ONTARIO

SUPERIOR COURT OF JUSTICE

PEMBROKE COURT FILE NO.: 08-806
DATE: 2012/12/17

BETWEEN:

Ronald Stuart Kaul Applicant – and – Kristine Marie Hart Respondent

Ronald Stuart Kaul, Self-represented

Victoria B. Legris, for the Respondent

HEARD: August 17, 2012 (Pembroke)

REASONS FOR DECISION

kershman j.

INTRODUCTION

[ 1 ] This is a motion brought by the Applicant (Father) against the Respondent (Mother) for a temporary order as it relates to quantum of child support payable.

FACTUAL BACKGROUND

[ 2 ] The parties were married on December 17, 1994 and were divorced by order dated May 11, 2010.

[ 3 ] A final order was made by James J. dated May 11, 2010, which provided that primary residence of the two children, Ryan Spencer Kaul (born October 2, 1997) and Samuel Liam Kaul (born January 10, 2001) to the Father. The Mother had access as set out in paragraph 3 of the order.

[ 4 ] According to the parties, the split of time with the children between the two parents was 60 percent with the Father and 40 percent with the Mother.

[ 5 ] Paragraph 30 of the Order reads as follows:

Commencing January 1, 2012, and on the first day of each and every month thereafter, the respondent shall pay child support to the applicant. The amount of the respondent’s obligation shall be calculated after disclosure of the respondent’s 2011 total income as defined by the Child Support Guidelines. The respondent’s obligation shall be fixed at 60% of the Table obligation for two children based on the respondent’s total 2011 income. This paragraph shall be subject to variation in the event of a material change in circumstances.

[ 6 ] The Court notes that the final order of May 10, 2010 was made approximately 18 months prior to child support being paid in January of 2012.

[ 7 ] At the time of the May 2010 order both children were residing 60 percent with the Father and 40 percent with the Mother. This changed in August 2010 when Ryan, the eldest child, began living 100 percent of the time with the Father. Samuel still lives 60 percent of the time with his Father and 40 percent of the time with his Mother.

[ 8 ] For 2011, the Father’s income is $92,800 and the Mother’s income is $87,000. These figures were agreed upon by the parties at the motion.

ORDER OF AUGUST 17, 2012

[ 9 ] On consent and on a without prejudice basis, the Mother agreed to pay the sum of $433 per month to the Father from January 1, 2012 through to August 1, 2012, for a total of $3,464. This amount was to have been paid in the month of August and a separate cheque for $433 for the month of September as well. The Court is not aware whether these amounts have in fact been paid. The Court does not know if any further amount has been paid after September 1, 2012. In the event that these amounts, together with any further amounts for basic child support were paid, they shall be credited against what is owing for child support.

ISSUE

How much child support should be paid by the Mother to the Father for the two children based on Ryan living with his Father 100 percent of the time and Samuel living with his Father 60 percent of the time?

Father’s Position

[ 10 ] The Father argues that the child support calculations set out in paragraph 30 no longer apply because there has been a material change in circumstances in that Ryan lives with him 100 percent of the time instead of 60 percent of the time. He argues that child support should be paid to him on the basis that Ryan lives with his Father 100 percent of the time and Samuel lives with his Father 60 percent of the time. According to his calculations, the Mother should pay $913.60 monthly to the Father, based on the incomes set out in paragraph 8 above. He calculates the amounts as follows:

• For Ryan, child support would be $777 per month as he lives with the Father full‑time based on the Mother’s income of $87,000 per year.

• For Samuel, the Father would pay 40 percent of $824 per month or $329.60. The Mother would pay 60 percent of $777 per month or $466.20. The difference that the Mother would pay to the Father would be $466.20 - $329.60 = $136.60.

• The total claimed for child support by the Father is $777 + $136.60 = $913.60.

[ 11 ] The Father also seeks section 7 expenses of $38 per month for educational costs and $35 per month for Ryan’s guitar lessons and $14 per month for Ryan’s cell phone.

Mother’s Position

[ 12 ] The Mother’s position is that she owes child support of $433 per month from January 1, 2012 based on the 60/40 split in the living arrangements for the children and the incomes set out in paragraph 8 above. The Mother acknowledges in her Affidavit that Ryan lives full‑time with the Father. She also argues that her portion of special expenses is 48 percent with 52 percent apportioned to the Father.

ANALYSIS

[ 13 ] The order of James J. dated May 11, 2010 required that child support be paid on the basis that both children were living with the Father 60 percent of the time and with the Mother 40 percent of the time. That, in fact, changed shortly after the order was taken out when Ryan moved in to live with his Father, in August 2010.

[ 14 ] This court finds that Ryan has been living with the Father 100 percent of the time since August 2010, which is a material change in circumstances.

[ 15 ] As such, the Mother should be paying full child support for Ryan and there should be a set‑off amount for Samuel.

[ 16 ] The following is the Court’s calculations of monthly child support that is to be paid by the Mother to the Father from January 1, 2012 for child support, based on the incomes set out in paragraph 8 above:

Child support for Ryan

$777.00

Child support for Samuel

$136.60

Total

$913.60

[ 17 ] As to the issue of section 7 expenses, they shall be payable by the parties in proportion to their income:

Father’s income

$ 94,800

52%

Mother’s income

$ 87,000

48%

Total

$179,800

100%

[ 18 ] Any amounts paid as set out in paragraph 9 above shall be credited towards the outstanding child support.

[ 19 ] In addition, this Court orders that all child support amounts shall be collected by the Family Responsibility Office.

[ 20 ] Lastly, this Court orders that all communications concerning the children shall be done by way of e‑mail, due to the challenges faced by the parents in communicating with each other.

SETTLEMENT CONFERENCE

[ 21 ] A Settlement Conference was held prior to the release of this decision. This Court orders that a second Settlement Conference can be held in this matter, if requested by a party, with the date and time to be set by the trial coordinator, Connie Schofield, 613-732-8581 ext. 402.

COSTS

[ 22 ] In the circumstances of this case, this Court orders that there be no order as to costs.

[ 23 ] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: December 17, 2012