Reynolds v. Higuchi, 2016 ONSC 1997

Court File and Parties

Citation: Reynolds v. Higuchi, 2016 ONSC 1997 Court File No.: FS-09-00345373-0001 Date: 2016-03-22 Superior Court of Justice - Ontario

Re: Brian Reynolds, Applicant And: Rie Higuchi, Respondent

Before: Hood J.

Counsel: Brian Reynolds, appearing in person Rie Higuchi, appearing in person

Heard: March 14 & 15, 2016

Endorsement

Background

1This is a viva-voce motion brought by the applicant husband to change the final child support order made by Justice Horkins on May 6, 2014 following a four-day trial. He seeks to change the child support for his daughter, Mio, from $856 per month to $514 per month. In response, the respondent asks that the applicant pay $350 as a 50% contribution to a laptop computer for Mio, along with a dismissal of the motion.

2Prior to the trial the parties and the Office of the Children’s Lawyer, on behalf of Mio, agreed to a consent order of Justice Goodman which dealt with parenting time for the school year, school holidays, March break, summer school vacation and parenting decisions. While Mio lives primarily with the respondent it is clear, and acknowledged by the respondent, that the sharing of parenting time leaves the applicant with more than 40%.

3The applicant is a teacher with a known income from teaching. What was at issue before Justice Horkins was the amount of rental income from a house partially owned by him which should be included in his income for the purposes of calculating his child support payment. Justice Horkins added back different amounts for 2011 through to May 2014, calculated the arrears and ordered that commencing June 1, 2014 the applicant pay $856 in monthly child support to the respondent, subject to annual adjustment every June 1st, with specific add backs to his net rental income.

4At paragraph 6 of her Reasons for Judgment Justice Horkins wrote:

Although the Minutes of Settlement dealing with custody and access provide that the parents are sharing custody, the applicant is not seeking an adjustment of the table child support pursuant to s. 9 of the Federal Child Support Guidelines (“the Guidelines”).

Child Support Variation

5The applicant is now seeking to change the monthly payment to $514 per month pursuant to s. 9 of the Guidelines. He arrives at this number by asking me to impute an income of $38,480 to the respondent which would result in a table amount payment of $342 and to set this off against the award of Justice Horkins of $856, for a net amount of $514.

6The respondent argues that her actual income is approximately $18,000 and filed evidence in support of this, consisting of her 2015 T4 statement, along with evidence of her efforts to find work which resulted in this current job. Based upon the evidence before me I am unable to impute an income of $38,480 for the respondent and find her income for the purposes of this motion to be $18,086 which would result in a table amount payment of $151. This would result in a set-off amount of $705. This is the first of the three factors listed in s. 9 to be considered by the court.

7All three factors must be considered once the 40% threshold is met, as it is here. There is no discretion as to when the section is to be applied, discretion exists only in relation to the quantification of the child support. The three factors are conjunctive, none should prevail. However, as the Supreme Court stated in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 SCR 217 at para. 4:

Adjustments are hard to evaluate. More time spent with a child may not involve increased spending or significant savings for the other parent. Where there is a significant disparity of incomes, a new formula can mean a drastic change in the amount of support for the lower-income parent, who was previously the custodial parent, and exacerbate the differences in the standard of living of the two households.

8Nor is there an automatic deviation from the amount of child support once the 40% threshold is met. The court may still conclude that the Guidelines amount is proper. There is no presumption in favour of reducing the child support obligation downward from the Guidelines amount. Nor should Mio suffer a noticeable decline in her standard of living as she moves from one household to another.

9It must be kept in mind that this is a variation of an existing final support order made in 2014. In 2014 when the existing support order was made the current custody and access arrangement was in place. The 40% threshold was already in existence in 2014 when Justice Horkins ordered child support of $856.

10The applicant, in addition to his affidavit of October 30, 2015, filed as Exhibit 1, “Mio’s Child Care Budget 2016 with Applicant’s Family”. With this he attempted to list the fixed and variable costs associated with Mio living with him and his family. However, there was no evidence from the applicant as to the increased costs of the shared custody arrangements from what existed in 2014 when the initial support order was made, or even from 2015. Many of the costs are fixed and do not vary based on custody. As well, the parties specifically agreed as part of Justice Horkins’ order as to how the s. 7 expenses for Mio were to be shared. Finally, there was no evidence put forward of the increased costs resulting from duplication, resulting from Mio living in two homes.

11In considering the third factor I am mindful of commentary that where there is a significant disparity in income between the parents, as is the case here, reductions in the basic amount of child support may undermine a lower-income custodial parent’s ability to make adequate provision for the child and will exacerbate the differences in the standard of living between the two parental homes.

12The applicant is a teacher. His 2015 T4, filed as Exhibit 2, shows an income of $95,158.88. He gave evidence that this was too much and not in accordance with what he understood his income to be, closer to $94,000, but it is the best evidence. As well, presumably his income from the rental property has increased since Justice Horkins’ order of May 6, 2014. Pursuant to her order he was to adjust his child support every June 1st. There was no evidence whether the applicant had done this, as ordered. I expect not, as his monthly child support payments have remained the same. This would also suggest that he has failed to account for his increased salary as a teacher. In 2014, using his 2013 return, the applicant’s employment income was $91,736.85, which when added to the net rental income as found by Justice Horkins, resulted in the $856 monthly payment. Even assuming that the net rental income has not increased, this results in an income for 2015 of $100,469.02 and a table child support amount of $884.

13The respondent in her response to the applicant’s motion to change asks for increased child support of $866 monthly retroactive to June 1, 2015. I am in no position based upon the evidence before me to make such an award. The reason for the lack of evidence appears to be the applicant’s failure to make disclosure. I gather, as set out above, that he has not made any adjustment to his rental income, employment income or child support as ordered by Justice Horkins. The respondent has chosen not to take any steps of her own to enforce the order or to have the ongoing child support determined.

14While I am not prepared to make an award for increased child support due to the lack of evidence, I believe that I can consider the applicant’s 2015 T4 statement, his failure to account for his increased employment income, his failure to account for his net rental income and his failure to adjust the child support as ordered by Justice Horkins, as part of my consideration of the conditions, means, needs and other circumstances of each spouse which is the third factor.

15There is limited evidence as to this factor. The applicant has made conclusory statements in his affidavit as to the comparable financial circumstances and the standard of living between him and the respondent. He argues that he is in a much worse state of affairs than the respondent despite making substantially more money. His current wife had an income of approximately $61,000 in 2014. The respondent has a common-law spouse who runs his own landscaping business. His work is seasonal and there is no evidence as to his income. While the applicant has larger debt than the respondent, she has less assets than the applicant and her cash flow is substantially less. The respondent lives very frugally as shown on her monthly expenses filed as part of her Financial Statement. The applicant’s expenses, as shown on his Financial Statement, are much higher but somewhat suspect, as he has included the expenses associated with the income producing properties which comprise half of his home, as part of his personal expenses.

16My concern is that the variation sought by the father will have a deleterious impact upon the standard of living of Mio in the respondent’s home and will create a disparity between the two homes for Mio. Also, as this is a variation, I find that there is no reason to make such a drastic change from the amount ordered to be paid in May 2014, especially when the shared custody and access was already in place and the applicant has been unable to establish any increase in costs attributable to such shared custody.

17Accordingly, I dismiss the applicant’s motion to change the existing child support order for Mio of $856 per month.

The Laptop Computer

18That leaves the issue of the computer. Mio goes to the Etobicoke School of the Arts majoring in Visual Arts with a minor in Film Production. As explained by the respondent in her affidavit and in her testimony it would be beneficial for Mio to have her own laptop computer in order for her to complete her work and assignments regardless of her location.

19The applicant argues against this and takes the position that the laptop is unnecessary and Mio should be able to do her work and assignments by using memory cards or memory sticks which can be used on both families’ desktops.

20I find the applicant’s position to be unreasonable. It is not practical to use memory cards and sticks nor does it recognise the fact that his solution would limit Mio being able to work at either household and would not allow her to work while in transit or at a friend’s home.

21The respondent in her response and in her affidavit asks for $350, which she says is 50% of the cost of a laptop computer. In her subsequent financial statement and argument she asks for $500. The increase is due to additional specialty software that she says Mio requires for the laptop to be effective and in order for Mio to do her work and school assignments. I do not find the amount being sought to be unreasonable at either $350 or $500 and find that the laptop and software are proper s. 7 expenses. Upon the respondent providing the applicant with a receipt for the laptop and software he is to pay 50% of the cost to the respondent to a maximum of $500. If the respondent is able to obtain the laptop and software for less than $1,000 the applicant is only responsible for 50%. If the amount is more than $1,000 he is only responsible for $500.

Costs

22I would hope that the parties would be able to reach an agreement as to costs. I encourage the parties to try to do so.

23If unable to agree, the respondent may file brief written submissions, not to exceed two typed double-spaced pages, together with a Bill of Costs and any necessary documents, such as offers to settle, by April 11, 2016. The applicant may file responding submissions, subject to the same directions, within 15 days from service and no later than April 26, 2016.

24I understand that often the parties, following service, file their submissions as part of the continuing record. The court office does not always bring the submissions to the court’s attention as they are unaware that the court is waiting for these submissions. Accordingly, I direct the parties to not only file their respective costs submissions as part of the continuing record, but to also provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.