Case reference: Thompson v. Thompson, 2013 ONSC 5500 (CanLII)
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
LEGAL PRINCIPLES RELATING TO CHILD SUPPORT
The applicable legislation respecting both the child and spousal support claims in this case is the Divorce Act (“the Act”). With respect to child support, section 15.1 of the Act stipulates that a court may on application by either or both spouses make an order requiring a spouse to pay for the support of any or all “children of the marriage.” Entitlement to child support is dependent on the child in question coming within the definition of “child of the marriage,” which is set out in section 2 of the Act as follows:
“child of the marriage”
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
a)is under the age of majority and who has not withdrawn from their charge, or
b)is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life
Section 15.1(4) of the Act provides that in deciding a child support application, the court may make an order for a definite or indefinite period, or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
In making a child support order under the Act, the court is presumptively required to do so in accordance with the Federal Child Support Guidelines[3] (the “Guidelines”). This presumption is subject to the court’s discretion to award a different amount pursuant to sections 15.1(5) and (7) of the Act in cases where special provisions have been made for the direct or indirect benefit of the child, or the parties have consented to an order that includes reasonable terms respecting the support of the child.
Presumptive Rules Relating to Child Support Determinations
The starting point for the determination of the amount of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:
Presumptive rule
3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
Child the age of majority or over
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:
Special or extraordinary expenses
a) (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
The phrase “extraordinary expenses” is defined in section 7(1.1) of the Guidelines as follows:
7(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) of the Guidelines take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.
In Titova v. Titov, the Ontario Court of Appeal set out the following steps for determining whether to make an award for section 7 special or extraordinary expenses:
a)Calculate each party’s income for child support purposes.
b)Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines.
c) Determine whether the expense is necessary in relation to the child’s best interests and is reasonable in relation to the means of the spouses and to those of the child and to the spending pattern prior to separation.
d) If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of “extraordinary.”
e) Consider what amount, if any, the child should reasonably contribute to the payment of the expense, and then apply any tax deductions or credits.
General Principles Relating to Shared Parenting, Split Custody and “Hybrid” Child Care Arrangements
In this case, the parties agree that there have been periods since their separation when Jessie has been primarily with the Applicant and Paige has been primarily with the Respondent (a “split custody” arrangement). In split custody cases, section 8 of the Guidelines directs that child support shall be the difference between the amounts that each spouse would otherwise have to pay if a child support order were sought against each of the spouses.
As previously noted, the Respondent alleges that Paige spent equal amounts of time with the parties from February 2010 until late December 2011, and has also been spending roughly equal time with the parties since June 2012. Jessie was primarily with the Applicant during these periods. This type of custodial arrangement is referred to in the case-law as a “hybrid” case. The Guidelines do not specifically address how child support should be calculated in these cases, and to date there is no appellate authority on the issue. The case-law relating to this question has drawn largely from the law that has developed around the application of section 9 of the Guidelines, which directs how child support should be calculated in “shared custody” situations. An appreciation of the law relating to section 9is therefore necessary. The phrase “shared custody,” encompasses situations where a spouse has a right of access to, or has physical custody of, the child for not less than 40% of the time over the course of a year. In shared custody cases, section 9 provides as follows:
Shared custody
9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,
(a) the amounts set out in the applicable tables for each of the parents or spouses;(b) the increased costs of shared custody arrangements; and
(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
The Supreme Court of Canada addressed the issue of how child support calculations should be approached in shared custody situations in Contino v. Leonelli-Contino. In that case, the court made the following significant comments regarding the interpretation of section 9 and the manner in which child support calculations should be approached in shared parenting scenarios:
a)In shared parenting arrangements, there is no presumption in favour of the parent who has less time with the child paying the Table amount of child support. Similarly, a finding that a shared parenting arrangement exists does not automatically dictate a deviation from the Table amount of child support. The court emphasized that in some cases, a careful review of all of the factors set out in section 9 may lead the court to conclude that the Table amount remains the appropriate figure.
b)None of the three factors listed in section 9 prevail over the others. In reaching an appropriate child support figure, the court must consider the overall situation of shared custody, the costs to each parent of the arrangement and the overall needs, resources and situation of each parent and child. The weight to be accorded to each of the three factors set out in section 9 will vary according to the particular facts of each case.
c)The purpose of section 9 is to ensure a fair and reasonable amount of child support. In adopting section 9 of the Guidelines, Parliament made a clear choice to emphasize the need for fairness, flexibility and the actual condition, means, needs and circumstances of each parent and the child, even if this meant sacrificing to some degree the values of predictability, consistency and efficiency.
d)The calculation of child support pursuant to section 9 involves a two-step process. First, the court must determine whether the 40% threshold has been met; second, if the threshold has been met, the court must consider the factors outlined in section 9 to determine the appropriate quantum of support.
e)The simple set-off approach outlined in section 8 of the Guidelines may be a useful starting point for the section 9 analysis, as a means of bringing consistency and objectivity to the child support determination. This is particularly so in cases where the parties have provided limited information and the incomes of the parties are not widely different. However, the court emphasized that the simple set-off approach has no presumptive value in carrying out the support calculation. It cautioned against a rigid application of the set-off approach, noting that the set-off figure may not be appropriate when a careful examination of the respective financial situations of the parties and their household standards of living raises concerns about the fairness of a drastic reduction in child support to the recipient.
f) The court has the discretion to modify the simple set-off amount where “considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend.” In crafting a child support award, the court should insofar as possible strive for a result that avoids the child experiencing a noticeable decline in their standard of living as they move between households.
g)The court highlighted as one consideration in carrying out the section 9 analysis whether one parent is actually incurring a higher share of the child’s costs than the other, such as costs relating to clothing and activities.
h) With respect to subsection 9(b), the court emphasized that this section does not refer only to the increased expenses which the payor parent has assumed as compared to the expenses that they would be incurring if they had the child less than 40% of the time. This subsection recognizes that the total global cost of raising the child in a shared custody arrangement may be higher than in a primary residence arrangement. It requires the court to consider the total additional costs attributable to the situation of shared custody. In carrying out this analysis, evidence of necessary duplication of fixed costs arising due to the shared child care arrangement may be important.
i)The court recognized that not every dollar spent by a parent who has the child over the 40% threshold is a dollar saved by the recipient parent. It stated that in the absence of evidence to the contrary, it is possible to presume that the recipient parent’s fixed costs have remained the same, and that their variable costs have only marginally decreased by the other parent’s increase in time with the child. The court stated that where no evidence respecting the increased cost of shared custody is adduced, the court should recognize the status quo regarding the recipient parent.
j) Financial statements and /or child expense budgets are necessary in order for the court to properly carry out the child support analysis pursuant to section 9. The judge should not make assumptions regarding additional costs attributable to a shared parenting arrangement, but must apply the evidence relating to the additional costs.
k)The court’s discretion under section 9 is sufficiently broad to bring a parent’s claim for section 7 expenses into the analysis under that section, taking into consideration all of the factors outlined in section 9.
The onus is on the parent who is relying on section 9 of the Guidelines to establish that the 40% threshold has been met. The phrase “over the course of the year” in section 9 is not defined in the Guidelines. However, in situations where retroactive relief is claimed and it is alleged that the income of one or both parties has changed, it has been held that the appropriate time for the calculation of time spent with each parent is the calendar year.[9]
In Contino v. Leonelli-Contino, the Supreme Court of Canada was not required to address the issue of how the threshold 40% time period referred to in section 9 of the Guidelines should be calculated. In Froom v. Froom, the Ontario Court of Appeal held that there is no universally accepted method of deciding the 40% threshold issue, and that rigid calculations of time are not necessarily appropriate. The court endorsed the comments of the trial judge in that case that the court should focus on determining whether physical custody is truly shared by the parents. In Maultsaid v. Blair, the British Columbia Court of Appeal provided guidance on how the issue of time calculation should be addressed in cases where the parent exercises mid-week overnight access. The court concluded that school time in these situations should not be credited to the parent relying on section 9 unless the parent has the child both before and after school on a particular day.
Turning to the principles that apply in hybrid child care arrangements, a review of the current case-law reveals broad support for the approach which Zisman, J. adopted in the case of Sadkowski v. Harrison-Sadkowski. In that case, the court described two possible approaches to hybrid claims, namely the “two-step” analysis and the “economies of scale” analysis. The former approach involves first calculating the child support owing relating to the children whose custody is not shared, based on section 3 of the Guidelines, then separately calculating the support owed for the child in a shared custody arrangement using a straight set-off amount, and adding the two sums. The latter “economies of scale” involves calculating the full Table amount owed by the parent with shared care of children for the total number of children in the care of the parent who has both primary and shared care of children, and setting that amount off by the full Table amount payable by the parent with both primary and shared care for the total number of children with the parent who has shared care. Zisman, J. held that the set-off calculation using the “economies of scale” approach is the proper starting point for the analysis of hybrid claims. She concluded that this set-off calculation serves only as a starting point for the child support analysis, and is not presumptive. The second step in determining hybrid claims is to carry out a Contino inquiry to determine whether adjustments are necessary in order to achieve the goal of establishing fair levels of support for the children from both parents. This step involves the court examining the budgets and actual expenditures of each parent to determine whether adjustments are necessary in order to ensure that the children enjoy relatively comparable standards of living in each household. The approach which Zisman, J. described in this case has since been followed in subsequent cases, including Murphy v. Murphy and Lalonde v. Potier. I conclude that this approach is the appropriate one to follow, as it recognizes the economies involved when fixed costs are shared between more than one child, and accords with the general principles which the Supreme Court of Canada adopted in Contino in the case of shared custody arrangements.
LEGAL PRINCIPLES RELATING TO SPOUSAL SUPPORT
Legislative Framework
Statutory Factors: Section 15.2(4) of the Divorce Act
Sections 15.2(1) and (2) of the Act set out the court’s jurisdiction to make either an interim or final order requiring a spouse to pay such spousal support as the court considers reasonable. Section 15.2(4) of the Act directs the court hearing a spousal support claim to take into consideration “the condition, means, needs and other circumstances of each spouse,” including:
a)The length of time the spouses cohabited;
b)The functions performed by each spouse during cohabitation; and
c)Any order, agreement or arrangements relating to support of either spouse.
Section 15.2(5) establishes the principle that misconduct of a spouse in relation to the marriage is not a relevant consideration in a spousal support proceeding under the Act.
Section 15.3 of the Act addresses situations where the court is considering claims for both spousal support and child support, and there is concern regarding a party’s ability to pay both at the appropriate levels. In these circumstances, section 15.3 directs the court to give priority to child support in determining the application.
The court’s duty pursuant to section 15.2(4) of the Act to consider the parties’ “condition, means, needs or other circumstances” in carrying out the spousal support analysis is very broad and involves the exercise of a considerable amount of discretion. However, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the purpose of the spousal support provisions of the Act as articulated by the Supreme Court of Canada in Moge v. Moge, and are circumscribed by that purpose. As L’Heureux-Dube, J. emphasized in Moge, although marriage and the family provide an emotional and economic support system for family members, spousal support in the context of divorce “is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown,” and the focus of the analysis is therefore “the effect of the marriage in either impairing or improving each party’s economic prospects.” The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus.
The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life. A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits. The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. As the Ontario Court of Appeal stated in Rioux v. Rioux “self-sufficiency is a relative concept; it relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage.” In considering the extent of a spouse’s need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation.
Statutory Objectives: Section 15.2(6) of the Divorce Act
Section 15.2(6) of the Act sets out the objectives of a spousal support order as follows:
15.2(6) Objectives of Spousal Support Order- An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:
a)recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b)apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c)relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d)in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
The Supreme Court of Canada has held that all of the statutory objectives set out in section 15.2(6) of the Act must be considered, since no single objective is paramount. However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the parties. With respect to the objective of promoting self-sufficiency, set out in section 15.2(6)(d) of the Act, the Supreme Court of Canada commented in general terms on the extent of a former spouse’s obligation to work towards self-sufficiency in Moge v. Moge, Leskun v. Leskun and L.M.P. v. L.S. It noted that although one of the objectives of the spousal support provisions of the Act is to promote the economic self-sufficiency of the spouses within a reasonable time, the Act stipulates that this goal only applies “in so far as practicable.” The Court held that there is no presumed duty on former spouses to achieve financial independence, and the extent to which they are expected to do so depends on the circumstances of the parties and the dynamics of the marital relationship in each particular case. It concluded that the wording of sections 15.2(6)(d) and 17(7)(d) (relating to variation proceedings) reflects a recognition that self-sufficiency may not be possible or practicable in some circumstances.
In considering the objective of self-sufficiency, the court must also recognize that this concept is a relative one which must take into consideration the parties’ standard of living during the marriage. The Ontario Court of Appeal emphasized in Fisher v. Fisher and Allaire v. Allaire that self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse’s ability to maintain a reasonable standard of living taking into account the lifestyle which the parties enjoyed during their relationship. Where one spouse has suffered economic disadvantage as a result of the marriage or its breakdown, the court must consider whether the other party can financially assist them so that the spouse can enjoy a lifestyle closer to that which they enjoyed during the marriage. As the court stated in Fisher v. Fisher, self-sufficiency must be assessed “in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.”
The extent to which the court will consider the accustomed standard of living during the marriage in setting the benchmark for self-sufficiency post-separation will depend on the particulars of the marital relationship. L’Heureux-Dubé, J. made this point in Moge v. Moge, where she stated that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.”
The statutory objectives and factors referred to above inform the issues of entitlement, quantum and duration of spousal support. The issue of entitlement is the preliminary issue to determine in any spousal support claim.
*source: Canlii
