Ontario Court of Justice

Date: September 24, 2024 Court File No.: Espanola - FO-22-0007

Between:

Lindie WITHER-WESTON Applicant

— AND —

Paul Raymond BLACKER Respondent

Before: Justice W. Kapurura

Heard on: September 16, 2024 Reasons for Judgment released on: September 24, 2024

Counsel: Samantha J. Ramage, for the applicant Paul Raymond Blacker, on his own behalf

JUSTICE W. KAPURURA:

Part One – Introduction

[1] This focused hearing was about child support arrangements for the parties’ two children. The children are N, aged 4, and H, aged 5 (the children).

[2] The applicant (the mother) seeks an order that the respondent (the father) pay child support for 2022 and 2023 based on his reported income. She seeks an order that for 2024 and going forward, the father pays child support based on an annual income of $78,249.00. She seeks to have the father credited for all support payments made to date, with any child support arrears being paid at $400.00 per month until paid in full.

[3] The father seeks a finding that he is exercising parenting time with the children for not less than forty percent over the course of a year. He seeks an order to pay an “offset” amount of child support that considers the time the children are in each parent’s home. [1]

[4] At the commencement of the hearing, the parties agreed that the start date for support is April 1, 2022. The mother’s application was issued on March 28, 2022.

[5] The court relied on the trial affidavits and financial statements filed by the parties. The parties both testified. They each cross-examined the other. No other witnesses were called.

[6] The mother was legally represented at this hearing. The father was self-represented.

[7] The court must determine the following issues:

a) Does each parent exercise parenting time with respect to the children for not less than forty percent of the time over the course of a year? i. If so, what is the appropriate amount of child support? ii. If not, which parent should pay full child support? b) What is each parent’s income for support calculation purposes? c) How should child support be calculated for the years it is ordered? d) How should any child support arrears be paid?

Part Two– Undisputed facts

[8] The parties started living together on or about December 1, 2017. They were never married.

[9] The mother is 32 years old. The father is 39 years old.

[10] The parties and the children lived in Cambridge, Province of Ontario, before separation. They separated on or about January 29, 2022.

[11] At the time of separation, the mother and the children had relocated to Massey in northern Ontario. In October 2022, the father also moved to the town of Spanish in northern Ontario, which is a short distance from the mother’s home in Massey.

[12] The mother issued her application on March 28, 2022.

[13] The father filed his Answer/claim on May 31, 2023, after being granted an extension to file his materials.

[14] On October 17, 2022, Justice A. Buttazzoni made a temporary order requiring the father to pay child support to the mother for the two children in the amount of $674 per month based on an estimated annual income of $45,000.00.

[15] On August 16, 2023, Justice D. Peterson made a final order (on consent) granting joint decision-making responsibility to the parties. She also made a final parenting order per the following schedule on a four-week cycle:

Sunday	Monday	Tuesday	Wed	Thursday	Fri	Saturday
Week 1	Father drops the children at the mother’s home at 4:30 p.m.	FATHER AT WORK ALL WEEK [children with the mother]	Father video calls at 6:30 p.m.	Father video calls at 6:30 p.m.
Week 2	FATHER AT WORK ALL WEEK [children with the mother]	Father video calls at 6:30 p.m.	Father video calls at 6:30 p.m.
Week 3	Father picks up the children at 7:30 p.m. from the mother’s home	Father	Father	Father returns the children to daycare at 8:30 a.m. Mother picks up the children at 4:30 p.m. from daycare	Mother	Father picks up the children from the mother’s home at 10 a.m.
Week 4	Father	Father	Father	Father	Father returns the children to daycare at 8:30 a.m. Mother picks up the children at 4:30 p.m. from daycare	Mother

[16] At this hearing, both parties acknowledged that they have been following a slightly different parenting schedule as follows (with the changes underlined):

Sunday	Monday	Tuesday	Wed	Thursday	Fri	Saturday
Week 1	Mother	FATHER AT HOME ALL WEEK [children with mother] - Father has about an hour of parenting time at the mother’s home during this week on a day agreed between the parties	Father video calls at 6:30 p.m.	Father video calls at 6:30 p.m.
Week 2	FATHER AT HOME ALL WEEK [the children with the mother]	Father video calls at 6:30 p.m.	Father video calls at 6:30 p.m.
Week 3	Mother	Father picks up the children from school at 3:00 p.m.	Father	Father	Father	Father
Week 4	Father	Father	Father	Father	Father	Father returns the children to the mother between 4:00 p.m. and 6:00 p.m.

[17] The parties do not have a specified schedule for holidays and special occasions. They alternate Christmas holidays, with one parent having the children on December 25 and the other parent having them on December 26.

[18] The father works as a plumber. He has been employed by Patrick Mechanical Ltd since July of 2021.

[19] The father’s annual income for 2022 is $50,696.00. His annual income for 2023 is $79,619.65.

[20] The mother’s annual income for 2023 is $29,016.00. She is currently receiving $1,046.19 monthly in social assistance benefits.

[21] The mother is a full-time massage therapy student at Cambrian College in Sudbury. She is in her third year. She is expecting to complete the program in the fall of next year. The college is about one-and-a-half hours’ drive from her home. She attends in-person classes Monday through Friday. She also works a full-time summer job at Massey Agricultural Society in Massey, Ontario, during the summer months from May until the end of August. Her hourly rate is $24.00.

Part Three – Legal Considerations

3.1 – General

[22] Section 1 of the Federal Child Support Guidelines (the Guidelines) provides as follows:

1. The objectives of this Regulation are, (a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation; (b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective; (c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and (d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

[23] Section 9 of the Guidelines provides as follows with respect to shared parenting arrangements:

9. Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account, (a) the amounts set out in the applicable tables for each of the parents or spouses; (b) the increased costs of shared parenting time arrangements; and (c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

3.2 – Calculating the 40 per cent

[24] There is no set formula for calculating the 40 per cent. In Froom v. Froom, 2005 ONCA 3362, 11 R.F.L. (6th) 254 (OCA), the court counted overnights.

[25] In Nderitu v. Kamoji, 2017 ONSC 2617, the court stated the following in paragraph 82:

The overwhelming weight of authority in Ontario and other provinces support calculating the 40% threshold on an hourly basis. When calculating time in hours, the 40% threshold is met if the parent has the child in their care for 3504 hours in a year. The relevant period for the calculation of time under section 9 is the amount of time that the child is in the general care and control of the parent, and not the time that the parent is physically present with the child. 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”. In determining who is responsible for the children during school time, the court should look at criteria including where both parents (a) are on the contact list at the school, (b) are proximate and available during school hours, (c) are probably responsible for enrolling the children, (d) go to parent teacher meeting, (e) sign report cards and journals, (f) pay for daycare. (g) sign notes to the teacher and (h) respond to telephone messages from school. (Ferguson v. Ferguson, 2005 PESCTD 16, 246 Nfld. & P.E.I.R. 204).

[26] 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. When calculating in hours, the 40 per cent threshold lies at 3,504 hours per year: see L.(L.) v. C.(M.), 2013 ONSC 1801.

[27] Cases decided after Froom have highlighted that the method chosen for calculating the 40 per cent threshold is often critical to the outcome of the support analysis in shared parenting situations. In L.(L.) v. C.(M.), Justice Czutrin concluded that in light of the importance of this issue, it is desirable to be as precise as possible when calculating. Justice Czutrin noted that the overwhelming weight of authority in Ontario and other provinces supports calculating the 40 per cent threshold on an hourly basis: Scott v. Chenier, 2015 ONSC 7866 citing L.(L.) v. C.(M.) at 23-39.

[28] There is no jurisdiction to alter the 40 per cent threshold. In L.L. v. M.C., 2013 ONSC 1801, the court summarized the following principles around calculating time:

a. The onus of proving that the 40 per cent access threshold is met falls on the spouse seeking to invoke s. 9 (Meloche v. Kales, [1997] O.J. No. 6335; Huntley v. Huntley, 2009 BCSC 1020). b. 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 (C.A.)). c. 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, although in that case the parties’ evidence did not support an hourly calculation so it was not applied. d. 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.)). e. 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). f. 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, at para. 43). 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, as is the case with J, the time during school or daycare is credited to the custodial parent.

3.3 – Calculating child support once the 40 per cent threshold is met

[29] The case of Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 SCR 217 provides the following principles under section 9 of the Guidelines:

a. The specific language of s. 9 warrants emphasis on flexibility and fairness. The discretion bestowed on courts to determine the child support amount in shared custody arrangement calls for the acknowledgment of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case. [para 39] b. All three factors must be applied [para 68]. c. Not only is there no presumption in favour of awarding at least the Guidelines amount under s. 3, there is no presumption in favour of reducing the parent’s child support obligation downward from the Guidelines amount [para 31]. d. The court must examine the continuing ability of the recipient parent to meet the needs of the child. [para 41] e. The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend. [para 51] f. The total cost of raising children may be greater in shared custody situations than in sole custody situations. g. The court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.[para 52] h. Financial statements and/or child expense budgets are necessary for a proper evaluation of s. 9(c). [para 57] i. There is no need to resort to section 10 undue hardship analysis.

[30] Citing Contino v. Leonelli-Contino, 2005 SCC 63 Armstrong, J., of the British Columbia Supreme Court, in Flick v. Flick, 2011 BCSC 264 identified the following factors for consideration in determining the amount of support to be paid in a shared parenting situation under section 9 of the Federal Child Support Guidelines:

a. The language of s. 9 warrants emphasis on flexibility and fairness (para 39) b. It requires acknowledgement of the overall situation of the parents and the needs of the child (para 39) c. The weight of each factor under s. 9 will vary with the particulars of the case (para 39) d. To consider the financial situations of both parents (para 40) e. Calculating the set-off amount is the starting point, not the end of the enquiry (para 49) f. The set-off amount does not take into account actual spending patterns as they relate to variable costs [or] the fact that fixed costs of the recipient parent are not reduced by the increased spending of the payor (para 48) g. The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the child as they move from one household to the other (para 51) h. The court must examine the budgets and actual expenses of both parents in addressing the needs of the child and to determine if shared custody has in effect resulted in increased costs globally (para 52) i. Increased costs would normally result from a duplication and the child effectively being given two homes (para 52) j. The expenses will be apportioned between the parents in accordance with their incomes (para 53) k. The analysis should be contextual and remain focused on the particular facts of each case. l. the court has full discretion under s. 9(c) to consider “other circumstances”. (para 72) m. Courts should demand information relating to s. 9(b) and(c) when the evidence filed is deficient. (para 57)

[31] In Stewart v. Stewart, 2007 MBCA 66 (CA), the court took the view that once 40 per cent is met, the court should not quantify the time or award support in accordance with the percentage. It might cost the parent with the lower percentage of time, just as much to raise the children. There is also no need to separate s. 7 expenses, once the 40 per cent has been met.

[32] In Kerr v. Erland, 2014 ONSC 3555, Blishen J. summarized the approach applicable under s. 9 and at para. 116 wrote:

Section 9 recognizes the increase in costs assumed by one parent does not necessarily lead to a decrease in costs assumed by the other. Section 9(c) requires the court to consider principles of fairness and, importantly, the standard of living of the children in each household along with the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances.

Part Four – Analysis

[33] The framework of s. 9 of the Guidelines requires a two‑part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of support. [2]

[34] The father is the one seeking to invoke section 9 of the Guidelines. The onus of proving that the 40 per cent threshold is met falls on him.

[35] The evidence in this case supports an hourly calculation. The parties have a clear parenting schedule, with specified pick-up and drop-off days and times.

[36] The following table shows the parenting time exercised by each parent, in hours, based on the schedule that the parents are currently following:

	Sunday	Monday	Tuesday	Wed	Thursday	Fri	Saturday
Week 1	Mother:24 Father:0	Mother:23 Father:1**	Mother:24 Father:0	Mother:24 Father:0	Mother:24 Father:0	Mother:24 Father:0	Mother:24 Father:0
Week 2	Mother:24 Father:0	Mother:24 Father:0	Mother:24 Father:0	Mother:24 Father:0	Mother:24 Father:0	Mother:24 Father:0	Mother:24 Father:0
Week 3	Mother:24 Father:0	Mother:15 Father:9	Mother:0 Father:24	Mother:0 Father:24	Mother:0 Father::24	Mother:0 Father:24	Mother:0 Father:24
Week 4	Mother:0 Father:24	Mother:0 Father:24	Mother:0 Father:24	Mother:0 Father:24	Mother:0 Father:24	Mother:6 Father:18	Mother:24 Father:0

**The one hour allocated to the father occurs on any day of Week 1 The mother’s total parenting hours: 404 hours monthly The mother’s average weekly hours (404 divided by 4) = 101 hours per week The mother’s total parenting time in a year – 101 hours x 52.1 weeks = 5,262 hours annually The father’s total parenting hours: 268 monthly The father’s average weekly hours (268 divided by 4) = 67 hours per week The father’s total parenting time in a year – 67 x 52.1 weeks = 3,491 hours

[37] Based on the calculation above, the father falls short of the 3504 hours required to meet the 40 per cent threshold on an annual basis.

[38] The language of section 9 is very strict. The parenting time should be exercised “for not less than 40 per cent”. A party must meet at least 40 per cent of parenting time with the child annually.

[39] The court does not have the jurisdiction to alter or round up the father’s parenting time to meet the 40 per cent threshold.

[40] The court finds that the father’s parenting time does not meet the 40 per cent threshold.

[41] It is not necessary to proceed to stage two of the inquiry, which requires the court to determine the appropriate amount of child support, given that the father falls short of the 40 per cent threshold.

[42] The court would likely not have departed from the Guideline table amount even if the father had met the forty per cent threshold for the following reasons.

[43] The mother is a full-time student. Her current income is mostly from social welfare benefits.

[44] There is a significant disparity in the parents’ incomes.

[45] The father’s reported income is as follows:

a. 2020: $57,306 b. 2021: $44,687 c. 2022: $50,696.32 d. 2023: $79,619.65

[46] The mother’s reported income is as follows:

a. 2021: $21,772 b. 2022: $21,204 (comprising employment income of $9,231, social assistance in the amount of $8,473 and a bursary of $3,500) c. 2023: $23,923 (comprising employment income of $14,652, social assistance of $5,071.06, and a bursary of $4,200).

[47] In Magee and Faveri, [2007] O.J. No. 4826, the court stated that often when there is a great income disparity, there will be no variation from the table. It would be inappropriate for the children to live in poverty in one home and in relative luxury in the other.

[48] It is also challenging to assess the father’s income, earnings, and expenses based on the materials he filed. At this hearing, the father relied on a financial statement sworn on August 5, 2022. On June 21, 2024, he was ordered to serve and file an updated financial statement by August 13, 2024. He was legally represented at the time. He did not comply with the order or file an updated financial statement. As of the date of this hearing, he had not provided the mother with a copy of his notice of assessment from 2023. He claimed that he had the notice of assessment with him during this hearing. When the court asked him to provide a copy, he failed to provide the materials.

[49] Over and above the June 21, 2024, court order, the father was also required under clause 13(12)(c) of the Family Law Rules to update his financial information for trial, given that the information in his most recent financial statement was more than forty days old.

[50] The mother did not have full and frank financial disclosure from the father.

[51] Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583. In Roberts v. Roberts, 2015 ONCA 450, the court stated that:

[11] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. [12] Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.[13] Financial disclosure is automatic. It should not require court orders – let alone three - to obtain production.

[52] The mother filed an updated financial statement before the hearing, showing her updated expenses and earnings.

[53] The court did not have an updated financial statement from the father.

[54] Assessing the appropriate child support amount would require assessing the financial realities of the parents. As stated in Contino, the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. Financial statements and/or child expense budgets are necessary for a proper evaluation of subsection 9(c) of the Guidelines. [3]

[55] The court would have been unable to properly engage in a section 9 analysis without full and frank financial disclosure from the father.

[56] The court is drawing an adverse inference against the father.

[57] The court finds that the father is required to pay the full table amount of child support in accordance with his annual income.

Part Five – The father’s income for support calculation

[58] The father works as a plumber. He has been employed by Patrick Mechanical Ltd since July of 2021. The nature of his job is that his employer secures contracts, and he gets assigned to work on the contracted jobs.

[59] The father acknowledges that his income for the previous years is as follows:

e. 2021: $44,687 f. 2022: $50,696.32 g. 2023: $79,619.65

[60] The father testified that he works two weeks in and two weeks out to accommodate his parenting arrangements with the children. On his most recent contract, in the two weeks in, he worked fourteen 12-hour shifts (about 160 to 168 hours), and half of that (about 80 to 84 hours) was overtime.

[61] Currently, the father is in receipt of employment insurance as his employer’s most recent contract was completed in May 2024. He is awaiting the assignment of a new contract. He remains employed with the same company.

[62] The father stated that around April or May 2024, he got a raise from $31.00 or $32.00 per hour to his current hourly wage of $37.62.

[63] He testified that this is the first time he has applied for employment insurance since being employed by Patrick Mechanical Ltd. After finishing his recent contract in May 2024, he did not have work for about four weeks. He then went back to two jobs that lasted about six weeks. He is in contact with his employer every second day to confirm if there are any new contracts.

[64] When asked about the income the court should use to calculate his income for support purposes, the father acknowledged that the court should use his current hourly wage of $37.62, based on a regular work week of 40 hours per week. According to his own calculation, the hourly wage would translate to an annual gross income of $78,249.60.

[65] The mother agreed to use the proposed gross income of $78,249.60.

[66] The court will use the amount of $78,249.60 as the father’s income for support calculation.

Part Six – Start date for support, credits, and payment plan

[67] The parties agreed that support should start on April 1, 2022.

[68] The father is currently paying support in the amount of $674.00 per month based on an income of $45,000.00 per the October 17, 2022, order of Justice A. Buttazzoni. He will be given credit for all payments made to date.

[69] The father claimed he made four to five direct payments of $530.00 each to the mother in child support by electronic transfer before her application was issued. He did not produce proof of these payments. This matter has been in court for more than two years. He had ample time to file his materials to prove his claims. His claim will be dismissed.

[70] The father will be owing arrears based on a recalculation of his child support payment per this court’s order. The mother seeks the arrears to be paid at $400.00 per month until paid in full. The court will order him to pay $200.00 per month, given that he is currently awaiting a new contract.

Part Seven – Conclusion

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

a. The father shall pay the mother $6,903.00 for the support of N and H for 2022 (from April 1 to December 31), calculated as follows: The payor’s income for 2022 is $50, 696.00. Monthly table amount for two children for each month = $767.00 Support amount for 9 months ($767 x 9) =$6,903.00 b. The father shall pay the mother $14,460.00 for the support of N and H for 2023 (January 1 to December 31), calculated as follows: The payor’s income for 2023 is $79,619.00. The monthly table amount for two children is $1,205.00. Support amount for 12 months = $14,460.00. c. Commencing January 1, 2024, and ongoing, the father shall pay the mother child support for N and H in the amount of $1,185.00 per month based on the father’s annual income of $78,249.00. The table amount for two children is $1,185.00 per month. d. The father shall be given credit for all child support payments made pursuant to the temporary child support order dated October 17, 2022. e. Support arrears created by this order shall be paid to the mother by the father at the rate of $200.00 each month until paid in full, starting October 1, 2024. f. Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source (such as income tax or HST refunds) or lottery or prize winnings. g. The Family Responsibility Office is requested to adjust its records in accordance with this order. h. A support deduction order shall issue. i. The father’s claim to adjust child support payments pursuant to section 9 of the Guidelines is dismissed. j. The father’s claim for credits regarding payments allegedly made before the issuing of the application is dismissed.

[72] If either party seeks costs, they shall serve and file written submissions by October 8, 2024. The other party will have until October 22, 2024, to serve and file their written response. The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be emailed to the trial coordinator’s office.

Released: September 24, 2024 Signed: Justice Wiriranai (Wiri) Kapurura

[1] He seeks to invoke section 9 of the Child Support Guidelines (the Guidelines), which is provided in detail below. [2] Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 SCR 217 – para 37 [3] Contino v. Leonelli-Contino (supra) – see paragraphs 52 and 57