Hebert v. Orsini, 2010 ABQB 309

Court of Queen ’ s Bench of Alberta Citation: Hebert v. Orsini, 2010 ABQB 309 Date: 20100506 Docket: 4803 130219 Registry: Edmonton Between: Lorraine Marie Hebert Respondent - and - Luigi Orsini Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Invoking his intention to make an application for undue hardship relief pursuant to s. 10 of the Federal Child Support Guidelines, Mr. Orsini asks the court to subject Ms. Hebert’s current husband, who is not a party to these proceedings, to discovery within R. 209. [ 2 ] The application is denied: income information is, normally, confidential. The mere allegation of undue hardship doesn’t justify a breach of a stranger’s right of privacy. [ 3 ] Although the Guidelines authorize the granting of relief from the table amounts set therein, relief is limited to “undue hardship”.

In other words, some hardship resulting from the obligation to support one’s child may have to be borne by a parent. In addition, the use of the word “may” in relation to the relief, emphasizes the discretionary nature of the relief.

[ 4 ] In balancing a stranger to this action’s right of privacy against the right of a parent to obtain information that may support an application for discretionary undue hardship relief, the court concludes that a fair balance is struck by requiring the parent who has the support obligation to establish a prima facie entitlement to undue hardship relief before obtaining disclosure from a non-party. [ 5 ] Here, even on his own submissions, Mr. Orsini makes approximately $44,000.00 a year. He has remarried, and has a child with his new wife; he has, of course, a legal obligation to support his new child.

However, in the absence of any evidence to the contrary, while Mr. Orsini may, potentially, have a legal obligation to support his current wife, as an adult person she would normally be expected to be financially self supporting. At his self-admitted level of income, it is not likely that Mr. Orsini would obtain undue hardship relief from the table amount of support. A choice to support an adult person cannot be made at the expense of one’s children. 1. Background [ 6 ] The parties are the parents of a child who is 15 years old. After the parents’ divorce, each remarried. Mr.

Orsini has one child, who is obviously under the age of majority, from the second marriage; Mr. Orsini’s current wife is not employed outside the home. Ms. Hebert and her new husband do not have any children together. [ 7 ] There is a dispute between the parties about a variety of child support issues among which are the gross incomes of each of the parents. Ms. Hebert contends that, as a journeyman welder, Mr. Orsini could earn, and should earn, at least $85,000.00 a year. She acknowledges that his income tax returns for the last several years indicates that he earns, on average, approximately $50,000.00 a year.

For her part, Ms. Hebert did not understand that she had to report all of her income, including income on which she did not have to pay tax. When working full time, Ms. Hebert earns approximately $80,000.00 from employment. [ 8 ] In response to Ms. Hebert’s claim for a retroactive award of child support from January 1, 2009, which is the date on which the parties’ daughter decided to terminate the shared parenting arrangement and to live with her mother, Mr.

Orsini has, among other things, indicated that he intended to make an application for undue hardship relief from the Guidelines’ amount of child support that would otherwise apply to him. [ 9 ]

Section 10 of the Guidelines reads in part as follows: Undue hardship 10.

(1) On either spouse's application, 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 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 spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising access to a child;

(

c) the 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: and (

e) the 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 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 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. . . . 2. At this stage of the proceedings, Mr. Orsini is not entiled to financial disclosure from a member of Ms. Hebert ’ s household. [ 10 ] Income information is, normally, confidential. The mere allegation of undue hardship doesn’t justify a breach of privacy. Except for good reason, Ms. Hebert’s current husband should not have to account to Mr. Orsini for his financial circumstances. [ 11 ] Although the Guidelines authorize the granting of relief from the table amounts set therein, relief is limited to “undue hardship”.

In other words, some hardship resulting from the obligation to support one’s child may have to be borne by a parent. In addition, the use of the word “may” in relation to the relief, emphasizes the discretionary nature of the relief. In the result, case law has established that the burden of proving entitlement to an undue hardship exemption from the application of the Guidelines is a heavy one.

In those circumstances, it appears inappropriate to allow the mere invocation of undue hardship to legitimize a breach of a stranger’s right to privacy. [ 12 ] In balancing a stranger to this action’s right of privacy against the right of a parent to obtain information that may support an application for discretionary undue hardship relief, the court concludes that a fair balance is struck by requiring the parent who has the support obligation to establish a prima facie entitlement to undue hardship relief before obtaining disclosure from a non-party. [ 13 ] Here, even on his own submissions, Mr.

Orsini makes approximately $44,000.00 a year. He has remarried, and has a child with his new wife; he has, of course, a legal obligation to support his new child. However, in the absence of any evidence to the contrary, while Mr. Orsini may, potentially, have a legal obligation to support his current wife, as an adult person she would normally be expected to be financially self supporting. At his self-admitted level of income, it is not likely that Mr. Orsini would obtain undue hardship relief from the table amount of support. A choice to support an adult person cannot be made at the expense of one’s children.

[ 14 ] Mr. Orsini can, of course, renew his application for disclosure from Ms. Hebert’s husband on the basis of new information. Costs [ 15 ] In the circumstances here, where Ms. Hebert did not defend Mr. Orsini’s application for disclosure from Mr. Soucy, the court does not award costs to Ms. Hebert. Heard on the 5 th day of May, 2010. Dated at the City of Edmonton, Alberta this 5 th day of May, 2010. J.B. Veit J.C.Q.B.A. Appearances: Ian Thomas Colquhoun for Mr. Orsini Lorraine Hebert, on her own behalf