Court File and Parties

Court File No.: D54419/11 Date: 2012-02-24

Ontario Court of Justice Toronto North Family Court

Between:

Dianne Boehm, Applicant

- and -

George Eric Peters, Respondent

Counsel:

• Ken Nathens, for the Applicant
• Joan C. Manafa, for the Respondent

Heard: February 23, 2012

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The applicant has brought a motion seeking temporary child support for the parties' 15-year-old daughter (the child). She also asks that the respondent pay his pro-rata share of the child's orthodontic expenses pursuant to clause 7(1)(c) of the Child Support Guidelines (the guidelines).

[2] The respondent asked the court to fix his income at an amount lower than that sought by the applicant ($71,321 per annum). He argued that his ability to earn the income sought by the applicant has been impaired due to medical reasons. He also asked the court to reduce his child support obligation to $300 per month based on undue hardship considerations. Lastly he asked the court to order the mother to pay the full amount of the child's orthodontic treatment. The respondent served his own notice of motion that included these requests.

Part Two - Background

[3] The parties lived together from 1993 until 2009. The applicant is 55 years old. The respondent is 51 years old. They had the one child together.

[4] The child has resided with the applicant since the parties separated.

[5] The respondent has two children from another relationship. He is required, pursuant to a 2007 order of the Superior Court of Justice, to pay child support of $585 per month for one of those children. The other child is an adult and is no longer his dependant.

[6] The applicant is employed as a teacher.

[7] The respondent is employed with the Toronto Transit Commission.

[8] There has been no agreement or court order between the parties for child support. The respondent has paid the applicant child support of $300 per month since September of 2009.

[9] The applicant issued her application for custody and child support on June 28, 2011. The respondent was served with the application on July 19, 2011. In her application, the applicant seeks an adjustment of child support retroactive to the date of separation. She is only seeking temporary child support on this motion from the time that she started this application. The respondent asks that the court only make a prospective support order.

[10] The parties resolved the parenting issues on a final basis at the outset of the motion, leaving only the financial issues to be dealt with.

Part Three – Incomes of the Parties

[11] The applicant earns an annual income of $91,834.

[12] The applicant was willing to fix the respondent's income at $71,321 annually (based on his 2010 tax return) for the purpose of this motion. The respondent deposed that he has historically worked a lot of overtime hours, but that this will end because he is exhausted and emotionally stressed from dealing with this court case and issues with his mother (he deposed that she has mental health issues that require his attention). He also claimed that he was experiencing rib pain that was adversely affecting his ability to work. He did not believe that he would continue to earn an income of $71,321 per annum.

[13] The respondent did not provide updated income information on this motion.

[14] The respondent provided no evidence that he was working an unusual amount of overtime hours. His income has remained fairly steady over the past few years. In 2009, the respondent earned $70,538 and in 2008 he earned $67,617. The changes in income appear to reflect annual pay increases. A review of the three pay stubs that he did produce in 2011 revealed that he was working minimal overtime during this six week period.

[15] In both Cook v. Burton and Stoangi v. Petersen, the courts set out that cogent medical evidence in the form of a detailed medical opinion should be provided by the payor in order to satisfy the court that health needs justify a reduction in work hours. The respondent failed to provide such evidence. He did provide a laboratory x-ray note that stated that he had a 4 mm calcified granulomas in his lower right rib. The note goes on to state that his lung is otherwise clear and there is no evidence of a rib fracture. The respondent acknowledged that he has not followed up with any medical treatment since this x-ray was taken in November of 2011. He provided no medical report that would indicate that he needed to reduce his work hours due to either physical or emotional reasons.

[16] The respondent provided no evidence that his mother's mental health needs require him to reduce the hours that he works. He provided sparse information about what her needs actually are.

[17] The respondent also provided no evidence that would indicate that he has actually reduced his work hours. If one pro-rates his last pay-stub provided in mid-July of 2011 (gross income of $42,205), it projects to an annual income of $77,916. The respondent should consider himself fortunate that the mother is only seeking to fix his income at the lower 2010 level. The court will use that figure for the purpose of this motion. This will be subject to adjustment, once complete disclosure is received from the respondent.

Part Four – Undue Hardship Claim

[18] Undue hardship claims are governed by section 10 of the guidelines which reads as follows:

Undue Hardship

10. (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 child support guidelines. There are three parts to the test:

1. The person making this claim must show that there are circumstances that could create undue hardship.

2. 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.

3. 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.

[20] The father must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. Hanmore v. Hanmore, 2000 ABCA 57.

[21] The respondent has the onus of providing adequate supporting documentation to prove his undue hardship claim. See Van Gool v. Van Gool.

[22] The respondent did not satisfy his evidentiary onus under the first part of the test. If he is asked to pay the child support requested by the applicant, this will still leave him with net income of $3,634 per month. This is sufficient to reasonably meet the respondent's monthly needs and his support obligation for his other child. The respondent provided no evidence to show that he has paid financial support for his mother or that he will have any such obligation in the future. A review of the respondent's financial statement reveals that he is living a lifestyle in excess of his earning ability. He will have to reduce some of these expenses and this will likely be a difficult adjustment for him. However this does not equate to an exceptional, excessive or disproportionate hardship. The respondent's excessive spending habits should not come at the expense of his child.

[23] Having found that the respondent did not meet the first part of the test it is unnecessary to conduct a standard of living analysis. I note that the respondent provided the court with absolutely no evidence with respect to this.

[24] The court finds for the purpose of this motion that the respondent has not established undue hardship, as defined by section 10 of the guidelines. The court will give the respondent the opportunity to repay the arrears created by this order at an affordable rate over time to address any transitional difficulty he might face in reorganizing his financial affairs.

Part Five – Start Date for Support

[25] The applicant is seeking child support from the start of this case for the purpose of this motion and asks that her claim for retroactive support (being support prior to the date of the application) be reserved to the trial judge. The respondent is asking that temporary support begin on March 1, 2012. The mother's claim is far more reasonable. The respondent has been significantly underpaying child support (the guideline table amount in 2011 was $656 per month). He had notice that the applicant was seeking the guideline level of child support once she started this case. He still chose not to increase his payments. The child should not be disadvantaged by this decision.

Part Six – Orthodontic Expenses

[26] The applicant provided satisfactory evidence that the child required orthodontic work and that this treatment was in her best interests. She further provided satisfactory evidence that the cost of the treatment was reasonable and necessary in relation to the means of the parties and to the spending pattern of the parties in respect of the child during cohabitation. I find that the orthodontic treatment is a special expense as defined by clause 7(1)(c) of the guidelines.

[27] The total amount of the orthodontic expense will be $5,980. The respondent has insurance coverage that will cover 50% of these expenses. However, he has not submitted the orthodontic bills to his insurer. The applicant does not have insurance coverage. She has already paid $3,806 towards the cost of the orthodontic expense. It was agreed that if the father submits the orthodontic bills to his insurer, the remaining expense that will have to be paid by the parties, after insurance coverage, is $2,990 gross, and $2,773, net of tax benefits to the applicant.

[28] The respondent argues that the applicant unreasonably cancelled her own insurance coverage, and as a result, he should not be required to contribute to this expense. He also makes the argument that he cannot afford to pay his pro-rata share of this expense.

[29] The applicant explained that she cancelled her insurance coverage while the parties cohabited, as the parties mutually agreed that it was not economical to duplicate coverage. I accept her explanation at this point and do not find the cancellation of her insurance coverage to have been unreasonable.

[30] For the reasons set out above I find no reason to deviate from the guiding principle in subsection 7(2) of the guidelines that each party should pay their pro-rata share of the special expense, after taking into account any income tax deductions or credits related to the expense (subsection 7(3) of the guidelines). The respondent's share of the orthodontic expenses comes to $1,221 in total. This sum is predicated on the respondent submitting the orthodontic expenses to his insurer and the company reimbursing 50% of the expenses.

[31] This order will contain provisions to compensate the applicant for her orthodontic overpayments to date. She has paid $3,806 and her total pro-rata contribution should total $1,552. She is entitled to a rebate of $2,254.

Part Seven – Orders

[32] A temporary order will go on the following terms:

a) The respondent shall pay the applicant the table amount of child support pursuant to the guidelines, for one child, based on an annual income fixed at $71,321, being $656 per month, commencing on July 1, 2011. This amount will change to the new guideline table amount of $650 per month, starting on January 1, 2012. This order is subject to adjustment upon receipt of further financial disclosure from the respondent.

b) The support order is without prejudice to the applicant's claims for retroactive support and insurance coverage.

c) The respondent will be credited with child support payments of $2,400 paid since July 1, 2011 (eight months at $300 per month).

d) The respondent will be entitled to pay the arrears created by this order at the rate of $150 per month commencing on March 1, 2012.

e) The respondent is to submit all orthodontic bills to his insurer within 20 days.

f) The applicant is entitled to a rebate of $2,254 for overpayment of her share of orthodontic expenses as she has paid $3,806 and her pro-rata share of the expense is $1,552. The respondent is to promptly reimburse the applicant with any monies that he receives from his insurer. He shall be responsible for reimbursing the applicant for any of her deficiency not met by the insurer.

g) The respondent shall pay the balance of the child's orthodontic expenses (currently $2,174). Once he fully reimburses the applicant for her overpayments as set out above, he shall be entitled to keep any remaining reimbursement from his insurer.

h) A support deduction order shall issue.

i) The respondent's motion is dismissed.

[33] If either party seeks their costs of this motion, they are to submit written submissions to the trial coordinator's office no later than March 5, 2012. The other party will then have until March 15, 2012 to respond. The submissions should not exceed two pages, not including any offer to settle or bill of costs.

[34] This case will come back before me for a case conference on May 1, 2012 at 10:00 a.m. The parties shall serve and file updated financial statements, together with copies of their 2011 income tax returns and most recent three pay stubs, by April 19, 2012.

Justice S.B. Sherr

Released: February 24, 2012