CITATION: Burnett v. Nieuwenhuysen, 2015 ONSC 2636
COURT FILE NO.: 3233/15
DATE: 2015-04-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LINDA AVRIL BURNETT
Applicant
– and –
BOB NIEUWENHUYSEN
Respondent
John Paul Paciocco, for the Applicant
Self-represented
HEARD: April 17, 2015
decision on motion
JUSTICE E. GAREAU:
[1] Before the court was the motion at Tab 5 of the continuing record. The issues of custody and access were resolved between the parties. The sole remaining issues for determination by the court were:
(a) ongoing child support for Adam Nieuwenhuysen born June 4, 1999;
(b) retroactive Section 7 expenses and ongoing Section 7 expenses;
(c) retroactive child support for Adam since January 15, 2013.
[2] The parties agreed at the outset of the motion that the court’s decision on the motion will result in a final adjudication of the matter without the necessity of a trial.
[3] Adam is the biological child of the respondents Bob Nieuwenhuysen and Dianne Burnett. The applicant, Linda Burnett, is the maternal aunt of Adam.
[4] Prior to January 15, 2013, Adam resided in the home of his mother, Dianne Burnett, in Brampton, Ontario. Adam’s mother has mental and physical health difficulties that make her unable to care for Adam or meet his needs. As a result of the involvement of the Peel Children’s Aid Society, Adam moved from Brampton, Ontario to Sault Ste. Marie, Ontario and began to reside with the applicant in her home at 38 Caddy Avenue, Sault Ste. Marie, Ontario as of January 15, 2013.
[5] The biological father, the respondent in this proceeding, resides in Mississauga, Ontario. Adam has had a tumultuous and problematic relationship with his father. The access arrangements are that the respondent has reasonable access to Adam on reasonable notice.
[6] The biological mother is unable to be employed and cannot contribute to the support of Adam in any meaningful way. The applicant had a gross income of $111,521.00 in 2011, $103,118.00 in 2012 and $114,316.00 in 2013. The respondent had a gross income of $101,342.37 in 2011, $110,680.37 in 2012, $116,462.56 in 2013 and $129,700.00 in 2014.
The Issues
(a) Ongoing Child Support
[7] It is an undisputed fact that in the year 2014, the respondent had a gross annual income of $129,700.00. That income would attract a table amount of $1,112.00 per month under the Child Support Guidelines.
[8] The respondent takes the position that he should be paying less than that amount and suggests that the child support for Adam should be fixed at $800.00 per month. The respondent makes this argument based on the numerous monthly expenses he presently has and based on “undue hardship”.
[9] Section 2(3) of the Child Support Guidelines provides that the most current information must be used to determine child support. The most current income information for the respondent is his 2014 gross income, which is $129,700.00 per year. That is the income on which ongoing child support for Adam should be calculated.
[10] There is a presumptive rule, as set out in s. 3(1) of the Child Support Guidelines that the table amount is the amount to be used in setting the child support for a child under the age of majority. In particular, s. 3(1) of the Child Support Guidelines provides as follows:
Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is:
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and
(b) the amount, if any, determined under Section 7.
[11] There is, therefore, very little discretion in a court to order an amount of child support that is not the applicable table amount based on the gross annual income of the payor.
[12] One area in which child support orders are made lower than the applicable table amount is under s. 10 of the Child Support Guidelines, the “undue hardship” provisions of the legislation. Section 10 of the Child Support Guidelines provides as follows:
- UNDUE HARDSHIP – (1) On the application of either spouse or an applicant under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
(2) CIRCUMSTANCES THAT MAY CAUSE UNDUE HARDSHIP - Circumstances that may cause a parent, spouse or child to suffer undue hardship include,
(a) The parent or spouse has responsibility for an usually high level of debt 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; and
(e) 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.
(3) STANDARDS OF LIVING MUST BE CONSIDERED – Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse.
(4) STANDARDS OF LIVING TEST - In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
(5) REASONABLE TIME – Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
(6) REASONS - Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so.
[13] A claim to pay less than the table amount due to undue hardship must be specifically pleaded by the party making that claim. The respondent has done so in that on page 4 of his answer dated February 12, 2015 at Tab 7 of the continuing record, the respondent asks the court to make: “A temporary or final order allowing the respondent to pay other than table support amount for the care of Adam George Nieuwenhuysen by the applicant Linda Avril Burnett due to economic hardship.”
[14] The words used by the respondent in his answer are sufficient to alert the applicant and the court that a claim for undue hardship will be made by the respondent.
[15] The respondent is providing monthly payments to support his wife Diane Burnett and the other child of his marriage, Liam, born August 15, 1996. In Exhibit “B” to the respondent’s affidavit sworn on April 7, 2015 of the continuing record, the respondent details payments made by him. The total payments for the last 12-month period average $2,752.06 per month for direct cash payments to Diane Burnett and payments made on her behalf, such as mortgage payments and payments for property tax, gas, hydro and water. Clearly, the respondent is supporting other people he has a legal responsibility to support, although there is no evidence that he is doing so under a judgment, order or written separation agreement, which is the requirement under s. 10(2) of the Child Support Guidelines.
[16] Even if the respondent establishes circumstances that may cause him to qualify for undue hardship, he has difficulty in meeting the standards of living analysis, which is the second part of the undue hardship test as set out in sections 10(3) and (4).
[17] The respondent resides with Lyudmyla Demchenko who the respondent deposes earns $24,000.00 per year. Ms. Demchenko’s son resides in the respondent’s home. Therefore, the respondent has household income of $153,700.00 with three people residing in his home. The applicant has a household income of $115,000.00 per year with two people residing in the home, herself and Adam. The respondent did not provide the court with a comparative standard of living calculation as required under s. 10(4). Even without that calculation, based on the respective household incomes of the applicant and the respondent, it is difficult to conclude that the respondent would be able to establish that he had a lower standard of living than the applicant, thereby triggering the application of s. 10 of the Child Support Guidelines.
[18] On the evidence before me, I cannot conclude that the respondent has established an “undue hardship” which would result in him paying an amount other than the presumptive table amount based on his income at $129,700.00 per year.
[19] Accordingly, it is ordered that the respondent pay to the applicant child support for Adam Nieuwenhuysen born June 4, 1999 in the amount of $1,112.00 per month commencing May 1, 2015.
(b) Section 7 Expenses
[20] The applicant has made a claim for Section 7 expenses for Adam. Section 7 of the Child Support Guidelines provides as follows:
- SPECIAL OR EXTRAORDINARY EXPENSES – (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
(1.1) DEFINITION, “EXTRAORDINARY EXPENSES” – For the purposes of clauses (1)(d) and (f), “extraordinary expenses” means
(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or
(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,
(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child,
(iv) the overall cost of the programs and activities, and
(v) any other similar factors that the court considers relevant.
(2) SHARING OF EXPENSE – The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting contribution, if any, from the child.
(3) SUBSIDIES, TAX DEDUCTIONS, ETC. – Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
(4) UNIVERSAL CHILD CARE BENEFIT – In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.
[21] The applicant claims an ongoing monthly amount of $150.00 per month to essentially assist with the cost of flights from Sault Ste. Marie, Ontario to Toronto, Ontario to allow Adam to visit with his brother, Liam. The applicant is also claiming the sum of $2,562.32 for past unpaid s. 7 expenses. The details of her claim are set out in Exhibit “A” to the applicant’s affidavit sworn on April 9, 2015. These expenses include airfare, the purchase of an X-Box, prescription glasses, a word processor, a bean bag chair, a computer chair, a stereo, a dehumidifier and a mattress and pillow encasements.
[22] The question becomes are such expenses “extraordinary” or “special” in nature or are they expenses that are appropriately paid out of the ongoing table amount provided each month in child support?
[23] Are the expenses claimed by the applicant unusual or exceptional in that they are expenses which would fall outside what would normally or usually be spent on the child as a matter of course? The weight of jurisprudence in Ontario suggests that an extraordinary expense is one which, with the combined income of the parties, would not be incurred for their children as a matter of course. Celotti v. Celotti, [2007] O.J. No. 2538 (Ont. S.C.J.); Park v. Thompson, 2005 14132 (ON CA), [2005] O.J. No. 1695 (Ont. C.A.); Hewat v. Hewat 2003 2131 (ON SC), 43 R.F.L. (5th) 370 (Ont. S.C.J.).
[24] In my view, the expenses claimed for reimbursement by the applicant under s. 7 of the Child Support Guidelines are expenses that would be commonly incurred in a household with the income level that the applicant earns. As held in the decision of Hugel v. Hugel 2004 15763 (ON SC), 5 R.F.L. (6th) 309 (O.S.C.J.), an expense cannot be characterized as “extraordinary” when it is not uncommon for similarly placed high-income families to incur such an expense.
[25] With the exception of the claim for prescription glasses for Adam in the amount of $361.50, which falls squarely under s. 7(c) of the Child Support Guidelines, my view is that the expenses claimed are expenses that are not special, unusual or extraordinary in nature and which are able to be covered by the child support payments made by the respondent to the applicant.
[26] Given the fact that the respondent has already paid the applicant the sum of $991.07 as reimbursement for s. 7 expenses, the applicant’s claim for an additional repayment of $2,562.32 is denied.
[27] With respect to the ongoing claim for s. 7 expenses in the amount of $150.00 per month, I am not prepared to order that the respondent pay this as a s. 7 add-on in addition to the table amount of $1,112.00 per month which the respondent is paying in child support. The expense claimed is for airfare to be incurred for Adam to travel to Toronto approximately four times each year to visit with his mother and brother, Liam. In my view, this expense is not exceptional or unusual and can be absorbed within the ongoing monthly child support ordered to be paid by the respondent to the applicant for Adam.
[28] Accordingly, the claim for ongoing s. 7 expenses to be paid by the respondent is dismissed.
(c) Retroactive Child Support
[29] The applicant claims retroactive child support for Adam from January 15, 2013 to April 30, 2015. In Exhibit “A” to her affidavit, sworn on April 9, 2015 at Tab 12 of the continuing record, the applicant particularizes her claim for retroactive child support. The applicant sets out what should have been paid in child support based on the respondent’s income and provides credits for the monthly amounts paid by the respondent. After this calculation is done, the applicant is claiming the sum of $10,089.00 in retroactive child support for Adam from January 15, 2013 to April 30, 2015.
[30] The application presently before the court was commenced on January 15, 2015. The formal demand letter sent by the solicitor for the applicant to the respondent is dated October 14, 2014. It appears from the affidavit material that initially when Adam began to reside with the applicant, there was a loose arrangement between the parties that the applicant would calculate the monthly expenses for Adam and the respondent would provide support equivalent to the amount of those expenses. Attached as Exhibit “A” to the affidavit of the respondent, sworn on February 12, 2015, is an e-mail dated February 19, 2013 sent by the applicant to the respondent. This e-mail reads as follows:
“I have been keeping track of money spent on groceries and the $50.00 per week I estimated for Adam was way low. Half of what I buy now is stuff I don’t even eat and, of course, I am having to buy twice as much (eh, fish, chops, potatoes, tea, etc.) of anything that we both eat. So, I have adjusted the food amount on the attached form from $50.00 to $70.00 per week…it looks basically as if $700.00 per month is closer to what it costs me to have Adam here. I would be grateful if you would send $700.00 for February’s expenses asap.”
[31] This e-mail reflects the applicant’s willingness, at least early on, to have the respondent’s child support contributions to Adam paid in an amount less than the Child Support Guidelines based on Adam’s direct monthly expenses.
[32] The best evidence in the affidavit material filed leads to the conclusion that this arrangement lasted for some time with the applicant first making a formal request to the respondent that he pay an amount pursuant to the Child Support Guidelines in accordance with his income in June, 2014. These particulars are set out in paragraph 4 of the applicant’s affidavit sworn on April 9, 2015. In particular, in paragraph 4(b) the applicant states:
“Early in the summer of 2014 I asked Mr. Nieuwenhuysen to pay the amount of child support as required under the Child Support Guidelines. This was by way of written note to Mr. Nieuwenhuysen, of which I do not have a copy.”
[33] As a general rule, the date of effective notice to the payor parent is the date of retroactivity. Howe v. Tremblay 2007 44350 (ON SC), 44 R.F.L. (6th) 140 (S.C.J.).
[34] This does not preclude a court from making a retroactive child support order prior to the effective notice date depending on the circumstances and facts of a case. In the case at bar, there appears to be a more relaxed arrangement between the parties prior to June, 2014 where the amount to be contributed by the respondent directly reflected the payments that the applicant expected from the respondent. When that arrangement broke down, the applicant demanded that child support be paid pursuant to the Guidelines. That was in June, 2014. The conduct of the respondent reflects a willingness to pay child support for Adam. Although the child support paid was lower than the table amount dictated under the Guidelines, the respondent nonetheless made significant child support payments from February, 2013 onward on a monthly basis. This is not a case where the respondent refused to pay any child support or refused to acknowledge his responsibility to contribute to the support of his son.
[35] I have considered all the factors set out in S(D.B.) v. G. (S.R.) 2006 SCC 37, 2006 S.C.C. 37 (S.C.C.) including the circumstances of Adam and the lifestyle enjoyed by him and the effect of a retroactive child support order on the respondent given his present financial circumstances. In considering all of these factors and considering the chart of monthly payments owing and received, prepared by the applicant, which is attached as Exhibit “A” to the applicant’s affidavit sworn on April 9, 2015, my view is that a fair and just amount for retroactive child support is $5,500.00.
[36] Accordingly, there is an order that the respondent owes to the applicant retroactive child support payments for Adam Nieuwenhuysen born June 4, 1999, in the amount of $5,500.00.
[37] As indicated previously, the orders set out in these reasons will be final orders as agreed to by the parties at the outset of the motion.
[38] If the costs of the motion at Tab 5 of the continuing record are in issue, the parties are to provide written submissions to the court on the issue of costs by May 22, 2015. These written submissions are to be no longer than five (5) pages in length, excluding attachments. These submissions shall have attached to it a bill of costs and any written offers to settle.
Justice E. Gareau
Released: April 23, 2015
CITATION: Burnett v. Nieuwenhuysen, 2015 ONSC 2636
COURT FILE NO.: 3233/15
DATE: 2015-04-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LINDA AVRIL BURNETT
Applicant
– and –
BOB NIEUWENHUYSEN
Respondent
DECISION ON MOTION
Justice E. Gareau
Released: April 23, 2015