SUPPLEMENTARY REASONS FOR DECISION

[1] The parties attended before me to deal with certain outstanding issues from the motion that was argued before me on June 28, 2022. My Reasons for Decision for that motion were released on August 30, 2022, see Hohmeier v. Caputo, 2022 ONSC 4925.

[2] At the end of my Reasons, I indicated that if the parties were unable to reach an agreement on section 7 expenses, child/spousal support calculations or costs, they could attend before me again. As it turned out, a further attendance was necessary.

[3] The parties advised me that they are in agreement about the 75.5% / 24.5 % (respondent / applicant) proportionate sharing of section 7 expenses based on the findings in my Reasons. I imputed income of $100,000 under the Child Support Guidelines (CSG) to the respondent, and imputed no income to the applicant, but found her eligible to claim the Child Tax Credit.

[4] In my Reasons, I directed that spousal support be fixed at the mid-point range as I found that the applicant was living rent free in the residence co-owned by the respondent.

[5] Based on the foregoing, the respondent shall pay child support of $910 and spousal support of $2,042 per month starting July 1, 2022.

[6] The parties could not agree on whether the monthly $1,560 cost of a nanny at the applicant’s residence was a legitimate section 7 expense.

[7] The nanny works full-time and lives in a room in the apartment where the applicant and parties’ child V reside. The respondent suggested that the nanny lives in a separate basement unit, but I found that the applicant’s affidavit is clear that “there is no kitchen and there is no separate basement unit – it is all part of the unit that V and me live in.”

[8] The nanny earns $2,560 per month (gross). From this, she pays $1,000 in rent, which results in a monthly nanny expense of $1,560.

[9] The issue is whether the $1,560 expense qualifies, in the circumstances, as a legitimate section 7 expense. I find that it does. I find that it is necessary, reasonable and that Mr. Caputo, based on his income of $100,000 annually has the means to pay the expenses. The evidence is that the nanny lives in a room in the unit where the applicant and child reside. She is not living there for free. The applicant is 2.5 years into a 4 year course of study. Even if the applicant was employed, the parties would need to pay for a child care expense. The applicant has not worked since December 2018. There is little evidence that the respondent objected to the nanny until now. Accordingly, the parties shall pay their proportional share for the $1,560 nanny section 7 expense.

[10] Based on support software calculations, the respondent shall pay $796 per month in respect of his proportionate contribution towards the nanny expense.

[11] The parties made submissions on the costs of the motion in respect of June 28, 2022 and the present attendance.

[12] Initially, the applicant sought $13,388.37 in costs based on her updated Bill of Costs (for time spent to September 15, 2022). She noted that, on the interim support motion, the respondent sought a finding that his income be imputed at $50,000, and his position on spousal support was premised on the support payment being reduced by rent allegedly owed by the applicant to the respondent. Instead, the respondent’s income was imputed at $100,000 under the CSG, with spousal support not adjusted for rent. At the end of the day, however, the appellant argued that neither side should pay costs given the court’s decision. The applicant acknowledged that she had sought that the respondent’s annual income be imputed at $250,000 under the CSG, but that position was not affirmed by the court.

[13] The respondent submitted a Bill of Costs of $67,836.72. The respondent acknowledged that the costs were very significant. The respondents’ team of lawyers claimed that they had to visit the respondent at Collins Bay penitentiary in Kingston where he is incarcerated to discuss his instructions in a confidential setting.

[14] The applicant argued that the respondent’s Bill of Costs was completely unreasonable noting the huge disparity between each party’s Bill of Costs.

[15] The parties had exchanged Offers to Settle. I found that neither party’s Offer to Settle offered a better outcome than what was determined on the motion. Accordingly, I found that the cost consequences of offers to settle under Rule 18(14) of the Family Law Rules did not apply.

[16] I find, based on the factors identified in Rule 24(12) of the Family Law Rules that no costs should be awarded on the motion. Whereas my imputation of the respondent’s income at $100,000 is closer to the $50,000 that he claimed than the $250,000 sought by the applicant, the respondent was not successful in limiting his child support and spousal support payments to the level he sought. Further, he was unsuccessful in arguing that the nanny expense should not be a legitimate section 7 expense.

[17] The applicant advised and I note that respondent paid his support payments late for the months of September and October 2022. The respondent is reminded that his support payments are due on the 1st of each month.

[18] The parties shall provide me with a draft Order approved as to form and content, and a clean version in WORD format for signing. The parties may contact my judicial assistant through her email address at Patricia.Lyon-McIndoo@ontario.ca.

[19] A Support Deduction Order shall issue.

Pinto J.

Released: October 19, 2022

COURT FILE NO.: FS-22-28540

DATE: 20221019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robyn Amy Louise Hohmeier

Applicant

– and –

Martino Caputo

Respondent

SUPPLEMENTARY REASONS FOR DECISION

Pinto J.

Released: October 19, 2022

Hohmeier v. Caputo , 2022 ONSC 5930

Case Summary

SUPPLEMENTARY REASONS FOR DECISION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues