ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-11-2172-1
DATE: 2013/01/08

BETWEEN:

Louise Lalonde

Applicant

– and –

Claude Potier

Respondent

Julie Audet, for the Applicant

Michèle Labrosse, for the Respondent

HEARD: December 11, 2012 (Ottawa)

REASONS FOR DECISION

beaudoin j.

Introduction.

Introduction

1The Applicant brings this motion to change the amount of child support payable by the Respondent as originally set out in their separation agreement, dated April 3, 2006.

2The parties were married on June 5, 1993 and separated on September 30, 2005. They have two sons, Mathieu (d.o.b. November 18, 1997) and Daniel (d.o.b. April 7, 1999). At the outset of the separation, the boys were in their mother’s care and the father had regular access. He paid Table amount of child support. After obtaining a custody and access assessment, the parties agreed to share custody and physical care of Mathieu and Daniel on a week about basis. Child support was paid using the straight set‑off approach based on their respective incomes.

3On January 31, 2010, Mathieu began to live with his mother on a full‑time basis and Daniel continues to spend half of his time with each of his parents. Initially, the father agreed to the mother’s request that he pay child support by using the two‑step approach. Relying on the father’s available 2008 income, the parties calculated support on the following basis: Father paid Table amount of support for Mathieu in the amount of $704 plus the set‑off amount for Daniel ($704-$498), namely $206, for a total child support payment of $910. The father paid this amount from February 2010 until June 2010 along with other amounts for special expenses and other adjustments as agreed upon by the parties. By applying the same two‑step approach, from July 2010 to May 2011, the child support was increased to $981 per month.

4In May 2011, the father consulted a lawyer and took the position that he had overpaid child support. He believed that he should have paid only $638 per month, being the set‑off between his Table amount for two children and the mother’s Table amount for one child. As a result, the father did not pay support until November 2011. He has continued to pay support in varying amounts since that time. He currently pays $783 per month.

5The father’s current income is $93,658 and the mother’s is $60,993. The parties appear to have new partners. In Schedule B to her financial statement, the mother indicates that she lives with Charles Dufton who is employed by DND. She adds: “Charles Dufton is not my spouse. He is just a friend that I am helping out (by providing him a place to stay) until he moves out following his retirement… He contributes approximately $200.00 per month towards heat, water and telephone.”

6In his response to the motion to change, Mr. Potier alleges that the Applicant has been in a conjugal relationship with Mr. Dufton for six years; that he and the Applicant attend family reunions, vacation together, that he is listed as contact person at the children’s functions at school and that he earns significant income. The Respondent says that the Applicant is not being truthful about her relationship with Mr. Dufton so that she can claim the equivalent as spouse tax credit for one of the boys. Mr. Potier’s new partner, Sylvie Farley earns $72,432 and, according to Schedule B to his financial statement, she contributes $1,550 to household expenses.

7The Applicant has chosen not to respond to these allegations and I am left to conclude that her relationship with Mr. Dufton is more significant than she maintains in her financial statement. Even if he were a simple occupant, the Applicant appears to be subsidizing his living arrangements by accepting his minimal contributions to household expenses while at the same time arguing that she needs more support for the children. The parties have agreed to argue this motion on the basis of their respective incomes as they say that they cannot afford to engage in a time-consuming Contino ¹budget approach to child support. Nevertheless an appreciation of household incomes is an important barometer in determining the appropriate approach to child support in split custody cases.

Relief Sought

Relief Sought

8The Applicant seeks:

1. An order adjusting child support retroactively to June 1, 2011;

2. An order that the Respondent pay his proportionate share of special expenses:

Soccer registration fees 2011 & 2012 $340.00

Soccer Cleats $ 29.65

Badminton fees 2011 & 2012 $180.00

Special running shoes, goggles $113.09

3. The Applicant seeks an order that the Respondent be ordered to pay $1100 from June 1, 2011 to September 2012. After that date, the Applicant seeks that the Respondent be ordered to pay $1220 per month, an amount which would reflect child support calculated at $1126 per month with the balance being allocated to section 7 expenses since there have been some disputes about special expenses.

9Although the Respondent has not brought his own motion to change, he submits that any recalculation of retroactive support should become effective as the date of the material change, namely January 2010. Section 7 expenses are also in issue.

10The Respondent suggest that the economies of scale approach be used in determining child support and he proposes a payment of $883 per month and that section 7 expenses for Daniel should be shared equally. The amount of $883 per month is arrived at by first setting‑off the child support payable by the mother for one child against the amount of support payable by the father for two children = $783. The father’s proposal adds an additional $100 to that amount.

The Law

The Law

11The Child Support Guidelines provide for the following:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Split custody

8. Where each parent or spouse has custody of one or more children, the amount of an order for the support of a child is the difference between the amount that each parent or spouse would otherwise pay if such an order were sought against each of the parents or spouses.

Shared custody

9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared custody arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

12As noted by Justice Mackinnon in Gauthier v. Hart, 2011 ONSC 815, 100 R.F.L. (6th) 178, where one parent has custody of one child and the parents share custody of another, the child support claim is considered a hybrid claim. The Child Support Guidelines do not provide a specific formula in these cases nor is there a decision at the appellate level as to how to address this issue. The alternate approaches were reviewed by Marshman J. in Hofsteede v. Hofsteede (2006), 2006 2052 (ON SC), 24 R.F.L. (6th) 406 at paras. 41-43:

41 Turning to the facts of this case, the difficulty in applying the guidelines immediately becomes clear. The mother has full custody of one child and the other child is shared equally between the parents. Do I determine a separate amount of child support for Alexis and then turn to the analysis in Contino v. Leonelli-Contino, supra, only for the child Rachel or do I do an overall analysis in accordance with in Contino v. Leonelli-Contino with respect to both children and then carve out the child support amount for Alexis? The dilemma was faced by Justice Merri-Ellen R. Wright in Wouters v. Wouters (2001), 205 Sask. R. 215, 2001 SKQB 142, 16 R.F.L. (5th) 438, [2001] S.J. No. 232, 2001 CarswellSask 264 (Sask. Q.B., Fam. Div.), and by Justice Henry Vogelsang in Burns v. Burns (1998), 1998 14880 (ON SC), 40 R.F.L. (4th) 32, [1998] O.J. No. 2602, 70 O.T.C. 147, 1998 CarswellOnt 2478 (Ont. Fam. Ct.). Each of those judges came to different conclusions with compelling reasons. In Wouters v. Wouters, the eldest child resided primarily with the mother and the other two children spent equal time with each parent. Justice Wright was of the view that the father's obligation with respect to the child whose custody was not shared ought to be determined in accordance with the presumptive rule in section 3. It was after that that she turned her mind to the appropriate child support payable under section 9 with respect to those children whose custody was shared. She used the Table amount for one child in determining child support for the eldest child and then the Table amount for two children in determining the appropriate set-off amount under clause 9(a) for those children whose custody was shared. The inherent assumption was that the Table amount payable by the father for three children based on his income of $40,000 was $872 when in fact the Table amount he would pay for three children in the mother's custody would be $717.

42 In Burns v. Burns, the parties shared custody of the oldest child and the two younger children had their principle residence with the mother. Justice Vogelsang found that the "argument advanced by the husband has the advantage of consistency with the logic of the guidelines and reality. Certainly, the guidelines recognize the principle of economies of scale. The support for three children is less than three times the support quantum for one" (paragraph [22]). In effect, Justice Vogelsang calculated the guideline amounts for 2.5 and .5 children and invited the parties to agree on the set-off amount.

43 I have come to the conclusion that the rationale in the Burns v. Burns decision is the proper one, recognizing as it does the economies of scale in having more than one child in a residence. However, as directed in Contino v. Leonelli-Contino, it is the full guideline amount for the children that is used in determining the appropriate set-off amount. Although the wording of the guidelines may, at first blush, dictate that the approach in Wouters v. Wouters is the proper one, I am of the view that it is more appropriate to consider this situation under section 8 and section 9 of the guidelines rather than section 3 and section 9. Section 8 is applicable because "each spouse has custody of one or more children." Section 9 is applicable because one or both spouses has "physical custody of, a child for not less than 40 percent of the time over the course of a year."

13Justice Marshman went on to consider the budgets of each of the parties and any increased costs of custody as well as the means and circumstances of each household and ordered the father to pay $925 per month, which was more than the set‑off amount ($841) but less than Table amount for two children ($1,063).

14Justice Mackinnon adopted a similar approach in Gauthier. She noted at paras. 96 and 97 of her decision the following:

96 The purpose of child support is not to equalize parental incomes but it has been recognized that the available net disposable income in each home is an important factor. Based on the hybrid custody arrangement, child support payments by the Respondent of $1,410 per month in 2008 and $1,550 per month in 2009 would equalize the parents' NDIs. Yet, the children's residential custody was not equally shared, rather the mother had residential custody of Zachary and only residential custody of Daniel was shared. At the same time, this is not a case where spousal support is in pay.

97 I agree with the approach adopted in Hofsteede, supra. It recognizes the greater financial burden on the parent with primary residential custody of the one child as well as the "economies of scale" in that parent's home and, at the same time, recognizes that full Table support for two children does not adequately reflect the costs of the payor who has shared custody of the second child. In that case, after considering any increased costs of shared custody and the means and circumstances of the parties, the judge awarded child support between the hybrid set off amount and the Table amount for two children. Here, those numbers are $1,136 per month and $1,656 per month for 2008 and $1,206 and $1,739 per month for 2009. My consideration of the s. 9 factors leads to the conclusion that the Respondent's household income exceeded the Applicant's having regard to Mr. Boyce's financial ability and actual contribution. The Respondent's discretionary expenses exceeded the Applicant's. His net worth exceeded hers. These facts establish that the hybrid set off amount does not provide an adequate contribution towards the mother's shared custody of the second child. In my view, $1,325 per month in 2008 and $1,425 per month in 2009 provide an appropriate balance of both parents' financial responsibilities to their children under the "hybrid" living arrangements. On a percentage of NDI, these awards represent an allocation on average over the two years of 51/49 percent in the father's favour.

15The Applicant mother notes that an application of hybrid set‑off approach would result in the father paying less child support for two children than he would pay for one child alone ($886). At the same time, the amount of support the mother now seeks is considerably more than the off‑set amount the father was paying before January 2010 and he still has one child living with him half of the time. Mother’s counsel cites a paper written by Justice Mackinnon and Jane Murray entitled Eight Days a Week, Port‑Contino: Shared Parenting Cases in Ontario². In that paper it is noted that most cases determine the hybrid set‑off as a starting point and go on to award more than that amount.

16The paper went on to note that the parent with the additional child almost always retained more than 50 percent of the parents’ combined NDI. The Applicant mother presents her DivorceMate calculations that disclose that an $1100 payment by the father would result in the father retaining 46 percent of the NDI whereas the mother would have 54 percent NDI. A payment of $1220 would result in a 45% - 55% distribution of NDI. The father’s calculations show that an $883 child support payment would have him retain 48 percent of the NDI and the mother would have 52 percent of the NDI.

17As the authors of Eight Days a Week note, the distribution of NDI is an important factor in determining the appropriate amount of child support to be paid when the Guidelines do not apply but reference to NDI is not a rule. This is consistent with section 9 of the Guidelines which directs the court to consider the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

18What is required is an appreciation of household incomes and the relative standard of living between two homes. In this case, that analysis is handicapped by the Applicant mother’s refusal to disclose Mr. Duftons’s income and her attempt to minimize his financial contributions. When I look at the parties’ respective financial situations; they both have new homes and mortgages and the mother’s net worth is slightly higher than the father’s. The mother claims to be paying her father $700 per month to retire a $5000 debt that she says was used to help her defray monthly expenses. This does not seem to be a very prudent arrangement. Her budget also allows her to claim $500 monthly for vacation expenses. If her debt payments to her father were reduced and Mr. Dufton made more realistic contributions to household expenses, the circumstances of the parents would be very similar if the father pays the amount of support that he proposes to pay.

19Recent cases indicate the courts will try to find a middle ground in determining child support in these hybrid situations. In the absence of evidence supporting a Contino budget analysis, the court is left to rely on the financial statements of the parties and a consideration of household incomes and the distribution of the NDI with an eye to ensuring that children enjoy comparable standard of living in each home.

20In this case, I adopt the Respondent father’s approach and set child support in the amount of $883 per month. In her submissions, counsel for the father request that support be recalculated to January 2010. Even though there is no cross‑motion in support of that relief, I conclude that I am not precluded from re‑calculating the child support payable as of that date since the mother has raised the issue of retroactivity in her motion to change. She simply seeks a date that is more favourable to her. Nevertheless, I limit the issue of retroactivity to June 2011. The mother’s interpretation of the Guidelines was not unreasonable and the father agreed to it for a period of time. I expect the parties to do the necessary recalculation.

Section 7 Special and Extraordinary Expenses

Section 7 Special and Extraordinary Expenses

21I limit the claim for extraordinary expenses to soccer and badminton registration fees. These are to be shared on a pro‑rata basis. Running shoes, soccer cleats and goggles are not extraordinary expenses. I accept the father’s evidence that the mother has attempted to seek reimbursement for many expenses that are neither special nor extraordinary. While she has limited her claims in this motion, the father states that she has sought reimbursement for such things as haircuts and school lunches in the past.

Costs

Costs

22If the parties are unable to come to an agreement on the matter of costs, counsel are to provide me with their brief written submissions, not exceeding three pages, within 20 days of the release of this decision. I consider the Respondent the successful party on this motion. His submissions should proceed first and the Applicant’s should be submitted ten days later.

Mr. Justice Robert N. Beaudoin

Released: January 8, 2013

COURT FILE NO.: FC-11-2172-1
DATE: 2013/01/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Louise Lalonde

Applicant

– and –

Claude Potier

Respondent

REASONS FOR DECISION

Beaudoin J.

Released: January 8, 2013

Footnotes

1. 1Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217.
2. 2Presented to the CCLA Family Law Institute, April 8, 2011.