Endorsement
COURT FILE NO.: FC-13-1861
DATE: July 14, 2014
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DIANNE PEARL DOUGLAS - Applicant v. RENE ALBERT FAUCHER - Respondent
BEFORE: Mr. Justice Martin James
COUNSEL: Cecil J. Lyon, for the Applicant
Jack Pantalone, for the Respondent
HEARD: July 2, 2014
ENDORSEMENT
[1] The applicant has brought a motion for the relief claimed at Tab 23, Volume 2 CR. The respondent also brought a motion for the relief sought at Tab 26, Volume 3 CR.
[2] Subsequent to the delivery of the motions, the custody and access assessment and report of Sally Bleecker was completed and the parties have agreed to a consent order based on her findings respecting an appropriate shared parenting regime.
[3] The applicant’s confirmation refers only to the applicant’s material and states that after having conferred with opposing counsel, the total time estimate is 60 minutes for each side for a total of 120 minutes.
[4] The respondent’s confirmation refers only to the respondent’s material and states that after having conferred with opposing counsel, the total time estimate is 60 minutes for each side for a total of 120 minutes. My impression is that each lawyer was referring to his own motion only. If so, the required time ought to have been indicated as four hours rather than the two hours indicated in the court schedule. If I am mistaken in this view, then the time estimates were significantly miscalculated because the parties only dealt with the following issues in the two hour allotted time:
(a) For the applicant, retroactive and ongoing child support.
(b) For the respondent, relief from his child support obligation due to hardship and for an amendment of pleadings.
[5] Also, some of the issues raised in the notices of motion have been overtaken by subsequent events and are now moot.
Child Support Claim of the Applicant
[6] The applicant’s notice of motion requests an order that the respondent pay child support for three children commencing May 1, 2013, which is the date of separation. At other places in the applicant’s material she says the date of separation was January, 2013. She says that the respondent has not paid any child support or section 7 expenses since January, 2013. Ms. Douglas also says that since August, 2013 the children have been in her care for at least 60% of the time.
[7] The respondent says that the applicant unilaterally terminated the shared parenting regime that the parties had agreed to following separation and is now claiming an entitlement to child support as a result of her arbitrary action.
[8] In September 2013, I made a temporary order for joint custody and an “approximate 60-40 split” in parenting time. The parties were unable to agree on a parenting schedule and, as directed, they each submitted a proposed schedule for my consideration. In the letter covering the delivery of the applicant’s proposed schedule, counsel for the applicant indicated that the respondent’s parenting time under the schedule would amount to 39.8%.
[9] I found the applicant’s schedule to be preferable but I added a provision that professional development days falling on a Friday of a weekend that the respondent had care of the children would be allocated to the respondent. This provision was added in belief that it would increase the respondent’s parenting time to over 40% although the endorsement does not specifically say so.
[10] I am now advised by counsel for the applicant that the actual parenting time of the respondent, based on the schedule, was 34%. I find this surprising as this figure was apparently generated using the same software that the applicant’s counsel relied on to represent that the ratio of parenting time under applicant’s proposed schedule was 40.2% to 39.8%. I note that there is not a single, universally-accepted method of calculating shared parenting time. Different methods generate different results.
[11] I am not prepared at this time to make an order for payment of child support retroactively. Motions for temporary orders are not well-suited to dealing with retroactive claims where there is a lack of clarity on factual and financial issues due to competing affidavits. These issues are better determined by the give and take of the negotiation process or, if necessary, by trial with oral testimony and cross-examination. Also, I anticipated that by making the shared parenting order last September, the set-off provisions of section 9 of the Child Support Guidelines would apply.
[12] On the issue of ongoing child support, the parties have agreed to an arrangement based on Ms. Bleecker’s assessment. I am not aware of the date the new system is to commence but am told by counsel for the applicant that the respondent’s parenting time will be less than 40%. The respondent says the new regime may approximate a 60-40 split. One of the characteristics of the Child Support Guidelines in Ontario is that if the parenting time slips below 40%, it triggers a prima facie obligation to pay table amount child support. The 40% rule is inflexible. The hardship provisions of section 10 of the Guidelines can, in exceptional circumstances, provide relief from the obligation to pay table amount support. Here, the respondent says that if his parenting time in the new system falls below 40%, he says he is entitled to pay less than table amount child support on hardship grounds.
The Respondent’s Hardship Claim
[14] The respondent says he has an extraordinary level of expenses that warrants a reduction of any child support he may be liable to pay. These expenses relate primarily to his disability.
[15] The obligation to establish a hardship claim rests with the respondent. The bar for qualifying for a hardship claim is set very high, otherwise such claims would be advanced routinely. The respondent’s circumstances do not fit neatly into any of the categories listed in section 10(2) of the Guidelines but this list is not exhaustive.
[16] In my view the respondent does not meet the threshold for establishing a hardship claim because his income is substantial, even after considering his expenses. While his medical expenses are significant, there is likely an income tax deduction associated with these expenses. Counsel for the applicant says that the respondent has overstated his current monthly income tax expense of $2,221 by referring to the respondent’s actual 2013 total taxes of $16,831 on total income of $135,000.The evidence suggests his current gross income is $9,400 monthly. Counsel for the respondent has not referred to a single case where a hardship claim was allowed at this income level. I am not prepared to find on the evidence before me that the respondent’s expenses create the type of “undue hardship” required to succeed because of his substantial income. In addition, I also do not agree with the respondent’s assertion that the applicant ought to be required to include the income and expense-sharing potential of the person she moved in with in May, 2014 in the standard of living comparison contemplated by section 10(3). The evidence on this issue is that the applicant is in a relationship with a co-worker. Until recently, they maintained separate households. The applicant says her financial difficulties were a factor in her decision to vacate her previous rental accommodation. She says she pays rent to her boyfriend. I do not accept that these circumstances trigger a requirement that the financial circumstances of this third party ought to be drawn into the parties’ dispute regarding child support. It is reasonable to infer that this new arrangement has not yet settled into stable and predictable economic equilibrium such that this income ought to be assumed to be available to enhance the children’s standard of living.
[17] Because this is a temporary motion, my determination of the hardship issue should not be taken as conclusive or final.
Disposition
[18] The applicant’s motion for a temporary order awarding retroactive child support is dismissed.
[19] If the respondent’s parenting time set out in Ms. Bleecker’s schedule is less than 40%, he shall pay child support based on the Guidelines. If greater than 40%, the provisions of section 9 of the Guidelines shall apply.
[20] The respondent’s motion for a temporary order granting relief from the obligation to pay table amount child support pursuant to the provisions of section 10 of the CSG is dismissed.
[21] The respondent’s request for leave to amend his answer to include a claim for unjust enrichment/constructive trust is not opposed by the applicant and leave is granted to make the requested amendment within fourteen days.
[22] The balance of the relief sought on both motions is dismissed without prejudice to a further motion if required.
[23] Success having been divided, there shall be no order as to costs.
Mr. Justice Martin James
Date: July 14, 2014
COURT FILE NO.: FC-13-1861
DATE: July 14, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: DIANNE PEARL DOUGLAS
Plaintiff
AND
RENE ALBERT FAUCHER
Respondent
BEFORE: Mr. Justice Martin James
COUNSEL: Cecil J. Lyon, for the Applicant
Jack Pantalone, for the Respondent
ENDORSEMENT
Martin J.
Released: July 14, 2014