Court File and Parties

COURT FILE NO.: FC-19-310 DATE: 2019-06-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Mackenzie Brianne Mooers Applicant – and – Mark Harold Parent Respondent

Counsel: Self-represented, for the Applicant Dominique Menard, for the Respondent

HEARD: In writing

Reasons for Decision

AUDET J.

[1] This is an application filed by the applicant mother, Ms. Mooers (“the mother”), against the respondent father, Mr. Parent (“the father”), for a child support order pursuant to the Inter-Jurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“the ISO Act”).

[2] The parties are the biological parents of Dreyven Orion Stanley-Mooers who was born on April 24, 2015. The parties had a brief relationship in August 2014 following which the mother became pregnant with the child. Paternity testing was completed in February 2017, at the request of the mother, and confirmed that the respondent was the biological father of the child. The mother lives in British Columbia and the father lives in Ontario. The child has been in his mother’s sole care since he was born. Once he found out that he was the biological parent of the child, the father began paying child support, the amount of which was not disclosed by either party. The father stopped paying child support altogether in January 2018, which prompted the mother to file the within application in September 2018.

[3] The mother seeks child support in the amount of $559 per month based on an estimated income of $60,320 per year, retroactive to September 1, 2018. She estimated the father’s income based on her knowledge that he was employed as a bus operator, and on information she found on the internet about the level of income earned by bus operators in Ontario, having no direct evidence of the father’s income. She also seeks a monthly contribution of $100 towards the child’s special and extraordinary expenses (daycare and soccer), as well as an order requiring the father to maintain the child as the beneficiary under any medical and dental plan he may have.

[4] The father disputes his obligation to pay child support in accordance with the table amount set out in the Guidelines, as well as his obligation to pay retroactively to September 2018 and to contribute to the child special and extraordinary expenses. Essentially, the father raises the following objections;

• As a bus operator for the city of Ottawa, it is possible that he will lose his job once the new light rail train is launched. Within a few months, he foresees that his income will decrease dramatically;
• He does not have the means to pay the Table amount of child support based on his income because he has significant debts and is currently subject to a consumer proposal under the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3;
• the costs of exercising access with the child in British-Columbia are significant;
• he does not have sufficient information about the mother’s finances to address the test for undue hardship, which he believes he may meet in light of his significant debt load;
• the mother’s request for a retroactive award back to September 2018 is unreasonable.

[5] According to his financial statement sworn April 23, 2019, the father’s income, since 2016, has been as follows:

• 2016: $73,781
• 2017: $81,218
• 2018: $87,244
• 2019: $93,600 (as stated in his sworn financial statement)

[6] I accept none of the objections raised by the father against his obligation to pay child support for his son in accordance with the Child Support Guidelines. The father earns a significant income as a bus driver for the City of Ottawa. He has known since February 2017 that he was the biological father of this child and that he had a positive obligation to support him. In fact, he has paid child support for at least one year, from February 2017 up until January 2018. In his Answer (the father has mistakenly used the family law forms instead of the forms specifically prescribed by the ISO act and regulations), the father states that he stopped paying child support in January 2018 because the mother was blocking him from communicating with the child. Since the mother did not want him to be involved in the child’s life, he assumed that this meant his financial involvement as well.

[7] It should not come as a surprise to the father that his obligation to support his son financially is not dependent on whether or not he has a meaningful relationship with him, or whether or not the mother reasonably or unreasonably denies him access to the child. If the father wishes to gain access with his son, he is free to file an application before the British Columbia courts seeking same. While I acknowledge that the father has sought access and parental rights to the child in his Answer to these proceedings, his request in that regard cannot be entertained in the context of this ISO Act application, nor can it be entertained before the Ontario courts since the child’s habitual residence is British-Columbia; he will have to proceed before the British Columbia courts in accordance with the provincial legislation and rules applicable in that province.

Undue Hardship

[8] The father claims that he should not be required to pay the Table amount of child support principally on the basis of his allegation that this would cause him undue hardship. The applicable section in the Federal Child Support Guidelines, S.O.R./97-175, as am., is section 10 which reads as follows:

Undue hardship

10 (1) On either spouse's application, 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 spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

(b) the spouse has unusually high expenses in relation to exercising access to a child;

(c) the 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 spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Standards of living must be considered

(3) 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 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 spouse.

Standards of living test

(4) 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.

Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, 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.

Reasons

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.

[9] In D. (S.) v. M. (J.), 2013 ONSC 6880, Horkins J. described the three step process to seeking relief under section 10. Step one requires the claimant to establish undue hardship. Step two requires the claimant to prove that the standard of living in his or her household is lower than the standard of living in the household of the other party. A claimant must succeed on both of these steps to move forward to step three where the court may determine that the appropriate amount of child support is less than the Guidelines amount.

[10] The father claims undue hardship based on the fact that he has very high debts. Subsection 10(2)(a) of the Guidelines speak of unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living. As the parties never lived together, and as the father’s annual income has consistently been well over the $80,000 mark for the years in question, he cannot base his undue hardship claim on this provision.

[11] Similarly, the father cannot put his financial obligations towards his creditors ahead of his child support obligations; his financial responsibilities towards his son come first. I have no evidence before me supporting the father’s allegation that he is currently subject to a consumer proposal under the BIA. Not only is there no evidence in the file confirming this, his financial statement does not mention any monthly payments being made to a Trustee in Bankruptcy, and it reveals that he continues to have over $25,000 in consumer debts which would not be owing if he had made a consumer proposal. In any event, the father’s high level of debts in the circumstances of this case would not alleviate his obligation to pay child support in accordance with the Guidelines, as stated before.

[12] The father’s evidence reveals that he lives with his partner, his partner’s brother and his partner’s minor daughter, and that neither of the two adults living in his home earn any income, leaving him as the sole financial support for all of them. While the father is free to choose to financially support these individuals towards whom he has no legal support obligation, this choice cannot trump his legal obligation to support his son.

[13] The father also claims that paying the Table amount of child support would cause him undue hardship in light of the significantly high cost of exercising access to his son. However, the evidence I have before me confirms that the father does not currently exercise any access with the child. In fact, I have no evidence that the father ever travelled to British-Columbia to visit his son since he was born, and it would appear that as of January 2018, the father does not even have any contact with him at all.

[14] While I agree that I have little information with regards to the mother’s overall financial circumstances which would allow for a comparison of the parties’ respective standard of living, such evidence is not necessary in this case because I conclude that the father has not met the first part of the test which requires him to establish undue hardship based on one of the circumstances set out in subsection 10(2) of the Guidelines.

[15] Even if I had found undue hardship, which I clearly do not, it would seem highly unlikely that the father would be able to meet part two of the test in light of the evidence adduced by the mother with regards to her income for the relevant years. Her income tax returns since 2015, which were part of her materials in this application, show that she has earned the following income in 2015, 2016 and 2017:

• 2015: $14,430 which includes UCCB of $1280;
• 2016: $6684 which includes UCCB of $960
• 2017: $11,860

[16] In her materials the mother estimates that her income for 2018 will be approximately $16,167. This is supported by the three recent paystubs submitted as part of her materials.

[17] Undue hardship is a high threshold to meet. The courts have described “undue” as, “exceptional”, or “excessive” or “disproportionate” in all the circumstances. See Van Gool v. Van Gool, (1998), 166 D.L.R. (4th) 528 (B.C. C.A.). I find that the father has not met the burden of showing that paying the amount set out in the Guidelines would cause him undue hardship.

[18] Finally, while the father alleges that he will likely lose his job as a bus operator in the very near future, I have no evidence whatsoever indicating that this will be the case. At best, this is a concern on the part of the father; there is no evidence before me suggesting that he has received a termination notice from his employer. It is possible that, if his position as a bus operator is terminated, he will be offered a different position within the same organization. It is also possible that he will be able to locate alternative employment at a similar income. He may be offered a termination package which will replace or supplement his income for a number of months or years, while he looks for alternate employment. Depending on actual circumstances, it will be open to the father to bring a motion to vary his child support obligations if and when his employment is in fact terminated, or his income significantly reduced.

Retroactive Child Support

[19] In her application, the mother sought an award of child support retroactive to September 1, 2018. However, in Form C of her application, she sought a retroactive award starting as of the date of the child’s birth. I note that the mother’s application was signed on September 5, 2018 and I conclude that this is why September 1, 2018 was used as the starting date for ongoing child support in the application itself. However, in her Form C (which sets out the specifics of an applicant’s child support claim), she clearly indicated that she was seeking a child support award retroactive to the child’s date of birth.

[20] I am not prepared to make an order retroactive to the child’s date of birth for the following reasons. Firstly, I have no evidence that would explain why it took two years for the mother to take steps to establish the father’s paternity and seek support from him. Further, it is undisputed that the father paid child support from February 2017 to January 2018. Whether or not the child support was in accordance with the Guidelines or not, the undisputed evidence confirms that the parties had an agreement in that regard and I see no reason to retroactively vary that agreement in the circumstances of this case. However, it is clear that when he stopped paying child support in January 2018, the father was well aware of his obligations to support his son, and he was well aware of the mother’s request for same.

[21] In all of the circumstances, I make the following order as it relates to basic child support:

1. From February 1, 2018 to and including December 1, 2018, the father shall pay child support to the mother in the amount of $812 and for the benefit of the parties’ child, Dreyven Orion Stanley-Mooers, born on April 24, 2015, based on the father’s 2018 annual income of $87,244.
2. From January 1, 2019 and every month thereafter until further varied by the court, the father shall pay child support to the mother in the amount of $860 based on his estimated income of $93,600 for 2019.

Special and Extraordinary Expenses

[22] The mother seeks a contribution from the father on account of the following special and extraordinary expenses she incurred for the child:

• daycare expenses
• soccer

[23] The evidence provided by the mother with respect to daycare expenses shows that she benefits from an important subsidy which reduces the daily daycare costs to $5.75. Although her application was filed in September 2018, she only produced two daycare invoices; one for the month of January 2018 and one for the month of February 2018. I have no evidence indicating whether the child continued to attend daycare after February 2018. Further, the pay stubs produced by her in support of her current income shows that she works part-time hours only. I have no evidence that would indicate whether or not the mother is engaged in a program of education, or of any other circumstances that would justify full-time daycare attendance by this child. Given the lack of evidence before me, I decline to make an order that the father contribute to daycare expenses.

[24] With regards to soccer expenses, there is also no independent evidence of this expense having been incurred. The mother simply states in her Form F (Special or Extraordinary Expense Claim) that she paid $250 towards soccer for the child. This represents an expense of less than $25 per month (when annualized), and in light of the monthly child support payable by the father for this child, I find that this expense is not extraordinary within the meaning of section 7 of the Guidelines. As a result, I decline to make an order requiring the father to contribute to this expense.

[25] On consent of the father, he shall maintain the child as a beneficiary under any medical or dental plan available to him through his employment for as long as same is available to him.

Madam Justice Julie Audet Released: June 4, 2019