Court File and Parties
Court File No.: D(R) 61465/13 Date: 2014-01-06 Ontario Court of Justice Toronto North Family Court
Between: Karen Darlene Lindsay Participating in writing Applicant
- and -
Ryan David Jeffrey Respondent
Dion McClean, duty counsel, assisting the Respondent
Heard: January 3, 2014
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] The applicant (the mother) lives with her seven-year-old child (the child) in New Brunswick. She has brought an application pursuant to the Interjurisdictional Support Orders Act (the Act), dated January 29, 2013. She seeks child support against the respondent who is the child's father. Included in the mother's application are requests for the father to contribute to the child's special expenses pursuant to section 7 of the Child Support Guidelines (the guidelines) and for the father to cover the child on a medical, dental and extended health benefits plan.
[2] The father asks the court to only order the table amount of child support pursuant to the guidelines, starting on October 1, 2013, based on an income of $35,000 per annum.
[3] The Notice of Hearing was issued in this court on July 18, 2013 and served on the father in early September of 2013.
[4] The first appearance of this case was on September 17, 2013. The father asked for and was granted an adjournment to file his responding material. He was given until November 8, 2013 to do this.
[5] The father had not filed his responding material when the matter returned to court on November 14, 2013. He asked for one more chance to file it. This request was granted and he was given until December 23, 2013 to do this. As a term of the adjournment, the court made a temporary child support order of $303 per month, starting on November 1, 2013, based on an income of $35,000 per annum (being the father's representation of his current income).
[6] The father did not comply with the filing deadline set by the court. He attended at court on January 3, 2014 with some financial documentation. He asked for and was granted leave for an oral hearing pursuant to subsection 37(9) of the Ontario Family Law Rules. The father was assisted by duty counsel at the hearing.
[7] The court heard oral evidence from the father and relied on the written materials of the mother.
[8] The issues for this court to determine are:
a) What should be the start date for child support?
b) What is the father's current income?
c) What income, if any, should be attributed to the father for child support purposes?
d) What expenses claimed by the mother qualify as eligible special expenses pursuant to section 7 of the guidelines?
e) What should be the father's contribution to the eligible section 7 expenses?
f) If, as a result of this order, the father is found to be in arrears of child support, how should they be repaid?
Part Two – Review of Evidence
[9] The father is 30 years old. He has a Grade 10 education. He has worked for the past ten to twelve years as an unlicensed mechanic.
[10] The father testified that he began cohabiting with the mother in February of 2005. He was unclear about their date of separation. He initially testified that the parties separated in late 2011. When presented with documents that refuted this evidence, he acknowledged that the separation might have taken place in April or May of 2011.
[11] The mother deposed in her affidavit that the parties resided on and off from 2006 to 2008 in New Brunswick.
[12] The parties have no other children.
[13] The father was working full-time as a mechanic in New Brunswick in 2011. A letter from his employer dated May 4, 2011 (produced by the mother) stated that the father's annual earnings would be $34,000 per annum for that year.
[14] The father subsequently quit this job and moved to Toronto. He has lived with his parents since that time. The father had difficulty with dates in his testimony, but it appears that this move took place at some point in the summer of 2011.
[15] The father testified that he was in bad shape from the separation, was regularly abusing drugs, had no friends or family in New Brunswick and needed the support of his family in Toronto.
[16] The mother issued an application for custody of the child and child support in the Court of Queen's Bench of New Brunswick, Family Division, Judicial District of Moncton in 2011. The father initially testified that he had no knowledge of the mother's child support application. That is highly unlikely, as the court documents state that he was served with the application on September 16, 2011 and he subsequently testified that he sent a friend to attend at court on his behalf. He also testified that he wasn't sure if he read the court papers. This court finds that the father knew about the support claim.
[17] On November 15, 2011, the mother obtained an uncontested final custody order in New Brunswick. The order instructed her to bring her support claim against the father pursuant to the Act.
[18] The mother did not begin this application until the end of January of 2013. No reason for the delay in making this application was provided in her materials. Since she did not make a retroactive support claim, this is not really germane to the analysis.
[19] The father deposed that he is a drug addict and was unable to find regular work from the summer of 2011 until October of 2013. The father deposed that he only did small cash jobs (as a mechanic) for friends. He provided evidence that he completed a day treatment drug rehabilitation program that ran from November of 2012 until January 4, 2013, but deposed that he has relapsed several times since then. He stated that he has not used drugs for three months. The father's 2012 income tax return reports self-employed income of $9,000. He had no paperwork to support how he arrived at this figure and admitted that it was an estimate.
[20] The mother deposed that the father continued to work for cash when he returned to Toronto. She alleged that the father continued to work at his father's auto-body shop and at an auto-body shop owned by one of his friends. The father testified that he only used these shops to do his private work as a mechanic.
[21] The father claimed to have paid the mother child support of $150 to $200 per month since their separation. He quickly corrected this evidence and said that he paid this in some months. He later testified that he paid these amounts about 10 times since the separation. The father had no evidence at all about these payments and said that no evidence was available – all payments were in cash. The mother's evidence (as of January 29, 2013, when her affidavit was sworn) was that the father had not paid her child support. The court prefers her evidence, as the father's evidence was often inaccurate or illogical (several instances of this are set out in this decision).
Part Three – Ongoing Support
[22] The father has been working full-time as a mechanic since October of 2013. He claimed to being paid at the rate of $35,000 per annum and offered to pay the guideline table amount at this income level. However, a review of his last 3 pay stubs (covering 6 weeks) shows that the father based this income projection on his net pay ($1,354 every two weeks) and not his gross pay. The father is earning $21.59 per hour on a full-time basis. He has also worked a few hours of overtime. These pay stubs are the best evidence of his current income. He is projected, based on these figures, to earn annual income of $45,656. This is the figure that will be used for the calculation of his ongoing child support obligation.
Part Four – Start Date for Support
[23] The mother did not make a retroactive support claim. In MacKinnon v. MacKinnon, 75 O.R. (3d) 175 (C.A.) at paragraph 19, the Ontario Court of Appeal clarified that retroactive support relates to claims for support for the period predating the commencement date of the pleading in which support is claimed. A claim for support within the pleading is properly characterized as prospective support. Here, the pleading is dated January 29, 2013.
[24] Ordinarily, once ability to pay child support has been established, child support is payable, at a minimum, from the date on which notice of the claim is provided and is based on the actual income of the payor, in accordance with the guidelines (MacKinnon, supra, paragraph 22). The start date for support can be contentious in cases under the Act. This is because there is often a long time gap between when the application is started in the reciprocating jurisdiction and when the payor receives notice of the claim. The delay is rarely the fault of either party. The court must balance, in assessing the start date for support, similar factors to those set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, such as blameworthy conduct by the payor, the circumstances of the child and any undue hardship to the payor due to a large arrears order (the reason for delay does not apply, as the support recipient will have little control over the processing of the application).
[25] In Murrell v. Winfield, 2012 ONCJ 475 the support application was started in North Carolina in March of 2009, but not served on the payor in Ontario until September 23, 2011. In starting the support obligation as of the date the payor was served, I wrote in paragraphs 20-22:
[20] However, I found credible the respondent's evidence that she was totally unaware that there was an outstanding application for support until she was served with the application on September 23, 2011. The respondent testified that she was shocked when she received this application. She felt that she had a good relationship with the applicant, who had never mentioned to her that she was seeking child support. I believed the respondent's evidence that the applicant had told her that she was content that the respondent could just send presents and money that she could afford from time-to-time. I accept the respondent's evidence that the applicant had never complained to her about her financial contribution. The respondent testified that she called the applicant when she received the application and was told by the applicant that the Department of Social Services in North Carolina had required her to bring the application. I also accept the respondent's evidence that the applicant always knew where she was residing in Ontario. The respondent described in detail how she has been in constant communication with the applicant and the child since she left North Carolina.
[21] I find that the respondent was not avoiding the application, that the applicant never broached the topic of child support with her and that the respondent was unaware of any claim for child support until she was served with the Notice of Hearing on September 23, 2011.
[22] I find that the respondent's child support obligation should begin on September 1, 2011, the month that she first became aware of the support claim. It would be unfair to create a significant debt burden for the respondent (which would be the result of setting an earlier start date for support), when she was under a reasonable belief that no further support was being sought from her and she is already struggling to support herself and her other child, with little financial assistance from the father. It isn't unfair to order her to pay support from the time that she was served with the application as she should have structured her affairs to account for the table amount of child support (as provided for in the guidelines) from that time. However, an affordable repayment arrangement will be made for the support arrears created by this order, to ameliorate the strain that the arrears will place on her fragile financial situation.
[26] The facts of this case are very different and there will be an order that child support, including the father's contribution to the child's section 7 expenses, begin as of February 1, 2013. The father was aware, as early as September of 2011, that the mother wanted to claim child support against him when he was served with the support application in New Brunswick. He is fortunate that the mother is not seeking a retroactive support order. The father has engaged in blameworthy conduct by preferring his own interests to those of the child. The court does not accept that he paid child support in 2012 or 2013. The father claimed to have only earned $9,000 in 2012, yet purchased a truck for $6,000, paid down $2,500 from his truck loan, and purchased a 60-inch color television for $1,300 in 2012. These are funds that should have been applied to his child support obligation - an obligation he was or should have been aware of. The child has gone without child support for far too long. Any hardship to the father arising from an arrears order can be adequately addressed through a reasonable repayment plan. It would be unjust, in the circumstances of this case, to reward the father (who has put his head in the sand when it comes to his child support obligations), with a financial windfall, due to the inherent delays in the interjurisdictional process.
Part Five – Imputation of Income for Period from February of 2013 Until September of 2013
[27] The mother asked the court to impute the father's annual income at $35,000, in the absence of specific wage information. She based this on the $34,000 per annum the father was earning in New Brunswick before he quit his job and his ability to earn income in Ontario as a mechanic.
[28] The father claimed that he was only earning $9,000 per annum during this period.
[29] Section 19 of the guidelines provides that the court may impute to a spouse "such amount of income … as it considers appropriate in the circumstances" and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:
19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse;
[30] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. CA).
[31] The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
If not, what income is appropriately imputed?
[32] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.).
[33] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.
[34] The court finds that the father became intentionally unemployed when he quit his full-time job as a mechanic in New Brunswick.
[35] Once underemployment or unemployment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins at paragraph 19.
[36] As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453 (Ont. Fam. Ct.).
[37] The father claims that his unemployment or underemployment was justified due to his drug addiction. There is conflicting case law as to whether substance abuse is a justifiable excuse for unemployment or underemployment. In rejecting substance abuse as a justifiable excuse, in Hutchinson v. Gretzinger, [2007] O.J. No. 5058 (Ont. S.C.J.), the court wrote at paragraph 22:
The trial judge accepted the affidavit of the legal assistant to counsel for the respondent as evidence that the respondent was addicted to drugs, including cocaine. In my view, it was an error to do so: better evidence was required. However, even if one were to accept that the respondent is a drug addict, his addiction is not a defence to a support claim. When one first consumes illicit drugs, one must be taken to know that addiction can result: addiction is a reasonably foreseeable consequence, as is the resultant loss of income or employment. To the extent that drug addiction is properly viewed as an involuntary illness, the initial drug use is voluntary and, therefore, it is intentional. It is wrong in law (and contrary to public policy) that a parent be exempted from his or her child support obligation because of drug addiction. As was said by Eberhard J. in another context, "He may someday have better ability to pay and there is no reason why the arrears should not be there waiting for him": see Courchesne v. Courchesne, [2004] O.J. No. 442 (S.C.J.) at para. 13.
[38] A different approach to this issue was taken in Kalanuk v. Michelson, [2010] S.J. No. 639 (Sask. Q.B.). In this case, the court, in reducing support arrears, accepted that the payor had serious drug addiction issues that adversely impacted his ability to work and wrote at paragraphs 14 and 15:
14 All of the circumstances must be considered in determining whether a payor was unable to pay arrears at the time they were incurred. Special circumstances exist in this case. There is no dispute that the petitioner's addiction to drugs has been serious. Alcoholism and drug addiction are viewed as illnesses requiring treatment rather than unacceptable conduct based on individual choice. I am satisfied that the petitioner was not intentionally underemployed during the periods that he was in treatment facilities. It seems apparent, as well, that the significant decrease in his actual income after 2004 was substantially connected to his addiction issues. Those issues may also serve to explain, at least in part, the petitioner's delay in bringing this application.
15 That said, the petitioner's addictions issues should not absolve him from all responsibility. At least some of what little income he earned over the past four or five years appears to have been squandered on choices unrelated to the acquisition of cocaine. He should remain responsible for those choices.
[39] This court endorses the approach taken in Kalanuk. The ravages of drug and alcohol addiction are observed weekly in this court in custody/access and child protection cases. Many parents who love their children very much and are very motivated to play an important role in their children's lives have their roles in their lives profoundly reduced or even eliminated because they have a substance addiction over which they have little control. This court views substance addiction as a health issue. With proper evidence, this court is willing to consider that substance addiction is a reasonable health need of a parent that can justify underemployment or unemployment, pursuant to clause 19(1)(a) of the guidelines.
[40] The required evidence was lacking in this case. It is not enough for a payor to come to court and state: "I am a drug addict and this is why I haven't worked". The only corroborative evidence of the father's addiction was a certificate that he completed a 60-day day treatment program (that was completed prior to the start date of this order). The court received no medical evidence about the father's condition. Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his reasonable health needs justify his decision not to work. See: Cook v. Burton, [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen, [2006] O.J. No. 2902 (SCJ). The court received no corroborative evidence about the extent of the father's drug use, how it adversely affected his ability to work and for what period of time (if any) this prevented him from working to his full capacity.
[41] The father provided no corroborative evidence that justified quitting a good job in 2011. He claimed that he had just separated from the mother, but was confused about when in 2011 this took place. The court prefers the mother's evidence that the parties separated in 2008. The father failed to bring the income tax returns to court that may have shown that the parties filed their taxes as a couple from 2008 to 2011. If the parties separated in 2008, his claim that he was distraught about the separation becomes suspect. It seems far more likely, given the sequence of events, that the mother was asking for child support and the father decided to leave New Brunswick.
[42] The court initially had some sympathy for the father's drug issues. He squandered this sympathy when the court learned that, despite not paying any child support (and purportedly having nominal income) he purchased, in 2012, a truck for $6,000 and a 60-inch color television for $1,300. These are not the actions of a person with limited means. The court accepts the mother's evidence, on a balance of probabilities, that the father was earning significant cash income as a mechanic in 2012 and 2013. He was living with his father who owns a body shop and worked at times with a friend who owns a body shop. It is more probable than not that he was earning significant cash income from these persons.
[43] The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.
[44] In Thompson v. Gilchrest, supra, the court found that it was appropriate to impute to the payor the income that he would have earned if he hadn't quit his job. The court writes at paragraphs 37-39:
[37] The Court of Appeal in Drygala v. Pauli, supra noted at para. 44:
Section 19 of the Guidelines is not an invitation to the Court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.
[38] The Court went on to anticipate the potential lack of evidence in some cases and noted at paragraph 46:
If the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent's previous earning history and impute an appropriate percentage thereof.
[39] That last quotation addresses the practical realities of a trial such as this. The onus is on the payor parent to justify the decision to reduce his income. Given that Mr. Thompson's position was that support should simply be calculated based on the income he actually receives, he led no evidence of comparative employment beyond his efforts to seek employment in Atlantic Canada. The result is that the Court has little more than his past earning history to consider. I find, as Judges in other cases have, that his previous income is a rational basis on which to impute income, as it is the amount that Mr. Thompson would have continued to earn but for his decision to leave his job: Olah v. Olah; Vitagliano v. Di Stavolo; Zagar v. Zagar, 2006 ONCJ 296; Laing v. Mahmoud, 2011 ONSC 4047.
[45] The father was earning $34,000 per annum as a mechanic in New Brunswick in 2011. The mother's request to impute income of $35,000 per annum for an experienced mechanic in 2013 in Ontario is very reasonable. The court finds that the father was capable of earning (if, in fact, he wasn't actually earning this income in cash) income at the rate of $35,000 per annum for the period starting on February 1, 2013 and ending on September 30, 2013 (8 months).
Part Six – Special Expenses
[46] The mother made a claim asking that the father pay 50% of the net cost (after taking into consideration tax deductions and credits) of special expenses for the child pursuant to section 7 of the guidelines. She did not make a claim in her application for a retroactive contribution for these expenses (although she did attach summaries of expenses paid since 2008 in her application, in support of her allegation that the father has not contributed to these expenses since 2008). The mother claimed the following special expenses:
a) Childcare - $6,000 per annum gross - $4,000 per annum net, after taking into account tax deductions and credits.
b) School expenses, being supplies, books, outings - $300 per annum.
c) Extraordinary extracurricular activities, being music lessons, swimming lessons, ballet lessons and vacation - $2,700 per annum gross - $2,100 per annum after taking into account tax deductions and credits.
[47] The mother provided a letter from the child's daycare provider. The letter states that the school fees are $95 per week during school and $146.50 per week during the winter school break, March school break and summer vacation. Working on the assumption that the child is in school 40 weeks each year at the lower rate and 12 weeks out-of-school each year at the higher rate, this comes to ($95 x 40 weeks = $3,800 plus $146.50 x 12 weeks = $1,758) $5,558 gross for the year. The letter also states that there is a higher daily fee when there is no school (such as professional development days). This would likely take the annual fees to about $5,700.
[48] The mother did not provide receipts for the claimed school expenses. She provided receipts, dated in 2012, for the claimed extraordinary extracurricular activities, totalling about $180.
[49] To determine if the expenses claimed by the mother qualified as special expenses under section 7 of the guidelines, the court considered the following:
a) The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 of the child support guidelines and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, supra.
b) The list of special and extraordinary expenses under clauses 7(1)(a) to (f) is exhaustive. If a claim does not fall within any of the listed categories, then it must be dismissed. See: Kilrea v. Kilrea, 1998 CarswellOnt 3652 (Ont. Gen. Div).
c) Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support. See Smith v. Smith, [1997] O.J. No. 4833 (Ont. Gen. Div.), paragraphs 14 and 16; Park v. Thompson, supra; Kase v. Bazinet, [2011] ONCJ 718.
d) Unlike section 3 of the guidelines, which presumptively provides for the table amount of child support, an order for section 7 expenses involves the exercise of judicial discretion. When exercising its discretion, the court should also consider the objectives of the guidelines, including clause 1(a), which reads as follows:
1(a) "to establish a fair standard for children 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;"
e) The relevant provisions of the guidelines read as follows:
- (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;
(f) extraordinary expenses for extracurricular activities.
f) The guidelines define "extraordinary" as follows:
(1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means,
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account;
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
[50] The childcare expense claimed by the mother qualifies as a special expense pursuant to clause 7(1)(a) of the guidelines. This expense is required due to the mother's employment. It is both reasonable and necessary.
[51] The claimed school expenses do not qualify as special expenses pursuant to clause 7(1)(d) of the guidelines. No evidence was led to justify categorizing them as extraordinary school expenses. No receipts were provided to support the claim.
[52] The expenses claimed as extraordinary extracurricular activities also do not qualify as special expenses pursuant to clause 7(1)(f) of the guidelines. No evidence was led to justify categorizing these expenses as extraordinary. The court only received receipts of $180 in 2012 for these expenses. These are expenses which are ordinary extracurricular activities and can be reasonably covered by the mother, taking into consideration her income and the table amount of support she is entitled to receive.
[53] Subsection 7(2) of the guidelines states that the guiding principle in determining the amount of a special expense is that the expense is shared by the parents or spouses in proportion to their respective incomes. Unfortunately, the court did not receive a financial statement from the mother or evidence from her about her annual income. This should be included whenever a party is claiming section 7 expenses pursuant to the guidelines. The court has the option under the Act of making a temporary order and making a request to the reciprocating jurisdiction for this information. However, the reality of the interjurisdictional support process is that it often takes over a year (if there is any response at all) to get requested information. The value of getting the mother's precise income information does not exceed the detriment of continuing this case any further (cost, delay and the need for finality for these parties – particularly the mother who first asked for support in 2011).
[54] The court did receive some evidence about the mother's income. The father testified that she has started running a daycare business in New Brunswick. He said she is probably earning the same amount as him, if not more. Considering this evidence, and based on the mother's calculation that she would receive a 33% reduction on her taxes for her childcare costs, the court finds that the mother is likely earning somewhere between $35,000-45,000 per annum. The court finds her request that the father pay 50% of the net cost of eligible section 7 expenses from February 1, 2013, to be very reasonable, particularly since she paid all of these expenses prior to her application.
[55] The court did not receive software calculations, but based on the mother's evidence that she will receive tax credits or deductions for 33% of her childcare expenses (which seems to be a reasonable calculation), the net amount of her annual childcare expense will be $3,819 ($5,700 x 33% = $1,881 reduction). The father's share of this expense will be 50% ($1,909.50), or $159.13 per month.
Part Seven – Support Arrears
[56] The father owes the mother the following amounts as of today as a result of this order:
Guideline table amount from Feb. 1/13 – Sept. 30/13 (based on $35,000 per annum – 8 months @ $303 per month) = $2,424.
Guideline table amount from October 1/13 – present (based on $45,656 per annum – 4 months @ $413 per month) = $1,652.
Share of special expenses from February 1, 2013 – present – (based on 12 months @ $159.13 per month) = $1,908.
Total arrears: $5,984 (subject to a reduction for any payments received from the father, as reflected in the records of the Family Responsibility Office, since October 1, 2013, or any other payments since February 1, 2013 acknowledged in writing by the mother).
[57] The court acknowledges that the father has several debts. Up until now he has prioritized those debts at the expense of the child. The father will be given the opportunity to repay these arrears at the rate of $125 per month. This gives him close to four years to pay off this debt. However, this consideration is conditional. If the father is more than 30 days late on any ongoing support or arrears payment, the entire amount of arrears shall immediately become due and payable.
Part Eight – Claim for Medical, Dental and Extended Health Coverage
[58] The mother asked for an order that the father cover the child on a medical, dental and extended health benefits plan.
[59] There is limited jurisdiction for the Ontario Court of Justice to make the order sought by the mother. Clause (j) of subsection 34(1) of the Ontario Family Law Act reads as follows:
Powers of court
- (1) In an application under section 33, the court may make an interim or final order,
(j) requiring that a spouse who has an interest in a pension plan or other benefit plan designate the other spouse or a child as beneficiary under the plan and not change that designation; and
[60] The father does not have a medical, dental and extended health benefit plan at his place of employment. This court's jurisdiction is limited to requiring the father to cover the child on an existing plan. In Feinstat v. Feinstat, [2012] O.J. No. 4441 (Ont. Div. Ct.), the court, in interpreting clause (i) of subsection 34(1) of the Ontario Family Law Act (which has similar wording to clause (j)) stated that there was no jurisdiction to order a spouse to obtain life insurance or reinstate life insurance. The same reasoning applies to clause (j). The court has no jurisdiction to order the father to obtain a medical, dental and extended health benefits plan.
[61] The jurisdiction of the Ontario Court of Justice to make the requested order is further limited by subsection 34(2) of the Ontario Family Law Act, which reads as follows:
Limitation on jurisdiction of Ontario Court of Justice
(2) The Ontario Court of Justice shall not make an order under clause (1)(b), (c), (i), (j) or (k) except for the provision of necessities or to prevent the dependant from becoming or continuing to be a public charge, and shall not make an order under clause (d).
[62] Even if the father had a medical, dental and extended health benefits plan, the mother provided no evidence to support that her claim fell within one of the exceptions in subsection 34(2) of the Ontario Family Law Act.
[63] The mother's claim for the father to cover the child on a medical, dental and extended health benefits plan is dismissed.
Part Nine – Conclusion
[64] A final order shall go on the following terms:
a) Based on an imputed income of $35,000 per annum, the father shall pay the mother the guideline table amount of child support for one child of $303 per month, starting on February 1, 2013.
b) Based on an income of $45,656 per annum, the father shall pay the mother the guideline table amount of child support for one child of $413 per month, starting on October 1, 2013.
c) The father shall pay the mother 50% of the child's childcare expense, from February 1, 2013, fixed in the sum of $159.13 per month.
d) The child support arrears created by this order are set at $5,984 (subject to a reduction for any payments received from the father since October 1, 2013, as reflected in the records of the Family Responsibility Office, or any other payments since February 1, 2013 acknowledged in writing by the mother).
e) The father shall be entitled to repay the child support arrears at the rate of $125 per month, starting on February 1, 2014, until they are repaid. However, if he is more than 30 days late in making any ongoing or arrears support payments, the entire amount of arrears shall immediately become due and payable.
f) Nothing in this order precludes the Family Responsibility Office from collecting the arrears from any government source (such as HST or income tax refunds) or lottery or prize winnings.
g) The parties are to exchange their complete income tax returns, notices of assessment, and section 7 special expense receipts for the previous calendar year by June 15th of each year.
h) A support deduction order shall issue.
i) The mother's claim for the father to cover the child on a medical, dental and extended health benefits plan is dismissed.
[65] Lastly, the court wants to thank Mr. McClean, acting as duty counsel, who did an excellent job assisting the father in the presentation of his evidence.
Justice S.B. Sherr
Released: January 6, 2014
