Court File and Parties

Date: February 14, 2020

Court File No.: D30199/19

Ontario Court of Justice

Between:

Tasha-Gaye Barnes

Pamila Bhardwaj, for the Applicant

Applicant

- and -

Keastner Thompson

Acting in Person

Respondent

Heard: February 11, 2020

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was about the respondent's (the father's) child support obligations for the parties' three-year-old child (the child).

[2] The applicant (the mother) asked the court to assess the father's annual income at $55,336 for support purposes. She asked that the father pay her the Child Support Guidelines table amount (table amount) for one child, being $510 each month, starting on February 1, 2019. [1]

[3] The father has claimed undue hardship pursuant to section 10 of the Child Support Guidelines (the guidelines). He asked the court to order him to pay child support to the mother of $200 each month, starting on March 1, 2020.

[4] The issues for this court to determine are:

a) What is the father's income for support purposes?

b) Should the father's child support obligation be reduced due to undue hardship pursuant to section 10 of the guidelines?

c) When should child support start?

d) What credits should the father receive for child support paid from the start date for support chosen by the court?

e) How should child support arrears, if any, be paid?

Part Two – Background Facts

[5] The mother is 38 years old. The father is 45 years old.

[6] The parties never cohabited. They had the one child together.

[7] The child has always lived with the mother.

[8] The mother has a seven-year-old child living with her from another relationship. The mother said that she receives child support of $1,017 each month from that child's father.

[9] The father has four other children. They live with their respective three mothers.

[10] The father pays child support of $557 for one of these children pursuant to a court order.

[11] The father testified that he has informal support arrangements with the other two mothers of his children. He said that he provides one of the mothers $300 each month for two of the children and $150 each month to the mother of the other child.

[12] The mother works for the Toronto District School Board. She earned about $45,000 in 2019 and expects to earn $50,000 in 2020.

[13] The father has worked several years for the City of Toronto. His income will be reviewed below.

[14] The mother issued her application in February 2019 for custody and child support.

[15] The father filed his Answer/Claim in June 2019.

[16] On September 5, 2019, the parties consented to final parenting orders. The mother has custody of the child and the father has parenting time with the child on alternate weekends. The father also consented to an order that he provide proof of monies paid for the support of his other four children.

[17] On December 6, 2019, Justice Debra Paulseth made a temporary order that the father pay the mother $510 each month for child support, based on an annual income of $55,336. She also gave directions for this focused trial.

Part Three – The Father's Income

[18] In his financial statement, sworn on June 17, 2019, the father deposed that his annual income was $55,337.

[19] At this trial, the father said that this income figure was wrong – that he is earning $50,671 (his 2018 income) each year. His income each year is comprised of his salary from the City of Toronto and from employment insurance, as he is a seasonal worker.

[20] The father provided no documentary evidence of his 2019 income.

[21] The father filed his income tax summaries for 2016 to 2018. His line 150 income for those years was as follows:

• 2016: $47,121
• 2017: $48,454
• 2018: $50,671

[22] The father's income has been consistent, with small increases each year.

[23] In the absence of documentary proof, the court will attribute the same percentage increases to the father's income in 2019 and 2020 that took place between 2016 and 2018. The annual percentage increase in his income during this period has been about 2.5%. This means that his annual income will be assessed at $51,938 for 2019 and $53,236 for 2020.

[24] The table amount for one child at an annual income of $51,938 is $478 and the table amount for one child at an annual income of $53,236 is $491.

Part Four – Undue Hardship

4.1 Legal Considerations

[25] The father asked that his support obligation be reduced because paying the table amount would cause him undue hardship.

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

Undue hardship

10. (1) On the application of either spouse 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.

[27] 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).

[28] 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.

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

4.2 Analysis

[30] The first part of the undue hardship test is that the father must show hardship that is exceptional, excessive or disproportionate, not merely awkward or convenient. The father did not meet his onus of proving this.

[31] The court carefully reviewed the father's financial statement sworn on January 29, 2020. The father deposed that he has annual expenses of $48,381. This sum included the child support amounts he claimed that he has been making for his other four children of $1,007 each month and his automatic deductions from his pay. It did not include his support obligations for the child.

[32] This means that the father had surplus income of $3,557 in 2019 (gross income of $51,938 - $48,381) and projects to have a surplus income of $4,855 (gross income of $53,236 - $48,381) in 2020.

[33] In addition, the father deposed that he is spending $630 each month on his car. While it is convenient for the father to have a car, he did not establish to the court's satisfaction that this is a necessary expense. The father lives and works in Scarborough. He does not require his car for his employment. The mother also lives in Scarborough. [2] The father can significantly reduce his expenses and afford the table amount of child support for the child if he relies on public transit. The child's need for support takes priority over the father's desire to have a car.

[34] The court notes that the table amount for 5 children at the father's assessed income of $53,236 is $1,410 each month. Even if the court accepted that the father was paying $1,007 each month for his other four children, the total amount he would end up paying for his five children after adding in the table amount for the child would be $1,498 each month. Considering that this is spread out for four households, this is not an unreasonable amount for the father to be paying to support his five children.

[35] In conducting its analysis, the court is taking the father's case at its highest. Despite the court order to provide proof of his support payments for his other four children, the father only produced a statement of arrears from the Family Responsibility Office with respect to the court order for one of his children. This statement showed that the Family Responsibility Office had to take enforcement action against him in that case. He did not provide proof of bank transfers of support to the mothers of his other children. They were not called as witnesses. If the court had determined that a further analysis was required to determine undue hardship, it would not have accepted that the father has been regularly paying $450 each month for his other three children. The reality is that the father will likely be paying the four mothers of his children less than the table amount of $1,410 each month for five children, even if the table amount is ordered for the child in this case.

[36] Payment of the table support will be inconvenient for the father. It will not be exceptional, excessive or disproportionate.

[37] Since the father did not meet the first part of the undue hardship test, it is unnecessary for the court to analyze the next part of the test – whether the father's standard of living is lower than the mother's standard of living. [3]

[38] The father's claim for undue hardship is dismissed.

Part Five – Start Date for Support

[39] The father should consider himself fortunate that the mother withdrew her claim for retroactive support. A support claimant is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. See: MacKinnon v. MacKinnon, 75 O.R. (3d) 175 (C.A.), at para. 22. Her claim for support from February 1, 2019 is prospective support. It is a very fair and proportionate request and will be ordered.

Part Six – Credits to the Father

[40] The father claimed that he has paid the mother $1,500 in cash since February 1, 2019. The mother said that she has only received between $400 to $500 cash from the father.

[41] The father provided no documentary evidence of support that he has paid to the mother. The court draws an adverse inference against the father for his failure to provide this evidence and other required disclosure, such as proof of his 2019 income and support paid to his other four children. The court accepts the mother's evidence. The father will be credited with support paid of $500.

Part Seven – Payment of Arrears

[42] This court order will immediately create support arrears for the father and will create difficulty for him. The court's sympathy for the father is tempered because of the inadequate support he has paid for the child. He is also having children that he can barely afford.

[43] The court will permit the father to pay the arrears created by this order at the rate of $100 each month. However, if the father is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears then owing shall immediately become due and payable.

Part Eight – Conclusion

[44] A final order shall go on the following terms:

a) The father shall pay to the mother the table amount of child support, based on his 2019 income assessed at $51,938, in the amount of $478, starting on February 1, 2019.

b) Starting on January 1, 2020, the father shall pay the table amount of child support, based on his 2020 income assessed at $53,236, in the amount of $491.

c) The father will be credited with the amount of $500, over and above any other support credits reflected in the records of the Family Responsibility Office.

d) The father may pay the arrears created by this order at the rate of $100 each month, starting on March 1, 2020. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears then owing shall immediately become due and payable.

e) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source (such as income tax or HST refunds) or any lottery or prize winnings.

f) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.

g) A support deduction order shall issue.

h) The father's claim for undue hardship is dismissed.

[45] If the mother seeks costs, she shall make written submissions by February 26, 2020. The father will then have until March 10, 2020 to make a written response. The written submissions shall not exceed three pages (not including any offer to settle or bill of costs) and shall be delivered to the trial coordinator's office on the second floor of the courthouse.

Released: February 14, 2020

Justice S.B. Sherr

Footnotes

[1] The mother sought retroactive support for the period prior to February 1, 2019 in her application but withdrew that request at the outset of the trial.

[2] One of his children does live in Pickering, but the father can still take public transit from Scarborough to Pickering to see the child, or even rent a car on occasion, if really needed.

[3] The second part of the test is only conducted once the court has made a finding of undue hardship.