Hunter v. McAleer, 2021 ONSC 1104

COURT FILE NO.: FC-19-1414-1 DATE: 20210211 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHRISTOPHER WILSON HUNTER, Applicant -and- JENNIFER ELVA DAWN McALEER, Respondent

BEFORE: Madam Justice Julie Audet

COUNSEL: Applicant is self-represented Respondent is self-represented

HEARD: In writing

Endorsement

1This matter is proceeding under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISOA”) and Rule 37 of the Family Law Rules, O. Reg. 114/99. The applicant father currently resides in Fredericton, New-Brunswick, and the respondent mother currently resides in Ottawa, Ontario.

Background

2The parties were in a relationship from 2008 until 2016, when they separated. They are the parents of Karlee Jane Hunter who was born on July 9, 2009. At the time of their separation, the parties resided in New Brunswick.

3On July 27, 2018, following a trial held in December 2017, Justice Bruce A. Noble of the Court of Queen’s Bench in New Brunswick made an order granting the parents joint custody of Karlee, with her primary residence being with the mother. The mother was allowed to relocate to Ottawa with Karlee, and the father was granted parenting time with her during Christmas, March Break and the summer holidays. In relation to child support, Noble J. made the following order:

5. The Applicant Hunter’s income for 2016 is determined to be $25,900 for the purposes of calculation of child support for the period of December 2016 to and including June 30, 2018.

6. The Applicant Hunter’s child support obligation is determined to be $191 monthly from December 2016 until November 2017 for a total obligation of $2,101.00 and $195 monthly for the period of December 1, 2017 until June 2018, inclusive, for a total obligation of $1,365.00.

7. Any arrears, after accounting for payments received since the Interim Order dated October 10, 2017, shall be discharged at the rate of $50.00 per month in addition to any other amount, commencing July 1, 2018 until extinguished.

4On October 12, 2018, and upon receipt of the parties’ 2017 tax information (as previously ordered by him), Noble J. made a subsequent order as follows:

1. Commencing on July 1, 2018 and continuing on the first of each moth thereafter, the Applicant Hunter shall pay child support of $320 to the Respondent McAleer for the benefit of the child.

2. The first three payments (July, August and September) total $960 and shall be added to the Respondent’s outstanding arrears.

3. Commencing on July 1, 2018 and continuing on the first of each subsequent month thereafter, based on the respective incomes from their 2017 Income Tax Returns, the Respondent’s proportionate share of any expenses pursuant to section 7 of the Federal Child Support Guidelines is 43%.

5At the time of that Order, the father’s 2017 income $39,372.68 and the mother’s 2017 income was $51,865.00.

6Noble J.’s July 2018 Order was registered in Ontario pursuant to the ISOA on September 16, 2019 and his October 2018 Order was registered on January 20, 2020.

Variation Application

7On October 24, 2019, the father filed a support variation application before the Ontario Superior Court, seeking a variation of his child support obligations under the October 2018 Order. In his October 2019 evidence, the father explains that, at the time the October 2018 Order was made, he was working as a commercial tree thinner, which employment is seasonal. He received employment insurance benefits the remainder of the year or drove a taxi as a self-employed worker.

8The father states that when he returned to tree thinning in May 2019, he had also started to do deliveries on a part-time basis. After about six weeks of working in tree thinning, he realized that the expenses related to that job (gas and travel costs) were such that he could no longer afford to continue in that line of work. Instead, he left that employment and decided to do deliveries on a full-time basis as a self-employed worker. This, he says, resulted in a reduction of his income which, at the time he filed his variation application (October 2019), he estimated would be in the range of $36,000.

9The father also believes that the mother’s income has increased since Noble J.’s October 2018 Order, and he seeks a review/recalculation of the amount he is required to contribute to Karlee’s s. 7 expenses, retroactive to 2019. He also states that his contribution to s. 7 expenses have been calculated by the New Brunswick Office of Support Enforcement based on the gross amount of expenses submitted by the mother for payment, and failed to take into account tax credits and benefits as well as insurance coverage available to her in relation to those expenses. He further adds that the receipts provided by the mother to the New Brunswick support authorities for enforcement were fabricated by her and he expresses the view that the mother did not, in fact, incur those expenses.

10The mother opposes the father’s application, and in November 2020 filed her own evidence and responding material. She alleges that the father quit his job in tree thinning (at Miramichi Thinning) for the sole purpose of reducing his child support obligations. She says that his employer offers housing accommodations to allow employees to remain on site and reduce the travel required to go to and from work. She says that the father went back to thinning in 2020 and quit again once he realized he had made too much money.

11With regards to s. 7 expenses, the mother testifies that she did incur the daycare expenses that she submitted to the New Brunswick Office of Support Enforcement. While she herself created the receipts, her daycare provider, a neighbour who came to her home to care for Karlee before and after school, is the one who signed them. While her income in 2018 was significantly lower than her 2017 income (she only earned $28,970 that year, for a reason unknown to me), she did not seek a change to the father’s proportionate share of Karlee’s expenses. She denies having made a claim for dental expenses for Karlee, as alleged by the father. Finally, she seeks an order that the father be required to contribute to Karlee’s extracurricular activities, as well as to the cost of orthodontic treatments needed for her.

Analysis

12The father filed his variation application in October 2019. At that time, his income tax information for 2019 was not available. As a self-employed individual, he had the obligation to provide evidence that would support his stated estimated income of $36,000 for 2019. He did not provide any. In any event, his 2018 Income Tax Return confirms that he is capable of earning at least $39,000, and I see no valid reason for him to earn any less based on the evidence before me. As a result, his request to adjust his child support obligation for 2019 is dismissed.

13I find that the mother’s evidence in relation to the daycare expenses she incurred in 2019 is credible. The expenses are supported by the mother’s own testimony and the daycare receipts provided. All childcare expenses have been incurred between January and May 2019 and totalled $3,000. The mother’s evidence before me does not allow me to confirm whether she claimed those expenses on her 2019 Income Tax Return, as only her Notice of Assessment was provided (which lacks sufficient detail).

14A comparison of her 2017 and 2019 Notices of Assessment (during which she earned roughly the same income) confirms tax deductions totalling approximately $5,000 for each year. In 2017, the mother did not incur daycare expenses (none were claimed during the trial before Noble J.) whereas in 2019, she incurred $3,000 on that account. This strongly suggests to me that the mother did not claim the tax deduction that might have otherwise been available to her for those expenses, but I cannot be certain. If she did not, no explanation was provided as to why that is, but there could be many valid reasons for this. It is clear that the father’s contribution to those expenses as charged by the New Brunswick support enforcement authorities was based on the gross amounts paid, not the after-tax cost.

15The mother states that, over the past three years, she has registered Karlee in two basketball camps, as well as in summer soccer. She is supposed to begin basketball again in 2021 provided public health measures currently in place due to COVID permit it. While she claims a proportionate contribution from the father on that account, she has provided no documentary evidence confirming the cost of those activities. It is clear that the father would have had to contribute to those expenses, in my view.

16Considering all the above, I find that no adjustments should be made to the amounts the father was required to contribute to Karlee’s special and extraordinary expenses for the years 2019 and 2020.

17I find no evidence supporting the father’s assertion that he was required to contribute 43% of the total dental expenses incurred by the mother for Karlee in 2019, without any adjustment for the portion covered by her insurance. The dental costs incurred for Karlee in 2019 totalled $1,046 (as per the insurer’s statement for 2019). Of that amount, $872.89 was covered by the mother’s insurance, leaving an outstanding amount owing of $173.11. The father’s 43% contribution amounted to 74.44. His 43% contribution to daycare expenses amounted to $1,290, for a total of 1,364.44. The statement of arrears from the New Brunswick Office of Support Enforcement confirms that $1,364.44 was paid by him on account of s. 7 expenses. He has therefore made no overpayment, as alleged.

18The evidence provided by the mother confirms that Karlee needs braces. She has an overbite that needs to be corrected and she has been seeing an orthodontist since October 2019 for this issue. The total cost of Karlee’s orthodontic treatment, which is expected to commence imminently, will be $7,370.00 (as per Dr. Tan’s statement dated October 29, 2020). As stated above, the mother’s insurance will cover $2,500, leaving $4,870 to be paid by the parents in proportion to their income. As per Dr. Tan’s statement, the amounts owing can be spread over 18 months.

19The mother’s most recent paystub (dated November 10, 2020) reveals that she will be earning approximately $62,000 in 2020. Given the father’s income of $39,372, his proportionate share of Karlee’s expenses is 39%. He is therefore required to contribute $1,899.30 towards the cost of Karlee’s orthodontic treatment, payable by equal monthly payments of $105.51. The mother shall be required to provide the father with confirmation from her insurer of the costs covered by her insurance, forthwith. In the even that a greater amount is covered by her insurance, the amounts owing by the father shall be adjusted accordingly.

Order

1. The father’s child support obligation to the mother for the benefit of Karlee shall continue to be based on his annual income of $39,372 for the years 2019, 2020 and ongoing, until varied by a further court order. Based on the New Brunswick Tables, the basic child support payable continues to be $320, as per Noble J.’s 2018 October Order.

2. As soon as Karlee’s orthodontic treatment begins, the father shall be required to pay his 39% proportionate share of any cost not covered by the mother’s dental insurance. At this time, this amount is fixed at $105.51 per month for 18 months.

3. There shall be no adjustments on account of s. 7 expenses for the years 2019 and 2020.