COURT FILE NO.: F 512/11
DATE: 2012/10/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kathleen Ann Dorthy Monahan-Joudrey
Applicant
– and –
Paul Albert Joudrey
Respondent
Ronald B. Barrs, for the Applicant
HEARD: October 9, 2012
The Honourable Madam Justice D.L. Chappel
I. INTRODUCTION AND BACKGROUND
The Applicant Kathleen Ann Dorthy Monahan-Joudrey (“the Applicant”) and the Respondent Paul Albert Joudrey (“the Respondent”) began cohabiting in a common law relationship in 1992, were married on November 23, 2002 and separated on July 28, 2010. There are two children of their relationship, namely Justine Paula May Joudrey-Monahan, born […], 1993 (“Justine”), and Gavene Wade Thomas Monahan, born […], 1998 (“Gavene”).
[1] The Applicant commenced this Application on March 30, 2011. At that time she requested an order granting her custody of Gavene, granting the Respondent custody of Justine, granting her spousal support and child support for Gavene, granting the Respondent child support for Justine, an order respecting access to the children, and an order for equalization of the parties’ respective net family properties. The Respondent did not serve and file an Answer and Claim in response to this Application. Accordingly, the hearing of this matter proceeded on an uncontested basis.
[2] I have reviewed the Affidavit for Uncontested Trial of the Applicant sworn October 26, 2011, and have relied on that Affidavit for the purposes of this hearing. In addition, I heard viva voce evidence from the Applicant. Based on that evidence, I find that the Applicant has attempted to resolve the matters raised in her Application with the Respondent, despite the Respondent’s failure to respond to this proceeding. Most recently, she and her counsel attempted to meet with the Respondent on July 25, 2012. I find that the Respondent attended at Mr. Barrs’ office on that date, but he stayed for only a few minutes before storming out of Mr. Barrs’ office. No progress was made in resolving any of the issues. Mr. Joudrey has not taken any steps to participate in this proceeding, has not brought a motion to extend the time for him to do so, and has not made any meaningful attempts to resolve the issues raised in this case.
II. CUSTODY AND ACCESS ISSUES
[3] Based on the Applicant’s evidence, I make the following findings respecting the residence and care of the children since the parties’ separation:
Gavene has resided with the Applicant on a consistent basis since the parties separated. The parties agreed at the time of the separation that the Respondent would see Gavene on alternate weekends, and at other times as agreed upon between the parties. However, the Respondent’s visits with Gavene have been inconsistent and sporadic. The Applicant has been Gavene’s full time caregiver, and there is no evidence of any concerns regarding her ability to meet Gavene’s needs. Gavene has remained enrolled in school on a full time basis since the separation.
Justine remained in the primary care of the Respondent following the separation, and had visits with the Applicant. She turned eighteen years of age on […], 2011. In January 2012, Justine began living primarily with the Applicant.
Justine has continued to live with the Applicant on a full time basis since January 2012. Her contact with her father has been sporadic since then. Justine has not been attending school since that time, and has not been employed. The Applicant has been supporting her financially. The Respondent has not been contributing to Justine’s needs since she moved to the Applicant’s home. Justine has a learning disability which makes job search efforts more difficult for her. However, the Applicant did not adduce any medical evidence about the precise nature of this disability, or the extent to which it impacts on Justine’s general functioning.
[4] The Applicant requests an order for sole custody of Gavene, with reasonable access to the Respondent on reasonable notice. The Applicant has not made a claim for a divorce in this proceeding, and the custody and access claims must therefore be dealt with pursuant to the Children’s Law Reform Act[^1] (the “CLRA”). Section 21 of the CLRA provides that a parent or any other person may apply for an order respecting custody of or access to a child, or determining any aspect of the incidents of custody of the child. Section 24(1) directs that the merits of an application dealing with these issues must be determined on the basis of the best interests of the child. The factors which the court is required to consider in carrying out the best interests analysis are set out in section 24(2):
Best interests of child
24(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
[5] Based on the above-noted findings, and taking into consideration the applicable factors outlined in section 24 of the CLRA, I conclude that an order for sole custody of Gavene in the Applicant’s favour, with reasonable access on reasonable notice to the Respondent, is in Gavene’s best interests. The Applicant has been the primary caregiver of the child since separation, and unfortunately, the Respondent has not demonstrated an interest in participating in Gavene’s life in a meaningful way since the separation.
[6] Given that Justine is now eighteen years of age, the issue of custody in relation to her has become moot.
III. CHILD SUPPORT
A. Entitlement
[7] The Applicant requested an order for child support for Gavene. Her counsel invited me to make an order for child support respecting Justine as well, but acknowledged that there may be an issue regarding entitlement in connection with Justine.
[8] I decline to make an order for child support respecting Justine in the Applicant’s favour for two reasons. First, the Applicant did not claim child support for Justine in her Application, and she did not seek leave to amend her Application at any point during this proceeding to permit her to advance this claim. Second, I am not satisfied based on the evidence adduced at this hearing that the Applicant has established an entitlement to child support in relation to Justine.
[9] The legislation that applies in regard to the issue of child support in this case is the Family Law Act[^2] (the “FLA”). Section 33 of the FLA provides that a court may, on application, order a person to provide support for his or her dependants and determine the amount of support. “Dependant” is defined in section 29 of the FLA as a person to whom another has an obligation to provide support under the Act. Section 31 of the FLA establishes the obligation of a parent to support a child, as follows:
- (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
Idem
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
[10] With respect to Justine, the preliminary issue of entitlement to child support under section 31 of the FLA has not been proven in this case. Justine did not begin to reside with the Applicant until after she turned eighteen years of age, and she is not enrolled in a full time program of education.
[11] I turn to the issue of child support for Gavene. The Applicant is entitled to child support in relation to Gavene, as he has remained in her full time care since separation, and he is a minor. The issue to be determined is the quantum of child support payable by the Respondent.
B. Quantum of Child Support
1. General Principles and Appropriate Approach to the Child Support Calculation
[12] The Applicant has requested an order granting her the full Table amount of child support for Gavene based on an income for the Respondent of $60,000.00, commencing as of April 1, 2011. However, as noted above, the child Justine was in the Respondent’s care from the time of separation until she turned eighteen years of age on December 3, 2011. The Application includes a claim for an order granting the Respondent support for the child Justine. Quite apart from that claim, it is necessary in determining the Applicant’s claim for child support respecting Gavene to take into consideration her obligation to support Justine for the period from the time of separation until Justine turned eighteen years of age.
[13] Section 33(11) of the FLA stipulates that a court making an order for child support shall do so in accordance with the Child Support Guidelines (Ontario)[^3] (the “Guidelines”). There are two exceptions to this rule set out in section 33 of the Act. First, section 33(12), allows for a deviation from the Guidelines where special provisions in an order or written agreement are in place which directly or indirectly benefit the child, or special provisions have otherwise been made for the benefit of the child, and the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The second exception is outlined in section 33(14), in relation to consent orders, where the court is satisfied that the terms of the consent order set out reasonable arrangements for the support of the child.
[14] Turning to the relevant provisions of the Guidelines, the starting point for the determination of the amount of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:
Presumptive rule
- (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.
Child the age of majority or over
(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,
(a) the amount determined by applying these guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.
[15] Section 8 of the Guidelines deals with the situation where each parent has custody of one or more children. It provides that in that scenario, the amount of an order for child support is “the difference between the amount that each parent or spouse would otherwise pay if a child support order were sought against each of the parents or spouses.”
[16] Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:
- (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) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(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.
[17] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.
[18] As noted above, for the period from April 1, 2011 until November 30, 2011, Gavene was in the primary care of the Applicant, and Justine was in the primary care of the Respondent. For that period of time, the issue of child support for Gavene should be determined in accordance with section 8 of the Guidelines. Justine turned eighteen years of age at the beginning of December, 2011. As stated above, I have concluded that her entitlement to child support ended at that time. Accordingly, I conclude that the appropriate approach to the child support calculation respecting Gavene as of December 1, 2011 is that set out in section 3(1) of the Guidelines.
2. Income Determination
[19] In order to decide the issue of child support, including the contribution if any which the Respondent should make to section 7 expenses relating to Gavene, it is necessary to make a determination of the parties’ respective incomes for the years 2011 and 2012. Section 16 of the Guidelines provides that the starting point for the determination of annual income is the sources of income set out under the heading “total income” in the T1 General form issued by the Canada Revenue Agency. The total of these sources of income is then adjusted in accordance with Schedule III under the Guidelines. Section 16 does not require the court to blindly use the previous year’s total income as reported by the party in the T1 General Form for the previous year as a basis for determining ongoing child support. Rather, the goal is to ascertain current income based on the sources set out in the T1 form.[^4] Where a party’s prior year’s income is not predictive of what they are likely to earn in the upcoming year, the court should determine the party’s Guidelines income for the upcoming twelve months from when child support will be paid.[^5]
[20] The Guidelines provide that the court may impute income to a party in appropriate circumstances. The purpose of imputing income is ensure that the income determination is made in the most fair and reasonable manner having regard for the particular circumstances of each case. The relevant section of the Guidelines is section 19, which provides as follows:
Imputing income
- (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
(b) the parent or spouse is exempt from paying federal or provincial income tax;
(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;
(e) the parent’s or spouse’s property is not reasonably utilized to generate income;
(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;
(g) the parent or spouse unreasonably deducts expenses from income;
(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
Reasonableness of expenses
(2) For the purpose of clause (1) (g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).
[21] The list of circumstances set out in section 19 is not exhaustive, and therefore does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. These other situations need not be analogous to the circumstances listed in section 19 in order to provide a foundation for imputation of income.[^6] The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.[^7]
[22] I turn first to the issue of the Respondent’s income. I find based on the Applicant’s evidence that the Respondent works as a contractor doing eaves troughs, windows, gutter guards and other similar home improvements. He is currently a contractor for Landmark. In the past, he has had his own business doing this type of work. The Applicant has invited me to make a finding that his income is $60,000.00. Her evidence is that the Respondent typically earned this amount of income during the course of their relationship, and that she has knowledge of this because she did the Respondent’s banking. The Respondent has not participated in this proceeding and therefore I do not have the benefit of his evidence regarding his income. Based on the evidence before me, I accept and find that his income for the purposes of the child support calculation is $60,000.00.
[23] The Applicant has requested that I make a finding that her annual income is $9,550.00. This is the total income noted at line 150 of her 2010 Income Tax Return. The Applicant testified about her current and historical income earning activities. She stated that she worked throughout her relationship with the Respondent, initially at low paying jobs such as retail positions at Walmart and Zellers. She indicated that she typically earned approximately minimum wage in these positions. I find that she started providing home daycare as a source of income in approximately 2006, initially through the child care organization called Wee Watch. In 2007 or 2008, she also began to help the Respondent with clerical work for his businesses, for which she was not paid. She now provides home daycare services in her home for Today’s Family. I find that she currently cares for eight children in her home, who come and go at various intervals. Only two of the children are full time, although she has more full time children during the summer months.
[24] In addition, the Applicant is a certified hairdresser and aesthetician. She has not been doing this type of work, however, because she states that she does not have time to undertake income earning activities other than those associated with her home daycare.
[25] The Respondent did not submit copies of her full Income Tax Returns, with all attachments, for the years 2008, 2009 or 2011, or her Notices of Assessment and Reassessment for the years 2008 to 2011. She did not file any documentary evidence respecting her current year to date income. This is so despite the fact that on January 4, 2012, when this matter was submitted to me for consideration in Chambers, I indicated that I required copies of her complete Income Tax Returns for 2008 to 2010, proof of total 2011 income, proof of current year to date income for 2012, and evidence explaining the business expenses which she is claiming against her self-employment income.
[26] The documentary evidence which I received respecting the Applicant’s income consisted of her 2008 and 2009 Tax Return Summaries, and her 2010 Income Tax Return with some attachments. The most recent documentary proof of her income is therefore from 2010. The Applicant testified initially that she believed her 2011 income as reported on her Income Tax Return for that year was approximately the same as the total income which she reported at line 150 in her 2010 Income Tax Return, which was $9,550.84. However, upon further questioning, it became apparent that she was extremely uncertain about her 2011 income, stating that she believed it was $24,000.00, but then indicating that she did not know whether this amount represented her gross self-employment income, her net self-employment income or her total income for all headings set out in her Income Tax Return.
[27] The Applicant acknowledges that she has claimed expenses against her total self-employment income for the past several years, although I do not have any specifics of what those expenses were for the years 2008, 2009, or 2011, or what they are to date for the year 2012. Based on the evidence that I do have before me, I make the following findings:
In her 2008 Income Tax Return, the Applicant claimed gross self-employment income of $29,598.49, and claimed expenses of $18,169.84. She therefore claimed net self-employment income of $11,428.65.
In her 2009 Income Tax Return, the Applicant claimed gross self-employment income of $19,191.27, against which she claimed business expenses of $12,339.72. Her net self-employment income reported was therefore $6,851.55.
Her total self employment income claimed in her 2010 Income Tax Return was $30,640.40, and the business expenses which she claimed against this income totalled $21,090.00, resulting in net self-employment income of $9,550.84.
[28] The Applicant did not adduce any documentary evidence to support her business expense claims, and was unable to provide specifics about many of these claims in her Examination in Chief. When I made inquiries on this issue specifically with reference to her Statement of Business or Professional Activities attached to her 2010 Income Tax Return (which was the only such Statement which she provided), she was unable to provide details regarding many of the expenses referred to in that document. She testified that she writes off everything that she spends. However, she could not provide many details regarding the amount of $9,605.08 in expenses which she claimed on account of purchases during the year. She claimed $4,436.52 on account of motor vehicle expenses, but did not produce the worksheet that was used to calculate these expenses. She believed that this amount included a portion of her car payments of $651.89 per month, but she was unclear about how much she claimed on account of those payments.
[29] It should be noted that I invited the Applicant to return to court on a later date to continue the hearing, to allow her an opportunity to produce further and better evidence respecting her income and the expenses which she has claimed against her income. She declined this opportunity, and requested that the matter proceed.
[30] Upon considering the evidence adduced respecting the Applicant’s income, I am unable to accept the Applicant’s position that I should find her income to be only $9,550.00 for the purposes of the child support calculation. I conclude that it is appropriate in this case to impute an income of $21,000.00 to the Applicant, which is an annual minimum wage salary for a person working on a full time basis in Ontario. I have imputed this income for the reasons set out below.
[31] First, I emphasize that there is an obligation on the part of both parties in a support case to adduce the evidence required for the court to make a fair and reasonable assessment of their respective incomes for the purposes of the child support calculation. If they fail to do so, they run the risk of the court imputing income to them pursuant to section 19(1)(f) of the Guidelines. I rely on that section in this case in my decision to impute income to the Applicant. I find that the Applicant has not complied with her minimal financial production obligations set out in section 21(1)(a), (b) and (d) of the Guidelines. Furthermore, she has not complied with my direction made on January 4, 2012 regarding the additional documentary evidence which I felt was required in order to properly determine her income. She has asked me to rely on her income as claimed at line 150 of her 2010 income Tax Return, yet I have insufficient evidence to satisfy me that this is an accurate reflection of her 2011 or 2012 income. I have insufficient information about the business expenses which she claimed against her gross business income in 2010 to determine whether those business expenses were reasonably deducted from income, and even if I did have that information, there is no evidence before me upon which I could conclude that she had similar expenses in 2011 and 2012.
[32] With respect to the business expenses which the Applicant deducted from her income in 2008, 2009 and 2010, there is significant cause for concern that those expenses have been unreasonably deducted from income for the purposes of calculating support. In 2008, her business expenses represented 63% of her gross self-employment income; in 2009, they represented 64% of her gross self-employment income; and in 2010, they represented 69% of her gross self-employment income. I have no evidence as to whether Canada Revenue Agency has accepted the Applicant’s claimed business expenses since 2008 as being legitimate from a tax perspective, since the Applicant has denied the court the benefit of reviewing her Notices of Assessment and Reassessment since that time. Even if Canada Revenue Agency had accepted those business expenses, this would not end the analysis of the income issue. As section 19(2) of the Guidelines clarifies, the fact that an expense may be deducted from income for income tax purposes is not determinative of whether the deduction is reasonable for the purposes of income calculation in child support cases.
[33] In order to impute claimed business expenses back into a parent’s income pursuant to section 19(1)(g) of the Guidelines, it is not necessary to establish that the party who has claimed the deductions has acted improperly or outside the norm for claiming expenses in the income tax context. Rather, the issue is whether the full deduction of the expense results in a fair representation of the actual disposable income that is available to the party for personal expenses.[^8] In determining whether business expenses claimed by a party are unreasonable, the court must balance the business necessity of the expense against the alternative of using those monies for the purposes of child support.[^9]
[34] A party who seeks to deduct business expenses from their income for child support purposes has an obligation to explain the reasons for the expenses and how they were calculated, and must provide documentary proof of the expenses in an organized manner so that the court can make a proper determination as to the reasonableness of the expense from the standpoint of the child support calculation.[^10] It is not appropriate for a party to request a judicial determination of their income, fail to provide the information required for the judge to do so, and then simply ask the court to “take their word for it” or to “take a wild guess” based on minimal information and hope for the best. This is exactly what the Applicant has asked that I do in this case. If a party seeking to deduct business expenses from income fails to provide meaningful supporting documentation or other evidence in respect of those expenses, an adverse inference may be drawn by the court in making the income determination.[^11] I have drawn such an adverse inference in this case in reaching my determination regarding the Applicant’s income.
[35] I rely also on section 19(1)(a) of the Guidelines in imputing income to the Applicant in this case. The Ontario Court of Appeal has held that in determining whether to impute income pursuant to this section, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.
[36] In determining a party’s capacity to earn income, the principles which the court should consider which are relevant to this case include the following:
There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.[^12]
Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.[^13]
The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.[^14]
If a party chooses to pursue self employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent’s child support obligations.[^15]
[37] I conclude based on the Applicant’s evidence that she has the capacity to earn more than the $9,550.00 per year which she states has been her income since 2010. She is a certified aesthetician and hairdresser, and has a history of working for retail businesses earning at least a minimum wage. She has also had experience working in a clerical capacity, assisting the Respondent with his businesses. There is no evidence of any health or other factors that would interfere with her ability to earn at least a minimum wage salary. The Applicant is still young, and although Gavene and Justine are in her care, Justine is now an adult, and Gavene is fourteen years old and in school on a full time basis. The Applicant acknowledged in her testimony that she has not made efforts to explore alternative income earning activities that would allow her to increase her income beyond the minimal amount that she is now reporting she earns.
3. Conclusions Regarding Child Support Payable
[38] Based on the Applicant’s imputed income of $21,000.00 and the Respondent’s income of $60,000.00, I conclude the following:
From April 1, 2011 until November 30, 2011, the Applicant was entitled to a set-off amount of child support in the amount of $377.00 per month for the child Gavene, pursuant to section 8 of the Guidelines.
For the month of December, 2011, the Applicant was entitled to support for the child Gavene in the amount of $557.00 per month, which was the applicable Table amount for one child in effect at that time based on an income of $60,000.00.
Commencing January 1, 2012, the Applicant was entitled to child support for the child Gavene in the amount of $546.00 per month, which is the Table amount now in effect under the Guidelines based on an income of $60,000.00
The Respondent has not made any voluntary payments of child support to the Applicant since the parties separated.
Arrears of child support owed by the Respondent to the Applicant on account of the foregoing up to and including October 31, 2012 are $9,033.00.
[39] The Applicant also requests an order requiring the Respondent to contribute to Gavene’s section 7 expenses, in proportion to the parties’ respective incomes. There were two specific expenses with respect to which the Applicant wishes to set a fixed amount for the purposes of enforcement by the Director, Family Responsibility Office. First, she wishes to enroll Gavene in ball hockey, which she testified costs $360.00 per year, plus an additional expense of up to $300.00 for equipment. Having regard for the amount of this expense, and the Applicant’s minimal income, I am satisfied that it qualifies as an extraordinary extracurricular activity expense within the meaning of section 7 of the Guidelines. I conclude that it is appropriate to order the Respondent to contribute to these expenses, given that Gavene is not involved in any other extracurricular activities, that he is interested in participating in this sport, and having regard for the parties’ respective incomes. The Applicant testified that she has not yet enrolled Gavene in ball hockey, as she is unable to pay the total amount of the registration fee outright. However, the order which I am making regarding arrears of child support payable to her will assist in this regard. Given that she has not yet incurred the expense, I am not prepared to fix a specific amount to be paid on account of the Respondent’s contribution.
[40] The Applicant also requests that the Respondent contribute to the cost of any school trips for Gavene. She testified that there is in all likelihood going to be a school trip for Gavene’s grade eight class this year, and that Gavene very much wishes to participate in this trip. She stated that the estimated cost of this trip is $500.00. I conclude for the same reasons noted in relation to the ball hockey expense that this is a necessary expense in relation to Gavene’s best interests, and that it is reasonable for the Respondent to contribute to this expense.
IV. SPOUSAL SUPPORT
A. The Applicant’s Position
[41] The Applicant requests an order for spousal support in the amount of $771.00 per month, commencing April 1, 2011. This figure was based on the following assumptions, as set out in the Divorcemate Printout which counsel for the Applicant submitted:
Incomes of $60,000.00 for the Respondent and $9,550.00 for the Applicant;
The child Gavene being in the Applicant’s full time care. The calculation did not take into account the fact that Justine was in the Respondent’s care, with an associated child support entitlement in favour of the Respondent, until November 30, 2011.
The length of the parties’ cohabitation being seven years. In fact, the evidence establishes that the parties began cohabiting in 1992, with their total period of cohabitation therefore being eighteen years.
The age of the Applicant being 36 years at the time of separation. The evidence establishes that the Applicant was in fact 33 years old at the time of separation.
[42] For the reasons that follow, I have determined that the Applicant is entitled to spousal support, but I decline to make an order granting her spousal support in the amount of $771.00 per month as requested. I have determined that a spousal support award in the amount of $300.00 per month, on an indefinite basis, is appropriate.
B. Statutory Framework and General Legal Principles
[43] The legislation which applies to the spousal support claim in this case is FLA. Section 33(1) of the FLA provides that a court may, on application, order a person to provide for the support for his or her dependants and determine the amount of support. The purposes of an order for spousal support are set out as follows in section 33(8):
Purposes of order for support of spouse
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).
[44] Section 33(9) sets out the factors which the court is required to consider in determining the amount of child support that should be ordered, as follows:
Determination of amount for support of spouses, parents
33(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
[45] The statutory objectives and factors referred to above inform the issues of entitlement, quantum and duration of spousal support. The issue of entitlement is the preliminary issue to determine in any spousal support claim.
C. Entitlement
[46] The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the context of the Divorce Act[^16] in the cases of Moge v. Moge[^17] and Bracklow v. Bracklow.[^18] These principles should also be considered by the court in determining the issue of child support under the FLA.[^19]
[47] In Moge, the court summarized the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in Moge and Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind three conceptual models upon which entitlement to spousal support may arise. First, a spousal support obligation may arise on a compensatory basis, in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. In other words, spouses are entitled to be compensated for the sacrifices and contributions which they made during the marriage, for economic losses which they experienced as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions.[^20] Entitlement can also arise in appropriate circumstances on a contractual or consensual basis, as a result of express or implied agreements between spouses that purport to either create or negate a spousal support obligation.[^21] Finally, entitlement may exist on a non-compensatory basis, as a result of the needs of a spouse. This ground for spousal support establishes that a spouse may be obliged to pay support based on the other spouse’s economic need, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage. The non-compensatory basis for spousal support is founded on the view that “marriage is a relationship involving mutual obligations and interdependencies that may be difficult to unravel when the marriage breaks down.”[^22] In determining whether the claimant has a claim based on economic need, the court should take into consideration the accustomed lifestyle of the spouse during the course of the parties’ relationship, subject to the payor’s ability to pay.[^23]
[48] Applying these general principles to the facts of this case, I conclude that the Applicant has established an entitlement to spousal support on both a compensatory basis and on the basis of economic need. With respect to the compensatory claim, I am satisfied that the Applicant made sacrifices and contributions to the relationship, that she suffered economic consequences as a result of these sacrifices and contributions, and that the Respondent benefitted from same. I find that although the Applicant worked during the relationship, she took a secondary role in terms of the financial support of the family, and was the parent who was primarily at home with the children. For a number of years, she worked from the home providing daycare. In addition, she assisted the Respondent with his business ventures, without pay for these services. In regard to the non-compensatory basis of the Applicant’s spousal support entitlement, I am satisfied that the Applicant is in need of spousal support. It is not realistic to expect her to be able at this point to earn more than a minimum wage salary, given her employment background, her limited job skills, and the fact that she is currently the caregiver and provider for both children of the parties’ relationship. Her financial situation may improve in the future, but it is not possible at this point to determine when that may occur. She has no significant assets which she can realize upon to meet her needs, and I find that she has had to move twice since the separation due to financial issues. In addition, I find that she has had to borrow from her parents in order to meet her basic needs.
[49] Because the Respondent chose not to participate in this proceeding, I do not have the benefit of evidence regarding his overall conditions, means, needs and circumstances. However, his income is significantly greater than the Applicant’s, and he does not have any child care responsibilities in relation to Justine and Gavene. I find that he has the ability to pay spousal support.
[50] I turn to the issues of quantum and duration of spousal support.
C. Quantum and Duration of Spousal Support
[51] The issues of quantum and duration of spousal support must be determined taking into consideration the factors set out in section 33(9) of the FLA. However, the advent of the Spousal Support Advisory Guidelines (the “SSAG”) has provided considerable assistance in addressing these issues. In Fisher v. Fisher,[^24] the Ontario Court of Appeal held that although the SSAG are not legislated or binding, they are a useful tool, provided that “the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.”[^25] While the SSAG are not binding, they provide a valuable litmus test for assessing the range within which spousal support should be ordered based on traditional principles, and the duration of spousal support.
[52] The means of the parties is one of the factors to be considered by the court in addressing the issues of quantum and duration of spousal support, and income is a major element of this factor. For the purposes of the SSAG, sections 15 to 20 of the Guidelines are the starting point for determining the income of the parties. With respect to imputation of income, a similar approach should be taken in both spousal and child support situations.[^26]
[53] For the reasons outlined above in relation to the child support issues, I find the Applicant’s income for the purposes of the spousal support calculation to be $21,000.00 and the Respondent’s income to be $60,000.00. In addition to the imputed income of $21,000.00, the Applicant received the Child Tax Benefit. I note that the Divorcemate program and associated Printouts outlining the applicable SSAG calculations automatically take these benefits into account in generating spousal support ranges under the SSAG.
[54] From April 1, 2011 until November 30, 2011, each party had a minor child in their care, with an associated entitlement from the other party to child support. This is a factor when determining the appropriate ranges for support pursuant to the SSAG.
[55] Based on the facts of this case, the SSAG generate ranges of spousal support for the period from April 1, 2011 to November 30, 2011, when there was a split custody arrangement, of $127.00 (low), $310.00 (medium) and $522.00 (high) per month. For the period commencing December 1, 2011, when Justine became disentitled to child support and the Applicant had Gavene in her sole care, the ranges generated are $124.00 (low) $322.00 (medium) and $556.00 (high). With respect to duration, the SSAG suggest an indefinite duration, subject to variation and possibly review, with a minimum duration of nine years and maximum duration of eighteen years from the date of separation.
[56] I conclude that an order for spousal support in the amount of $300.00 per month is appropriate in this case, on an indefinite basis, commencing on April 1, 2011. I find that the Respondent has not made any voluntary contributions towards the Applicant’s support. An award in the upper range is not appropriate, despite the length of the relationship, having regard for the Applicant’s young age, the fact that she worked at various jobs during the relationship, and the fact that she has training and some job skills which she can capitalize on presently and in the future. On the other hand, an award in the low ranges is not in my view appropriate given the compensatory element to her claim, the fact that she is the sole caregiver for the child Gavene, which will have an impact on her ability to advance her economic situation at this time, and having regard for her very difficult financial situation currently.
[57] As previously stated, it is possible that the Applicant’s financial situation will improve in the future. However, given her current financial situation, her ability to secure funding to upgrade her education and skills is minimal. At this point, there is no indication that her situation may improve within the foreseeable future. Gavene is only fourteen years old, and the Applicant is his sole caregiver. The Applicant should be provided with ongoing support to compensate her for the economic sacrifices she will in all likelihood have to make in terms of employment opportunities as a result of her responsibilities in relation to Gavene.
V. EQUALIZATION OF NET FAMILY PROPERTY
[58] The Applicant requested an order requiring the Respondent to pay her the sum of $25,000.00, on account of her entitlement to an equalization payment pursuant to section 5(1) of the FLA. I have reviewed the Applicant’s Net Family Property Statement sworn October 26, 2011. The Respondent has been given ample opportunity to respond to this claim, but I find that he has not cooperated in providing the disclosure that would be required to refute the Applicant’s position. Based on the evidence before me, I am satisfied that the Applicant has made out her claim to an equalization payment in the amount of $25,000.00
VI. TERMS OF ORDER TO ISSUE
[59] Based on the foregoing, a final order shall issue upon the following terms and conditions:
The Respondent Paul Albert Joudrey (“the Respondent”) is noted in default.
The Applicant Kathleen Ann Dorthy Monahan-Joudrey (“the Applicant”) shall have sole custody and primary residence of the child Gavene Wade Thomas Monahan, born [...], 1998 (“the child”).
The Respondent shall have reasonable access to the child, on reasonable notice to the Applicant.
Child support owed by the Respondent to the Applicant for the child for the period commencing April 1, 2011 and ending October 31, 2012 is fixed in the amount of $9,033.00, calculated as follows:
a. From April 1, 2011 until November 30, 2011, the Applicant was entitled to a set-off amount of child support in the amount of $377.00 per month for the child, pursuant to section 8 of the Child Support Guidelines (Ontario) (the “Guidelines”), based on the Applicant’s imputed annual income of $21,000.00 and the Respondent’s annual income of $60,000.00.
b. For the month of December 2011, the Applicant was entitled to support for the child in the amount of $557.00 in accordance with the Tables under the Guidelines, based on the Respondent’s annual income of $60,000.00.
c. Commencing January 1, 2012, the Applicant was entitled to child support for the child Gavene in the amount of $546.00 per month, in accordance with the revised Tables under the Guidelines, based on the Respondent’s annual income of $60,000.00.
The child support owed pursuant to paragraph 4 herein shall be payable forthwith.
Commencing November 1, 2012 and continuing on the first day of each month that follows, the Respondent shall pay the Applicant child support for the child in the amount of $546.00 per month, in accordance with the Tables under the Guidelines, based on the Respondent’s annual income of $60,000.00.
The Applicant and the Respondent shall contribute to the child’s section 7 expenses in proportion to their respective incomes. For the purposes of determining their respective contributions, the Applicant’s current annual income is $21,000.00 and the Respondent’s current annual income is $60,000.00. The Applicant’s proportionate contribution to section 7 expenses is therefore 26% and the Respondent’s proportionate share is 74%. The party requesting contribution towards an expense shall provide the other party with proof of the total expense being claimed along with proof that they have paid their share within thirty days of incurring the expense. The other party shall then pay the requesting party their share of the expense within fourteen days of receiving said proof. Section 7 expenses shall include but not be limited to the following:
(i) Any school trips that cost $300.00 or more; and
(ii) The annual cost of the child participating in ball hockey, including but not limited to all associated costs for uniforms and equipment.
Spousal support owed by the Respondent to the Applicant for the period commencing April 1, 2011 and ending October 31, 2012 is fixed in the amount of $5,700.00, and shall be payable forthwith.
The Respondent shall pay the Applicant ongoing spousal support on an indefinite basis in the amount of $300.00 per month commencing November 1, 2012 and continuing on the first day of each month that follows.
The entitlement to spousal support ordered pursuant to sections 8 and 9 herein is based on both the Applicant’s financial need and on compensatory grounds.
For as long as child support and/or spousal support are payable by the Respondent to the Applicant, the Applicant and the Respondent shall provide updated income disclosure to each other every year within 30 days of the anniversary of this order in accordance with the disclosure requirements set out in section 24.1 of the Guidelines.
Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
A Support Deduction Order shall issue.
The Respondent shall provide to the Applicant and the Director of the Family Responsibility Office notification of any change in address or employment, including full particulars about the change, within ten (10) days of the change taking place.
The Respondent shall pay an equalization payment to the Applicant in the amount of $25,000.00, in satisfaction of all claims under Part I of the Family Law Act, payable by way of certified cheque made out to Ronald B. Barrs, Barrister and Solicitor, in trust for Kathleen Ann Dorthy Monahan-Joudrey, and to be delivered to the office of Ronald Barrs located at 640 Upper James Street, Hamilton, Ontario, L9C 2Z2, by January 31, 2013 at the latest.
The Respondent shall pay the Applicant costs of this proceeding in the amount of $2,000.00 inclusive of fees, disbursements and HST, payable by way of certified cheque made out to Ronald Barrs, Barrister and Solicitor, in trust for Kathleen Ann Dorthy Monahan-Joudrey, and to be delivered to the office of Ronald Barrs located at 640 Upper James Street, Hamilton, Ontario, L9C 2Z2, by January 31, 2013 at the latest. Of these costs, the amount of $1,500.00 is on account of child and spousal support and as such shall be enforceable by the Director, Family Responsibility Office.
This order bears interest at the post-judgment interest rate set out in the Courts of Justice Act of 3% per year effective from the date of this order. A payment in default bears interest only from the date of default.
The Honourable Madam Justice D.L.Chappel
Date: October 23, 2012
[^1]: Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended.
[^2]: Family Law Act, R.S.O. 1990, c. F-3, as amended.
[^3]: Child Support Guidelines (Ontario), O.Reg. 391/97, as amended.
[^4]: Coghill v. Coghill, 2006 ONSC 21778, [2006] O.J. No. 1489 (Ont. S.C.J.).
[^5]: Nelson v. Nelson, 2005 CarswellNS 18 (N.S.S.C.); Kimla v. Golds, 2005 CarswellOnt 1000 (S.C.J.); Bonthron v. Bonthron, 2004 CarswellOnt 96 (S.C.J.); Lemmon v. Lemmon, 2004 CarswellOnt 771 (S.C.J.), additional reasons at 2004 CarswellOnt 1541 (S.C.J.).
[^6]: Bak v. Dobell, 2007 ONCJ 170, [2007] O.J. No. 1498 (Ont. C.A.); Riel v. Holland, 2003 ONCA 3433, [2003] O.J. No. 3901, 67 O.R. (3d) 417 (Ont. C.A.).
[^7]: Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.).
[^8]: Hauger v. Hauger, 2000 CarswellAlta 958 (Alta. Q.B.); Williams v. Williams, 2011 CarswellOnt 6588 (Ont. S.C.J.).
[^9]: Osmar v. Osmar, 2000 ONSC 22530, 2000 CarswellOnt 1928 (Ont. S.C.J.).
[^10]: R.(P.C.J.) v. R. (D.C.), 2003 CarswellBC 788 (B.C.C.A.); Manchester v. Zajac, 2011 CarswellOnt 13546 (Ont. S.C.J.); Joy v. Mullins, Ibid.; Williams v. Williams, 2011 CarswellOnt 6588 (Ont. S.C.J.); Wilson v. Wilson, 2011 ONCJ 103, 2011 CarswellOnt 1630 (Ont. C.J.).; Meade v. Meade, 2002 ONSC 2806, 2002 CarswellOnt 2670 (Ont. S.C.J.)
[^11]: Orser v. Grant, 2000 CarswellOnt 1354 (Ont. S.C.J.).
[^12]: Drygala v. Pauli, 2002 ONCA 41868, 2002 CarswellOnt 3228 (Ont. C.A.), additional reasons 2003 ONCA 48241, 2003 CarswellOnt17 (Ont. C.A.).; L.(N). V. P. (B.), 2000 ONSC 22516, 2000 CarswellOnt 2487 (Ont. C.J.).
[^13]: West v. West, 2001 ONSC 28216, [2001] O.J. No. 2149 (Ont. S.C.J.).
[^14]: Hanson v. Hanson , 1999 BCSC 6307, 1999 CarswellBC 2545 (B.C.S.C.); L.(N). V. P. (B.), Supra.
[^15]: Lawson v. Lawson, 2006 ONCA 26573, 2006 CarswellOnt 4789 (Ont. C.A.); Blake v. Blake, 2000 CarswellOnt 2477 (Ont. S.C.J.).
[^16]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.
[^17]: Moge v. Moge, (1992), 1992 SCC 25, 43 R.F.L. (3d) 345 (S.C.C.).
[^18]: Bracklow v. Bracklow, 1999 SCC 715, [1999] 1 S.C.R. 420 (S.C.C.).
[^19]: Halliday v. Halliday (1997), 1997 ONCA 737, 37 R.F.L. (4th) 192 (Ont. C.A.)
[^20]: Moge v. Moge, Supra., paras. 68-70.
[^21]: Bracklow v. Brackow, Supra., para. 38.
[^22]: Professor Carol Rogerson and Professor Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice, July 2008), at p. 9.
[^23]: Moge, Supra.; Allaire v. Allaire, 2003 CarswellOnt 1002 (Ont. C.A.).
[^24]: Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 (Ont. C.A.).
[^25]: Ibid., at para. 96.
[^26]: Rilli v. Rilli, 2006 ONSC 34451, 2006 CarswellOnt 6335 (Ont. S.C.J.); Perino v. Perino, 2007 ONSC 46919, 2007 CarswellOnt 7171 (Ont. S.C.J.); Decker v. Fedorsen, 2010 ONCJ 618, 2010 CarswellOnt 9891 (Ont. C.J.).