Dagg v. Chenier, 2015 ONSC 309

COURT FILE NO.: A11,072/06

DATE: 20150115

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Constance Dagg, Plaintiff

AND:

Gilles Chenier, Respondent

BEFORE: The Honourable Madam Justice Louise L. Gauthier

COUNSEL: Josée J. Paquette, counsel for the plaintiff

Respondent, self-represented

HEARD: January 14, 2015

ENDORSEMENT

[1] On January 14, 2015, I granted leave to the Respondent to bring a Motion to Change the Final Order of Cornell J. made on March 19, 2014, based on a material change of circumstances.

[2] The Respondent was granted leave, on an earlier date, to bring a Motion to Change the Final Order of Cornell J. made on July 8, 2013, regarding custody of Hannah.

[3] Both of these Motions to Change will be argued, on a Final basis, on April 30, 2015.

[4] The issue of retroactivity of a reduced child support order will also be dealt with on April 30, 2015, as will the Applicant’s claims contained in her Response to Motion to Change, dated September 18, 2014.

[5] The last remaining matter that will be dealt with on that date is the possible granting of a Final Order to reflect the parties’ joint custody of the child Benjamin. The existing order regarding Benjamin is a Temporary Order only.

[6] It is conceded by the Applicant that the Respondent’s income has been reduced since the Order of March 19, 2014. There is agreement that, for 2014, the Respondent’s income was $43,355. There is also no dispute that the Applicant’s current household income has been reduced given the injury sustained by her spouse, and his inability to work and generate income. The Applicant’s current income appears to be $52,250. The parties agreed that, for the purposes of a temporary order varying the Final Order of March, 2014, these would be the income figures used.

[7] The Applicant requests that his child support obligation be terminated given the joint and shared arrangement for Benjamin and Gillian, and, he suggests, the fact that Hannah is in his care more than 40% of the time.

[8] The Respondent submits that the child support should be calculated as follows: a set off amount between what the Respondent should pay for three children, and the amount the Applicant should pay for two children. This would reflect the joint and shared custody of two children, and the primary residence of the third child being with the Applicant. In other words, the Applicant disputes the allegation that the Respondent has Hannah in his care more than 40% of the time.

[9] For purposes of this temporary order, I will proceed on the premise that Hannah resides primarily with the Applicant, in accordance with the Final Order the Respondent seeks to vary, and that she is not in the care of the Respondent more than 40% of the time. This is what will be argued on April 30, 2015, and I leave that issue for that day.

[10] Accordingly, I will make a temporary order as suggested by the Applicant.

[11] Based on the Respondent’s income, he should be paying the sum of $803 for three children. Based on the Applicant’s income, she should be paying $776 for two children. The set off amount is $27. While I realize that section 9 of the Child Support Guidelines provides that setting off is not necessarily the end of the inquiry in a joint and shared situation, for the purposes of this temporary order, given the circumstances and the likely changing financial position of the parties (Applicant’s spouse will, at some point, be able to resume working, and Respondent is seeking employment), it is appropriate to use a straight set off calculation.

[12] IT IS ORDERED THAT the Order of March 19, 2014, is varied, on a temporary basis, to provide that the Respondent shall pay to the Applicant, child support in the amount of $27 per month, effective December 1, 2014.

The Honourable Madam Justice Louise L. Gauthier

Date: January 15, 2015