ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-0233
DATE: 2013-09-03
B E T W E E N:
BONNIE HARI
Michael Cupello, for the Applicants
Applicant
- and -
MICHAEL HARI
Roy Karlstedt , for the Respondent
Respondent
HEARD: August 29, 2013 , 2013
at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Reasons On Motion
[1] The applicant, Bonnie Hari, brings a motion for (a) child support for the children, Jenna Skirving, age 16, and Tessa Hari, age 8 and (b) spousal support. The respondent, Michael Hari, brings a motion for access to the child, Tessa.
[2] Mr. and Mrs. Hari started living together in 1999. They married in 2003 and they separated in June 2011.
[3] The child Jenna was born in 1996. Her birth father is Scott Skirving. Mr. Skirving resides outside of Ontario and works in the music business. Ms. Hari deposes that there is an order requiring Mr. Skirving to pay support for Jenna. No copy of the order has been filed. Ms. Hari deposes that she has no idea what Mr. Skirving earns, that he has arrears of $5,133.00 and that the last support payment that she received from Mr. Skirving was in the amount of $180.00. There is no evidence as to what monthly amount of support Mr. Skirving is required to pay, although the motion was argued on the basis that his support requirement was $180.00 per month.
[4] Mr. Hari acknowledges that he stands in the place of a parent to Jenna and that she is therefore a child of his marriage to Ms. Hari. Unfortunately, the relationship between Mr. Hari and Jenna has broken down completely since the separation.
[5] Jenna and Tessa have resided with Ms. Hari since separation. Mr. Hari has access to Tessa. Mr. Hari and Jenna do not visit with one another. On his motion, Mr. Hari seeks access only to Tessa.
[6] Mr. Hari works for Bombardier. The parties agree that for the purposes of Ms. Hari’s motion for support, the court should fix his income at the amount shown in his 2012 income tax return, namely, $64,552.00.
[7] Ms. Hari was employed as a receptionist at the John Howard Society of Thunder Bay and District from July 20, 2009 until January 31, 2013 when her position was eliminated. She receives employment insurance benefits of $680.00 every two weeks, or $17,680.00 per year.
[8] Until recently, Mr. Hari had been exercising access to Tessa every second weekend from Friday at 5:00 pm until Sunday at 8:00pm, and one weekday evening every second week. This was during a time when he worked ten hour shifts, four days a week, Monday through Thursday. He had Fridays, Saturdays and Sundays off. However, his employer has now changed his hours, against Mr. Hari’s wishes, so that he now works weekends from 6:00am to 6:00pm, Fridays Saturdays and Sundays. He has to leave for work at approximately 5:15am and he returns home at almost 6:45pm, which leaves him less than two hours with Tessa each evening.
- Child Support
[9] Ms. Hari proposes that Mr. Hari pay the Guidelines amount for two children, based on his income of $64,522.00, namely, $959.00 per month less $180.00 per month attributed to Mr. Skirving for a net of $779.00 per month. Mr. Hari is presently paying support only for Tessa in the amount of $546.00 per month.
[10] Mr. Hari’s position at the outset of the hearing of the motion was that he should not pay support for Jenna. He submits that his expenses do not permit him to pay support for her. He submits that when he and Ms. Hari separated, Ms. Hari was working full time. He submits that he purchased a home, incurring added expenses, on the expectation that she would continue to earn employment income and not require support. He also points to the fact that he has no relationship with Jenna. However, towards the end of the motion, Mr. Hari proposed that he pay $750.00 per month for the two children.
[11] Mr. Hari’s support obligation is governed by s. 5 of the Child Support Guidelines
- Where the spouse against whom a child support order is sought stands in the place of a parent for the child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.
[12] Mr. Hari, by agreement, stands in the place of a parent for Jenna. I am satisfied that Mr. Skirving, as the birth father, has a “legal duty” to support Jenna. He is in arrears of support. However, because the court order relating to his support obligation is not in evidence, the quantum of his ongoing obligation is unclear.
[13] The issue of how to apportion support between a step parent and a birth parent was discussed by Aston J. in MacArthur v Demurs 1998 14932 (ON SC), [1998] O.J. No. 5868 (S.C.J.). Aston J. considered simply subtracting from the step father’s obligation under the Guidelines, the amount payable by the birth father under the Guidelines and ordering the step parent to pay the difference. However, he rejected that approach, firstly, because in the case before him, there was no evidence that the obligation of the birth parent was enforceable. Secondly, such an approach did not take into account the reasonable financial needs for raising the child, bearing in mind that before separation the child’s standard of living had been based upon the combined incomes of the step father and mother.
[14] At para. 28, Aston J. suggested the following approach as a way of structuring judicial discretion under s. 5 of the Guidelines.
Determine the guideline amount payable by the respondent. This will involve consideration of the table amount, any section 7 add-ons and any undue hardship adjustment.
Determine the “legal duty” of any other non-custodial parent to contribute to the support of the child. As noted above, this will be established by a pre-existing order or agreement or by a guideline calculation. The words in section 5 “any other parents’ legal duty to support the child” would include the custodial parent, but the guideline scheme assumes the custodial parent meets this duty by sharing his or her household standard of living with the child.
In considering whether it is “appropriate” to reduce the respondent’s obligation under the Guidelines, once the non-custodial parent establishes that another non-custodial parent (or parents) has (have) a legal duty to support the child, the onus ought to shift to the custodial parent to demonstrate why the respondent’s obligation should not be reduced by that of other non-custodial parent(s).
I will follow this approach.
[15] The Guidelines amount payable by Mr. Hari is $959.00 for both Tessa and Jenna. The parties have proceeded on the basis that Mr. Skirving’s legal duty is $180.00. However, there is scant evidence that this is in fact his support obligation. We only have Ms. Hari’s statement that $180.00 was the last support amount that she received from him. The onus is on Ms. Hari to show that Mr. Hari’s support obligation should not be reduced by the obligation of Mr. Skirving. In fact, she agrees that Mr. Hari’s support obligation should be reduced by $180.00 and reduced to $779.00 per month.
[16] I do not accept Mr. Hari’s submissions as to why he should pay no support for Jenna. Nothing in the Guidelines makes his broken relationship with Jenna relevant. His housing costs are not relevant. His expectations that Ms. Hari would continue to work at the John Howard Society are not relevant to the issue of child support.
[17] I agree with Aston J. that simply offsetting the support obligation of the step father by the support obligation of the birth father is not the appropriate approach, even if it is the approach put forward on behalf of Ms. Hari.
[18] In this case, firstly, it is speculation that Mr. Skirving’s obligation is $180.00 per month. There is no court order in evidence. There is no evidence of Mr. Skirving’s income. Secondly, it is apparent, from the fact of the support arrears of $5000.00 that Mr. Skirving’s support obligation is not presently enforceable and is presently of no assistance to Jenna. Thirdly, support is the right of the child. It should not be arbitrarily reduced even if the custodial spouse is prepared to accept a reduced amount.
[19] In my view, the only principled approach to take in this case, with the limited evidence regarding Mr. Skirving’s obligation, is to require Mr. Hari to pay full Guidelines support of $959.00. I will, however, make this an interim, interim order in the event that better evidence as to Mr. Skirving’s obligation becomes available.
[20] Mr. Hari stood in the place of Jenna’s parent for 12 years prior to separation. She was three or four years of age when Mr. Hari began to reside with Ms. Hari. I see nothing unfair in the circumstances, as presently known, by requiring Mr. Hari is required to pay full Guidelines support.
- Spousal Support
[21] There is no issue as to entitlement or as to Ms. Hari’s need for spousal support. The question is Mr. Hari’s ability to pay.
[22] Mr. Hari’s counsel has produced Spousal Support Advisory Guidelines (SSAG) calculations. These calculations are based on the parties’ incomes at $64,552.00 and $17,680.00, respectively, with Mr. Hari paying Guideline child support of $959.00 for Tessa and Jenna. This SSAG calculation shows a range of spousal support of zero at the low end, $175.00 per month in the mid-range and $371.00 per month in the high range,
[23] I have reviewed the expenses of $74,745.12 per year set out in Mr. Hari’s Financial Statement and added in the $959.00 per month child support that I have determined he should pay. I also have considered that Mr. Hari resides with a partner whom he states contributes $300.00 per month towards the household expenses. Even if I significantly reduce Mr. Hari’s discretionary expenses, it is apparent that his ability to pay spousal support if severely limited. He only has the ability to pay nominal spousal support. A spousal support payment of $100.00 per month would leave Ms. Hari with approximately 53% of the parties’ net disposable income and Mr. Hari with approximately 47%. This does not take into account Mr. Hari’s mandatory employee pension contributions and union dues, totalling approximately $460.00 per month. Although his pension will grow in value from his pension contributions, the deductions do negatively affect his available cash flow. An order will go that Mr. Hari pay spousal support of $100.00 per month. This order will also be interim, interim because it reflects the interim, interim, child support that I have ordered.
- Access
[24] It is apparent that the present access regime of every second weekend is no longer workable because of the requirement of Mr. Hari’s employer that Mr. Hari work weekends. Mr. Hari requests that he have Tessa from after school on Monday until 8:00pm Thursday, every second week. Mr. Hari would transport Tessa to and from school while he has access. Ms. Hari proposes that Mr. Hari have Tessa from Tuesday after school until Thursday, every second week.
[25] Section 16(10) of the Divorce Act requires a court, in making an order for custody or access, to give affect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child.
[26] I appreciate that a mid-week access regime could be disruptive to Tessa’s school work but, as Ms. Hari herself recognizes in her proposal, it is the only way that Tessa will have meaningful access with her father. Mr. Hari deposes that he and Tessa have a warm and loving relationship and that Tessa enjoys her time with him. Ms. Hari does not dispute this.
[27] Mr. Hari’s proposal would have Tessa spending three overnights with him, every 14 days. Ms. Hari proposal is for two overnights out of 14. I find that Mr. Hari’s proposal is reasonable and more consistent with the principle of maximum contact consistent with the best interests of the child. The return time of Thursdays shall be 7:00pm, however, so that Tessa can settle in for her regular bedtime of 8:00pm
Conclusion
[28] For the reasons given, an interim, interim order shall go as follows:
Mr. Hari shall pay to Ms. Hari support for the children, Jenna and Tessa, in the sum of $959.00 per month, commencing August 1, 2013, based on his income of $64,552.00 and the Child Support Guidelines.
Mr. Hari shall pay to Ms. Hari spousal support in the sum of $100.00 per month, commencing August 1, 2013.
Mr. Hari shall have access to Tessa from after school on Monday until 7:00pm on Thursday every second week. Mr. Hari shall be responsible for delivering Tessa to and picking her up from school and returning her to Ms. Hari at the end of his Thursday night access.
[29] In view of the mixed success on these motions, there will be no order as to costs.
___”original signed by”
The Hon. Mr. Justice D.C. Shaw
Released: September 3, 2013
COURT FILE NO.: FS-12-0233
DATE: 2013-09-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BONNIE HARI
Applicant
- and –
MICHAEL HARI
Respondent
REASONS ON MOTION
Shaw J.
Released: September 3, 2013
/mls