[Indexed as: Birss v. Birss] Thomas Birss, Appellant/Applicant and Nancy Birss, Respondent Ontario Divisional Court O'Driscoll, McNeely, Matlow H. Heard: February 9, 2000 Judgment: October 2, 2000 Docket: Hamilton 99475-DV Thomas Birss for himself Nancy Birss for herself
O'Driscoll J.:
I. Nature of the Proceedings
1 The Appellant, Thomas Birss, appeals from the orders of Sills J., dated Janu-ary 13, 1999: (i) Refusing, as of September 1, 1998, to terminate, or in the alternative continue at a lesser rate or for a limited period of time, the spousal support order in favour of Ms. Birss, in the amount of $1,150.00 per month indexed annually. The impugned order, dated August 26, 1997, made by Sills J., had sustained the spousal support order made by Kent J., dated December 15, 1994 in the amount of $1,150.00 per month indexed annually, and (ii) Refusing an order requiring Ms. Birss to pay child support to Mr. Birss, from and after September 1, 1998, for the support of the child Erin.
2 The orders under appeal resulted from an application brought by Mr. Birss to vary under s. 37(2) and s. 37(2.1) and (2.2) of the Family Law Act, R.S.O. 1990, c.F.3.
3 The appeal with regard to the spousal order is dismissed and the appeal with regard to the child support order is allowed.
II. Background and Chronology
4 Thomas Birss (D.O.B. January 27, 1948), now 52 years of age, is a collegiate principal in Kitchener, Ontario. Nancy Birss (D.O.B. May 9, 1950), now 50 years of age, is employed as a secretary at the University of Waterloo. The parties were married on November 23, 1974. The material indicates that Ms. Birss obtained an Honours Degree in Sociology from Concordia University, Montreal, P.Q. in 1972.
5 The parties have two (2) children: (a) Andrew Birss, born December 28, 1978, now 21 years of age; (b) Erin Elizabeth Birss, born March 2, 1986, now 14 years of age.
6 In 1992, after 18 years, the parties separated when Mr. Birss left the matrimonial home.
7 Following separation, the two children continued to reside with Ms. Birss. Post-separation, Mr. Birss voluntarily paid child support and spousal support in a total amount of $2,200.00 a month. The material shows that as of October 17, 1990, Mr. Birss had an annual income from his position of Vice-Principal in the amount of $68,246.00.
8 In 1992, Mr. Birss launched a Family Law application (Kitchener, No. 2217/92) regarding custody, child support and spousal support.
9 The application was heard by Kent J. at Kitchener on December 8, 9, 12 and 15, 1994.
10 Kent J.'s formal judgment of December 15, 1994 provided: (a) For joint custody of the two (2) children to the parents with primary residence of the children to be with Ms. Birss. (b) That Ms. Birss was to make an equalization payment of $55,000 to Mr. Birss in return for the release of his interest in the matrimonial home. (c) That Mr. Birss was to pay child support of $750.00 per month per child to Ms. Birss and spousal support of $1,150.00 per month. The child support and the spousal support payments were to be indexed and to commence on January 1, 1995.
11 Although the judgment of Kent J. grants joint custody of Andrew Birss to both parties and provides that the father shall pay to the mother the sum of $750.00 per month child support, in fact, Andrew Birss had gone to live with his father in June of 1994. At that time, Mr. Birss reduced child support payments to his wife by $750.00 per month.
12 On February 21, 1995, Mr. Birss filed a petition for divorce. On May 31, 1995, his wife filed an answer. On July 14, 1995, a notice of withdrawal was filed. On July 29, 1995, West J. granted an uncontested divorce containing the following operative paragraph:
- THIS COURT ORDERS AND ADJUDGES THAT THOMAS WILLIAM GILBERT BIRSS and NANCY ELIZABETH BIRSS who were married at Pointe Claire, Quebec on November 23m, 1974 are divorced and that the divorce takes effect on August 24, 1995.
13 In June 1995, Andrew Birss returned to live with his mother. At that time, Mr. Birss increased the child support payments to his wife by the sum of $750.00.
14 In June 1997, Andrew Birss stopped attending school and moved out of his mother's residence.
15 On June 17, 1997, at Kitchener, Ontario, Mr. Birss launched an application (859/97) under the Family Law Act to vary the order of Kent J. On July 11, 1997, Ms. Birss launched a counter-application. Mr. Birss sought an order to reduce the child support because Andrew, 18 years past, was then out of school. Mr. Birss also sought an order terminating spousal support. The counter-petition of Ms. Birss sought an increase in the child support for Erin and an increase in spousal support. The application came on before Sills J. on August 20, 1997; judgment was reserved.
16 On August 26, 1997, Sills J. gave judgment: (a) Terminating the child support for Andrew as of July 1, 1997, (b) Adjusting the child support payable by Mr. Birss to Ms. Birss for their infant daughter, Erin, to the new sum of $641.00 per month (now deductible and non-declarable) as of July 1, 1997. The adjustment was to bring the child support order into conformity with the Federal Child Support Guidelines, (c) Dismissed Mr. Birss' application to vary/terminate Kent J.'s spousal support order of December 14, 1994, and (d) Found that Ms. Birss' employment income as of that date was $16,000.00.
17 On August 31, 1998, the child, Erin, went to reside on a full time basis with her father, Mr. Birss.
18 On November 17, 1998, Mr. Birss, at Kitchener, Ontario, launched this application (1440/98) under the Family Law Act to vary the August 26, 1997 order of Sills J. Mr. Birss sought an order:
- Terminating spousal support as of September 1, 1998, and
- Seeking an order that Ms. Birss pay child support to Mr. Birss for Erin commencing September 1, 1998 in an amount determined by the Federal Child Support Guidelines, namely, $222.00 per month.
19 Mr. Birss' affidavit, sworn November 17, 1998, discloses that he has formed a common law relationship with one Wendy and a son was born to them on February 17, 1. 997.
20 The matter came on before Sills J., at Kitchener, Ontario, on January 7, 1999. Judgment was reserved.
21 On January 13, 1999, Sills J. released written reasons and:
- Ordered that Erin's primary residence shall be with her father with custody remaining joint custody.
- Terminated Mr. Birss' obligation to pay child support for Erin.
- Ordered that spousal support for Ms. Birss continue at the rate of $1,200.00 per month, indexed annually.
- Dismissed Mr. Birss' application that Ms. Birss be ordered to pay to him child support for Erin in the amount of $222.00 per month, retroactively to September 1, 1998, based on Ms. Birss' annual income of $25,000.00, pursuant to the Federal Child Support Guidelines.
III. Excerpts from the Reasons of Sills J., dated January 13, 1999
The plaintiff father currently earns $86,000 per annum and lives in a common law relationship which has produced another child, now aged two. The plaintiff's current spouse is a teacher earning between $65,000 and $70,000 per annum.
The defendant mother is currently employed at the University of Waterloo on a 12-month contract expiring June, 1999 and is paid approximately $25,400 ($2,120 per month). She is currently in receipt of spousal support of $14,400 per annum ($1,200 per month as indexed, in accordance with the order of Justice Kent) and until September 1, 1998 was receiving child support from the plaintiff in the amount of $641 per month. An order will go terminating the child support payment by the plaintiff to the defendant for the child Erin. The current income of the defendant therefore is $39,800 per annum, including spousal support now being paid.
The defendant's position is that the spousal support order currently in effect should not be changed. Although she has had a number of contract jobs, mostly through the University of Waterloo, she feels that she has not yet attained permanent employment, nor achieved a level of compensation which should be categorized as self sufficiency. The plaintiff husband expresses the view that the defendant has not made adequate attempts to achieve self sufficiency, having confined her job searches to various departments of the university. The defendant has a university degree in sociology, but has not been employed in her education related field.
The household income of the plaintiff father is in an amount in excess of $150,000 and it is obvious without performing a mathematical calculation pursuant to Schedule II of the guidelines that the plaintiff s household has a significantly higher standard of living.
At this point in time it is my opinion that the defendant wife has not achieved a degree of self sufficiency that should deprive her of further spousal support, although that may occur in the future. Her income from employment has improved significantly from the date of my previous order of August 26, 1997. At that time I determined her income from employment to be $16,000 and she has now achieved a level of income from employment of $25,000. She is well aware of the obligation to continue her attempts to reach self sufficiency. Although she is presently employed on a contract due to expire in June of 1999, I must deal with the application herein on her current income. If her income status changes for the better or for the worse, either of the parties may have recourse to this Court. There is an obligation to continue to inform the plaintiff of her financial status and I would expect her to honour that obligation, at least on an annual basis.
In all the circumstances of this case, I find that the plaintiff has the ability to contribute to the financial support of the defendant and that the defendant has demonstrated a need for such support, at least for the present and the immediate future. Accordingly, there will be an order that the order for spousal support made by Kent, J. should continue and be indexed as set out in that order.
I am also satisfied that, given the modest means of the defendant, that there should be a departure from the requirements of the guidelines in respect of support payable by her to the plaintiff for the child Erin and I decline to make any order for such child support payable by the defendant.
IV. The Situation of the Parties as Disclosed in the material before Sills J. and as Disclosed to the Court on February 9, 2000
22 The Appellant, Mr. Birss, is a principal of a collegiate earning $86,000 per annum. He now has his fourteen (14) year old daughter residing with him and his common law partner. Mr. Birss and his common law partner have a three (3) year old child. Mr. Birss' common law partner, Wendy, is a teacher earning $65,000 to $70,000 per annum. Mr. Birss' household has an annual gross income in excess of $150,000.
23 The Respondent, Ms. Birss, has sold the matrimonial home, downsized and lives in a house which she described as "comparable to that of the Appellant".
24 In June 1999, Ms. Birss obtained another one (1) year contract at the University of Waterloo paying her an income of $25,400 per annum. She also receives $14,400 (taxable in her hands) per annum ($1,200 per month indexed) by way of spousal support from Mr. Birss for a total annual gross income of $39,900.
25 Ms. Birss' 1997 income tax return shows support payments of $23,101.54, employment income of $18,879.03, employment insurance benefits of $1,800.19 and income tax of $9,512.00. This left an after tax income of $34,551.00 while she had primary custody of the two (2) children. The spousal support payments of $1,200 per month were income taxable in her hands; the child support payments were not income taxable in her hands.
26 It appears that Ms. Birss' emotional condition is fragile. During her submissions to us, she advised that at the time of the 1992 separation, she was suicidal. During his reply, Mr. Birss did not challenge that assertion of his ex-wife.
V. Appeal by Mr. Birss from the January 13, 1999 Order of Sills J. refusing to vary the August 26, 1997 spousal order made by Sills J.
A. Relevant Sections of the Family Law Act, R.S.O. 1990, c.F.3
s. 36. (3) If a marriage is terminated by divorce or judgment of nullity and the question of support is not adjudicated in the divorce or nullity proceedings, an order for support made under this Part continues in force according to its terms.
s.33.(8) An order for the support of a spouse should, (a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
s.37.(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant's or respondent's circumstances 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 under section 34 that the court considers appropriate in the circumstances referred to in section 33.
B. Excerpts from Bracklow v. Bracklow, [1999] 1 S.C.R. 420 (S.C.C.)
McLachlin J. (for the Court):
[15] I conclude, however, that the law recognizes three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) contractual; and (3) non-compensatory. These three bases of support flow from the controlling statutory provisions and the relevant case law, and are more broadly animated by differing philosophies and theories of marriage and marital breakdown.
[18] While a few cases prior to Moge had acknowledged that support criteria extended beyond needs and capacity to pay, the reasons of L'Heureux-Dubé J. in Moge offered the first comprehensive articulation of the view that when a marriage ends, spouses are entitled to be compensated for contributions to the marriage and for losses sustained as a consequence of the marriage. The same reasons, however, made it clear that compensatory considerations were not the only basis for support. Judges must exercise their discretion in light of the objectives of spousal orders as set out in s. 15.2(6), and after having considered all the factors set out in s. 15.2(4) of the Divorce Act. By directing that the judge considers factors like need and ability to pay (as explored below), the new Divorce Act left in place the possibility of non-compensatory, non-contractual support.
[27] The mutual obligation model of marriage stresses the interdependence that marriage creates. The clean-break model stresses the independence of each party to the union. The problem with applying either model exclusively and stringently is that marriages may fit neither model (or both models). Many modern marriages are a complex mix of interdependence and independence, and the myriad of legislative provisions and objectives discussed below speak varyingly to both models. As Payne on Divorce (4th ed. 1996), at pp. 269-70, puts it, "the economic variables of marriage breakdown and divorce do not lend themselves to the application of any single objective".
[36] Generally, the court must look at the "condition, means, needs and other circumstances of each spouse". This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others. In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, "in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse...the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party": Ross v. Ross (1995), 168 N.B.R. (2d) 147 (C.A.), at p. 156, per Bastarache J.A. (as he then was). There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.
[37] The Divorce Act and Family Relations Act, through their various provisions, accommodate both models of marriage and marriage breakdown outlined above.
[40] Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse's actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown. Similarly, "economic circumstances" (s. 89(1)(e)) invites broad consideration of all factors relating to the parties' financial positions, not just those related to compensation. The same may be said for the broad injunction of the Divorce Act that the court consider the "condition, means, needs and other circumstances of each spouse". To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application. Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.
[411 "[E]conomic hardship...arising from the breakdown of the marriage" is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.
[49] In summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory, (2) contractual, and (3) non-compensatory. Marriage, as this Court held in Moge (at p. 870), is a "joint endeavour", a socio-economic partnership. That is the starting position. Support agreements are important (although not necessarily decisive), and so is the idea that spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason for support. However, contract and compensation are not the only sources of a support obligation. The obligation may alternatively arise out of the marriage relationship itself. Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.
[60] Bearing in mind the statutory objectives of support and balancing the relevant factors, I conclude that Mrs. Bracklow is eligible for support based on the length of cohabitation, the hardship marriage breakdown imposed on her, her palpable need, and Mr. Bracklow's financial ability to pay.
C. Conclusions
27 The parties were married in 1974, separated in 1992 and divorced in 1995. On the evidence, it is my view that this 18 year marriage was the "mutual obligation model" described by McLachlin J. in the extracts previously quoted.
28 The evidence persuades me that at the break-up of the marriage, Ms. Birss was not able to "fend for herself' and still has a self-sufficiency disability. Moge v. Moge, [1992] 3 S.C.R. 813 (S.C.C.), makes it clear that self-sufficiency should not be given pre-eminence; parties need only contribute to their own support according to their abilities.
29 The evidence persuades me that Ms. Birss is coping. She likes her job and is doing it very well. This job appears to be important to her emotional stability and her personal happiness. In my view, courts should be very wary of concluding that a former spouse is "over qualified" for her/his present position. If good faith permeates a former spouse, I do not see why a spousal support order should be used as a means of forcing that person to seek out a higher paying job. The evidence persuades me that Ms. Birss' actions are grounded in good faith. This is not an "underemployment by choice" situation (see: Reid v. Reid (1997), 33 R.F.L. (4th) 145 (N.B.C.A.)).
30 In my view, at the present time, Mr. Birss has not shown any "material change" in Ms. Birss' circumstances that would entitle him to an order terminating the spousal support order.
31 Looking at the income disparity between the parties, it cannot be said that the quantum of the spousal support order is unreasonable.
32 The following is found in Simon Fodden's Family Law (Toronto: Irwin Law, 1999) at 287: Before varying an order for spousal support, "the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred" since the order sought to be varied, and "in making the variation order, the court shall take that change into consideration." Presumably, the latter provision means that the change must be a relevant or material change, one that would in fact make a difference to the amount of an order. As was noted above, application for variation is not an opportunity to appeal the original order: the order sought to be varied is presumed to be correct.
With respect, I agree with Sills J.'s reasons: ... it is my opinion that the defendant wife has not achieved a degree of self sufficiency that should deprive her of further spousal support, although that may occur in the future.
33 In all of the circumstances, I am not persuaded that Mr. Birss has fulfilled the requirements of s. 37(2) of the Family Law Act. He has not persuaded me that such a discretionary order should be made.
34 In any event, pursuant to the next portion of these reasons, the net amount payable by Mr. Birss to his former spouse will be reduced by $222.00 per month.
VI. Appeal by Mr. Birss from the January 13, 1999 Order of Sills J. dismissing the application for an order that Ms. Birss pay $222.00 per month to him under s. 3(1) of the Federal Child Support Guidelines
35 It is not contested that with her annual income of $25,000, $222.00 is the Table figure. Section 3 of Schedule III of the Child Support Guidelines is clear that support must be awarded based on income excluding any spousal support that a parent receives.
A. Relevant Sections of the Family Law Act
(1) s. 33. (7) An order for the support of a child should, (a) recognize that each parent has an obligation to provide support for the child; (b) apportion the obligation according to the child support guidelines.
(2) s. 37. (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.
(3) s.37.(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.
B. Commentary on the Federal Child Support Guidelines (Guidelines): SOR/97 - 175 as amended by SOR/97 - 563.
36 Spouses have a joint obligation to support their children: Fodden, supra at 261: Section 3(1) of the Federal Child Support Guidelines establishes the presumptive rule with respect to child support. This rule states that a child support order should, in the absence of other circumstances, be the amount established by the Tables in Sch. 1 plus any additional amount for special or extraordinary expenses: T. Hainsworth, Child Support Guidelines Service (Aurora: Canada Law Book, July 1999) (looseleaf) at 2-1.
Under the Federal Child Support Guidelines a spouse's obligation is supposed to be (by and large) fixed mechanically according to a table, on the bases of his or her annual income and the number of children for whom support is owed. Fodden, supra at 261.
The tables, which are the heart of the Guidelines, prescribe amounts that are based on studies of what parents in families at different economic levels actually spend on children. The amount payable by the non-custodial spouse is independent of the income of the custodial spouse, on the theory that children are to benefit from the income of both spouses as they would if the spouses were living together. The other spouse's income is irrelevant in these calculations, and, thus, in the determination of the amount of child support in the simple case. A number of circumstances may complicate a case, however, and require that it be given special or different treatment... Fodden, supra at 266.
The Table amounts represent the minimum amounts of child support payable. A court has no discretion to reduce a Table amount except where the Divorce Act or the Guidelines permit: Raftus v. Raftus (1998), 37 R.F.L. (4th) 59 (N.S.C.A.). Instances in the Guidelines where the courts may depart from awarding the Table amounts are as follows: (6) There is undue hardship: s.10. Guidelines Service, supra at 2-6.
vii) Undue Hardship A court may deviate from the Guideline amount if it finds that awarding that sum would cause "undue hardship" to "the child in respect of whom the request is made" or to the spouse who seeks the deviation. The use of this particular phrase means that some hardship must be accepted as a result of the use of the Guidelines: Fodden, supra at 274.
Section 10(2) of the Federal Child Support Guidelines enumerates a number of types of circumstances that may cause undue hardship. These include situations in which the payor spouse has an unusually high level of debts, unusually high expenses in relation to exercising access to a child, or a legal duty to support another person or child. These are extraordinary financial obligation which would not have been taken into account in the calculation of the table amounts. Undue hardship was clearly not intended to include general financial difficulties or pressures.
The legislative scheme imposed by the Guidelines rejects the old approach of dividing child support costs between the parents in proportion to their respective incomes: Drinkwater v. Drinkwa-ter (1998), 80 A.C.W.S. (3d) 380 (B.C.S.C.). In so far as the Table amounts are concerned, the Guidelines have eliminated a "means and needs" test: Blain-Hughes v. Blain (1998), 39 R.F.L. (4th) 327 (Ont. Ct. (Gen. Div.)). Rather, a set figure is established which depends totally on the non-custodial parent's income. It does not reflect the actual cost of rearing the child or the amount of any shortfall the custodial parent must absorb: Kelly v. Kelly (1998), 40 R.F.L. (4th) (Alta. Q.B.). As a result, child support is no longer based on the actual needs of the child. Instead, it is based on the payor's presumed ability to pay: Salvadori v. Kebede (1998), 81 A.C.W.S. (3d) 305 (B.C.S.C.). The amount of payment has been predetermined by statistical and general averages: Blain-Hughes v. Blain, supra. Child Support Guidelines Service, supra at 2-1.
The Table amounts are meant to take into account the economics of child-rearing and to impose on non-custodial parents an obligation of support based on their means. The Tables mandate that those liable for child support contribute as they are able, regardless of other sources of support: Foyle v. Foyle (1998), 77 A.C.W.S. (3d) 364 (B.C.S.C.): op. cit.:p.2-3.
C. Conclusions
37 In view of the presumptive rule with regard to child support, on this record, I respectfully disagree with Sills J. when he held: "that there should be a departure from the requirements of the guidelines in respect of support payable by her to the plaintiff for the child Erin and I decline to make any order for such child support payable by the defendant". Although departure from the Guideline amount can be made in specific situations, the case at bar does not come within any of those exceptions.
38 It may well be that Ms. Birss has established "hardship". However, in my view, she has not established "undue hardship" as that term is envisaged by s. 10 of the Guidelines.
39 In addition, there is an important policy reason why child support should be awarded in this situation. If a non-custodial parent making $25,000 per year were absolved of financial obligations towards her child, separated/divorced parents, both male and female, would be encouraged to come forward to attempt to exempt themselves from their child support obligations, or to have the table amount reduced. This would undermine one purpose of the Guidelines, which was to simplify child support questions by calculating reasonable, fixed amounts that could be applied in the majority of cases.
40 In Bates v. Bates (2000), 5 R.F.L. (5th) 259 (Ont. C.A.), (Austin, Laskin and Borins JJ.A.), Laskin J.A., for the Court, quoted Aston J. in Osmar v. Osmar (2000), 8 R.F.L. (5th) 375 (Ont. S.C.J.) where he said: Judicial Interpretation of the Child Support Guidelines cannot depend upon what the court regards as appropriate policy, or what is "fair". Parliament chose to severely circumscribe judicial discretion in determining child support, based upon goals of consistency, certainty and overall increase in child support awards generally.
VI. Result
41 The appeal of Mr. Birss from the January 13, 1999 order of Sills J., dismissing the application to terminate, now or at a future fixed date, the spousal support order, is dismissed.
42 The appeal of Mr. Birss from the January 13, 1999 order of Sills J., dismissing the application for an order that Ms. Birss pay to her former spouse for the support of Erin the sum of $222.00 per month, as set out in the Table to the Guidelines, is allowed.
43 The Guidelines became effective on May 1, 1997. Erin went to reside with her father on a full time basis on August 31, 1998. Given my finding that Ms. Birss shall be obligated to pay $222.00 per month for the support of Erin, the only remaining question is the date from which Ms. Birss should pay child support. Erin went to reside with her father on August 31, 1998, but I have decided not to make the order retroactive to that date. In my view, to require Ms. Birss to make retroactive payments back to August 31, 1998 would result in a serious hardship to someone in her income bracket, especially since Ms. Birss would receive no tax relief on any retroactive payments. In my view, it would not be equitable to make the order totally retrospective. In making this decision, I have balanced the hardship that would face Ms. Birss if she were ordered to make payments dating back to August, 1998 against the hardship that will face Mr. Birss if he does not receive the additional amounts. Given the relative incomes of two households, I conclude that Ms. Birss would be faced with much greater financial hardship if she were ordered to make such payments.
44 For these reasons, I decline to make the order retroactive to the date that Erin went to reside with her father. Ms. Birss shall be ordered to pay child support in the amount of $222.00 per month, effective on and after January 13, 1999, the date of the order in appeal.
VII. Costs
45 In my view, the appropriate order is: "no order as to costs".
Appeal allowed in part.