 x 12 months = $4,728.00 Rene $165,000.00 Dianne $192,000.00 | $4,728.00 | |
| 2022 Jan – Dec not including. February to June $394 x 7 months = $2,758.00 Rene $165,000.00 Dianne $192,000.00 | $2,758.00 | |
| 2022 Feb – June $2917 x 5 months = $14,585.00 Rene $165, 000.00 Dianne $192,000.00 | $14, 585.00 | |
| Total: | $15, 281.00 | $53,674.00 |
| DR - $38,393.00 |
[1] The actual period of hospitalization was from January 23, 2022, to June 6, 2022. In general terms, child support is notionally due on the first day of the month. Hence for the purpose of this calculation the five -month period from February to June has been used. On the first day of each of these months, the children were in the fulltime care of Ms. Douglas.
