COURT FILE NO.: FS-18-188 DATE: 2019/04/26 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
KURTIS CARROLL L. Sangster, counsel for the Applicant. Applicant
- and -
FRANCE CARROLL S. Sikora, counsel for the Respondent. Respondent
HEARD: April 5, 2019 Ellies J.
REASONS FOR DECISION
OVERVIEW
[1] In the motion at tab 12 of the continuing record, Ms. Carroll moves for an order for temporary child support for the two children of the marriage, who are 5 and 8 years old.
[2] Mr. Carroll resists Ms. Carroll’s request on the basis that he is paying all of the family debts.
[3] The parties dispute practically every important fact. Just about the only thing the parties agree upon is the fact that they share parenting of the children. Therefore, in determining what child support should be paid, I am required to apply the provisions of s.9 of the Federal Child Support Guidelines, SOR/97-175 (the “CSG”), and the principles set out by the Supreme Court of Canada in the governing case of Contino v. Leonelli-Contino, 2005 SCC 63.
[4] Unfortunately, however, I do not have all of the information I need to do that. In particular, I have no child expense budget from either of the parties. Rather than adjourn the motion, given the fact that the motion is for interim relief and that it is the first such motion brought in these proceedings, I have decided to make a temporary temporary order (i.e. an order that requires no material change in circumstances to vary) that I hope will come close enough to what would happen if I had all of the right information that the parties will not be required to come back to court and, if necessary, will have enough common sense to “tweak” the order on consent.
BACKGROUND FACTS
[5] The affidavits sworn by each party in the motion are lengthy. In my view, they contain a lot of information that seems far more relevant to the issue of custody, something that is not contested in this motion, than to the issues of child and spousal support (the latter of which Ms. Carroll is not pursuing at this time). I will have more to say about the length of these affidavits when it comes to the issue of costs. For now, I will set out the facts about which there appears to be little controversy and I will deal with the more contentious facts in the next section of these reasons.
[6] The parties lived together for about 10 and one-half years, during approximately 8 and one-half of which they were married. Ms. Carroll was employed throughout as an ambulance communications officer. Mr. Carroll was employed throughout as a firefighter. Prior to 2011, Mr. Carroll was employed by the Ministry of Natural Resources, a job that required him to be away from home from April through to September. Since 2011, he has been employed as a municipal firefighter by the City of Ottawa, commuting to work from the parties’ matrimonial home in Callander, a small community just south of the City of North Bay.
[7] According to Ms. Carroll, the parties separated in February 2018 but continued to live in the matrimonial home until May 2018, at which point she moved out. She lived for a while with her mother before renting a home in Callander, beginning in September 2018. Mr. Carroll remained in the matrimonial home.
[8] Ms. Carroll deposes that she left the majority “if not [the entirety]” of the household contents in the matrimonial home. She says that she was required to purchase used bedroom and other furniture, children’s clothing, toys, bikes, and other items to replace what she left behind. This fact, too, is disputed by Mr. Carroll.
[9] The parties’ debts include a mortgage on the matrimonial home, a line of credit relating to legal fees incurred in litigation relating to the matrimonial home, and a line of credit relating to a construction business operated by Mr. Carroll.
[10] Mr. Carroll has someone living as a tenant in the matrimonial home who does not pay rent. The exact relationship of this tenant to Mr. Carroll is also in dispute.
[11] Mr. Carroll admits that he might be able to find employment in North Bay, but he says that he would make less money (I presume as a firefighter, as he indicated in the affidavit he filed in support of his claim for custody or access, at tab 4 of the continuing record) and, therefore, he wishes to retain his Ottawa job.
ANALYSIS
[12] Shared custody situations present the court with a significant challenge when it comes to determining child support. Unlike the situation in which a support recipient has sole custody, the CSG table amounts are merely the starting point for a process in which a high degree of discretion is given to the court. As many have recognized, this flexibility in dealing with shared custodial arrangements comes at the cost of the type of certainty that prevails where support is sought by a sole custodial parent.
[13] Section 9 of the CSG requires the court to consider three factors. The section reads:
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
a) the amounts set out in the applicable tables for each of the spouses;
b) the increased costs of sharing custody arrangements; and
c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[14] In Contino, the Supreme Court of Canada held that the first factor set out above requires the court to consider a simple, or straight, set-off of each parent’s table amount of support payable for the number of children involved, rather than a pro-rated type of set-off based, for example, on the exact percentage of time each child spends with each parent (paras. 40-51).
[15] Even this simple calculation is made difficult in this motion, however. In 2016, Ms. Carroll earned $52,677. She earned $66,848 in 2017. She deposes that her income went down in 2018 because she took time off of work to care for the children to mitigate the effect of the parties’ separation. In her affidavit, Ms. Carroll deposes that she earned approximately $61,730.08 in 2018. However, in her financial statement, her income for the year is set out as $58,109. There is no explanation for this discrepancy. Counsel for Ms. Carroll has used the lower amount for most of the DivorceMate calculations submitted on the motion.
[16] As with so many of the other important facts, Mr. Carroll disputes Ms. Carroll’s assertion that she took time off of work for the sake of the children.
[17] Mr. Carroll’s income is just as hard to nail down. Prior to 2018, his overall income included income from his employment as a firefighter, as well as income from work in the construction industry, both as an employee for one company and from self-employment in his own business. In 2017, his total income was $112,853, $108,086 of which was firefighting income. In 2016, Mr. Carroll had total income of $111,242.19, $99,318.80 of which was firefighting income. In 2015, Mr. Carroll’s overall income was $112,799.57, $95.901.58 of which was firefighting income. As this pattern demonstrates, for these years, Mr. Carroll’s firefighting income was steadily increasing.
[18] Like Ms. Carroll, Mr. Carroll deposes that his income has now gone down, in his case because he no longer works in the construction industry either for himself or for anyone else. For 2018, Mr. Carroll’s T4 shows income from firefighting in the amount of $95,894.03. His tax return shows a deduction from that amount of $4,838.51 as a loss from his business, bringing his income to $91,055.52.
[19] For the purpose of calculating the set-off, I would not use either party’s line 150 income for 2018. Section 17 of the CSG permits the court to have regard to the spouse’s income over the past three years if it is of the opinion that using that spouse’s line 150 income would not be the fairest determination of income for the purposes of calculating support. I believe that is true of both parties here.
[20] By her own admission, Ms. Carroll’s 2018 income is not reflective of her income earning ability, regardless of the truth of her statement that she stayed home for the sake of the children. Prior to 2018, Ms. Carroll’s income was increasing significantly each year. Likewise, Mr. Carroll’s 2018 income includes a business loss that, by his own admission, will not recur. In addition, he deposes that he used nearly $23,000 in sick time to care for the children over the summer months because of Ms. Carroll’s failure or refusal to do so.
[21] For these reasons, I would use the figure of $70,000 for Ms. Carroll’s income and $108,000 for Mr. Carroll’s income. These amounts reflect the upward trend of each party's employment income, without regard to past, non-recurring events. Based on these amounts, pursuant to the CSG, the support payable by Ms. Carroll for two children would be $1,037 per month and $1,514 per month for Mr. Carroll. The set-off amount is, therefore, $477.
[22] The second step in calculating child support under s.9 of the CSG requires the court to consider the increased costs of the shared custody arrangement. As the Supreme Court of Canada held in Contino (para. 51):
This is where discretion comes into play. The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend.
[23] In Contino, the court held that under s.9 (b) of the CSG (para. 52):
[T]he court will be called upon to examine the budgets and actual child care expenses of each parent. These expenses will be apportioned between the parents in accordance with their respective incomes.
[24] In this case, however, while I have the parties’ financial statements, I have not been given sufficient information regarding the actual expenditures of both parents in addressing the needs of the children. I have some information, such as expenditures relating to clothing, activities and medicine for the children. However, I do not have information on such things as increased housing or transportation costs relating solely to shared custody. In their submissions, neither counsel referred me to any overall costs incurred by their client because of the shared custody arrangement, although counsel for Mr. Carroll does ask the court to consider the increased costs to him of travelling from Ottawa to Callander for the purpose of exercising custody.
[25] In Contino, the Supreme Court pointed out that the parties in shared parenting cases often fail to lead sufficient evidence relating to the factors in ss. 9 (b) and (c) (para. 57). The court was critical of the Ontario Court of Appeal for making “common sense assumptions” about increased costs of the shared parenting regime and for applying a multiplier to account for the fixed nature of some of those costs. The Supreme Court held that, instead, courts should adjourn proceedings and demand more information from the parties where it is deficient (para. 57). I do not propose to do that here. Contino was a case in which the motion judge made a final order. In this case, the request is for a temporary order only, and it is the first such request by either party.
[26] In Contino, the Supreme Court held that it was permissible in the absence of evidence of the additional costs attributable to shared custody to verify the simple set-off against the budgets submitted by the parties under factor 9(c) in the absence of other evidence. As the court held, proceeding in this way leads to an examination of the actual capacity of each party to contribute to the expenses and to a consideration of the standard of living of both households (para. 77).
[27] In Contino, the court looked at the variable monthly expenditures of each of the parties and calculated the amount of those expenses that each party should bear in proportion to their incomes (para. 78). Based on the incomes of $70,000 and $108,000, respectively, Ms. Carroll in this case should bear approximately 40 per cent of the expenses and Mr. Carroll should bear 60 per cent. However, I am not confident that I have all, or even accurate, information regarding the variable expenses in this case. For example, Ms. Carroll’s financial statement indicates that she spends only $475 per month on groceries for herself and her two children while Mr. Carroll’s financial statement indicates that he spends $1,000 a month for the same number of people (although I suppose it is possible he is paying for food for the tenant to whom I referred earlier). In addition, Mr. Carroll’s financial statement indicates that he spends $250 per month feeding himself while at work.
[28] Mr. Carroll’s financial statement also indicates that he spends $3,096.39 per month on “other expenses”, including children’s clothing, their activities, and school fees. However, a number of those expenses (totalling $2,157) appear to be incurred only annually (hockey, soccer, skiing, and horseback riding), rather than monthly. Given this apparent error, I am left wondering whether the $50 per month that Mr. Carroll indicates he spends on summer camp expenses might also be an annual expense, instead.
[29] Because of these concerns, I do not believe that it would be appropriate in this case to fix child support based on the variable expenses set out in the parties’ financial statements, as the Supreme Court of Canada did in Contino. Instead, I believe that the fairest way to determine temporary child support in this case is to use the set-off amount and to adjust it, having regard to the spending patterns and the assets of both parties.
[30] Mr. Carroll appears to spend a great deal more on certain line items than does Ms. Carroll. I have already mentioned the expenditures on food. The same is true for pet care. Notwithstanding the presence of a tenant in the matrimonial home whom Mr. Carroll says is caring for his dogs, rather than paying rent, Mr. Carroll’s financial statement indicates he spends $375 per month for pet care and boarding, while Ms. Carroll’s financial statement indicates that she spends only $125 per month on the same.
[31] Mr. Carroll asks that child support be set at zero because he is solely responsible for paying the family debts. However, with one exception, those debts relate to assets Mr. Carroll presently owns or is using, including the matrimonial home and equipment purchased for his construction business. The only debt that does not fit this description is a debt the parties incurred for legal fees before they separated.
[32] Based on the parties’ financial statements, Mr. Carroll’s household enjoys a substantially higher standard of living than that of Ms. Carroll. At the same time, I accept that Mr. Carroll is carrying the debt related to the legal fees and incurring increased transportation costs to get to work in Ottawa and back to Callander in order to enjoy his time with the children.
[33] Taking these things into account, I would reduce the set-off from $477 per month to $300 per month, to try to bring the standards of living in Ms. Carroll’s and Mr. Carroll’s households into line. This way, Ms. Carroll will at least be able to feed the children in a way similar to the way Mr. Carroll’s financial statement indicates he feeds them.
CONCLUSION
[34] A temporary temporary order shall issue requiring Mr. Carroll to pay child support in the amount of $300 per month, commencing on the 1st day of May 2019. This is the amount payable under s.9 of the Child Support Guidelines for a payor earning $108,000 per year and a recipient earning $70,000 per year.
[35] The parties are at liberty to file additional materials, including a child expenses budget in which they indicate the fixed and variable expenses associated with exercising custody of the children and to bring the motion back before the court. Of course, the parties are also free to agree to vary my order and they are encouraged to do so, if appropriate.
COSTS
[36] To this point in time, the success on this motion is mixed. Even if it could be said that one party was more victorious than another, I am not inclined to award costs to either one of them. As I mentioned above, the affidavits in this motion were unnecessarily long. I understand that it may be more cost effective for lawyers to ask their clients to write out their versions of events and to simply have those versions type-written and put into affidavit form. I also understand that it may be cost effective to throw all of the facts relating to all of the issues or potential issues into one affidavit. However, these practices should be discouraged. The affidavits filed in support of the motion for child and spousal support contained copious amounts of evidence related solely to the issue of custody, a matter upon which the parties have already reached agreement. None of this evidence was helpful to the court with respect to the issue of support. Indeed, much of it proved to be a waste of the court’s time.
[37] Accordingly, there will be no costs awarded for the motion to date.
Ellies J.