SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-06-058752-01
DATE: 2013-04-25
RE: DEY v. MALHOTRA
BEFORE: JUSTICE VAN MELLE
COUNSEL:
W. ABBOTT, for the Applicant
J. CONNON, for the Respondent
DATE HEARD: April 17, 2013
E N D O R S E M E N T
[1] This is a motion by the respondent (mother) seeking child support from the applicant (father). She moves as well for an order requiring the father to disclose his present wife’s income. Finally the respondent asks that the father share the costs, which are not covered by scholarships, of an academic preparation camp for Nolan for the summer of 2013.
[2] The applicant moves for costs of his motion for summary judgment.
[3] The parties were married on August 28, 1993 and separated on October 23, 2006. There are two children: Nolan born October 4, 1996 and Alisha born March 21, 2003.
[4] In March 2010 the parties agreed to an arrangement that was incorporated into the March 8, 2010 Order of Justice Lemon.
[5] Until February 2013 the children resided with the parties in a joint custody/shared parenting arrangement pursuant to the Lemon Order. The children were with the father five days out of fourteen and with the mother nine days out of fourteen. Holidays and summer vacation were to be shared equally.
[6] The after-tax cost of the children’s special and extraordinary expenses was to be shared equally. Various provisions were made to spell out what the expenses were and how they were to be calculated.
[7] There was no monthly child support payable. The relevant paragraphs are:
Given the shared parenting regime, and the incomes of both parties, and the equal sharing of special and extraordinary expenses, the parties agree that there shall be no child support payable by either party. Neither party shall apply for a review of child support for at least two years from the date of this order.
Child support may be reviewed at the request of either party after two years from the date of this offer [sic]. The current financial arrangements for the children are based on the applicant earning $60,415.80 gross in 2009 and the respondent earning $86,140.23 gross in 2009. (emphasis added)
[8] On August 21, 2010 the respondent issued a Motion to Change Justice Lemon’s Order. On page 5 of the Motion to Change she stated:
I ask that the terms of the order of Justice G.D. Lemon dated March 8, 2010 be changed as follows:
I respectfully request the court to make an order for child support based on the table amount retroactively to March 8, 2012 for our two children, Nolan Siman Dey and Alisha Chandni Dey. Extraordinary expenses to remain 50% shared costs between both parties. Support in summer months to be set off. No support payable during summer months.
[9] She sought monthly child support of $957.00 based on the applicant’s annual income of $66,282.00.
[10] The change that she relied on was in effect, the passage of time referred to in paragraphs 19 and 20 of the Lemon Order:
As per court order dated March 8, 2010, there was no child support payable until March 8, 2012, therefore a change is requested at this time.
[11] As a result, the applicant brought a motion for summary judgment. He gave the Respondent a number of opportunities to withdraw her claim. She did not do so.
ANALYSIS
Costs for Summary Judgment Motion
[12] In order to determine whether or not the applicant is entitled to his costs of the summary judgment motion I must decide whether or not the Motion to Change would have had any chance of success.
[13] On a plain reading of the Lemon Order, I do not accept the submission that child support was to be awarded to the respondent after two years. Those paragraphs simply mean that the child support arrangements are not to be changed for two years, irrespective of the circumstances. The Order is silent as to what occurs after two years and as to what criteria would apply to any review of the child support arrangements. It would be for a Court to determine, after two years, whether a material change in circumstances has occurred.
Disclosure of Ms. Gadoury’s Income
[14] Although not actually in the Motion to Change, it should be noted that the respondent indicated during her submissions that the material change was the applicant’s remarriage and his new wife (Ms. Gadoury’s) income. She speculates that Ms. Gadoury’s annual income is $100,000.00 and seeks an order for disclosure of that information
[15] Since Ms. Gadoury is not a party to this action. I suspect that the respondent seeks disclosure pursuant to Rule 19(11) of the Family Law Rules, which deals with documents in a non-party’s control and would have required service on Ms. Gadoury I would not grant the request on that basis alone. Additionally, I would not grant it in any event.
[16] Nowhere in the determination of income for child support purposes is there a suggestion that a new partner’s income is relevant unless there is a claim for undue hardship. There is no such claim here. There is also no obligation under section 21 of the Child Support Guidelines, to produce a new spouse’s income.
[17] The respondent submitted that the children were primarily in her care. She submitted that they spent only 37% of their time with the applicant. Both sides provided case law on the manner of calculating the time spent with each parent. I accept that one must look at the whole calendar year, including vacation time, in calculating time spent. In this case, when one looks at the entire year, I am satisfied that until February 4, 2013, the children spent at least 40% of their time with the applicant. As a result section 9 of the CSGs applies.
[18] The respondent submits that section 9(c) of the CSGs directs me to consider “the conditions, means, needs and other circumstances of each parent or spouse and of any child for who support is sought.” She submits that in this consideration I can take into account Ms. Gadoury’s income. I do not accept this submission.
[19] In the circumstances I would not order production of Ms. Gadoury’s income information.
Is there a material change in circumstances prior to February 2013?
[20] The applicant is employed by SunLife. The Lemon Order sets out his income as $60,415.80 in 2009. His income in 2012 was $66,776.37 and for 2013 is $66,779.66. His income has increased by $6,363.86.
[21] The respondent’s income in 2009 was $86,140.23. The respondent’s income is $89,583.96 according to her Financial Statement, sworn April 10, 2013, excluding the child tax benefit that she receives. On Schedule C of the same Financial Statement she deposes that her income for the calculation of extraordinary expenses is $94,534.00. Using her figures, her income has increased by $3,443.73 to $8,292.77. Until February 2013 the parenting arrangements remained as set out in the Lemon Order.
[22] The respondent took except to the applicant’s submission that she might have had to pay child support to him, given their respective incomes at the time of the separation and the time-sharing arrangement, and thus the Lemon Order was to her advantage because neither party had to pay child support.
[23] However, section 9 of the CSGs is worded in such a way that child support is not necessarily payable from the parent who has the child 40% of the time to the parent who has the child 60% of the time. Depending on the respective incomes of the parties, child support could be payable from the parent who has the child 60% of the time: see Mehling v. Mehling 2008 MBCA 66, 228 Man. R. (2d) 145.
[24] I find that the respondent’s Motion to Change was premature as there was no material change in circumstances entitling her to an order for child support until February 2013. In these circumstances the applicant is entitled to his costs for the summary judgment motion.
Child support from February 1, 2013
[25] I must now determine the appropriate child support from February 2013 onward given that Nolan moved in with the respondent on a full-time basis as of February 4, 2013. She is entitled to Guideline support for him. The applicant’s income for child support purposes in 2013 is $66,779.66. Therefore support shall be payable in the amount of $611.00 commencing February 1, 2013.
[26] The difficult issue is to determine how the shared parenting arrangement with respect to Alisha will impact the payment of child support.
[27] When assessing support obligations pursuant to section 9, the Court directed in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 that there is a two part test. Firstly the Court must determine whether the 40% threshold has been reached after which certain steps must be followed.
The starting point is the simple set-off amount for the number of children involved in the shared custody arrangement. Here the set-off would be $187.00 to $225.00 in the applicant’s favour.
Having determined the set-off I must review the parties’ Child Expense Budgets. The respondent’s Children’s Budget is dated April 15, 2013. She did not provide one earlier and this budget relates to both children. This makes it very difficult to determine the increased costs to the parties of the shared custody regime of Alisha. The applicant’s Children’s Budget also relates to both children, although he has not attributed any portion of the housing expenses to Nolan.
I must consider the ability of each parent to bear the increased costs of shared custody and the standard of living for the child in each household. I find that each party has the ability to bear the increased costs of shared custody. The respondent shows a deficit of $600.00 per year on her Financial Statement. The respondent shows a deficit of $1,341.11 per month, but does not have any debt other than a mortgage. I can only assume that he meets his monthly deficit with the assistance of his new wife. Although I cannot take Ms. Gadoury’s income into consideration in assessing child support, the fact that the applicant is sharing expenses with someone else is relevant in assessing his increased costs under section 9.
[28] In view of the foregoing considerations, it would be reasonable to employ the set-off calculation using the mid-point of roughly $200.00. Using that figure, the applicant owes the respondent a total of $411.00 for support commencing February 1, 2013.
Claim for contribution to Nolan’s academic preparation camp
[29] The respondent seeks a contribution to Nolan’s academic preparation camp. She asks for one-half of the cost not covered by scholarships namely one-half of $1,450.00.
[30] Although she did not ask the applicant’s consent prior to registering Nolan in this camp, she advises that his attendance will likely enable him to receive a scholarship to university which will save a lot of money in the long run. I find that the applicant should pay $725.00 toward the cost of this camp. I caution the respondent, however, that she is not to see this order as a condonation of her enrolment of Nolan in this camp without the applicant’s consent.
[31] The respondent has also advanced a claim for custody of Nolan. The applicant rightly pointed out that the respondent had not completed the form 35.1 in support of this claim. As pointed out by Justice Hourigan in Holland v. Holland 2010 ONSC 3599, [2010] O.J. No. 2745, the completion of a Form 35.1 affidavit is mandatory. Nolan is 16 years of age. There is no reason to grant the Respondent sole custody.
CONCLUSION
[32] The following Orders will issue:
Commencing February 1, 2013 the applicant will pay child support for the two children in the amount of $411.00 per month;
Commencing February 4, 2013 Nolan will have his primary residence with the respondent;
The applicant is to pay $725.00 toward the cost of academic camp for Nolan;
The applicant is entitled to his costs of his summary judgment motion for the Motion to Change;
All other aspects of the Lemon Order are to remain in effect; and
The balance of the respondent’s motion is dismissed.
[33] I will entertain brief written submissions as to costs of the applicant’s summary judgment motion and costs relating to this motion. The applicant has 20 days from today’s date to serve and file his submissions and the respondent has 15 days to reply.
Van Melle J.
DATE: April 25, 2013
COURT FILE NO.: FS-06-058752-01
DATE: 2013-04-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DEY v. MALHOTRA
BEFORE: VAN MELLE J.
COUNSEL: W. ABBOTT, for the Applicant
J. CONNON, for the Respondent
ENDORSEMENT
Van Melle J.
DATE: April 25, 2013