Miscellaneous Cases
Child Support Guideline Cases Decided Prior to January, 1998
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Kapell v. Richter, Sask. Q.B.(Dec. 9/97)
Mother sought to vary child support in accordance with the Child Support Guidelines. Issue over amount of income for both parties and what was to be covered under s. 7 extraordinary expenses. Mother claimed child care costs, yearly costs for soccer, baseball, gymnastics, camp, swimming lessons, an extra clothing allowance, school fees and supplies and the extra costs of food and entertainment she incurred when father didn't exercise his access. Court held that the child care costs and sports activities were to be shared under s. 7. The extra food clothing and entertainment expenses were not extraordinary expenses for extracurricular activities. School fees were not exceptional in their nature or amount and therefore not an extraordinary expense. Father was to be reimbursed for his proportionate share of any child care income tax deductions to which the mother was entitled.
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Chaput v. Chaput, Ont. Gen. Div.(Nov. 20/97)
Father earned about half of mother's income. He had declared bankruptcy. Court held that tap dancing lessons were not an extraordinary expense under s. 7 of the Child Support guidelines and should be paid from the basic support. Father not ordered to contribute to day care fees because of his limited resources.
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Nishnik v. Smith, Sask. Q.B. (Dec. 16/97)
Father made a claim for undue hardship and sought financial disclosure from the mother's live-in fiance to compare the respective family incomes as part of the comparison of the standards of living (SOL) test. Court denied the request on the grounds that it was premature. It held the payor must first make out a case for undue hardship. Only if the recipient argues that payor's household's SOL is the higher one does the court need to prove the income of the other members of the recipient's household under Schedule II. At that time the court can consider the issue of the amount of information needed. (See the next case, Nagy v. Tittemore, for another undue hardship decision.)
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Nagy v. Tittemore, Sask. Q.B. (Dec. 30/97)
Here's another Saskatchewan Queen's Bench decision made 2 weeks after Nishnik v. Smith (the previous case). Here the father was also paying $100 per month because of the breakdown of his second marriage. Court agreed that it looked like the husban's standard of living was lower than the former wife's but refused to make an order differing from the table amount in the CSG. Father showed an adjusted income of $9,518 and a low income measure of $10,382 compared to the mother's adjusted household income of $52,,604 and a low income measure of $23,879. The court rejected father's argument that the wife's standard of living was 2.2 times that of his and that such a discrepancy alone should establish undue hardship. It held that it would be bad policy to undermine the tables just because the payor had a second family and obligations to it. Second families were no longer uncommon and shouldn't be used to justify "undue hardship" arguments. As well, the massive discrepancy was on the assumption that all of the fiance's income would be available to the wife and the children and the court wanted more evidence of this, and whether the fiance had become "in loco parentis" before accepting that proposition.
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Dartige v. Dartige, Sask. Q.B. (Dec. 19/97)
Mother wanted Court to include "subsistence" and "travel" allowances paid to support paying husband for when he works away from home as part of his gross income and to look at annual increases in income and his 1996 income to calculate the amount of support. She struck out. Court said the allowances weren't to be treated as part of his gross income for CSG purposes and that it should look at his most current salary figures, not those for 1996.
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Scory v. Scory, Sask. Q.B. (Nov. 24/97)
Although there were other issues involved one involved the question of the husband's income. He had been earning $53,000 annually as a millwright but quit his job in 1996 due to what he claimed was the stress he was under because of the litigation with his wife. The court found no convincing reason for his decision to quit work and imputed his historical annual income of $65,000 and ordered child support to be paid on that scale. It hit him with other orders to pay money. (Looks like the stress he thought he was under before is nothing compared to what he feels now.)
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Bureau v. Bureau, N.S.S.C. (Oct. 22/97)
Father earned $108,000 an mother $45,639. Children resided with father. There were very large joint debts and debts in each parties name built up by living beyond their means. Father claimed for costs of nanny and various activities. Court held those costs to be shared in proportion to the parties' incomes.
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Marck v. Parotta-Marck, Ont. Fam. Ct. (Oct. 9/97)
Father is a doctor earning $194,000 net yearly. Amount of child support by tables would be $2,236.60 per month ($1,761 for 1st $150,000 plus $475.60 for balance). Court exercised its discretion in cases where support payor's income is over $150,000 and ordered payments of $2,000 per month - less than the table amount - keeping in mind the lifestyle of the children before the separation. Court considered that mother had the means to obtain a well paying job. (Spousal support of $2,500 for 7 years also ordered with conditions. See below.)
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Meloche v. Kales, Ont. Gen. Div. (Oct. 3/97)
Child had been living with mother but now attended private school where he lived throughout the week. Alternate weekends were with father and 2 non-consecutive weeks during the summer. Father claimed this represented over 40% of the time and the support should be reduced under s. 9 dealing with Split Custody. Court held that just because the child spent about the same time with each parent didn't mean it qualified as "split custody" because the 40% meant the portion of the total custodial time presuming that the custodial parent started with the full 100% of that time. (Time at school counted as the mother's time. JM)
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Kofed v. Fichter, Sask. Q.B. (Sept. 29/97)
Court held that expenses for music lessons, gymnastics, art, bowling, cubs, swimming, outfits, softball registration, instrument rentals, equipment and shoes totaling $2,341 per year were all "extraordinary or extracurricular" because they were all outside the basic school program or outside a child's basic program of education. Mother's income was $7,443 and father's was $52,444. (So what's not extraordinary or extracurricular"? See discussion of the appeal decision of this case in the Comment:
CSG s. 7(1)(f): What's Extraordinary and What's Not?
- 5 Courts of Appeal Have Spoken - The Score is 3 to 2 in Favour of "Subjective" Reasoning
JM)
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Mills v. Mills, B.C. Master (Oct. 10/97)
After paying the table amount under the CSG the payor-father was left with less than the recipient-mother. The payment was in accordance with the policy of the CSG and the consequence doesn't change the amount to be ordered. However, mother sought "add-ons". The court looked at s. 7 (1) and the means and needs of the parties after the table amounts were paid and considered father's obligations for child of new relationship. Even though mother's expenses for extras were reasonable, in the circumstances court ordered father to pay less than 1/2 of his proportionate share even though that left mother with a deficiency. The discretion to look at the consequences of a support payment is available when considering the "add-ons".
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McKerracher v. McKerracher, B.C.S.C. (Oct. 9/97)
Shared custody. Parties had joint custody and child with father 5 of 14 nights and equal time during summer holidays. Court held that to be about 40% of time. Therefore father should pay support at 60% of the CSG table amount. Court order 60% plus a bit more.
Father is a self-employed realtor who used a pro rata schedule to show his current income to be lower than in the past. Court rejected that and stuck to 3 year average to reach a higher annual income amount.
Court held that it wouldn't get into imputing income as requested by mother at the interim stage and would leave that to the trial judge.
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Paterson v. Paterson, B.C.S.C. (Oct. 9/97)
Court held payer shouldn't have to support child beyond first undergraduate degree.
Child who had been living common-law with boyfriend but ends that relationship regains eligibility for support - until completing her first degree.
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Jones v. Jones, Alta. Q.B., (Sep. 11/97)
Court refused to make an order under the CSG because the payor's income hadn't changed from before introduction of CSG and the net, after tax, effect would be the same.
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Lowery v. Lowery, Alta. Q.B. (Oct. 3/97)
Mother seeking child support for 18 year old child in full time attendance at university. Father paying $50/mo by court order since 1985. Court held payments inadequate considering his total income for tax purposes in 1994 - 1996 ($14,300, $15,125 and $19,640). Mother said court should deem father's income higher because he was self employed and had deductions not available to her on a salary. Court reviewed and made no changes. Fixed base support per CSG at $167/mo but reduced that to $50/mo for the 8 months of the year child away and in school because mother's expenses were reduced. While at school child entitled to Student Loan. Court ordered mother to take the tax credit for the tuition fee and held she left with a net cost, after loan and tax credit, of $3,345. Father's portion based on incomes to be 40.98% or $114/mo. Child obliged to contribute the loan portion.
Father to pay base support of $167 plus share of school at $114 for the 4 months child home and the $50/mo plus $114/mo while at school. If child not home for 19 nights during any of the 4 non-school months, the $167 is reduced to $50.
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Walkenden v. Zemlak, Sask. (Oct. 3/97)
Court held that 2nd families are no longer uncommon and that undue hardship is not automatically created because the standard of living of one parent becomes lower than that of the other parent as result of a legal duty to another child in that new family.
Court agreed with Messier v. Baines, (see below), that courts would be frustrating the concept of the CSG if they deviated from the table amounts merely because of a 2nd family.
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Messier v. Baines, Sask. Q.B. (Sep. 26/97)
Father's annual income was $26,183 and CSG table amount for support of his 2 children was $397/mo. He had remarried and had a 7 year old daughter with asthma. His wife not employed out of the home but earned $200/mo babysitting. Father claimed undue hardship.
The s. 10 test for undue hardship is a 2 step test. First applicant had to prove that the circumstances showed there was an undue hardship existing and secondly that the standard of living in the applicant's household was lower than that in the respondent's household.
Court held that 2nd families were not uncommon and may create an economic hardship which was not necessarily "undue". "Similarly, the mere fact that an applicant's household standard of living is lower than that of the other spouse, due in part to the applicant's legal duty to another child, does not automatically create circumstances of undue hardship."
In the facts of this case the new wife's babysitting actually generated gross income of $30,811 & $21,357 in 1995 & 1996 but left her with a taxable income of under $1,000 each year because of proper income tax deductions. Those deductions, however, included business-in-home expenses and various utilities which were really part of the regular household expenses and resulted in her actual economic contribution to the household being higher than the figures showed.
(NOTE: Would result have been the same if the wife's actual economic contribution was only $200/mo?)
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McAllister v. Chishti, (Sep. 3/97)
Husband earning $60,500 held that as music and dance lessons for his three daughters (11, 10 & 6 years old) were part of the budget before the separation, they were included in the package of things which were normal expenses and included in his payments under the Guidelines of $1,040 per month. The court gave no analysis but held that while these events and expenses were not "extraordinary" they fitted within the meaning of "special" and therefore were "add ons" to be apportioned between the parents above the Table payment.
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Forester v. Forrester, Ont. Gen. Div. (Aug. 19/97)
Three children: one over 18, one with father and one 7 year old daughter with mother. Mother earned $48,000 per annum and father earned $101,500. Father order to pay Table amount of $561. Mother claiming father should pay more because daughter enrolled in several activities. Court held there were limits to the sorts of expenses which could be "add ons". Part not recoverable because not attributable to mother's illness, employment, disability, education or training for employment. Also mother only entitled to recover a portion of the camp and extracurricular activity expenses as many were an unusual cost and neither necessary nor reasonable.
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Nadeau v. Mitchell, Ont. Gen. Div. (Jul 11/97)
Court held father responsible for support of his 21 year old daughter, out of school for 2 years, who was planning to return to school. But, because of her part time job, the support was reduced from the Table amount of $918/mo. to $750/mo.
Court also held that the daughter had ceased to be a child of the marriage when she dropped out of school. Her schooling difficulties were a combination of Attention Deficit Disorder, failure to follow her doctor's advice about taking her medication and her own decisions about school, work and other activities. Father entitled to refund of child support payments paid since leaving school.
Daughter had taken up horse riding to help in her various problems and the evidence it to be beneficial for her. But it also interfered with her schooling. Court did not require father to contribute to that expense as it was a negative influence on her schooling.
The court order included a provision that if the child should "choose to ignore any reasonable request from the father to consult regarding her educational plans or should she refuse to respond to reasonable written requests from her father for educational information as to her progress, the father's obligations to her under this Judgment will forever cease.
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Quintal v. Quintal, Ont. Gen. Div.(Aug 22/97)
Father was a policeman earning over $51,000 when he wa forced to retire. At hearing earning only about $12,000 per year. Court agreed with mother that retirement was self induced. Under s. 19 of CSG court imputed an income to him of $25,000 because he could probably find work as a security person or something along those lines, but held off the payments for 6 months to give him time to get a job.
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Wedge v. McKenna, PEI S.C.(Aug 5/97)
Court allowed a lawyer's deduction of capital cost allowance from his calculation of income because this referred to the amortization of assets and was not considered to be additional income. CCA held to be a "real" and not a "notional" expense because it helped service the law firm's current portion of long-term debt. (But see the contrary position taken by the Manitoba court in the Shaw decision referred to below. Looks like it will be a while before we all know what is and what isn't income across the country for CSG purposes. This decision was before the Shaw decision but came to our attention after. Neither made reference to the other)
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Hubic v. Hubic, Sask. Q.B. (July 24/97)
Parties were held to have shared custody under s. 9 of the CSG. Father's table payment if mother had custody was $781 and if reversed mother's share would have been $333. Court said it considered all of the factors set out in s. 9 and then awarded the mother the difference which was $448. (Note: that's the same result as if applying s. 8 for split custody.)
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Hautala v. Hautala, Ont. Gen. Div. (July 28/97)
Mother had 3 children during cohabitation with father. Blood test showed one not his. But he had one child in another relationship for whom he was paying $300 per month support. Court held the table amount for 4 children to be $930 and that where a person was not the natural parent it could order such amount a it felt appropriate. Here court ordered $600 per month for his natural children and $30 per month for the 4th child. (Coupled with his other natural child the total support payments to the two mothers by the father came to $930 - the amount the table shows as the obligation for 4 children.)
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.
