Court File and Parties

Ontario Court of Justice

Date: 2015-07-06

Court File No.: Goderich D57-2014

Between:

Aleisha Beatrice Eileen Dale Applicant

— And —

Wade Lawrence Bell Respondent

Before: Justice Brophy

Heard on: 6 May 2015

Reasons for Judgment released on: 6 July 2015

Counsel:

• Sara C. Wisking, counsel for the applicant
• Wade Lawrence Bell, on his own behalf

BROPHY J.:

INTRODUCTION

[1] This is a Motion to Change brought by the applicant on June 11, 2014 to obtain an order requiring the respondent to contribute to section 7 expenses. Specifically it seeks to have an appropriate contribution made to child care expenses so that the applicant can go to work.

[2] The applicant is the mother of Paislee Mae Dale, born 23 January 2012. The respondent is the father of the child.

PRELIMINARY MATTERS

[3] The applicant advises that when the original child support order was made on 13 January 2014, she had not returned to work and as a result there were no section 7 expenses requested because none existed at the time. That has now changed because she has returned to the workforce.

[4] In his response to the Motion to Change the respondent stated that the applicant should qualify for subsidized daycare. He made no comments with reference to other relief being sought by him. In his Trial Management Conference brief he indicated that he was contesting custody and the access terms. At the Trial Management Conference held on 17 March 2015 it was determined that the issue in this case was in fact the section 7 expenses, both retroactive and ongoing, and that was all.

[5] However, at the commencement of this trial the parties jointly agreed that, in addition to the section 7 expenses claim, they wanted the court to review the child support obligation that had been ordered in 2014. In effect the parties asked the court to reconsider child support in light of the better information that was now available.

[6] The precipitating order was made by Justice McSorley on 13 January 2014 in Woodstock wherein she ordered that the respondent pay to the applicant $251.00 per month on account of child support. She also made an order that he pay $50.00 per month on account of arrears. That order directed that the child support was to commence on 1 September 2013. No child support had been paid at the date of the order and hence the arrears were the amount that ran from 1 September 2013 forward. Justice McSorley based the child support payment on an estimated income of the respondent of $30,500.00 per annum and then applied the Child Support Guidelines.

[7] In that same order she granted the applicant custody of the child. A further order was made on 3 March 2014 by Justice McSorley providing for access and some further ancillary matters.

[8] The applicant advised that support was up to date in accordance with the order of 13 January 2014 and the arrears had been paid.

[9] It is noted that the costs awarded against the respondent of $250 related to a court appearance on 10 March 2015 have not yet been paid.

[10] At the Trial Management Conference it was agreed that the evidence of Tracy Alexander – Mitchell, the child care provider employed by the applicant, may be filed by affidavit and it was agreed that she did not have to attend the trial and testify.

[11] As a final preliminary note it should be mentioned that the respondent midway through the hearing advanced a claim that there should be an adjustment in support related to undue hardship. This had not been mentioned previously, was not pled, and was not supported by the appropriate documentation. Accordingly the court did not entertain the undue hardship claim.

ISSUES

[12] The first issue is what income should be attributed to the respondent from 1 September 2013 forward so as to determine what the child support should be in accordance with the Child Support Guidelines on a retroactive and current basis.

[13] The second issue is what contribution should be made by the respondent to the section 7 expenses. This involves determining the applicant's income and the proper amount of daycare expenses in light of the applicant's work schedule and whether subsidies were available.

FACTS

The Evidence of the Applicant

[14] The evidence of the applicant is that she is 23 years old having been born on 3 November 1991. She lives in Seaforth with her common-law partner Brent Ribey. She has lived with him since approximately January of 2014, or for about 1.5 years, and they plan to be married in the near future.

[15] She returned to work in April of 2014 when she was able to arrange for daycare. The applicant testified that she is employed full-time at Willy's Burger Bar in Clinton. She also works 2 hours each day at the Beer store. Her hours are from 11 AM until 6:30 PM between the 2 jobs. In addition she also works part-time at the Casino in Clinton where she gets approximately one shift per month. Cumulatively this produces full time hours. She continues with these jobs and hopes in the future to go back to school and obtain qualifications as a personal support worker and with some good luck and good fortune perhaps become a paramedic.

[16] When she was first inquiring about daycare she was told that she was not eligible for a subsidy at a municipal daycare, and in any event there were long waiting lists at the municipal daycares in Seaforth, Clinton and Vanastra.

[17] She then turned to the private daycare of Tracey Lyn Alexander–Mitchell. Ms. Alexander Mitchell's hours were flexible; she had a less stringent policy related to illness, and was very professional in her care for the children entrusted to her. The charges were $29 per day and her services were used whenever Ms. Dale went to work.

[18] There were two weeks when daycare wasn't used. The first week was when Ms. Alexander – Mitchell took some vacation. The second time was when the applicant and her common-law partner went on vacation for a week. The evidence of the applicant is that the only times the daycare has been used when she was not at work was when she attended court or two days when she was visiting an aunt who was seriously ill. Other than that all monies paid for daycare have been related to the applicant's going to work.

[19] The daily charge for the daycare is $29 and the weekly bill is $145. For the calendar year 2014, Ms. Dale paid a total of $4,522.00 for daycare services. From 1 January 2015 to 30 April 2015 the applicant paid $2,472.00 for daycare. The total amount paid from 1 April 2014 to 30 April 2015 is $6,994.00.

[20] The evidence of the applicant is that in 2014 her income was $13,187.87. This is confirmed by her income tax return.

[21] She estimates that in 2015 her income will be $19,200.00.

The Evidence of the Respondent

[22] It was agreed by the respondent in his evidence that he had a support obligation with respect to the child Paislee. He also agreed that if the mother was to work she needed to place the child in daycare.

[23] The respondent is 25 years of age, having been born on December 28, 1989. He resides in Clinton and has access with the child Paislee. It would appear that access is going reasonably well.

[24] Mr. Bell provided information that detailed his income in 2013 and 2014 and estimated his income for 2015.

[25] In 2013 his income was $14,850.00. There is income tax information confirming same.

[26] The 2014 income for Mr. Bell at two separate jobs, combined with employment insurance benefits, was $41,805.00.

[27] Mr. Bell testified that in 2015 he worked for Canadian Select Genetics Limited in Wingham for approximately 3 months but left that employment because of what he thought were contradictions in what had been stated to him by his employer. Shortly after leaving that job he was able to gain employment as a roofer working for Morgan Roofing Contractors.

[28] When the respondent testified he did not provide any new information beyond what was set out in his various financial statements. He was challenged in cross-examination about the various numbers he has provided with respect to his income and he had no ready answer to justify or explain the variation in numbers. His only real response was that his 2015 income is going to be subject to available work and weather.

[29] The various numbers that Mr. Bell has provided are as follows.

[30] The most recent financial statement sworn by him on 4 May 2015 indicates that he is employed by Morgan Roofing Contractors. In his financial statement he says that his income for 2015 will be $21,600.00. However in that form he also reports that he will be receiving $2,400.00 per month for 12 months which would be equal to $28,800.00. The form also sets out that he will be paid $15.00 per hour for a 40 hour week, which works out to $2,600.00 per month. Or to be more accurate to $2,580.00, which extended over a full year would amount to income of $30,960.00. Interestingly in March of 2015, Mr. Bell filed a financial statement wherein he stated that his 2015 income would be $31,440.00.

[31] In the 4 May 2015 financial statement Mr. Bell sets out some expenses. Some of those expenses were challenged in cross-examination. The expenses were unusual in that they included a clothing expense for $500.00 per month for a total of $6,000.00 the year, $100.00 per month for alcohol and tobacco for an expense of $1,200.00 per year, $600.00 per month for groceries for himself alone, amounting to $7,200.00 a year, and finally $200.00 per month for entertainment or recreation, indicating that this was for entertainment for his daughter during access visits. This would amount to $2,400.00 a year for entertainment purposes for a 3-year-old child. All of these expense claims are excessive and denote an exaggeration on the part of Mr. Bell that impacts negatively on his credibility.

[32] Attached to that same financial statement are a number of documents.

[33] The first was a statement of earnings and deductions from Canadian Select Genetics Limited indicating that Mr. Bell earned in the early part of 2015 the sum of $5,526.36, before he left that employment. This was at a rate of $11.00 per hour.

[34] Next there was a letter from Morgan Roofing Contractors under the signature of a Mike Belford indicating that Mr. Bell worked for that firm and was earning $16.00 per hour with an average hourly working week of 40 hours. The letter confirmed that the work season started around the 1st week of April and completes in the 1st week of December. The letter states: "The duration of the season is weather responsive however a realistic time frame is 9 months."

[35] It therefore seems reasonable to think that his total income for 2015 will be $30,294.36. This would include the $5,526.36 he earned at the Canadian Select Genetics Limited and the $24,768.00 that he would potentially earn with Morgan Roofing Contractors.

Tracey Lyn Alexander–Mitchell

[36] Ms. Tracy Lynn Alexander – Mitchell provided an affidavit that was received in evidence on consent.

[37] Ms. Alexander – Mitchell is the daycare provider for the child Paislee. She was trained as an early childhood educator earning a diploma from Conestoga College in 1998 and has been a home daycare provider for 15 years. In all she has looked after approximately 40 to 50 children. The daycare is located in a space attached to her house, where the children have their own room, their own entry, their own washroom and their own space to eat meals. The daycare is carefully managed with a regular schedule. Ms. Alexander – Mitchell advises that she has flexible rules with reference to scheduling. She tries to be flexible so as to assist parents who have demanding and difficult schedules.

[38] She also states that the Seaforth-Clinton area is under serviced with respect to child care and the waiting lists at the municipal daycares are very long. Indeed she has her own waiting list of 4 to 5 families at any given time. Because Paislee did not have any siblings and another family had a last minute change of plans, Paislee was able to fill that opening.

[39] Ms. Alexander – Mitchell advises that the child is doing very well in daycare and has made friends, and that she has a positive relationship with the applicant and Mr. Ribey, her common-law partner. She also advises that when Ms. Dale drops the child off she is dressed in work cloths, although she noted that on several occasions Ms. Dale was dressed in clothes that suggested she was attending court.

[40] She has not received any telephone calls from the respondent making any inquiries about the daycare.

[41] Ms. Alexander – Mitchell confirmed that she charges $29.00 per day.

DISCUSSION

Child Support

[42] The evidence of the applicant is that at the court proceedings in Woodstock Mr. Bell agreed that the court should attribute income to him in the approximate amount of $30,500 for 2014. Mr. Bell's evidence is that this number was a compromise amount, although it is unclear what he means by that other than he agreed with the number. In any event that was the income on which the child support was based. Mr. Bell was required to pay $251.00 per month commencing September 1, 2013.

[43] The applicant is of the view that the child support order made in January 2014 should be varied because of the inaccurate information provided by Mr. Bell with respect to his income. The applicant seeks a change of that order as at 1 July 2014. That varied order should, according to the applicant, run until the end of June 2015 and should be based upon the actual 2014 income of $41,805. The applicant then seeks a new order commencing 1 June 2015 to reflect the respondent's reasonable income for 2015.

[44] The basic argument of the respondent is that his income is lower than what the extrapolations would suggest. It is difficult to accept the logic of the respondent in light of his exaggerated expense claims. His credibility is not high. His basic argument is that his income in 2014 was not as high as his paperwork discloses. The basis for that statement is unclear. He then goes on to say that his income in 2015 will be substantially lower than what his own employer suggests is possible. I give little weight to Mr. Bell's protestations. He is simply unwilling to accept the facts because it will cost him money.

[45] It seems to the court that the general principle is that the child support obligations should be based upon actual numbers that are agreed-upon or have been proven. As the parties have asked the court to look at the child support obligation commencing in 2013 through to the present it seems that the best information is as follows.

[46] In 2013 the income for the respondent, the support payor, was agreed to be $30,000 per annum. This is reflected in the order of Justice McSorley made on January 13, 2014. It was in the words of Mr. Bell a "compromise" amount. It is impossible for this court today to know what compromises were made and why that amount was agreed upon. Although there is some information that his income in 2013 was less than $30,000, it may well be that it was agreed that the $30,000 amount should be imputed to Mr. Bell as being an amount he could reasonably have earned in that year. The court also notes that the support order was made effective at the beginning of September in 2013 and therefore encompassed only the last 4 months of that year. It may well be that the support amount selected was an attempt to recompense the applicant for the non-support earlier in 2013. However this is all speculative and what the court does know is that Mr. Bell agreed on that amount and consequently this court will not look behind the order and disturb that finding.

[47] In 2014 it has been proven that Mr. Bell earned $41,805.00. This would produce a child support guideline payment of $370.00 per month. Mr. Bell has in fact paid $251.00 per month. He has therefore underpaid by $119.00 per month. That means for the year 2014 he has underpaid by a total of $1,428.00.

[48] For the year 2015, based upon the cumulative income from Canadian Select Genetics Limited and Morgan Roofing Construction, it is reasonable to assign income to Mr. Bell at the $30,000.00 per annum mark. This would then produce a child support payment amount of $245.00 per month. He has therefore overpaid by $6.00 per month which for the first 7 months of 2015 would amount to $42.00.

[49] When the underpayment in 2014 and the overpayment in 2015 are set off against one another he has underpaid child support by $1,386.00

Section 7 Expenses

[50] The section 7 expenses are appropriate in that as at April 1, 2014 the applicant returned to work and it was necessary for the child to attend daycare to allow that to happen because Paislee is 3 years old and does not yet attend school. Childcare expenses are an ordinary item that attracts a section 7 contribution by the support payor. It is noted that she will commence junior kindergarten in September 2016 and at that time daycare will conclude, although there will in all likelihood be continuing expenses related to an afterschool program.

[51] The daycare issue needs some comment. In electing to enroll Paislee in Ms. Alexander – Mitchell's daycare it then became possible for the applicant to go to work. The ability of the daycare provider to offer flexible hours helped the applicant juggle the three different jobs she had. Further the rates are modest at $29.00 per day. Also this daycare was in the same school district where Paislee will attend school and therefore the afterschool program may be able to be conducted at the Alexander – Mitchell daycare, which would provide for continuity and consistency in Paislee's life. Finally it should be noted that the waiting lists for the municipal daycares were long and to delay enrolling the child would not have allowed the applicant the ability to take up the jobs that were on offer. In my view the applicant's decision to enroll the child in this daycare was eminently reasonable.

[52] In response to the question of whether subsidies might have been available for the municipal daycare, the applicant says that initially she did not receive accurate information about the availability of subsidies. Originally the applicant thought that because of her common-law partner's income she would not qualify for a subsidy. Later she learned that this did not apply until after she had lived with him for at least 3 years or they had married. However even after she had received accurate information, given that she was living with a common-law partner, the subsidies would not have been available indefinitely. As a final comment the evidence is that the subsidy calculation in any event at the very beginning would be based upon the combined income of the applicant and the respondent. Given all of this it is hard to see how the subsidies would have materially impacted upon the rationale for choosing the Alexander-Mitchell daycare.

[53] The respondent raised questions about whether the private daycare was registered with the County and whether there were too many children attending that daycare. The applicant indicated that she did not think the daycare was registered but she had no qualms or concerns about the quality of the service that was provided. This is a red herring and of no consequence to the analysis the court has to make.

[54] In his submissions Mr. Bell agreed that the income numbers for the applicant were appropriate and could be accepted.

[55] It is noted that the applicant's income for 2014 includes $1,200.00 representing the Universal Child care benefit. The actual employment income was $11,987. It is the actual employment income that is to be used in determining the ratio with respect to section 7 contributions.

[56] In sum then, the section 7 expenses can be calculated as follows.

[57] In the year 2014 the income of the applicant, after deducting the Universal Child care benefit, was $11,987. The income of the respondent was $41,805.00. The respondent has 77% of the combined income. The child care expenses in 2014 were $4,527.00. 77% of that is $3,481.94. That is the share of the childcare expenses the responsibility of the respondent for 2014.

[58] In 2015 the income of the applicant is $18,000.00 after deducting $1,200.00 from the agreed-upon amount of $19,200.00. The income of the respondent is determined by this court to be $30,000.00 for 2015. The respondent's proportionate share of the combined income is 62%. The childcare costs incurred in the first seven months of 2015 are $4,364.00. 62% of that amount is $2,705.99. This is the share of the childcare expenses of the respondent for 2015.

[59] On an ongoing basis the childcare costs are $623.00 per month and currently the respondent has an obligation to pay 62% of that amount. That is $389.68 monthly.

[60] It is recognized that the arrears of ongoing child support and the section 7 expenses will place a heavy burden on the respondent. His regular payments on a monthly basis are going to be the child support of $245.00 per month and now the $389.68 per month for his share of the child care section 7 expenses. This totals $634.68 per month. In an effort to make this more workable for the respondent in the order set out below I have indicated that only modest payments on account of the arrears will be required, that is to say $25.00 on account of child support arrears and $50.00 on account of section 7 expense arrears.

[61] The total amount required then to be paid by the respondent on a monthly basis is $709.68.

CONCLUSION

[62] For the foregoing reasons the following orders are made:

(a) The respondent shall pay child support effective 1 January 2015 at the rate of $245.00 per month.

(b) The respondent shall pay arrears of child support for the year 2014 and the 1st seven months of 2015 fixed at $1,386.00 at the rate of $25.00 per month commencing 1 August 2015 until paid in full.

(c) The respondent shall pay section 7 expenses on account of child care expenses on a current basis at the rate of $386.57 per month (62% of child care expense of $623.00 per month) commencing 1 August 2015.

(d) The respondent shall pay arrears of section 7 expenses for child care in the following amounts:

(i) For the period 1 April 2014 to 31 December 2014 the sum of $3,481.94 (77% of $4,522.00).

(ii) For the period 1 January 2015 to 30 June 2015 the sum of $2,705.99 (62% of $4,364.50).

(iii) The total of these two sums ($3,481.94 and $2,705.99) being $6,187.93 shall be paid at the rate of $50.00 per month commencing 1 August 2015 until paid in full.

(e) For as long as child support is paid, the payor and recipient, if applicable, must provide up to date income disclosure to the other party each year within 30 days of the anniversary date of this order in accordance with section 24.1 of the Child Support Guidelines.

[63] If the parties wish to speak to costs they may do so at a date set by the clerk of the court.

Released: 6 July 2015

Signed: "Justice Brophy"