Ontario Court of Justice

Date: 2021 10 07 Court File No.: Windsor 449/16-01

Between:

Melissa Vincent Applicant

— AND —

Stephen Joseph Ranchuk Respondent

Before: Justice M. Vickerd

Heard: In Chambers

Reasons for Judgment released on October 7, 2021

Counsel:

Ursula Miletic................................................................................. Counsel for the Applicant Stephen Joseph Ranchuk.............................................................................. His own behalf

No appearance by or on behalf of Applicant and Respondent as addressed in Chambers

Vickerd J.:

Reasons for Judgment

Overview

[1] The Applicant has advanced a 14B Motion, addressed in Chambers. She seeks a final order addressing the Respondent’s obligation to pay child support and the parties’ contributions to the children’s special and extra-ordinary expenses.

[2] I have received and reviewed the following pleadings:

• 14B Motion of the Applicant dated September 8, 2021;
• Affidavit of the Applicant sworn September 8, 2021; and
• A Consent dated September 27, 2021, executed by both parties.

[3] The Respondent was served with the current Application on June 29, 2021 by special service.

[4] He has not filed an Answer or a Financial Statement.

Background

[5] The Applicant is the mother of the children and support recipient.

[6] The Respondent is the father of the children and support payor.

[7] The parties cohabited from August 2008 to July 10, 2016.

[8] They have three children: Erin Marie Ranchuk born […], 2006, James Steven Ranchuk born […], 2009 and Connor Cole Ranchuk born […], 2011.

[9] On April 13, 2017, in a prior Application, Justice D.W. Phillips made a final order granting the Applicant custody of the parties’ three children. In paragraph 2 of that order, the Respondent was obliged to notify the Applicant when he obtained employment and provide a copy of his first pay stub within 10 days of receiving it.

[10] For the current Motion, the Applicant’s uncontested evidence is that the Respondent obtained employment in 2018 with Precision Group. She states that the Respondent paid her child support “from time to time” averaging $400 but that the payments were not consistent. Also, the Applicant deposes that the Respondent did not provide her with proof of his income, and she could not assess whether the amount of child support paid in the past was appropriate.

The Law

[11] The Family Law Act and the Child Support Guidelines govern the obligations of parents to pay child support and to contribute to other special and extra-ordinary expenses for children.

[12] The provisions of the Family Law Act, RSO 1990, c.F.3, as am., confirm that every parent has an obligation to provide support to the extent that he/she is capable of doing so, for his/her unmarried child who:

(a) is a minor; (b) is enrolled in a full-time program of education; or (c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

Family Law Act, section 31(1)

[13] Section 33(7) provides that an order for child support should,

(a) recognize that each parent has an obligation to provide support for the child; and (b) apportion the obligation according to the child support guidelines.

R.S.O. 1990, c. F.3, s. 33 (7); 1997, c. 20, s. 3 (1).

[14] In DBS v SRG, 2006 SCC 37, the Supreme Court of Canada endorsed certain important principles governing orders for child support that merit restatement:

a. Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child's parents (para. 38); b. Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38); c. The child support owed will vary based upon the income of the payor parent and is not confined to furnishing the "necessities of life" (paras. 38‑45).

[15] Justice Martin in Michel v Graydon, 2020 SCC 24, concurring with the majority makes a number of points relevant to this case, writing:

• The purpose and promise of child support is to protect the financial entitlements due to children by their parents (paragraph 38); and
• Child support obligations arise upon a child's birth or the separation of their parents (paragraph 41)

[16] When making an order for child support, the court must do so in accordance with the Child Support Guidelines (section 33(11)).

[17] Section 3 of the Child Support Guidelines establishes a presumptive rule that the amount of child support should be fixed in accordance with the applicable Child Support Guidelines’ table:

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is, (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and (b) the amount, if any, determined under section 7.

O. Reg. 391/97, s. 3 (1).

[18] There are limited exceptions when the court may deviate from making an order in accordance with the Child Support Guidelines. These exceptions are based upon: other arrangements being made for the support of children by agreement or court order, the consent of the parties, or undue hardship.

[19] First, a court may deviate from ordering child support under the Child Support Guidelines where it is established that special provisions in an order or written agreement regarding the financial obligations of the parents, or the division or transfer of their property, directly or indirectly, benefit a child, or that special provisions have otherwise been made for the benefit of a child; and that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions (section 33(12)).

[20] Second, a court may deviate from imposition of a child support obligation according to the Child Support Guidelines when the parents’ consent, and the court is satisfied that:

(a) reasonable arrangements have been made for the support of the child to whom the order relates; and (b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines.

[21] In determining whether reasonable arrangements have been made for the support of a child, the court must consider the factors found in section 33 (15), being:

(a) the court shall have regard to the child support guidelines; and (b) the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines. 1997, c. 20, s. 3 (4).

[22] In addition to the provisions of the Family Law Act, a support payor may pay less than the table amount for child support based upon Undue Hardship. Section 10 of the Child Support Guidelines allows for a deviation from the section 3 presumptive rule:

10. (1) On the application of either spouse or an applicant 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.

O. Reg. 391/97, s. 10 (1).

[23] Section 10(2) identifies circumstances that may cause a parent, spouse, or child to suffer undue hardship which 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 parenting time with respect 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; and (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.

O. Reg. 391/97, s. 10 (2); O. Reg. 32/21, s. 4.

[24] When considering a party’s request for a deviation from the table amount of child support based upon a claim of undue hardship, the standards of living of the parties must be considered. Section 10(3) provides that a court must deny such a request if the court is of the opinion that the household of the parent claiming undue hardship would, after determining the amount of child support under section 3, would have a higher standard of living than the household of the other parent. This provision imposes a duty to make a standard of living comparison. The standard of living comparison occurs through the use of the household standards of the living test set out in Schedule II. O. Reg. 391/97, s. 10 (4).

[25] Also, in this case, as the Applicant requests contribution from the Respondent to the special and extraordinary expenses of the children, the court must also consider the application of section 7 of the Child Support Guidelines which provides:

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation: (a) childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent or spouse who has the majority of parenting time; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities.

Analysis

Ongoing Child Support

[26] On consent, the parties request an order obliging the Respondent to pay to the Applicant child support for their three children at a rate of $800 per month.

[27] The evidence offered by the Applicant is that the Respondent earned $48,009.51 in 2020. The Applicant’s information comes from two photographs taken of different portions of a purported 2020 Income Tax Return Summary. This document has been appended as an exhibit to the Applicant’s Affidavit. I am concerned about this evidence as it appears to be a photograph in two parts. There is not one complete document. The Applicant also states that she received a “pay stub” from the Respondent confirming an hourly wage of $19.15. This document is appended as an exhibit to the Applicant’s Affidavit and appears to be an electronic document titled “Payworks” and does not confirm the source of income nor a total year to date income.

[28] Additionally, the Applicant deposes that the Respondent has recently received a promotion with a resulting increase to his income. The Applicant confirms that she does not know what the Respondent’s current income is - presumably because the Respondent has not disclosed this information to her.

[29] At the Respondent’s disclosed annual income of $48,010, his child support obligation pursuant to section 3 of the Guidelines for three children is $940 per month.

[30] The parties ask this court to make an order obliging the Respondent to pay child support at a rate of $800 per month, $140 per month less than his obligation under the Child Support Guidelines for a disclosed annual income of $48,010.

[31] The Applicant states that she has agreed that the Respondent pay a lesser amount of child support based upon the fact that the Respondent has another family to support. She further deposes that the Respondent has only been working a few years and is trying to make a life for himself and his new family. She relays that the Respondent told her that he will struggle to pay $940 per month to her in child support.

[32] The starting point for consideration of the parties request for a child support obligation less than the section 3 obligation is whether the parties have established that there is an order or written agreement between the parties regarding their financial obligations, division or transfer of property that directly or indirectly benefits a child. In this case, there is no evidence proffered of an order or agreement addressing an alternate means of the children receiving financial benefit. Therefore, the request does not fall under this exception.

[33] Secondly, the parties have consented to the obligation of a child support obligation different from what is imposed by section 3 of the Guidelines. According to section 33(14), I must be satisfied that:

(a) reasonable arrangements have been made for the support of the child to whom the order relates; and (b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines.

[34] In determining whether reasonable arrangements have been made for the support of a child, the court must consider the factors found in section 33(15), being:

(a) the court shall have regard to the child support guidelines; and (b) the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines.

[35] Therefore, with a consent request, I must consider whether reasonable arrangements have been made for the support of the child to whom the proposed order relates. In the Applicant’s Affidavit, I cannot find any details that reasonable arrangements have been made for support of the children. The sole reason adduced for a deviation from the table amount imposed by operation of section 3 of the Guidelines is the financial hardship claimed by the Respondent.

[36] The assertion of the parties that the Respondent should pay an amount less than the section 3 obligation under the Guidelines due to an obligation to support his new family is an undue hardship claim falling within the ambit of section 10 of the Child Support Guidelines. In considering an undue hardship claim, a court must look at a comparison of household incomes. In this case, the Respondent’s assertion that to pay Guideline child support will cause him financial hardship has not been fully examined. I have not received any information from the parties to support a comparison of their household incomes. Specifically, I have no evidence about the household incomes and the number of household members. Therefore, I cannot accept that the Respondent’s assumption of a second family absolves him of his full financial responsibility to his first three children.

[37] The parties have made a request of this court to adopt an order which deviates from the Respondent’s obligations imposed by the Child Support Guidelines. The parties request the court make such an order without a full picture of the Respondent’s income and financial position resulting from his failure to provide disclosure required by the current court order, the Family Law Rules, and the Child Support Guidelines. I reject the request of the parties to order the Respondent to pay a lesser amount of child support for the following reasons:

• The Respondent has recently received a promotion resulting in an increase to his income. Details of his new income have not been disclosed. Therefore, I do not have an accurate representation of his income at present;
• The Respondent has historically underpaid his child support obligation;
• The Respondent has historically failed to provide full and frank disclosure of his income;
• The Applicant and Respondent both bear financial responsibility for their children. Both have an obligation to support their children to the best of his/her ability. The financial care of the children has fallen disproportionately upon the Applicant to date; and
• The child support obligation is a right of the child. The parties cannot contract out of that right without good reason and without other reasonable financial arrangements having been made for care of the children.

[38] Therefore, I decline to make the order requested at this time.

Section 7 Expenses

[39] Additionally, the parties request the court make an order, on consent, that the parties share equally the children’s section 7 expenses.

[40] In her Affidavit, the Applicant confirms that she is employed at Bayshore Home Care Services earning $17.40 an hour, with a $3.00 per hour “top up” from the federal government during the pandemic.

[41] The Applicant deposes that the parties’ son required eyeglasses which cost $460. She states that she paid for the glasses but that the Respondent did put some of the cost through his insurance. The Applicant also discloses that the child Erin needs braces. The quote provided by the orthodontist to the Applicant was $7,000.

[42] For the same reasons noted above rejecting the request for a child support obligation less than the Guidelines amount, I cannot make an order distributing responsibility for the section 7 expenses equally when the law mandates a proportionate sharing based upon parties’ incomes.

Interim Interim Child Support

[43] The facts presented warrant an interim interim child support order at this juncture. The Respondent has not been paying child support consistently. Further delay occasioned by his failure to provide full financial disclosure should not result in prejudice to the children. They have a right to receive child support. Based on the parties consent and given that the Respondent is in default in this proceeding, I am making an interim interim order for child support pending full hearing of the Application.

Financial Disclosure

[44] Family Law Rule 13 addresses parties’ obligations for financial disclosure in litigation concerning child support. Family Law Rule 13(17) provides that if a party has not served or filed a document in accordance with the Rules, the court may make an order compelling the party to do so.

[45] I note that the Application was served upon the Respondent on June 29, 2021 by special service. The Application includes a claim for child support. Therefore, the Respondent had an obligation to serve and file a Financial Statement, with the time for filing an Answer. In this case, it was thirty days from receipt of the Application. The Respondent has not filed a Financial Statement. Therefore, an order shall also issue for financial disclosure from the Respondent.

Order

The following order is made:

1. The Motion advanced by the Applicant is dismissed;
2. On an interim interim basis, effective October 1, 2021, the Respondent Ranchuk shall pay child support to the Applicant Vincent child support for the children Erin Marie Ranchuk born […], 2006, James Steven Ranchuk born […], 2009 and Connor Cole Ranchuk born […], 2011 at a rate of $800 per month. This quantum of child support is subject to readjustment at a later date once better evidence has been adduced regarding the Respondent’s income and other support obligations;
3. Pursuant to Family Law Rule 13(17), the Respondent shall serve and file the following financial disclosure no later than 4:00 p.m. on October 14, 2021: a. A complete and sworn Financial Statement (Form 13); b. A copy of his most recent paystub; c. Proof of his total year to date income from all sources in 2021; and d. Copies of his income tax returns and notices of assessments for the taxation years 2018, 2019, 2020.
4. The Application is adjourned for litigation planning on October 19, 2021 at 2:00 p.m. to be addressed by teleconference in courtroom #2, telephone.
5. Applicant’s counsel shall ensure that a copy of this Endorsement is served upon the Respondent.

Released: October 7, 2021 Signed: Justice M. Vickerd