Miscellaneous Cases
The brief notes below are only synopses and summaries of recently
released decisions and as such should not be relied upon as an accurate
description of the law contained in the actual judgments referred
to. Always check the actual report before relying upon a comment
set out below. Please check Caveat and Note About Sources for a description of the sources used to collect these cases.
I am gratefully indebted to Shelagh Mathers of Campbell & Mathers,
in Picton, Ontario, for her assistance in compiling the
cases found below. Shelagh has been in practice since 1988 and serves
clients in Prince Edward County and surrounding areas. You can reach
her by phone at (613)476-2366 and by fax at (613)476-6064. You can
also e-mail Shelagh directly.
Joel Miller
CHILD SUPPORT GUIDELINES (CSG) ISSUES
A NOTE ABOUT THE GUIDELINES AND HOW TO ACCESS THEM, and INFORMATION ABOUT THEM, EASILY
The Guidelines are actually Regulations to the amended Divorce Act, rather than independent legislation. This makes it easy for the government of the day to change the Guidelines without having to change the legislation. You can read the amended version of the Divorce Act as it looks with all of the changes incorporated into it at the federal government's legislative site: The Divorce Act.
The Department of Justice Canada now has a terrific web site with all sorts of information about the Guidelines, including the text of the Guidelines, the Divorce Act and other goodies. Since May 1st, 1998, they have had a section : Annotated Federal Child Support Guidelines which lists a grouping of cases available dealing with the various provisions of the Guidelines. Unfortunately the list is not hyperlinked and you can't read what they are about - but at least you can get a group of cases to check out on the section you are interested in. This annotated list is updated regularly. For cases dealing with the guidelines and a brief comment about what the case says, check out what we have below.
The FLC's Child Support Guidelines is an entire Directory devoted to the Guidelines setting out where you can information from a wide variety of sources, both here at the FLC and elsewhere. Check it out if you want more info.
In the FLC's
Cases and Comments
section there is a collection of articles and papers presented at various Continuing Legal Education conferences, published in legal journals or prepared just for the FLC. These provide a wealth of information.
NOTE ABOUT THE GUIDELINES AND "extraordinary extracurricular expenses"
The issue of what is and isn't an extraordinary extracurricular expense under s. 7(1)(f) of the Child Support Guidelines has recently been dealt with by 5 provincial Courts of Appeal with contradictory results and approaches.
In the proverbial nutshell, Nova Scotia and Manitoba adopt the "objective" approach and look at the expense rather than the economic means of the parents. They say that it is only the difference between the "ordinary" cost for the activity and the "extraordinary" cost for particular activity claimed which is an expense to be an "add on", if the expense is otherwise necessary in relation to the best interests of the child and the expenditure is reasonable taking into consideration the means of the parents and the child and the spending pattern prior to the separation. The Courts of Appeal in Saskatchewan, Manitoba and British Columbia take the "subjective" approach and look at the activity and the cost in light of the economic means of both parents to see if it is or is not an "ordinary" or "extraordinary" expense for families in those circumstances. These distinctions are discussed in the Case Comment: CSG s. 7(1)(f): What's Extraordinary and What's Not? - 5 Courts of Appeal Have Spoken - The Score is 3 - 2 In Favour Of Subjective Reasoning. All the cases referred to below dealing with s. 7(1)(f) need to be considered in light of these decisions if you are from one of those 3 provinces. As well, the approaches of those three Courts of Appeal need to be kept in mind for people outside of those provinces because the reasoning in cases from those provinces may or may not apply in your province.
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J.A.A. v S.R.A., (Mar. 19, 1999) B.C. C.A.
The father stopped paying support in 1988, after he lost contact with his
children. He remarried and had two new children. He applied to the court
to cancel arrears, citing his new family and the failure of the mother to
make an effort to collect arrears. The application resulted in an increase
in child support and an order dismissing his application with regard to the
arrears. The father appealed.
The Court of Appeal dismissed the appeal. The obligation to pay child
support was not to be set aside, "especially" on the grounds of failure to
enforce arrears. The father would not be excused from unitlaterally
deciding to end support payments. While the father's new family might be a
factor that could have resulted in payments lower than the Guideline
amount, even if the Guideline amount was paid the father would still have a
higher standard of living than than the mother. Therefore the court did
not have the jurisdiction to deviate from the Guideline amount.
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Bickerton v Bickerton, (Dec 30, 1998) Ont Gen. Div.
Mother's income $59,700; father's income $87,800. Two children (19 & 20),
both in full time attendance at school. Elder child
lives at home with mother earning approximately $8,000 per year part time
and in the summer. Younger child away at school. Mother gets her on
weekends, travelling a total of 400km a month for this purpose. Father paying mother $6,000 per year spousal support until November 1999.
Father ordered to pay mother base amount of child support of $1,104 per
month. Father ordered to pay 55.46% of younger child's university expenses
(books, lab equipment, tuition, residence and meal plan) and 55.46% of
66.6% of older child's expenses (books, lab equipment, tuition - older
child contributes to these costs from his own earnings).
Mother's claim for additional monthly amounts for transportation costs of
getting younger child to and from university for weekends at home not allowed.
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Finnie v Finnie, (December 21, 1998) (Ont. Gen. Div.)
The parties married in 1987 and separated in 1996. Two
children, ages 9 and 6, both with Ms. Finnie. Mr. Finnie's income for 1999
found to be $36,621. Ms. Finnie works part time, but this income merely
supplants the public assistance that was being reduced by an earlier order
for spousal support. Tutoring and child care were held by the court to be extraordinary expenses
and the parties were ordered to share these expenses (Mr. Finnie to pay 65%).
This case primarily concerned the wife's entitlment to spousal support, which she received subject to having to show cause why it shoudl be continued after Dec. 31, 2001.
An interesting aspect of the decision, however, was that child support was ordered pursuant to the
Guidelines and then indexed pursuant to ss.34(c) of the Family Law Act.
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Dunham v Dunham, Ont. Gen. Div. (Nov 18/98)
The parties separated after 16 years. Their two children were ages 7 and 9
and the older child was seriously handicapped. Parties had interim joint
custody and mother cared full time for the handicapped child and father had
care of younger child during the week and one weekend each per month.
Wife's application for sole custody of both children granted only with
respect to the elder child; no need to change existing arrangements for
younger child. Wife had no income. Both parties had to maintain suitable
residence for younger child. Wife's application for support for herself
and both children granted despite arrangement with younger child. Husband
found to have under-estimated his income, stating $49,000.00 - court
attributed income of $67,500.00. Husband ordered to pay spousal support of
$1000.00 per month and full child support for two children at attributed
income of $67,500.00 for total monthly child support of $902.00.
Wife's claim for damages for assault against her by husband allowed and
$1000.00 awarded.
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Billark v. Billark, Ont. Gen. Div. (Mar 9/98)
Father applied for child support after he unilaterally moved the children
to another city. The parties had entered into a separation agreement that
provided for joint custody and the parties would share expenses. Their incomes were roughly the same but father was trying to vary the terms of the separation agreement.
Although the children were in another city, the mother still saw them
several nights per week and on weekends. She argued that she shouldn't have to pay child support on the grounds that she had the children more than 40% of the time.
The judge agreed. She felt that requiring the mother to pay child support
would be rewarding the father for unilaterally disturbing the status quo.
The judge felt that the circumstances at the time of the father's
application were not different enough from those set out in the separation
agreement to warrant a change in the agreement.
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Mosher v. Martin, Newf. S.C.(Jun 24/98)
Parents had joint custody of 2 sons, 7 & 8 years old. Father now paying $388/mo and says that because of changes to his access he has kids 40% of time and should only be paying $363/mo. Court accepted that he had children 42% of time if the time spent in school and daycare doesn't count for either parent. If that time is credited to the mother, with whom the children had their primary residence, he only had them for 34%.
Court held there is nothing in s. 9 to indicate the phrase "the time over the course of a year" means anything less than the full amount of time in a year. The time spent in school and daycare would be included in this. Justice Barry said "I would be rewriting the section to interpret "time", as the father suggests, as only the time when the children are physically with one or the other parent. I must conclude, therefore, although with some reservations, that Gerald Mosher exercises a right of access to, or has physical custody of, the children for only 34 percent of the time. Accordingly, he cannot invoke s. 9 so as to have his wife's larger income taken into consideration for the calculation of his child support obligation."
As well, the court followed Raftus in deciding that an allowance for life insurance premiums and ordinary school fees and supplies would be included in the Table amounts set out in the Guidelines as they are based on an average of what parents at various income levels spend on their children and that the amount claimed for extra-curricular activities (T-Ball, karate, soccer, swimming, vacation bible school, skating, music lessons, Beavers, and theatre) are not extraordinary expenses.
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Cross v. Cross, B.C.S.C.(Jun 30/98)
Father wanted 40% calculation for s. 9 to exclude times when the children are asleep or in school. Court disagreed. Those are times when the custodial parent is responsible if the child is sick, etc. Must only consider the hours when the child is with the access parent, although that would include sleeping and school time where appropriate if the access parent still had the access during those times.
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Darbyson v. Darbyson, Ont. Gen. Div.(May 22/98)
Father earning $90,000 remarried to wife earning $40,000. Mother earning around $36,000 and remarried to husband earning around $1,000. Three kids with father who sought support of $518/mo for the 2 youngest and contribution to eldest's university costs of $11,000. Mother alleged that paying support under the guidelines would cause undue hardship (s. 10) and that under the Divorce Act (s. 15(5)) the divorce judgment directly or indirectly benefitted the children. As well, she had a physical disability.
Court held the divorce judgment directly or indirectly benefited the children at her expense and also found a disparity in the incomes of the two households as well as the mother's disability. As a result it concluded that using the CSG table would be inequitable and set child support at $75/mo without using s. 10. Under s. 7(1)(e) the court fixed contribution to the university costs at $38/mo.
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Tavares v. Tavares, Ont. Gen. Div.(Jun 18/98)
Father owed over $80,000 in support: $15,000 to defendant directly and $65,000 to the Ministry of Community and Social Services because of an assignment of the support order. History showed the father did whatever he could to avoid any enforcement proceedings and that the enforcement procedures by the government agencies charged with collecting from him were impotent. While mother was receiving social assistance she continued to accept some payments from the father directly, even after assigning them to the Ministry of Community and Social Services. Court held that it was against public policy to allow the father to escape his responsibilities simply because of inadequate enforcement procedures and eventually decided to rescind all arrears for spousal support and left one half of the balance to be paid to the Ministry.
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CASE, CT(DT)
(I'm embarrassed to admit that after I wrote up this case I threw out my notes and have lost its name as well as where and when it was decided. Sometimes these things happen.)
Mother and father had common law relationship which resulted in the birth of a child. Mother also raising 4 other children from a prior marriage. Father has a child living in the United States, supports 2 children from another relationship living with him and supports his new common law wife and her child. Father's income increased from $55,000 in 1995, to $141,000 in 1996 to $175,000 in 1997, but he didn't make comparable increases in the child support for the child in question. On an interim motion dealing with a number of matters the court took into consideration s. 7 (2) of the Guidelines and deducted the amount of child support to be paid from father's income before determining his income for fixing the proportionate amount he should pay for daycare costs.
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Kolodziejski v. Kolodziejski, Sask. Fam. Div.(Jun 11/98)
Mother and father had each remarried. Mother had the 2 children of the marriage with her and father had a child of his second marriage with him. Court considered the family incomes of the households of both parents and felt it appropriate to apply Schedule II of the Guidelines. Found the father's adjusted household income to be considerably lower than that of the mother's and reduced the amount of his gross income for child support purposes.
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Miller v. Hayduk, Sask. Fam. Div.(Jun 11/98)
Father earned around $77,000 per year with one of the 2 children living with him. Mother was unemployed and had the other child living with her. Extracurricular activities claimed by mother for child with her totaled $9,089 per year. The court held:
The extracurricular activities which a child may engage in are to a large extent dependent on both the parental income and the parental willingness to assist in the pursuit of those activities. In this respect, annual costs for an extracurricular activity in excess of $9,000.00 having regard to the means of the parents and especially considering that Audrey is unemployed is not reasonable. While it may be in Wendy's best interests to foster and encourage some
involvement in the care and training of horses, in the
circumstances participating in shows and club activities is an unreasonable cost relative to the means of the parents.
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MacLeod, N.S. Fam. Ct.(Dec 2/97)
Father had income $40,217 plus some income for his family through his second wife. Mother's income was $23,040. Split custody. If applied the table amounts and subtracted the mother's payment from the father's there would be net payment from father to mother of $146 for the child with her. Court observed that this was less than the amount of $190 "owed" by mother and which was used to arrive at the net payment. Accordingly court accepted the agrement that in this case the disposable income left for the mother, after adjusting for the proper table amount she should credit the father, was more than she would be receiving for the support of the child in her care. In effect, the lower income parent was paying more for the care of the child with the higher income parent than she was receiving and this created an undue hardship for which allowance should be made. Accordingly the court ordered the amount of the mother's "credit" for the child with the father to be $100, not $190, so that she would receive after the offset the sum of $236 per month rather than $146. This is a case where the undue hardship was used by the support recipient to reduce the amount of child support payable to a figure less than the table amount.
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Piot v. Piot, Sask. Q.B. (Family Div.)(Jun 4/98)
In claim for extraordinary expenses the court held that activities which might not be regarded as extraordinary by nature may be held so by the court depending upon such things as the disparity in income of the parents, the number of activities the children are involved in, the number of the children involved in them the extraordinary needs or capabilities of the child and the extraordinary costs of otherwise ordinary activities. In the circumstances of this case the court held that even if the expenses were regarded as extraordinary they would not be reasonable regarding the present means of the parents. Therefore no order made.
Court also held that because retroactive maintenance orders create immediate arrears, they should only be granted in exceptional circumstances and that such circumstances did not exist here where the father met his court ordered obligations and where it was questionable if he had the means to discharge a retroactive award.
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Magnes v. Magnes, Sask. Q.B. (Family Div.)(May 25/98)
What should the father pay for "extraordinary extracurricular expenses" for 15 year old son and what should he contribute to the university expenses of his 17 year old daughter. Court held that the daughter was still dependant upon her parents even though attending university away from home and continued child support for 2 children in accordance with the tables. In addition the father was to pay his portion (65%) for the university costs after deducting a gift made for that purpose by the child's grandparents. With respect to extraordinary extracurricular expenses for both children the court followed the Kofoed reasoning. These items were expenses for archery for the daughter and expenses for son for school activities, hockey, baseball, volleyball, and gasoline costs for his recreational vehicles.
the daughter had made the provincial Archery team and the Canada Games. the court took regard to the nature of the expense and the parties' income, and the fact that the respondent
testified that he was prepared to pay a portion of her archery expenses, and concluded that archery for Leona is an extraordinary extracurricular activity, within the meaning of s.7(1)(f) of the Guidelines. It appeared to be in Leona's best interests, and although it was not in keeping with the family's historic spending pattern, the respondent testified that he was prepared to assist with the expense. Accordingly he had to pay 65% of the $1,000 cost.
The mother also claimed expenses for Landon which relate to hockey, school sports, baseball, school supplies, school activities and, gasoline costs for Landon's recreational vehicles (such as a snowmobile and motorcycle). Landon had been involved in hockey since grade 1 and was required to travel to play because they lived in a small town. The court held these expenses to be in Landon's best interests and within the parties' prior spending pattern and ordered these to be shared as :"extraordinary extracurricular" expenses. The same for various other sports activities of the child. But expenses for school supplies and school field trips were not extraordinary and the costs of the recreational vehicles were costs which the applicant could afford and was not necessary having regard to the child's interests. No order to contribute to these expenses, even though the father had purchased them for his son in the first place.
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Reucker v. Reucker, Sask. Q.B.(Jun 5/98)
Court allowed the deduction from his income of a capital cost allowance for equipment the father used in his business. The mother had the burden of establishing a case of dire financial need or that the equipment increased in value or was not being written off over an appropriate period before the court would treat the deduction as unreasonable.
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Camirand v. Beaulne, Ont. Gen. Div.(May 15/98)
Case dealt with what expenses were "extraordinary" and whether to relieve father of Table amount for support because of "undue hardship".
Father earned $64,773 and mother $60,762. Three children. Father remarried with new daughter. His wife works part time and earns $9,912. Mother living with partner earning $39,000 and her child. Mother claiming s. 7 expenses for hockey for all 3 children and swimming lessons for the 2 girls as s. 7(1)(f) "extraordinary expenses for extracurricular activities". Court held: "The real focus of the analysis must be the extent to which the expense or expenses for an extracurricular activity or activities would be inordinately burdensome for the custodial parent to pay, taking into account his or her income (as defined in the Guidelines). It is in this sense that the word "extraordinary" is being used." Under the circumstances of the mother's income the claimed expenses were not "extraordinary".
Regarding father's claim to reduce the Table payments because of "undue hardship" the court noted that he was suffering economic hardship. His after tax take home pay was $3,160 per month. After paying Table support of $1,145 he was left with $2,016 per month. He had mortgage, taxes and upkeep for house of $1,300 per month and bank payments for car loan and other debts of $380 leaving him $336 per month for food, clothing, etc. He used car for, amongst other things, traveling to watch his first 3 children play hockey and needed a house large enough for his new family and for his first 3 kids to stay over. This clearly left him in a condition of economic hardship.
But he and his new wife knew his responsibilities to his first family when they married and had a child and the fact that the standard of living in his new household was lower than that of the household in which his first 3 children lived did not automatically qualify as "undue hardship" such as to reduce the Table support payments. the choices he and his new wife made, while understandable, where within his control and he could not refer to them as the grounds of his hardship in order to reduce the support to the children of his first family.
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Gray v. Gray, Ont. Gen. Div.(Feb. 6/98)
Parties had 3 children and father had remarried. Mother seeking only Table amount of support. Father's new wife was pregnant. He wanted hearing stayed until his new child born and wanted declaration that he should be paying support based upon having 4 children and paying 3/4 of that to mother. Court held that the application was only for the 3 children and the proper amount was the full Table figure for 3 regardless of what additional children he would have.
Court also made order based upon increases to which the father was entitled in pay so mother wouldn't have to return to court each time the new pay level clicked in.
Click here for Decisions prior to January 1st, 1998
CAVEAT and NOTE ABOUT SOURCES
The brief notes below are summaries of recently released decisions as
well as from digests and reports set out more fully in a variety of
sources including the Syrtash Family Law Netletter (one of the QuickLaw
databases found as SFLN), the monthly Ontario Family Law Reporter, the
case summaries found at the end of both The Lawyers Weekly and the Law
Times weekly legal newspapers, caswes posted onn the Internet by the
Supreme Court of Canada and The British Columbia Superior Court and
Court of Appeal and the Ontario Court of Appeal and the public press.
The summaries here are done for general information by the Family Law
Centre and are not the responsibility of any of those sources.
As these are only synopses and summaries they should not be relied upon
as an accurate description of the law contained in the actual judgments
referred to. Always check the actual report before relying upon a
comment set out below.
If you have access to QuickLaw, you will be able to find the excellent
Syrtash Family Law Netletter (SFLN) with John Syrtash's full summary
and comments along with the report of the case itself. That is the most
direct way to get the written decision of any case without obtaining
a copy from the lawyers involved or the court office - unless the case
is a decision of the Supreme Court of Canada, the Ontario Court of Appeal
or the British Columbia Superior Court or Court of Appeal, whose decisions
are available on the Internet. Both The Lawyers Weekly and The Law Times
have fax services which will send you copies of the decision at a charge.
Many of the cases set out below will eventually be reported in the regular
print legal reports and available from your local law library.
The Family Law Centre will not be able to supply copies of full judgements.
To get further information if you are not a lawyer with access to the
sources referred to above, you are advised to retain one to do the research
you want or to follow up on anything you find of interest below.
Note: The designation means that the summary
is new and is the most recently added case or group of cases to the
section, not necessarily that the case is more recent than the others
noted below it.
If you know of any case you think should be included to the listing above,
please send me an e-mail
with the information. Thanks, Joel Miller.
