SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lebouthillier v. Manning

Court File No. FC-13-2858

Neutral Citation Number: 2014 ONSC 4081

BEFORE: Mr. Justice T. Minnema

HEARD: May 12 and June 23, 2014

Endorsement

[1] This is a proceeding brought pursuant to Part II of the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISOA”). Regarding the Choice of Law rules, there is no issue regarding entitlement to child support, and the Ontario law applies for determining the amount of child support: ISOA, s. 13.

Basic Facts

[2] The parties never married. They have two children, Chad, age 8, and Taylor, age 6, who reside with the applicant mother in New Brunswick. The mother is aware that the father left his previous employment, and she seeks child support starting September 1, 2013 based on an imputed income. She also seeks Child Support Guideline (“Guideline”) section 7 expenses. Per her Financial Statement, her own employment income is $59,040.00 per year, plus she receives the Child Tax Benefit of $2,400.00.

[3] The father had been paying child support pursuant to an agreement between the parties of $1,000.00 per month. He stopped in August of 2013 because he decided to go back to school to become a paramedic. With this decision he retired from the Canadian Forces. He cites better future pay and a safer job as his reasons. He argues that with the Canadian Forces his yearly salary did not exceed $63,000.00 per year, plus there was the uncertainty, stress, and hazards of a military career. Upon his graduation from his schooling in May of 2016, he states that there is a paramedic job available for him in Ottawa starting at $75,000.00 per year.

[4] The parties recently concluded a final access Order that will have the father exercising access with the two children in New Brunswick twice per year. He has calculated that his reasonable costs for each visit will be approximately $1,945.00.

Issues, Positions, and Analysis

Ongoing Child Support - January 2014 Forward

[5] While in school, the father’s income is just over $9,000.00 per year per his Financial Statement. It does not meet the Child Support Guidelines threshold for support. The mother, therefore, seeks to have income imputed to the father based on what he earned in the military, and to have his severance package included in income.

[6] The mother believed that the father would have been making $75,000.00 per year had he not retired. While per his Income Tax Returns he had been earning around $63,000.00 per year up to and including in 2012, his income for 2013, when it is averaged over a full year, seems to support the mother’s position.

[7] Looking at s. 19(1)(a) of the Guidelines, there is no dispute that the father is intentionally unemployed. He chose to retire and return to school. The issue is whether an exception to imputation applies, namely that the unemployment “is required by … the reasonable education needs … of the spouse”. The evidence establishes that the respondent’s educational needs are reasonable: they do not relate to unrealistic or unproductive career aspirations. Upon completing his course of study he will start earning, as a paramedic, at a level that it took him many years to achieve in the military.

[8] I am not prepared to impute income on these facts. I therefore suspend the child support commencing January 1, 2014. However, while I appreciate that much could change between now and May of 2016, I find that it would not be fair to the mother for the father to graduate from his program, start working, and it fall to her to bring another Application to pursue child support. I therefore order that child support shall re-commence on June 1, 2016, based on the father’s statement that he will begin earning $75,000.00 per year at that time. This is subject to variation based on actual earnings and without prejudice to the father making a proper undue hardship claim. I will assist the parties with orders to ensure that they each have up-to-date information on which to negotiate subsequent adjustments.

Support from September 1 to December 31, 2013

[9] I note that upon leaving the military the respondent received termination payments from the Department of National Defence. How much he received and how much went into a pension rollover was hard to determine. I rely on his 2013 Income Tax Return which shows that the taxable number for what appears to be his severance is $44,123.00, bringing his total Line 150 income for that year to $97,320.00. Severance payments are a form of replacement income, and are therefore properly included in a party’s income for support purposes: MacDonald v. MacDonald, 1997 ABCA 409, [1997] A.J. No. 1262 (Alta.C.A.); Brown v. Brown, 2003 2071 (ON SC), [2003] O.J. No. 4988 (S.C.J.); Walsh v. Walsh, 2008 586 (ON SC), [2008] O.J. No. 98 (S.C.J.). The severance was received in 2013. As there is no request for a retroactive adjustment of child support prior to September 1 of that year, the question is how I calculate the support for the last four months of 2013.

[10] The respondent first argued that no child support should be payable. His position was premised on an argument that he is entitled to relief because of future high access costs expected to total about $3,890.00 per year. Generally, there are two possible ways to obtain relief for high access costs: as an adjustment to a child support Order by way of a Guideline section 10 undue hardship claim, or as part of a custody/access Order: see Jamieson v. Jamieson (2005), 2005 NSSC 114, 232 N.S.R. (2d) 345 (N.S.S.C.) at para. 55; and Morrone v. Morrone (2007), 44 R.F.L. (6th) 389 (Ont. S.C.J.) at paras. 26 and 44. The parties did not address access costs in their custody/access Order. Further, I cannot see a properly made undue hardship claim. As noted in Morrone at para. 31, the burden of proof is on the father here to show undue hardship if he is to obtain relief, and the threshold is a high one. He has not put into evidence the requisite information to allow the Court to assess comparable household standards of living. Without that I find that I am unable to assess and grant relief based on undue hardship.

[11] There were other problems with the father’s access costs argument. He wanted me to deduct his travel expenses dollar for dollar against the child support obligation. While a successful hardship claim would allow the Court to make a lower than table amount child support award, the net effect of a dollar for dollar set-off would be that the mother would be paying for the full costs of the father’s access, which would not be reasonable or fair. The even bigger problem was that, had he had made a proper undue hardship claim, it would only be for the years 2014 and 2015. As it stands, there is no child support payable in those years. There cannot be a lower child support adjustment. When I pointed this out, the father argued that I should apply his future access costs for 2014 and 2015 against the child support he is found to owe in 2013, a time when no access costs were incurred. I cannot see how this can be granted under the Guidelines. Generally, the relevant time period to assess the table calculations, as well as adjustments to them, is within the year which the obligation existed.

[12] The father had other arguments to minimize his child support obligation for 2013. For example, he argued that his severance of $44,123.00 should be calculated separately under the Guidelines such that it would be the total yearly income for the table calculations for 2013 with the monthly amount paid for just the last 4 months of 2013. The logic for such a proposition escapes me.

[13] I find that the child support for the last four months of 2013 shall be calculated based on the respondent’s total Line 150 income for that year, $97,320.00, which includes the amount he received as a severance. Per the Ontario Guidelines, this would result in a payment of $1,383.00 per month for two children, for a total of $5,532.00 from September 1 to December 31, 2013.

Section 7 Expenses

[14] The mother claims section 7 expenses for child care of $4,759.00 for the year 2013, which is the net of the actual amount of $7,706.00. Based on actual Line 150 incomes for 2013, the proper apportioning is 62.2% payable by the father, and he shall therefore pay the mother $2,960.00 as his share of special expenses for 2013.

Order

[15] In summary of the above:

1. The father shall pay child support arrears for 2013 set at $5,532.00.

2. The father shall pay his share of s. 7 expenses for 2013 set at $2,960.00.

3. Ongoing child support and s. 7 apportioning is suspended until May 31, 2016, subject to further Order.

4. As of June 1, 2016, child support shall be re-instated at $1,105.00 per month for two children based on an imputed income of $75,000.00 to the father. The apportioning of s. 7 expenses shall be recalculated by the parties at that time based on their respective incomes.

5. Should the father leave school or his expected graduation date change or his full time attendance at school change for any reason, he shall immediately notify the mother with written details of the change.

6. The father shall immediately notify the mother upon obtaining any full or part time employment, and provide written details of that employment.

7. The parties shall exchange their previous year’s Income Tax Returns and Notices of Assessment each year by June 1. They shall also provide the other with a copy of any Notice of Reassessment immediately upon receipt.

[16] Success on the issues has been divided. No order as to costs.

Date: July 4, 2014

Minnema J.