Court File and Parties

KINGSTON COURT FILE NO.: 310/10 DATE: 20160718 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Krystal Gail Harvey, Applicant AND Cory Joshua Sturk, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: No counsel for either party

HEARD: June 16, 2016

Endorsement

Nature of the Motion/Issues

[1] This is a Motion to Change by the mother Krystal Gail Harvey seeking to vary the consent order of Justice Robertson dated December 13, 2010 that granted her child support of $167 per month for the child Kaydin born earlier that year. The order was based on the father Cory Joshua Sturk having an annual income of $19,300. He has consistently earned more since the order was made. In his Response to Motion to Change the father seeks to pay lower than table child support based on undue hardship (section 10 of the Child Support Guidelines (Ontario), O.Reg. 391/97). Whether he qualifies, and if he does what the level of support should be, are the issues before me. Initially he also sought to vary the access, but withdrew that claim at the hearing.

Background Facts/Positions

[2] The mother and child age 6 have at all relevant times lived in Kingston. The father lived in Hamilton at the time of the last order and currently lives in Niagara Falls. At the end of 2012 he met his current partner who had a child of her own, now 11 years old. That child’s father was not involved in her life and the applicant has stood in the place of a parent. His new partner was supporting herself and her child by working at a fast-food restaurant and receiving an Ontario Works subsidy. Since becoming a couple they have had a child, now age 3, and his partner withdrew from the workforce after the birth. According to the father, she plans to seek employment once that child goes to school. Both the 11 and 3 year old children have special needs. None of these facts were disputed by the mother, who points out that Kaydin also has special needs.

[3] The father’s line 150 income for 2015, after adjustments for travel expenses per sections 1(f) and (f.1) of Schedule III of the Guidelines, was $58,349. This is three times more than the basis for the 2010 order. He has already been laid off this year and there is uncertainty around his employment. His total 2016 income from all sources per his submissions and his latest Financial Statement is expected to be about $40,000. This is still more than double his income from the 2010 order. The Financial Statement shows his annual expenses, less the child support payments at the current amount, to be about $44,200 for a family of four, and not extravagant. The father’s partner’s only income is the Child Tax Benefit, soon to be replaced by a Canada Child Benefit. When added to the father’s income this brings the income/expenses closer to balance. The father has gone bankrupt since the last order, which eliminated much of his past debt. He submitted that his costs to exercise access are high given the distance between Kingston and Niagara Falls. However, he has only exercised face to face access with Kaydin about 4 or 5 times in the last 6 years, although he does telephone regularly.

[4] The child resides with the mother who works for the Canadian Forces earning $60,965 per year. There is no other income earner in the home. She is resourceful in minimizing the cost of services and programs for Kaydin. Her Financial Statement miscalculates the total of her yearly expenses which I have recalculated to be about $51,000.

[5] The mother simply wants support adjusted to reflect the table amount, backdated about one year. The father’s position is that, with his income changing each month and given that he is already struggling to provide for the two children in his home at the 2010 child support level, he should pay support on a lower than table amount calculated as follows: determine his income each month based on his pay stubs; multiply by 12 to get a yearly amount; apply the Guideline table for three children; and then divide by three. He sees this calculation being made each month, and believes that it is the fairest way to provide evenly for all of his children.

Test

[6] As noted, the undue hardship test is found in section 10 of the Guidelines. From that section, and as explained in Matthews v. Matthews, [2001] O.J. No. 876 (S.C.J.) at paragraph 11, there are three distinct issues that must be dealt with in turn: whether the table amount would cause undue hardship to the father or a child; if it does, whether relief is to be denied applying the standards of living test; and, lastly, if the father is successful on the first two issues, determining the appropriate amount of support payable.

[7] The father did a calculation of the second part of the test – the comparative household standards of living – and relies on it to show undue hardship. However, per the above, that is taking the steps out of order. An undue hardship finding is not simply the weighing of the resources and fairness between the two households as that would be contrary to the objectives and presumptions of the Guidelines. A finding of undue hardship is not automatic or to be presumed because the claimant’s standard of living, even if it is due in part to his legal responsibility for other children, is lower: Camirand v. Beaulne, [1998] O.J. No. 2163 (Ont. Gen. Div.) at paragraph 44; Balo v. Motlagh, [2004] ONCJ 166 at paragraph 30.

Analysis

Undue Hardship

[8] Undue hardship is a “high threshold” and the hardship must be “exceptional, excessive and disproportionate”: Morrone v. Morrone, [2007] O.J. No. 5341 (Ont. S.C.J.) at paragraph 27. In a second family situation, the onus is on the payor parent to establish on clear and cogent evidence that the children in the second family would suffer some significant deprivation in the nature of food, clothing, shelter or some medical or other health need should a table amount be ordered: Reid v. Nelson, [2002] O.J. No. 2745 (Ont. C.J.) at paragraph 27.

[9] Many of the father’s new obligations were taken on in the face of his ongoing support obligation for Kaydin. Whether or not the birth of his latest child was planned or unexpected is not particularly relevant: see Reid v. Nelson at paragraph 24. In Morrone the court in its deliberations imputed income to the partners of both spouses to help make its decision. The mother here is not represented by counsel, and I have no request and no evidence on which to rationally impute income to the father’s partner. However, the impact of her not working is still a relevant consideration. As noted in Camirand at paragraph 44:

I have no doubt that the Respondent is experiencing hardship at this time as a result of his financial responsibilities to his three children from his marriage to the Applicant, his new spouse and his new child. However, I do not consider the hardship he is suffering "undue". Knowing he had three children to support, he made the decision to have a fourth. He also made the decision to purchase a home, instead of choosing less expensive accommodation. His new spouse is choosing to work on a part-time basis to be available for their child. None of these steps were mandatory steps in the sense that they were beyond the Respondent's control. It is perfectly understandable why the Respondent would want to do everything he has done; however, these choices carry costs. It is not for the Applicant to forego the child support Parliament has determined she is entitled to receive for the support of the three Beaulne children in order to help the Respondent support his youngest child and enable his second spouse to work on only a part-time basis.

[10] I appreciate that the father’s second family is experiencing hardship and accept that he is genuinely concerned about being able to support the children in his home. He does struggle to manage his household finances. However, in my view he has not met the onus of showing that the hardship is “undue”. In coming to this conclusion, along with considering means and needs, I have also considered that the mother herself has already provided the father with significant relief. First, the current order requires special and extraordinary expenses to be paid by the parties proportionally to their respective incomes. While the father claims to have given the mother some money on occasion, it has never amounted to much. The mother has shouldered this burden since 2010 almost entirely on her own. She notes that based on their respective incomes and the actual expenses, his share for last year alone would have been approximately $2,550. While she is not waiving future entitlement, she has purposely not sought his contribution in light of the hardship claims. The second concession was her waiving table support adjustments essentially since the date of the last order despite knowing his pay had risen substantially, because she was mindful of his personal and financial situation.

Standards of Living Test

[11] Given that I have not found undue hardship it is not necessary to apply the standards of living test (Guideline sections 10(3) and (4) and Schedule II).

Child Support Adjustments

[12] As noted the mother is seeking child support adjustments back to June of last year. It was not clear to me why she picked that date. I appreciate that this is not a retroactive claim, however I find that the test regarding retroactive child support as set out in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 2006 SCC 37 is still relevant in these unique circumstances. Support is the right of the child (paragraphs 60 and 104) and requires flexibility. On the other hand, the payor parent should have the benefit of predictability, and a degree of certainty in managing his/her affairs (para. 74). Delay in seeking support is a factor that gives the court the opportunity to examine the balance between those two noted principles to determine the most appropriate course of action on the facts (para. 104). The general rule is that child support should commence effective the date notice is given that it is being sought (para. 118), as this allows for a fair balance between certainty and flexibility (para. 122).

[13] Applying that test to the facts in this case, the parties acknowledged that there is a history of the mother approaching the father for support increases, the father pleading his case for hardship, and the mother agreeing. This is a rare and exceptional case where a waiver of table increases is established on the evidence and admissions of the support recipient. Effective notice was not given to the father that the waived table increases were being reinstated until the Motion to Change was served. For that reason, in my view fairness dictates that the table support obligation be adjusted to January 1, 2016 being the month after the father was served, rather than six months earlier as requested.

Decision

[14] Regarding the father’s request in paragraph 5 above, without a finding of undue hardship I have no discretion to depart from the Guidelines. They are based on annual incomes and not fractional assessments within the year.

[15] The order dated December 13, 2010 shall be varied as follows. Commencing January 1, 2016, the respondent shall pay table child support of $360 per month for the child Jaydin based on his estimated income for 2016 of $40,000. Although I am not inclined to order costs, I have not given the parties the opportunity to make submissions. If either wants to address me on costs, they can do so in writing within 20 days. Any submission must be served on the other party.

Mr. Justice Timothy Minnema Date: July 18, 2016