ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: F-0203/10
DATE: 2013/01/31

B E T W E E N:

CHARLENE JUDGE

Norman A. Pizzale, for the Applicant

Applicant

• and -

ETAIN WILLIAMS

Self-Represented

Respondent

HEARD: January 30, 2013

Rady J.

[1] The applicant seeks child support for Culleec Ethan Williams who was born on January 23, 2008. He is now five and attends Junior Kindergarten. He lives in London with Ms. Judge and her father. Ms. Judge asks that Mr. Williams be ordered to pay 50% of any extraordinary expenses if they arise in future. None are being incurred at this time. She also asks that the order for child support be made retroactive to January, 2012. The trial in this matter was delayed because of the respondent’s very late request for paternity testing, which demonstrated that Mr. Williams is Culleec’s father. Mr. Williams has paid no meaningful support for Culleec since 2008.

[2] Issues respecting custody and access were resolved by a consent order made by Korpan J. of September 27, 2012.

[3] Mr. Williams says he recognizes his obligation to support his son but his financial circumstances restrict his ability to do so. He has five other children, ranging in age from 2 to 20, with three other women. He says he pays support for these children – by example, by paying for his eldest son’s bus pass and by purchasing clothing and so on. There are no separation agreements, nor court orders respecting child support for these children. He says that his hours of work have been reduced at Wal-Mart, he has substantial debt and he is close to bankruptcy. However, he says that he will pay $100 for Culleec’s support monthly starting next month.

[4] There is no question that the applicant is entitled to child support and the respondent is obliged to pay it. The only issue is quantum. The presumptive rule is that the amount is as set out in the applicable table plus the amount determined under s. 7 (see s. 3(1)(a) & (b) of the Child Support Guidelines).

[5] A court may make an order for support for other than that set out in the table if it is satisfied that such an order would cause undue hardship. Section 10 of the Guidelines sets out some of the circumstances that may cause undue hardship:

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;

(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;

(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

[6] The case law establishes that there is a high threshold to meet in order to demonstrate undue hardship. It is the exception rather than the rule. Undue hardship has been defined as exceptional, excessive and disproportionate: Marrone v. Marrone, [2007] O.J. No. 5341 (S.C.J.). The respondent has the burden to prove hardship on a balance of probabilities.

[7] Mr. Williams produced a paystub dated December 21, 2012 from Wal-Mart showing his gross year to date earnings of $20,747.77. He also received Employment Insurance of $693 in 2012, arising from his decision to take a parental leave so that he could co-parent his most recently born child. Therefore, his gross earnings for 2012 were $21,440 which yields guideline support of $171.50. Mr. Williams submitted that his net earnings should be considered in calculating support. However, s. 16 of the Guidelines provides the basis for determining support. Gross earnings are to be considered.

[8] I am not persuaded that Mr. Williams has demonstrated hardship. I recognize that his income is modest. However, he lives in Pickering with his mother to whom he does not pay rent, although he testified that he makes a contribution to utilities and related household expenses. His financial statement sworn October 29, 2012 shows an expense of $300 monthly for water, heat and electricity. He says that he spends $40 monthly on tobacco and alcohol; $75 for meals outside the home; and $140 for entertainment and gifts. There is no reason that those expenses should be incurred in preference to his son.

[9] Mr. Williams brought to court two credit checks. He does have a significant debt approaching $40,000 but he makes no payment toward it. There is no evidence that the debt was incurred to support the applicant and Culleec during cohabitation. Ms. Judge and Mr. Williams were in a dating relationship and she may have lived at his home for short periods from time to time but they did not cohabit as the term is ordinarily or legally understood.

[10] I accept that he makes some modest contributions to the support of his other children but it is very informal and ad hoc. Mr. Williams’ evidence about those contributions was quite vague and he had no documentary support. In his financial statement, he says he pays $225 for support of other children and $130 for children’s clothing and activities. He offered no proof of these figures and I do not believe that he spends money for his other children at this level. Certainly, there is no court ordered support being paid.

[11] Mr. Williams is not exercising access to Culleec and therefore incurs no expense in that regard.

[12] In the circumstances, Mr. Williams has not demonstrated undue hardship. As a result, he is ordered to pay $171.50 per month.

[13] He will also pay 50% of any extraordinary expenses if and when they arise (given that the parties’ incomes are relatively the same).

[14] Support is ordered retroactive to January 1, 2012. The applicant is being very reasonable in suggesting this date. Her application was filed on January 25, 2010 and the respondent is responsible for the delays in reaching trial.

[15] Mr. Williams’ very late request for DNA testing derailed earlier trial dates. He acknowledged at trial, his responsibility to pay support and offered $100 per month. It is most unfortunate he did not make that offer earlier.

[16] I will receive brief written submissions on costs (no more than two pages plus a bill of costs) first from Mr. Pizzale within ten days and from Mr. Williams ten days later.

Madam Justice H.A. Rady

Madam Justice H.A. Rady

Released: January 31, 2013