Court File and Parties
COURT FILE NO.: FC 999/17 DATE: 2023/04/20
ONTARIO SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Alexandra Atsriku Applicant
- and -
Delroy Gustavus Respondent (In person)
HEARD: April 13, 2023
BEFORE: Henderson J.
Reasons for Judgment
[1] The parties had an on and off relationship for about 16 years. They have three children: AA who is 22, LAG who is 15 and AAG who is 12.
[2] After trial, the parties agreed to joint decision-making, with the children residing in the applicant’s primary care, which I so order. In addition, they agreed that the respondent shall have access to information concerning the children which I order as follows:
The respondent shall have the right to make inquiries and be given information by the children’s teachers, school officials, service providers or others involved with the children. The respondent may make inquiries and be given information by the children’s doctors, dentists or other healthcare providers involved with the children. The parties shall execute whatever authorization or directions necessary to give effect to this term.
[3] The remaining issues are parenting time, and child support.
[4] There has been no set parenting time schedule either while the parties were in their relationship or after separation. Except for one month when the parties cohabited, the applicant has lived in London with the children and the respondent in Toronto. Exchanges have taken place at a McDonald’s restaurant on Homer Watson Drive in Kitchener. This is about halfway for each party.
[5] There were some differences expressed with respect to parenting time. The applicant complained that historically the respondent was inconsistent in exercising his parenting time sometimes going weeks without seeing the children. She says she has always encouraged the relationship between the children and their father. She has always accommodated his requests.
[6] The respondent, for his part, states that he has always cared for the children and lays the blame for the absences on the applicant.
[7] On this issue, I prefer the evidence of the applicant. I found the respondent’s evidence to be vague and general. As will be evident on the child support issue, the respondent likes to do things his way with as little inconvenience to himself. This is not to say he does not care for his children nor that he has not been involved in their upbringing.
[8] Regardless of the historical differences, parenting time has been occurring regularly and without incident over recent months.
[9] Usually, it’s the two younger children who go but the eldest also attends depending on her schedule. I heard no evidence that the children did not wish to see their father.
[10] My order takes into account the age and stage of development of the children. While the eldest is an adult and can make her own decisions whether to see her father, the younger two are teenagers with no doubt busy lives. I order the following parenting time schedule, which I find to be in their best interests:
- The respondent shall have parenting time with the children every third weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.
- March Break, summer vacation and Christmas vacation shall be shared as the parties may agree.
- Exchanges shall take place at the McDonald’s restaurant, Homes Watson Blvd, Kitchener, Ontario.
- Parenting time shall be subject to the views and preferences of the children.
- Neither party shall speak poorly about the other in the presence of the children.
- The children may contact either party without restriction.
[11] The more contentious issue is child support. The applicant is seeking child support for all three children back to the commencement of the application in July 2017. The respondent says he cannot afford to pay more than $500 per month pleading hardship.
[12] The respondent has provided proof of income for the following years:
| Year | Income | Child Support (CSG) |
|---|---|---|
| 2017 | $57,020 | $1,111.38/$1,126.45 * |
| 2018 | $59,815 | $1,188.09 |
| 2019 | $60,969 | $1,213.51 |
| 2020 | $62,764 | $1,252.81 |
| 2021 | $62,900 | $1,255.82 |
| 2022 | $62,900 | $1,255.82/$958.20 ** |
* CSG tables were adjusted effective November 22, 2017 ** Reflects child support for two children
[13] The child AA is in her fourth year of university. She will be taking a year off to work and study for her MCATS to study medicine. I have terminated her share of child support as of June 30, 2023.
[14] The applicant says the respondent has paid $500 per month since October 17, 2017. The respondent says he paid $600 per month for a period of time while the parties tried to negotiate an appropriate amount. It is not clear when those payments occurred or how many. In the absence of proof of these payments, I shall credit to the respondent payments of $500 per month from October 1, 2017 until April 1, 2023 inclusive.
[15] I calculate child support arrears as follows commencing August 1, 2017 to April 1, 2023.
| Year | Period | Calculation | Total for Year |
|---|---|---|---|
| 2017 | Aug. 1 to Nov 1 | 4 x $1,111.38 = $4,445.52 | |
| Dec. 1 | 1 x $1,126.45 = $1,126.45 | $5,571.97 | |
| 2018 | 12 x $1,188.09 | $14,257.08 | |
| 2019 | 12 x $1,213.51 | $14,562.12 | |
| 2020 | 12 x $1,252.81 | $15,033.72 | |
| 2021 | 12 x $1,255.82 | $15,069.84 | |
| 2022 | 12 x $1,255.80 | $15,069.60 | |
| 2023 | 4 x $1,255.80 | $5,023.20 | |
| Total Due | $84,587.53 | ||
| Credit 67 months x $500 = | $33,500 | ||
| Net Arrears = | $51,087.53 |
[16] The recent Supreme Court of Canada decision in Michel v. Graydon, 2020 SCC 24, outlined the principles underlying child support. Martin, J. at paragraph 44 defined child support as “the means through which the law ensures individuals with parental responsibilities provide financial assistance to their children upon separation from the children’s other parent(s) or upon the children’s birth if the parents never cohabited.”
[17] At paragraph 10, Brown, J. restated the principles governing orders for child support from the Supreme Court’s earlier decision in D.B.S. v. D.R.G, 2006 SCC 37 (“DBS”):
- Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the parents’ relationship.
- Child support, as much as possible, provide children with the same standard of living they enjoyed when their parents were together.
- The child support owed will vary based upon the income of the payer parent and is not confined to furnishing the necessities of life.
[18] It is also important to note that this case does not involve a variation application seeking to vary retroactively an existing order. In the present case, the entitlement to child support has been extant since the application was commenced. The principles set out in DBS regarding retroactive orders in variation proceedings therefore do not apply.
[19] The respondent argues he cannot pay more than $500 per month and asks that I adjust what would otherwise be the appropriate table support for s. 3 child support under the CSG.
[20] The respondent relies on s. 10 of the Ontario CSG which states:
Undue Hardship
- (1) On the application of either spouse or an applicant under section 33 of the Act, 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 parent or 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 parent, spouse or child to suffer undue hardship include,
(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;
(b) the parent or spouse has unusually high expenses in relation to exercising parenting time with respect to a child;
(c) the parent or 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;
(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;
(f) the parent or 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 parent or 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 parent or 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 order for child support, 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 an order for the support of a child in a different amount under this section, it must record its reasons for doing so.
[21] The jurisprudence has been consistent over the years with respect to the principles underlying hardship claims. As M.G.J Quigley, J. wrote in Morrone v. Morrone, 44 R.F.L. (6th) 389 paragraph 27, “the threshold to prove undue hardship remains a high one and hardship must be exceptional, excessive and disproportionate.”
[22] The analysis of hardship is a two-step procedure (see: Wislesky v. Wislesky, 47 R.F.L. (4th) 208). First, the court must find that the payor would suffer undue hardship if the table amount of support were ordered. Section 10(2) provides circumstances which may cause undue hardship. The court is not limited to these circumstances. If, and only if, the payor is able to establish undue hardship that the court considers the standard of living of each party as provided for in s. 10(3) and (4).
[23] The respondent lives by himself and rents an apartment for $1,323 per month in Toronto. Until recently, he shared that rent with his father who has since died. In addition to these children, he has two other children from another relationship. The respondent provided no details about those children except to say he was paying $300 per month in child support when I asked him.
[24] He has about $8,600 in debt, is contributing to an RRSP and otherwise lives a moderate lifestyle.
[25] I find nothing in his circumstances that would suggest he would suffer undue hardship if the table child support were ordered. I acknowledge that he has an obligation to his two other children but as in this case, he is woefully under supporting those children.
[26] While he does have to incur expense to exercise his parenting, that expense is shared by the applicant who also has to drive as far. None of the other articulated circumstances in s. 10(2) apply and the respondent could point me to no other circumstances which would justify a finding of undue hardship.
[27] Having arrived at that conclusion, I need not embark on a comparison of the parties’ relative standards of living.
[28] Therefore, I order as follows:
- On May 1, 2023 and June 1, 2023 the respondent shall pay support for the subject children the sum of $1255.82 based on his annual income of $62,900.00 in accordance with the Child Support Guidelines.
- Commencing July 1, 2023, the respondent shall pay support for the two youngest children the sum of $958.20 based on his annual income of $62,900.00 in accordance with the Child Support Guidelines.
- Commencing July 1, 2023, the respondent shall pay the sum of $425.00 per month towards the arrears fixed in the amount of $51,087.53 until satisfied.
[29] Within 15 days the applicant shall make written submissions with respect to costs. The respondent shall have 15 days to respond. Written submissions shall not exceed five pages double spaced in 12 font not including offers to settle and bills of costs.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Released: April 20, 2023