Court File and Parties

Ontario Court of Justice

Date: January 15, 2018

Court File No.: Toronto D-80692/15

Between:

Charmaine Patricia Marston Applicant

— And —

Warren Glenroy Clarke Respondent

Before: Justice Roselyn Zisman

Heard on: December 29, 2017 and by written submissions

Reasons for Judgment released on: January 15, 2018

Representation:

• Charmaine Patricia Marston...on her own behalf
• Hugh Evans...counsel for the respondent

Reasons for Judgment

Zisman, J.:

1. Introduction and Background

[1] This is a Motion to Change brought by the Respondent ("father") to vary the final order dated February 25, 2016 that required him to pay child support of $303.00 per month for the child, Nasya Amaria Marston born December 29, 2014, based on his admitted annual income of $35,000. The order also required that he pay $27.00 per month, being half of the daycare cost which at the time totalled $54.00 per month.

[2] The parties are the parents of the child before the court. They were involved in an off and on relationship from 2009 to September 2013.

[3] The Applicant ("mother") commenced an Application in April 2015. After paternity tests confirmed that the father was the biological father of the child, on August 21, 2015 the parties agreed that the mother be granted final custody and incidents related to custody. The order also provided that on a temporary without prejudice basis, the father pay child support of $183.00 per month based on minimum wage income of $22,800 and that he provide extensive disclosure. Both parties were represented by counsel.

[4] The parties returned to court on November 9, 2015 and although there was still outstanding disclosure, the parties agreed that the father pay child support of $303.00 per month based on his admission that he had obtained new employment and was earning $35,000.

[5] The parties returned court again on February 25, 2016. By that time neither party was represented by counsel although a representative of the City of Toronto was present as it had a financial interest. The parties then entered into the outstanding final order with regard to the father's access and also the financial issues.

[6] The Motion to Change was before me as the case management judge. The parties attended several times due to the father's non-compliance with several disclosure orders. The father then retained his present counsel and leave was granted for him to amend his pleadings to seek a reduction of child support based on a claim of undue hardship. It was agreed that the Motion to Change would proceed before me on December 29th, 2017.

[7] It is the father's position that there has been a change in his circumstances as he returned to university for his Ph.D in September 2016. As a result he submits that his child support obligation should now be based on his actual income that consists of income from being a teaching assistant. In the alternative, he submits that even if income is imputed to him in the amount he earned prior to returning to school, he would suffer an undue hardship as he has 2 other children to support and the mother earns a substantial income.

[8] It is the mother's position that the father's Motion to Change should be dismissed on the basis that he was fired for cause, that he then voluntarily returned to school and that he is capable of earning at least $35,000. She further submits that at the time of the Order of February 25, 2016 she was unaware that the father was also in receipt of rental income from his mother's condominium in the amount of $15,600 per year and that this income should be added to the father's income and therefore that the court should impute to the father a total income of $50,600.

[9] Further, when the original order was made the mother's daycare costs were subsidized but as of February 2016 the mother commenced a new job and several months later her cost for daycare increased to $155.00 per month and then increased again of $428.99 per month. The mother seeks the father contribute his proportionate share to the increased cost of daycare.

[10] The Motion to Change proceeded before me as a focused hearing based on the affidavits and financial statements filed by the parties supplemented by short direct evidence and then each party was cross-examined. In submissions, counsel for the father produced some calculations that he had prepared without the use of any software in support of the father's claim for a reduction of his child support obligation based on a claim of undue hardship.

[11] Although I advised the parties that my decision would be reserved, I advised father's counsel that based on the evidence I would not be accepting several of the assumptions upon which he had based his claim for undue hardship and invited him to submit further calculations. I also requested that he provide Divorcemate calculations so that the court could verify his calculations. I have now received those calculations.

2. Evidence with Respect to Father's Background

[12] The father is 36 years old. The father deposes that in 2009, he was a team leader for Rogers and a manager at a call centre. His income level for those jobs was about $35,000 to $40,000.

[13] As he had not graduated from high school and his job prospects were limited, he returned to school in 2009 and in 2012 he graduated with an Honours Bachelor of Arts degree from York University in Anthropology. He then attended Guelph University from 2013 to 2015 and obtained a Masters of Arts degree in Public Issues in Anthropology.

[14] The father further deposes that upon his graduation he attempted to find employment from the summer to the Fall of 2015 and sent out many resumes to numerous places including to Youth Services, Ministry of Children and Youth Services, Nexus Youth Services, the YMCA, Peel Children and Youth Initiative, the City of Guelph, York Region Community and Health Service Department and several other governments and NGO's.

[15] The father deposes that his job search was fruitless and he was unable to obtain full-time employment in his field. He had expected to be able to obtain a teaching position in the social sciences but as he reached graduation he discovered that the jobs were geared to Ph.D. graduates in other social sciences disciplines such as sociology or criminology.

[16] The father did obtain full-time employment as a Youth Job specialist with the YMCA in October 26, 2015. He was paid $33,000 which he deposes was no more than he was making as an unskilled call centre employee. He lost that employment in May 2016. He was ordered to provide a copy of his Record of Employment so that the reason for his dismissal could be verified as the mother alleges he was fired for cause. The Record of Employment that the father produced, with some information blacked out, states that the reason for issuing the Record of Employment was "other" with no further explanation.

[17] The father deposes that he tried numerous times to request the reason for his termination but the YMCA refused to do so. He did attach to his affidavit an unsigned letter from the employee relations leader that confirms his dates of employment and that his "termination was not the result of misconduct in the workplace, and therefore he was terminated without cause." No further explanation was provided as to why he was terminated from this position.

[18] As a result the father deposes that he decided to return to school in September 2016 and obtain a Ph.D. in a new major, sociology and political economy at Carlton University. This is a 4 year program but the father deposed that he will graduate in June 2019 as he is accelerating his course requirements. The father deposes that he is maintaining an A average. He further deposes that once he graduates he will be able to teach at a community college or university both inside and outside of Canada. As an example of a possible job opportunity he attached a job posting with the federal government as a Senior Program Evaluation Officer. The job require a university degree, with either a Masters or Ph.D. degree being an asset in the areas of sociology, public administration, statistics or social research, 3 years of experience in program evaluation and the candidate needed to be bilingual. When the father was questioned by myself, he stated that he was not bilingual although he was studying French. The father also deposed that he could obtain a job as an assistant professor and earn about $70,000 or as an associate professor and earn $90,000 or more. There was no evidence as to the availability of such jobs.

[19] As he is in a full-time program, the father deposes that he is unable to work full-time. He was given a teaching assistant position that requires he teach about 25 hours each week. He attends about 15 hours of classes in an average week but he must also prepare for classes, write papers and study. He also attends summer classes in order to make his time out of the workforce as short as possible.

[20] The father's claim for undue hardship is based on his actual income. He estimates that his income in 2017 will be about $17,000 based on his positions as a teaching assistant. He also received a bursary for $3,000. He deposes that he has no savings or other sources of income. He produced a statement from his bank that indicates he has outstanding student loans of $44,000 but did not provide any details of those loans or the amount he receives annually.

[21] The father relies on his financial statement sworn February 2, 2017 and that the only change in his financial circumstances is that his father has recently purchased a used car for him and he pays the insurance of $80 per month. The father's financial statement does not list any living expenses or other expenses except for the cost of a cell phone, groceries and a child support payment of $150 per month and according to his evidence he now has a further expense of $80 per month for car insurance. These expenses total $340 per month or $4,080 per year. He did not include his current child support obligation of $303 but even if this is added to his expenses his total yearly expenses would only be $7,716. He has no assets, except a car, and he has credit debts of $9,000 and a student loan of $40,000. He is not making any payments on his debts.

[22] In 2016, his income was $5,436 that consisted of his income from his position at the YMCA from January to May 2, 2016 and 2 months of employment insurance and then he returned to school.

[23] In 2015, his income was $18,216. This would have included his income from the YMCA from October 26th to the end of the year and the source of the remainder of income for that year is unclear as he deposes that he was a student and graduated in the summer of 2015.

[24] The father also provided copies of his Notices of Assessment for the years 2014 and 2013. In 2014, his income was $10,830. In addition to employment income from the University of Guelph of $8,832, his income consisted of gross rental income of $8,400 and net of $929 and business income gross and net of $1,069. The father offered no explanation as to the sources of this income.

[25] In 2013, the father's Notices of Assessment indicates income of $20,214. This income consisted of employment income of $4,147, other income of $6,368 and gross business income of $42,628 and net business income of $9,699. The father offered no explanations as to these sources of this income.

[26] The father's undue hardship claim is also based on his child support obligations to his other children. There is an outstanding consent order of April 18, 2006 that requires the father to pay child support of $354 per month based on the father's annual income of $41,000. However, in his affidavit the father deposes that he and the mother of that child agreed that he could pay $200 per month due to his financial circumstances. But then in his oral evidence the father testified that he was now only paying $150 per month. The father also has a pending court proceeding for a child that he previously was told was not his child. But after paternity testing he was found to be the biological father. There is no current child support obligation and his next court date in not until May 2018. He anticipates hiring counsel and also making a claim for undue hardship in that proceeding.

[27] The initial calculations provided to the court with respect to the father's undue hardship claim were based on the father paying $354 per month in accordance with the order of April 18, 2006, $303 per month in accordance with the order this case and the same amount with respect to the outstanding claim. I advised father's counsel that as there was no order yet with respect to the outstanding claim and in view of the father's evidence that he was only paying $150 per month with respect to the April 18, 2006 order that the court would not accept his assumptions. For those reasons as previously indicated father's counsel was given the opportunity to submit new calculations.

3. Mother's Circumstances

[28] The mother is 37 years old. She is a single parent to 4 children who reside with her on a full-time basis.

[29] The mother has a community college degree in social services. As of March 13, 2017, she obtained a position as an employment counsellor with the YMCA. Her gross salary is approximately $55,900 based on extrapolating her biweekly salary for the entire year.

[30] In November 2017 she also obtained a second job as a bartender and server. She is paid cash and earns $10 per hour and also receives tips. She is working 3 evenings a week for 5 hour shifts. She does not declare this income and estimates she earns about $50 in tips each shift. It was not made clear if this was only a seasonal job as she testified she obtained it for the Christmas holidays or if it will continue.

[31] In 2016, the mother's income was $50,493 from employment insurance, Ontario Works for a few months and her employment income.

[32] In 2015, her employment income was $38,828, in 2014 it was $49,111 and in 2013 it was $39,588.

[33] In addition to the mother's employment income, she also receives a monthly child tax benefit. In her financial statement sworn December 22, 2017 she indicates the amount she receives is $1,750 per month whereas in her financial statement sworn May 10, 2017 it is $2,260 per month. She did not explain the discrepancy.

[34] The mother testified that she receives no child support from any of the fathers of her other children. The mother provided a Statement of Arrears from the Family Responsibility Office indicating that the father of one of her children has been ordered to pay child support of $392 per month that has never been paid and the arrears as of September 2015 were $44,285.00. With respect to the father of one of her other children, there is no order as there is a restraining order against him and a history of serious domestic violence. The mother also has a 17 year old son who is given some money directly by his father but there is no child support order. The mother was not cross-examined with respect to any further details about this arrangement.

[35] The mother's financial statement indicates that she has total yearly household expenses of $81,936. The only asset she has is a car and a corresponding debt for the full value and she is making monthly payments. In 2017, the mother was forced to declare bankruptcy and is paying her trustee in bankruptcy $175 per month.

4. Mother's Evidence with Respect to the Father's Sources of Income

[36] The mother deposes that the paternal grandmother told her that the father was managing a condominium she owns and rents out and that the father keeps the rental income. This is clearly hearsay on an important issue. The father denies that he owns the condominium or receives any rental income. The mother's evidence on this issue is inadmissible and is disregarded.

[37] The mother produced a photo of the father and testified that she saw him acting as a security guard at a club that is owned by their mutual friend and that he also in the past had worked for cash as a security guard. Although the father identified himself in the photo he testified that he was "just hanging out" and did not get paid.

[38] He also denied that he had worked for cash for 2 years as a security guard for a friend who owns a security company.

[39] It is submitted by father's counsel that at its highest this evidence simply confirms that the mother saw the father one time acting as a security guard in Toronto and he is now living in Ottawa and there is no evidence that he acts as a security guard there.

5. Issues to be Determined

(a) Has there been a change in circumstances?

(b) If so, what level of income should child support be based upon?

(c) Does the father have an undue hardship claim?

6. Legal Considerations Regarding Change of Circumstances with Respect to Child Support

[40] Subsections 37(2.1) and (2.2) of the Family Law Act provides the test for changing a child support order as follows:

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6

(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.

[41] The relevant provision of section 14 of the Child Support Guidelines that sets out the circumstances that must be proved to change a child support order is as follows:

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

O. Reg. 446/01, s. 3.

6.1 Application of Legal Considerations with Respect to a Change in Circumstances to the Evidence

[42] The prerequisite to any variation of an existing support order is a finding that there has been a change in circumstances since the making of that order that would result in a different child support order. Therefore in this case, the onus is on the father, as the applicant, to prove on a balance of probabilities that since the support order of February 25, 2016 there has been a change in circumstances that would result in a different order.

[43] The father has had a change in circumstances as he no longer has full-time employment and has now returned to school and is only working part-time. Further at the time of the order of February 25, 2016 the father only had one prior child support obligation pertaining to the order of April 18, 2006. He has now discovered that he is the biological father of another child who is 8 years old and there is a pending court proceeding although no child support order has yet been made.

[44] Despite the fact that there has been a change in the father's circumstances, I find that these changes would not result in a change in the outstanding child support order. Instead of looking for another job the father chose to return to a full-time school program while being aware that he had child support obligations pursuant to two outstanding court orders. For reasons that I will outline I find that income should be imputed to the father at the same level as the original order.

[45] With respect to the pending claim for child support against the father, it was submitted by father's counsel that if the court does not take that claim into consideration then the father would then be required to commence a further motion to change once there is an order in that case. Although I am sympathetic to this practical dilemma, nevertheless, the court is being asked to speculate as to the amount of that order as a basis for reducing the father current child support obligation. It is not at all clear what the amount of that child support order will be as the father intends to also bring a claim for undue hardship in that proceeding.

[46] There has been in the mother's circumstances as she is now earning substantially more income than when the child support order was made and as a result she is no longer receiving subsidized daycare and the daycare costs have therefore increased. She is seeking that the father pay his share of the increased costs of daycare.

[47] I find the mother has met the onus on her to prove that based on the increased cost of the daycare that there has been a change in circumstances on this issue only.

[48] The mother is also seeking that in addition to income of $35,000 be imputed to the father that rental income of $15,600 also be imputed. I find that the mother has not the onus of proving that the father was in receipt of rental income at the time of the original order or is presently in receipt of such income. There is therefore no basis for imputing that income to him.

7. Legal Considerations with Respect to Imputing Income

[49] Section 19(1)(a) of the Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed on the basis of intentional underemployment. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity.[1]

7.1 Application of Legal Considerations with Respect to Imputing Income to the Evidence

[50] In this case I find that court should impute income to the father at the same level as in the outstanding order of February 25, 2016 in the amount of $35,000 for the following reasons:

(a) The father is 36 years old, healthy and has a graduate university degree;

(b) Based on the court order of April 18, 2006 when the father had not yet competed his high school education he was earning $41,000;

(c) I find that the father has not been forthcoming with respect to prior and potential sources of his income. Based on his Notices of Assessment for the years 2013 and 2014, the father had rental income and was involved in some type of business. Although I found that the father does currently not receive rental income, there is no explanation as to his previous source of rental income and why it is no longer available and no explanation as to the nature of the business income and why that is no longer available;

(d) Although the mother did not meet the onus of proving that the father is currently working as a security guard, I find that he did so on at least one occasion as witnessed by the mother and there is no explanation as to why he could not supplement his income by obtaining a part-time job doing this type of work;

(e) The father has many skills and is involved in volunteer activities. His resume describes his profile as, "Master graduate with a specialization in youth outreach. Over 15 years of experience with youth issues and community and health planning. Strong research, project management and group facilitation skills. I am also proficient with various personal computer applications, such as Microsoft Office and Microsoft Outlook." The father's resume indicates that he worked as a Youth Outreach worker from 2000 to 2015. He does not clarify if this was a volunteer or paid position. He is a volunteer board member of the Community Engagement and Program Co-ordination for AIDS from 2014 to the present. Further, according to his resume he was a project manager for Consumers Home Services from 2012 to 2015 implementing all call centre policies and procedures and managing a payroll of 200 call centre employees and managing incentive budgets. Based on the years of this employment, he did this job while attending his master's program;

(f) The father lost his employment from the YMCA in May 2016 for unexplained reasons. Other than the father stating that he applied for many jobs there is no proof that he did so and as he decided to return to school in September 2016 it is clear that he did not look for employment for very long. Further, as the father could not have simply decided to return to school between May and September and have been accepted within that short timeframe, I draw the common sense inference that he had applied earlier and that his plan was all along to return to university for a Ph.D;

(g) The father's assertion that he could not obtain employment with a Master's Degree in public issues anthropology is not supported by any proof other than his sworn statement that he applied for many jobs. Other than producing one job application for a posted position for an employment co-ordinator dated September 14, 2015 no other evidence was produced. There is no proof of any other actual job applications, no proof that he responded to any posted positions or if his applications were cold calls and no proof that he sought the assistance of a placement agency to assist in finding employment;

(h) By contrast, the mother who only has a community college degree in social services has been able to earn from $39,000 to her present salary of $55,900;

(i) The father did not provide any evidence that his job prospects will be substantially improved with a Ph.D. He produced one example of a job posting for which he was clearly not qualified for as he is not bilingual and provided no evidence of the availability of teaching positions. I assume that the court is being asked to draw a common sense inference that with more education there will be more and better opportunities for the father to find employment. However, I have no evidentiary basis for making that assumption with respect to the general availability of teaching positions and other jobs in the father's field of expertise; and

(j) Although it is admirable that the father wishes to improve his education, as he had an outstanding child support obligation, he had a responsibility to develop an educational plan that included his ability to continue to meet that obligation. For example, he could have deferred returning to school and saved up funds so he could continue to meet his child support obligation while attending school or he could have arranged to attend his program for a longer period of time so he could manage to work part-time and during the summer months.

8. Legal Considerations with Respect to an Undue Hardship Claim

[51] The child support guidelines provide the statutory framework for a claim of undue hardship as follows:

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.

[52] As explained by Justice Heeney in the case of Matthews v. Matthews[2] a claim for undue hardship pursuant to section 10 of the Child Support Guidelines requires a 3 step analysis as follows:

(a) The person making the claim must show that the table amount (or such other amount as determined under s. 3 to 5, 8 or 9) would cause the person to suffer undue hardship. The non-exhaustive list of circumstances that may cause a party to suffer undue hardship is set out in s. 10(2). Each of those considerations relates to the circumstances of the person making the claim, therefore at this stage the circumstances of the other party is not relevant;

(b) If the answer to the first question is yes, s. 10(3) requires the court to consider the standards of living of the households of both parties. If the person claiming undue hardship has a higher standard of living than the responding party based on the payment of support pursuant to the child support guidelines then the application must be denied. On this issue, the total income of all income earners in both households is relevant;

(c) If the first two parts of the test arte made out, then in the final stage of the analysis the court has a discretion to make an order that is different from the table amount. The court determines the appropriate amount of child support payable based on an examination of the needs, means and circumstances of both parties.

[53] The party making the claim has the onus of providing adequate documentation to prove his undue hardship claim.[3]

[54] The party making the claim must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient.[4]

[55] As explained by Justice Blishen in the case of Min v. Soe[5]:

Section 10(2) sets out a non-exhaustive list of circumstances that may cause undue hardship. Even if any of the circumstances set out in s. 10(2) (a) to (e) are established, this does not necessary establish undue hardship. A line must be drawn between "hardship" and "undue hardship" and this will be determined mainly on the particular circumstances of the case. In a case such as this, where there is alleged to be a second family, the payor parent should provide clear and cogent evidence, not conjecture or speculation, from which an inference could reasonably be drawn that the children in the second family would suffer significant deprivation if the Table amount was ordered for the children of the first relationship. "Deprivation" means with respect to food, clothing, shelter or some medical or other health need: See Reid v. Nelson (2002), 30 R.F.L. (5th) 153 (Ont. C.J.). Clear and cogent evidence as to alleged debts should also be provided.

[56] As also explained by Justice Perras in the case of Barrie v. Barrie[6]:

It is clear, in my view, that the wording of s. 10 places the onus to establish undue hardship upon the person claiming such. It is also clear that this safety valve is also very narrow in scope as the legislation mandates the establishment of not just hardship but undue hardship. "Hardship" in various main stream dictionaries is defined as "difficult, painful suffering" while "undue" is generally defined as "excessive, disproportionate". Hence, in order for a claim of undue hardship to be made out, a claimant of such must satisfy the court that the difficulty, suffering or pain is excessive or disproportionate - a very steep barrier under the circumstances.

[57] As is clear from the many cases that have considered undue hardship claims, it is a difficult test to meet and such applications are considered to be exceptional as the objectives of the child support guidelines would be defeated if courts routinely deviated from the established guidelines without compelling reasons. It should be remembered that the primary objectives of the child support guidelines are "to establish a fair standard of support for children that will ensure that they continue to benefit from the financial means of both spouses after separation", and "to ensure consistent treatment of spouses and children who are in similar circumstances".[7]

8.1 Application of Legal Considerations with Respect to Undue Hardship Claim to the Evidence

[58] In this case, the father does have a legal obligation to support another child pursuant to the court order of April 18, 2006. If the court had found that his child support obligation should be based on his actual income and that the court should also take into consideration his pending child support obligation to another child, his claim might have been stronger.

[59] However, despite the April 18, 2006 order, the father deposed that although he is required to pay $340 per month he is actually only paying $200 per month and then in his oral testimony he testified that he is only paying $150 per month. Father's counsel submitted that nevertheless the court should consider that he has a legal obligation to pay the full amount as at any time the recipient could enforce the full payment. But I am not prepared to ignore the father's own evidence regarding the amount of support actually being paid as that would be unfair to the mother in this case.

[60] It is further submitted that the father has a pending child support obligation with respect to another child and that his undue hardship claim is based on his anticipated obligation to pay a similar amount of child support as he is currently paying with respect to his other children. However, at this time there is no such legal obligation and there are several possibilities. For example, the father may be able to negotiate a lower child support amount and the father may also make an undue hardship claim in that proceeding.

[61] As it clear from the case law, the onus is on the father to establish undue hardship. Undue hardship is not simply presumed because the father has the legal responsibility for another child or children and/or because his standard of household living is lower than that of the mother's. The father and his counsel have by-passed the first step in the analysis that is, establishing that paying the table amount of support in accordance with the present order would cause undue hardship. The submissions of father's counsel have concentrated on the fact that the father's standard of living is lower than the mother's and therefore assumed that the table amount of child support should be reduced.

[62] The father has not provided any clear and cogent evidence that he would suffer undue hardship or the nature of that hardship. To simply rely on a generic statement that he cannot afford to make the payment is not sufficient. The evidence of his financial circumstances was vague and left several unanswered questions and although he may have debts, he is not making any payments on those debts.

[63] As I have found that the father has not established that he will suffer an undue hardship if he is required to continue to pay the outstanding child support order, it is not necessary to consider the standard of living tests and the calculations submitted by father's counsel. However, as the Divorcemate calculations prepared by father's counsel contain many input errors I find that it is important to comment on those calculations as counsel need to understand the proper process for the preparation of such calculations in order them to be relied upon by the court.

[64] Father's counsel added to the mother's income of $55,900,[8] the child tax benefit she receives and therefore he attributes income of $83,000 to the mother. Although in calculating the household income for an undue hardship claim, all benefits and credits should be included in the mother's annual income, the software automatically calculates these credits and therefore the mother's income should have only been inputted to be $55,900.

[65] Father's counsel included the mother's child care expenses but did not include the corresponding tax deduction for child care that she receives.

[66] Father's counsel added a further child support payment (with respect to the father's prior child support order) and then included this amount in a SSAG calculation. As there is no claim for spousal support, this was the wrong calculation to use as in a calculation of spousal support any other child support obligations would be deducted from the father's income whereas with an undue hardship claim it is the software that will compare the household incomes and the prior child support obligation should not have been manually inputted.

[67] Based on the calculations I have prepared, the household ratio for the father is 2.132 compared to 2.140 for the mother. This calculation is based on the father's income being $35,000, the mother's income being $55,900, a total of 4 children residing in the mother's home, the mother's child care expenses of $5,148 annually with the corresponding tax deduction and the father's prior child support obligation of $1,800 annually. I attach those calculations for the benefit of counsel and the parties. Accordingly, even if I had found that the father had established his claim of undue hardship I would not have found that the outstanding order should be reduced as the father's standard of living is only marginally lower than the mother's.

9. Conclusion

[68] I therefore make the following order:

1. The Respondent's Motion to Change paragraph 1 of the order of February 23, 2016 is dismissed. The Respondent shall therefore be required to continue to pay child support of $303.00 per month to the Applicant for the benefit of the child Nasya Amaria Marston born December 29, 2014.

2. The Applicant's Motion to Change paragraph 4 of the order of February 23, 2016 is granted. Based on the Applicant's income of $55,900.00 and the Respondent's imputed income of $35,000.00 he shall pay 38.5% of the child's daycare cost, in the amount of $105.00 per month as of January 1, 2018.

3. As the Applicant is the successful party on this Motion to Change she is presumed to be entitled to costs, if the parties cannot resolve the issue of costs, the Applicant shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. Counsel for the Respondent shall submit his written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Applicant's costs submissions. All submissions to be filed with the trial co-ordinator.

Released: January 15, 2018

Signed: Justice Roselyn Zisman

Footnotes

[1] See Drygala v. Pauli, [2002] O.J. No. 3731 (C.A.).

[2] Matthews v. Matthews, [2001] O.J. No. 876 (SCJ) para. 11

[3] Van Gool v. Van Gool

[4] Hanmore v. Hanmore

[5] Min v. Soe, [2008] O.J. No. 927 at para. 17

[6] Barrie v. Barrie, [1998] A.J. No. 460 (QB) at para. 23

[7] Camirand v. Beauline, [1998] O.J. 2163 (GD) at para. 10

[8] Father's counsel did not add mother's part-time income as he conceded in submissions that this would not be appropriate in the circumstances