Court File and Parties

Court File No.: D45537/08 Date: 2015-12-02

Ontario Court of Justice

Between:

MANAL AL-HALABI Acting in Person APPLICANT

- and -

RABII RAWDAH Acting in Person RESPONDENT

Heard: December 1, 2015

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] This hearing was about the respondent's (the father) temporary child support obligations for the parties' two children, ages 7 and 9 (the children).

[2] The applicant (the mother) asks the court to fix the father's income at $60,000 per annum for support purposes. She also asks that the father contribute to the children's child care expenses of $200 per month. She seeks as early a start date for support that the court is prepared to order.

[3] The father asks that no order for child support be made.

[4] The parties provided extensive material for this motion. They were both sworn in and provided the court with further evidence at this hearing.

Part Two – Background Facts

[5] The mother is 33 years old. She is employed as a bookkeeper. The father is 39 years old and is employed as a food buyer.

[6] The parties were married on November 20, 2004. They separated on January 22, 2010.

[7] The mother has final custody of the children pursuant to an order of this court dated July 15, 2011. The father was granted access to the children each Thursday from 5 p.m. until Friday morning at 9 a.m. and each Saturday from 5 p.m. until Monday at 9 a.m.

[8] This continues to be the parenting schedule.

[9] The parties proceeded to the Superior Court of Justice to deal with their financial issues. They mediated a property settlement where the mother purchased the father's interest in the matrimonial home. The parties decided to reconcile prior to the support issue proceeding to trial. The Superior Court of Justice case was withdrawn in November of 2014.

[10] The attempted reconciliation of the parties was short-lived.

[11] On April 10, 2015, the mother issued this application seeking child support, including retroactive support "to a date that the court considers appropriate".

[12] The father filed an Answer/Claim seeking custody of the children.

[13] The father has not paid child support to the mother.

[14] At this hearing, the father advised the court that he was now only seeking custody of his son (age 9), not of both children. He said that he was seeking joint custody, with no change in the parenting arrangement, of his daughter (age 7).

[15] The parenting issue was referred to the Office of the Children's Lawyer and this aspect of the case was adjourned for their input.

Part Three – Positions of the Parties

[16] The mother claims that the father earns about $50,000 as a food buyer and about $10,000 per annum from a property he owns in Lebanon.

[17] The mother has before and after-school costs for the children of $200 per month. This is subsidized child care.

[18] The mother earns about $21,900 per annum.

[19] The father deposed that he is earning $47,673 per annum. He says that the property in Lebanon is owned by his mother and he earns no income from it.

[20] The father offered the following reasons as to why he should not pay any child support:

a) This is a shared custody arrangement pursuant to section 9 of the Child Support Guidelines.

b) He spends more on the children than the mother does.

c) He has to pay all of the transportation costs for access exchanges. He lives in Ajax and the mother lives in Toronto.

d) He is still paying a substantial debt incurred prior to the marriage.

Part Four – Is This a Shared Custody Arrangement?

[21] The court must first determine if the parents have a shared custody arrangement as defined in section 9 of the guidelines. Section 9 sets out that there is shared custody when a 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.

[22] The father submits this is a shared custody arrangement. The mother submits that it is not and asks that the father pay the full guideline table amount of child support together with his proportionate share of section 7 expenses.

[23] There has been considerable discussion in the case law about how to calculate whether children spend 40% or more of their time with a parent. This discussion is thoroughly set out in paragraphs 23-39 of L. v. M.C., [2013] O.J. No. 1444 (SCJ) by Justice George Czutrin. Key passages from these paragraphs are as follows:

23 The question of whether an access parent has met the 40 per cent threshold necessary to bring the child support assessment under s. 9 is one that has generated considerable litigation. This is largely because while the provision clearly sets out the threshold for a finding of shared custody, it is less clear about how that calculation is to be realized. According to the Ontario Court of Appeal, there is no universally accepted method for how to calculate access and custody time (Froom v. Froom, [2005] O.J. No. 507 (C.A.), at para. 2).

24 Though the method of the calculation is not set out in the legislation, it is clear that 40 per cent is the minimum period of access time fixed by Parliament as sufficient to trigger a child support calculation under s. 9 of the Guidelines. Courts cannot ignore this mandatory requirement in favour of rounding up in the case of access time that is close to 40 per cent (Maultsaid v. Blair, 2009 BCCA 102, [2009] B.C.J. No. 467 (C.A.)). The court in Maultsaid states the following at para. 30:

I recognize this calculation brings the matter close to 40 per cent and appears arbitrary. However, in my view, it is not open to the court, faced with the express wording of s. 9, a court order particularizing "the right to access", and a measure of the time that falls short of the requisite 40 per cent, to ignore the words, the mandatory requirement, chosen by Parliament. In the words of the Alberta Court in L.C. v. R.O.C., 2007 ABCA 158, "there is no place for 'deeming' parenting time to be what it is not".

27 The majority decision of Court of Appeal in Froom states that there is no universal method for calculating access time and they uphold the trial judge's analysis based on "days, not hours" (Froom, at paras. 1-2). The dissent, however, would have allowed the appeal and set aside the trial judge's decision because "the hours calculation produces an accurate figure in this case, and the days calculation produces an erroneous figure" (Froom, at para. 5).

28 In Mehling v. Mehling, 2008 MBCA 66, [2008] M.J. No. 172, at para. 42, the court states the following:

[T]his court specifically rejected a "minute-by-minute" calculation method. While I would not categorically rule out an assessment on the basis of hours, it seems to me that an assessment of the time that a parent is with, or responsible for the children and their needs, on the basis of days or weeks, or portions thereof, will be a more realistic approach to the analysis than an hourly accounting. That being said, the approach to be used for the assessment of time is within the judge's discretion to determine.

31 While there is debate over the best method for calculating access time, according to the late Professor McLeod in the Annual Review of Family Law, the issue is not as unclear as the majority in Froom asserted (McLeod and Mamo, Annual Review of Family Law, 2010 (Toronto: Carswell, 2010) at 294). In commenting on Froom the review states, "[w]ith respect, the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis." This approach is applied by the court in Rockefeller v. Rockefeller, [2005] O.J. No. 1736 (S.C.). Its appropriateness is also affirmed in Gauthier v. Hart, 2011 ONSC 815, [2011] O.J. No. 1169, although in that case the parties' evidence did not support an hourly calculation so it was not applied.

32 While the notions of flexibility and robust consideration of the parties' circumstances are laudable, I do not see this as mutually exclusive from an hourly accounting of how the parties divide their child's time.

37 The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year (Handy v. Handy, [1999] B.C.J. No. 6 (S.C.)). When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (Prov. Ct.)).

38 In his paper, "A Practitioner's Guide to the Economic Implications of Custody and Access under the Divorce Act and the Federal Child Support Guidelines", Julien D. Payne points out that no matter how the calculation is completed, the relevant period is the amount of time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children ((2002), 32 R.G.D. 1-36, at 8). The calculation includes the time the child spends in swimming lessons, at day care, at school, or with a nanny, so long as the parent claiming this time is the parent who during that period is "responsible for their well-being" (Sirdevan v. Sirdevan, [2009] O.J. No. 3796).

39 In line with this approach, a custodial parent will be credited with time that a child spends sleeping or at school, except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent's home (Cusick v. Squire, [1999] N.J. No. 206 (S.C.)). If there is a fixed drop-off time for the access parent to deliver the child to school or daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to the custodial parent (Maultsaid, at para. 20; Barnes v. Carmount, 2011 ONSC 3925, [2011] O.J. No. 3717, at para. 43).

[24] The court finds that this is not a shared custody arrangement as defined in section 9 of the guidelines. The mother is the parent who is responsible for the children during the time that they are in school. The father is in charge of the children for 16 hours each Thursday from 5 p.m. until Friday at 9 a.m. and for 40 hours each Saturday from 5 p.m. until he brings them to school at 9 a.m. on Monday morning. This comes to 56 out of the available 168 hours in a week – 33.33% of the time.

Part Five – Undue Hardship

[25] Although not specifically pleaded, the father made arguments that went to the issue of whether the guidelines table amount should be reduced based on his undue hardship pursuant to section 10 of the guidelines.

[26] The father did not come close to establishing an undue hardship claim. It is very difficult to make out a successful undue hardship claim under section 10 of the 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, [2001] O.J. No. 876 (SCJ).

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

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

[29] The father failed to prove that he has hardship that is exceptional, excessive or disproportionate. He also failed to establish that he has a lower standard of living than the mother.

Part Six – The Father's Income

[30] The mother claimed that the father is earning $10,000 per annum from a rental property in Lebanon. The father denies this. The mother provided no evidence in support of this claim and did not prove her claim on a balance of probabilities.

[31] The father advised the court that his most recent pay stub filed was an accurate reflection of what his annual income would be in 2015. This pay stub shows that the father received gross income of $17,058 up until May 2, 2015. This amount projects to income of approximately $51,000 for 2015.

[32] The guidelines table amount for two children at $51,000 per annum is $758 per month.

Part Seven – Special Expenses

[33] The court will not make a temporary order for the father to pay towards special expenses for the children. The mother is paying $200 per month for child care expenses (she did not provide receipts) and the father is paying close to that amount for the children's activities. The father is also bearing the entire amount of transportation costs. This claim can be determined on a final basis at trial.

Part Eight – Start Date for Support

[34] The court is not prepared to make a retroactive award on a temporary basis. This is an issue better left for the trial judge. There are some complications in this case, including the impact of the mother starting a claim for child support in the Superior Court of Justice, withdrawing it prior to its determination and then reconciling with the father. The court may also need to examine how the property settlement impacts (if at all) on the claim for retroactive support.

[35] However, a claim for support from the date an application was served on the father is not a claim for retroactive support. Ordinarily, once ability to pay child support has been established, child support is payable, at a minimum, from the date on which the application is served and is based on the actual income of the payor, in accordance with the guidelines. To do otherwise will only provide parties with an incentive to delay the final hearing. See Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).

[36] The father was served with the application on April 10, 2015.

[37] The mother has received no child support from the father.

[38] The father shall be required to pay child support of $758 per month, starting on May 1, 2015.

Part Nine – Order

[39] A temporary order shall go on the following terms:

a) The father shall pay the mother temporary child support of $758 per month, starting on May 1, 2015. This is the guidelines table amount for two children, based on the father's income of $51,000 per annum.

b) The amount of child support and the start date is subject to adjustment by the trial judge.

c) A support deduction order shall issue.

[40] If the mother wishes to seek costs, she shall serve and file written submissions by December 22, 2015. The father will then have until January 5, 2016 to serve and file a written response to these submissions. The written submissions are not to exceed 2 pages, not including any offer to settle. The submissions should be filed at the trial coordinator's office on the second floor of the courthouse.

Released: December 2, 2015

Justice S.B. Sherr