Boivin v. Smith, 2013 ONCJ 426

Windsor Registry No. 348/97 DATE: 2013·06·26 Citation: Boivin v. Smith , 2013 ONCJ 426 ONTARIO COURT OF JUSTICE BETWEEN: NATHALIE BOIVIN Applicant — AND — JEFF SMITH Respondent Before Justice Sharman S. Bondy Heard on 24 January 2012; and 11, 13 and 14 March 2013 Reasons for judgment released on 26 July 2013 Brian A. D’hondt...................................................................................... Counsel for the applicant Peter D. Eberlie..................................................................................... Counsel for the respondent JUSTICE S.S.

BONDY: RULING ON MOTION 1: INTRODUCTION [ 1 ] This is a motion to change a child support order of Justice Douglas W. Phillips of the Ontario Court of Justice, made on July 19, 2001, commenced by the applicant mother, Natalie Boivin (hereinafter “Boivin”) relating to the child, Ashley Taylor Boivin- Smith (d.o.b. January 5, 1995) (hereinafter “Ashley”) from her parent, Jeff Smith (hereinafter “Smith”) under the Family Law Act , R.S.O. 1990, c.

F-3, as amended (hereinafter “ F.L.A. ”). 2: BACKGROUND [ 2 ] The background to this motion is fully described in paragraphs [2] through [12] of my ruling found at 2010 ONCJ 411 , 92 R.F.L. (6th) 432, [2010] O.J. No. 3943, 2010 Cars​well​Ont 6945, but for the purposes of this bifurcated ruling, I will repeat some of the salient facts. [ 3 ] Boivin and Smith signed a domestic contract for Ashley’s support in 1997. That contract was subsequently filed by Boivin for enforcement under

section 35 of the F.L.A . In that contract, Smith paid less than the Ontario Child Support Guidelines amount (hereinafter called “less than Guidelines amount”) for Ashley as the agreement stated that he had substantial debt to pay in connection with student loans he incurred in obtaining his dentistry degree. Ashley is described as a child of their relationship in this contract. [ 4 ] Boivin commenced a motion to change Smith’s child support in 1999.

That motion resulted in minutes of settlement where Smith now agreed to pay a full up Ontario Child Support Guidelines amount (hereinafter called “full up Guidelines amount”) in the sum of $645 monthly in accordance with his $81,000 annual income for taxation year 2000. These minutes amended their 1997 domestic contract to reflect that Smith was not Ashley’s biological father but that he had demonstrated a settled intention to treat her as a child of his family.

On the filing of these minutes, the July 19, 2001 order issued. [ 5 ] Boivin’s motion originally sought a change to the July 19, 2001 order so that commencing November 1, 2006, Smith should pay Boivin the sum of $1,245 per month for Ashley in accordance with the table amount for the Ontario Child Support Guidelines based on Smith’s 2005 income of $148,898. Boivin’s lawyer requested production of Smith’s tax returns in a letter to him of October 30, 2006. Smith eventually produced his 2003, 2004 and 2005 tax returns.

On March 6 and March 27, 2007, Boivin’s lawyer, by letter to Smith, sought the increase to Ashley’s support set out above.

3: THE ISSUES [ 6 ] The issues on this motion are as follows: 1. Is Smith a parent who has demonstrated a settled intention to treat Ashley as a child of his family and as such have an obligation to pay child support as her parent? 2. If Smith is a parent, should his child support obligations to Ashley be terminated? If so, upon what basis and when? 3. If Smith is obligated to continue paying child support for Ashley, what amount should he pay? In other words, should Smith pay child support in accordance with the full-up Guidelines amount or some other basis? 4. Should Smith pay retroactive support?

If so, when and how much? 4: THE POSITION OF THE PARTIES [ 7 ] Boivin’s position on the argument of this motion is that Smith is a parent of Ashley as that term is defined under the F.L.A . and should be responsible for paying child support. Boivin asks that commencing January 1, 2011, Smith should pay child support in the sum of $1,326 per month for Ashley based on the Guidelines table amount in his 2010 taxable income of $158,721.18. Boivin’s motion also seeks retroactive adjustment for the years 2007 to 2010 as this is when Boivin commenced proceedings.

On the argument of this motion, Boivin now seeks retroactive child support from Smith for the years 2003 until 2007 as Boivin states that Smith had an obligation to provide his income tax returns and notice of assessment for these years under the minutes of settlement and the July 19, 2001 order, which he failed to do. [ 8 ] Smith asks that I find that he is no longer a parent to Ashley and should not be required to pay support for her.

Smith’s position is that, if he is still a parent to Ashley whom he has been supporting since her birth even though he is not her biological father, then his obligations to her are fulfilled and, given the circumstances of this case, I should exercise my discretion under

section 5 of the Ontario Child Support Guidelines and terminate Smith’s obligation.

Smith also argues that requiring him to pay the full up Guidelines amount is unwarranted as this amounts to a transfer of wealth to Boivin who has made minimal, if any, financial contribution towards Ashley’s expenses and an unfair burden to him who has the primary responsibility for his own biological children and family. [ 9 ] In addition, Smith’s position is that Ashley’s biological father, Paul Robert Morin, (hereinafter “Morin”), has been given “passes” by Boivin for several years now and that she has largely looked solely to Smith for financial contribution for Ashley which is unwarranted.

Smith says that the “cumulative” and “subtraction” methods of stepparent child support are inappropriate in these circumstances given the financial breaks that Boivin gave Morin and he should only have been required to “top up” Ashley’s child support based on Morin’s table amount under the Guidelines. If I were to do that, Smith asserts that Boivin would owe him a significant re-payment of support as he has “overpaid” what was his share or contribution of Ashley’s support for years.

However Smith is willing to continue paying the sum of $645 monthly for Ashley and to maintain an R.E.S.P. for her. 5: THE EVIDENCE ON THIS MOTION [ 10 ] This case has a convoluted and complicated history of issues, parties and proceedings. [ 11 ] One of repeating themes in this case was the fact as to when and how Boivin and Smith learned that Nathalie was not their biological child.

Much of this evidence is covered in my original ruling where Smith sought a finding of fraud and an order setting aside the order of Justice Phillips of July 19, 2001. [ 12 ] Smith alleged that Boivin had committed a fraud upon the court when she settled for less than Guidelines support from Morin in the 2001 Morin domestic contract, sought full up Guidelines support from Smith in the 2001 minutes of settlement and kept this information from the court when his 2001 order was finalized.

Smith at first sought an order that the 19 July 2001 order be set aside for this reason. [ 13 ] I dismissed Smith’s request for a finding of fraud. I found no fraud and I found no basis in law to set aside Justice Phillips’ order without a finding of fraud. I made a number of findings on the evidence before me. [ 14 ] Smith alleged that Boivin withheld Ashley’s paternity from him and that he would never have formed an intention to treat Ashley as a child of his family if he had known otherwise.

I found that both Boivin and Smith’s evidence on the issue of what they knew about Ashley’s paternity and when was inconclusive. I could not find that Boivin misled Smith about Ashley’s paternity knowingly and with malice. Some of the evidence revealed that she may have expressed doubt about Ashley’s paternity to him shortly after she conceived Ashley. Smith’s previous affidavit suggested Boivin had expressed doubt about his paternity in conversation with him. Other affidavits by Smith suggested that Boivin told him she was sure he was the father.

Boivin said that Smith said whether or not Ashley was biologically his didn’t matter to him. He wanted to be her father. All of this evidence was on the whole, confusing, contradictory and inconclusive on the critical issue of who knew what and when relating to Ashley’s paternity. [ 15 ] In my previous ruling, I found that the recitals found in paragraph two of the domestic contract between Boivin and Morin are likely the best evidence relating to Ashley’s paternity.

Those recitals reveal that Morin was informed by Boivin that a test revealed he was not Ashley’s biological father; a June 2000 paternity test revealed that in fact he was. Boivin’s 1999 applications for support from Smith and Morin were the genesis of why paternity tests were finally conducted. [ 16 ] In cross-examination before the court, Boivin could not explain why she settled for less than full up Guidelines support from Morin in a 2001 domestic contract. Boivin could not explain why she waived arrears of retroactive support from Morin in her 2007

motion to change. Boivin could not explain why she signed two domestic contracts for Ashley’s child support (the Smith and Morin contracts) in lieu of pursuing court orders. The evidence revealed that Boivin largely relied on her lawyer, Mr. D’hondt, to negotiate the terms of the Morin domestic contract and the Smith minutes of settlement. Mr. D’hondt knew and expressed with Morin’s counsel at the time that a court would likely not approve a less than Guidelines amount settlement from Morin. Boivin did not discuss her settlement terms with Morin or with Smith.

At best, she may have told Smith she had “settled up” with Morin. Smith’s lawyers did not press Mr. D’hondt or Morin’s lawyer to produce the agreement signed between Smith and Morin or press for a full up Guidelines amount for Morin. [ 17 ] Smith did not allege that Mr. D’hondt, Boivin’s lawyer, was a party to fraud, only Boivin. Smith did not allege that Morin was a party to fraud, just Boivin. This is despite the fact that the evidence revealed that Mr.

D’hondt was the force behind the Boivin, Morin and Smith settlements and how settlement was structured ( i.e. , by domestic contract or court order). [ 18 ] Smith largely relied on his lawyers, Messrs. Wright and Ziriada, to negotiate the terms of the Smith minutes of settlement. Smith failed to prove that Boivin expressly told him that Morin was paying full up Guidelines support and that is why he agreed to pay full up Guidelines support.

He also failed to prove that he was only prepared to pay full up Guidelines support if Morin was doing the same and that he instructed his lawyers accordingly. [ 19 ] Smith’s evidence also revealed he was interested in protecting his access rights to Ashley and that he thought that paying full up Guidelines support would protect that. [ 20 ] In summation then, Smith did not prove that Boivin perpetrated a fraud upon him or the court when the 2001 minutes of settlement were incorporated into an order and he was paying full up Guidelines child support and Morin was not.

Further, I found the court had no jurisdiction to enquire into the contents of the domestic contract between Boivin and Morin as the support application was withdrawn before the court.

Smith’s minutes of settlement pursuant to the 1999 motion to change were the only document presented to the court for approval in 2001. 5.1: History of Boivin’s Proceedings against Morin [ 21 ] I now turn to the issue of the history of proceedings by Boivin against Morin. [ 22 ] Boivin commenced a child support claim against Morin (Ashley’s biological father) in 1999 at the same time she commenced the 1999 motion to change relating to Smith. No court order ensued. Instead, Boivin withdrew her support application and signed a domestic contract with Morin for Ashley’s support.

In that domestic contract, Ashley is described as a child of Boivin and Morin’s dating relationship. The contract reads that June 2000 DNA testing revealed that Morin was Ashley’s biological father. The agreement recites that Morin was earning an income of $98,340 per annum as of 2001, but that child support was payable at $450 monthly month instead of the $761 monthly Guideline amount. Boivin and Morin expressly agreed that a less than full up Guidelines amount was reasonable and in Ashley’s best interests as Smith had a legal duty to support Ashley.

Boivin later filed the Morin contract for enforcement under s. 35 of the F.L.A . [ 23 ] Boivin then brought two motions against Morin with a first return date of April 24, 2007. [ 24 ] According to the reasons issued by Justice S. Zaltz on January 8, 2008, Boivin sought to increase Morin’s child support payable under their domestic contract and sought a retroactive award. [ 25 ] Justice Zaltz’s reasons are instructive on this issue. Morin was ordered to pay full up Guidelines child support in the sum of $450 monthly based on Morin’s income which was found to be $45,000 annually commencing November 1, 2007.

Justice Zaltz rejected Morin’s argument that, as paragraph 10 of his domestic contract provided for Boivin’s receiving support from two parents, he was entitled to a reduction in his child support payments from the full up Guidelines amount. [ 26 ] Justice Zaltz found that Morin’s 2007 income consisted of supplemental and unemployment benefits as he had been served with an indefinite layoff from Ford Motor Company of Canada.

He is described in the ruling as a foundryman/furnace operator by trade. [ 27 ] Relating to Boivin’s request for retroactivity, Justice Zaltz found that Boivin’s affidavit material did not disclose the reason for her delay in seeking an increase in child support from Morin from 2001 until 2006 nor the past and present circumstances of Ashley including Ashley’s needs at the time that increased support should have been paid. [ 28 ] Justice Zaltz found that, for years 2004, 2005 and 2006, Morin’s annual income for child support purposes was $96,356.01, $107,971.48 and $110,997.75 respectively. [ 29 ] In Justice Zaltz’s ruling, Boivin only sought retroactive support from and including November 1, 2006 to November 1, 2007 totalling $6,667.44 and forgave the balance of arrears for the period January 1, 2004 to November 1, 2006 that were properly payable.

Justice Zaltz described Boivin’s decision to forego retroactive child support for 2004, 2005 and 2006 taxation years as an “ unexpected boon ” to Morin. [ 30 ] No appeal of Justice Zaltz’s order was made or taken. Boivin has commenced no further motions to change from Morin. 5.2: Smith’s Relationship with Boivin and Ashley [ 31 ] One of the issues raised by Smith to support his claims was the nature and duration of his relationship with Boivin and his historical and ongoing relationship with Ashley.

[ 32 ] Boivin and Smith had a dating relationship that commenced in 1993 while Smith was attending the University of Michigan Dental School and Boivin was working as an aesthetician. They broke up for approximately two weeks in April of 1994. During this two-week period, Boivin had a “one night stand” with Morin. In May 1994, Boivin and Smith resumed their relationship. [ 33 ] The evidence revealed that shortly after Ashley’s birth, Smith invited Boivin and Ashley to live with him at his brother’s home. Boivin and Smith ended their relationship in May 1996.

Boivin and Smith then resumed their relationship from December 1996 until February 1997. This date, namely, February 1997 was the final separation for Boivin and Smith. [ 34 ] In total then, Boivin and Smith’s relationship spanned a few years but they cohabitated for a period of 15 months only. [ 35 ] In the December 15, 1998 Smith domestic contract, Smith was awarded joint custody to Ashley with her primary residence remaining with Boivin. Smith was provided with extensive access every weekend from Thursday or Friday until Sunday or Monday tied to Smith’s work schedule, Ashley’s schooling or activities.

Summer months of consecutive weekly periods of care to Boivin and Smith were negotiated. It should be noted that Smith and Boivin each sought custody of Ashley which ultimately resulted in their domestic contract for joint custody. [ 36 ] In the 2001 Smith minutes of settlement, Smith’s joint custody and access rights to Ashley were clarified for weekend access, Mother’s and Father’s Day, Christmas Day, Easter, school and statutory holidays.

By now Smith knew that Morin was Ashley’s biological father but he was provided with continuing generous specified periods of access to Ashley. [ 37 ] Boivin and Smith have exchanged numerous affidavits on this motion to change detailing Ashley’s relationship with Smith, both underwent questioning and gave direct oral evidence to the court, including extensive cross-examination before the court. [ 38 ] By affidavit sworn April 5, 2007, Boivin deposed that Smith continued to exercise access to Ashley but not in accordance with the July 19, 2001 order.

She asserts that Smith cut back on his access to Ashley after she requested updated financial information from him in October of 2006. [ 39 ] By affidavits sworn on June 22, 2007 and June 17, 2008, Smith deposes that, commencing in 1999, Boivin started making trouble for him and his then wife, Bethany, related to Ashley’s access.

In an affidavit sworn on June 22, 2007, Smith deposes at paragraph 87 that “We [he and Bethany] have treated Ashley as one of our own children, despite the legal proceedings and the constant interference injected by her mother (Boivin) to any relationship that we have attempted to maintain between Ashley and my family.” [ 40 ] By questioning conducted September 14, 2007, Smith was examined on the issue of his ongoing access to Ashley at that time.

That evidence reveals that he was still seeing her most weekends, but his access to Ashley was not strictly in accordance with the 2001 minutes and the July 19, 2001 order. At page 15 of the transcript he said, “I have noticed that Ashley is beginning to make her own decisions.

She knows where she wants to be, what she wants to do and there has been some issues with her sleeping over at friend’s [ sic ] houses and things and I think she wants to do that more right now.” Ashley was 12 going on 13 years of age by September 2007. [ 41 ] In a factum of November 16, 2011 filed by Smith’s lawyer, at paragraph 32 , Smith confirms that he, Bethany and their children have treated Ashley as a member of their family, however their relationship has been frustrated by the actions of Boivin who had falsely accused Smith and Bethany of physically abusing Ashley and Smith of sexually abusing Ashley. [ 42 ] Smith’s factum asserts at paragraphs 33 to 36 that, after the year 2006, Smith was not exercising access in accordance with the minutes of settlement or Justice Phillips’ order as Ashley was deciding on her own when and if she would be visiting Smith.

Their relationship is described as “not a father/daughter relationship”. At the same time, Smith says that the relationship is not poor. Visits occur about ten times a year. Ashley does not account for her whereabouts or lifestyle to Smith.

She often declines visits as she is described as too busy. [ 43 ] Boivin’s argument on the motion and her affidavits and oral evidence and factum did not respond to these fresh assertions relating to Smith and Ashley’s relationship. 5.3: Morin's Relationship with Boivin and Ashley [ 44 ] I now turn to the issue raised as to the nature and quality of Boivin and Morin’s historical relationship and Morin’s relationship with Ashley. [ 45 ] Morin did not directly testify in this proceeding.

From what I can glean from the record, an attempt was made to have Justice Zaltz hear both 1997 motions to change together or simultaneous with each other. His Honour declined to do so. As a result, Smith’s counsel conducted questioning of Morin, his financial circumstances and a transcript of that examination was filed on this motion. Boivin’s counsel did not participate on this questioning. [ 46 ] All I know about Morin’s relationship with Boivin is what I can ascertain from the affidavits and documents, filed by Boivin and Smith and Justice Zaltz’s ruling and reasons.

Boivin and Morin never resided together prior to Ashley’s birth. They had a one night stand resulting in Ashley’s conception during a two-week period in April 1994. In August 1999 when Boivin commenced her motion to change, she and Morin were dating.

I am not sure what “dating” means and when their “dating” relationship terminated but it is not disputed that, when Boivin was negotiating her 2001 domestic contract with Morin, she was “seeing him” in some capacity. [ 47 ] In these proceedings, Boivin testified that Morin was a pest, that he was argumentative; she did not seek ongoing financial disclosure from him in their 2001 domestic contract because “she knew there’d be a fight if she asked for it.” She testified that she instead preferred to press her claim for child support from Smith. [ 48 ] Justice Zaltz found in the 2007 Morin motion to change that Morin’s conduct in failing to advise Boivin of his 2004 to

2007 income increases was blameworthy, disingenuous and without merit. Morin had disputed that he had received actual notice of Boivin’s demand for increased support and adequate service of her motion to change. His first and second name had been interposed when the application was commenced. [ 49 ] When Boivin and Morin signed a July 2001 domestic contract, Morin was afforded “liberal and generous” access to Ashley subject to Smith’s access rights.

The agreement provided that Morin would see Ashley every Tuesday provided it did not conflict with Smith’s access rights and could be accommodated with Morin’s work schedule. The contract expressly preserves Smith’s access rights to Ashley. [ 50 ] In Justice Zaltz’s ruling of January 7, 2008, Morin is described in his reasons as believing that Boivin was keeping him from exercising access to his daughter thereby violating Ashley’s right to have a relationship with him.

He is described as having a wonderful and close relationship with Ashley and saw her several times a week, until it ended abruptly in 2005 as a result of what is described as an interpersonal dispute between Boivin and him which resulted, according to Morin, in Boivin’s preventing his ongoing access to Ashley. [ 51 ] A transcript of examination of Morin of May 27, 2011 is instructive on this issue. A portion of that examination at page five of the transcript reads as follows: Q: Are you the biological father of Ashley Boivin? A: I’m not even sure Q: She was born January 5th, 1995?

A: I did a DNA test, but you’d think the biological father would actually be allowed to see his kid. So maybe I’m not. Maybe . . . Maybe this is just a bad dream. Q: What do you mean by you’re not allowed to see your kid? A: I haven’t seen my kid in five, six years. Q: Have you tried to?

A: I was told not to go back by the O.P.P. on two different occasions because she had trumped up some stupidity about me. [ 52 ] By affidavit sworn June 22, 2007, Smith deposed that by 2001 Morin was having trouble exercising access to Ashley, that police were involved and the children’s aid society sought an interview with him relating to Boivin and Morin. 5.4: Smith’s Failure to Disclose [ 53 ] One issue that has been raised on the Smith motion to change and the issue of retroactivity is the fact that Smith failed to comply with the financial disclosure requirements under the July 2001 minutes of settlement. [ 54 ] An examination of the minutes of settlement of July 2001 and the resulting order of July 19, 2001 reveals that Smith was obligated to provide Boivin by May 5th of each year a copy of his income tax returns with all attachments and notices of assessment. [ 55 ] Smith has conceded that he failed to comply with this requirement.

He said he did not realize he was required to do so and was not specifically aware of this reporting provision in the court order. His evidence on this issue was that he largely left all of these arrangements to his lawyers and didn’t read carefully what he signed. [ 56 ] Smith produced a copy of his income tax summaries for taxation years 2004, 2005 and 2006 to Boivin after demand by Boivin’s lawyer in October 2006. [ 57 ] Boivin’s affidavit of April 5, 2007 does not explain why she did not seek disclosure from Smith until October 30, 2006.

She simply deposes that her lawyer took those steps on that date. 5.5: Smith’s Income [ 58 ] I now turn to the issue of Smith’s income for child support purposes. [ 59 ] The parties agree that Smith’s income is as follows for the following years: 2003 $140,946.00 2004 $152,061.00 2005 $148,898.00 2006 $368,034.00 2007 $158,615.00 2008 $188,295.00 2009 $175,655.00 2010 $159,721.18 [ 60 ] Smith filed a November 3, 2011 financial statement (Form 13 under the Family Law Rules , O. Reg. 114/99, as amended) disclosing an anticipated 2011 income of $147,699.12.

At the time of this hearing, Smith’s 2011 tax return and assessment notice were not available. [ 61 ] Smith also filed a financial statement on the hearing of this motion. The statement shows he owns a home (valued at $195,000), three vehicles (valued in total at $75,000), jewellery (valued at $2,500), an R.R.S.P. (Registered Retirement Savings Plan) of $202,103.27 and an R.E.S.P. (Registered Education Savings Plan) for $4,300. It is not clear whether the value of his R.R.S.P. has been

discounted for notional taxes. He owes a $499,000 line of credit in connection with his dental practice and there is a mortgage on his home of $156,000. He has a 51 percent interest in a dental practice located in Tilbury, Ontario, which he values at $430,000. He maintains two life insurance policies with a small cash surrender value ($100) paying $600,000 on his death.

Ashley is named as a co- beneficiary on one of those policies, namely his $350,000 life insurance policy. [ 62 ] None of Smith’s financial information filed on the argument of the motion was examined or cross-examined upon. [ 63 ] In an affidavit of June 22, 2007, Smith deposed that he had established an R.E.S.P. for Ashley having a value at that time of $8,000. I cannot determine whether the R.E.S.P. indicated in his November 3, 2011 financial statement is one and the same as the one shown in his 2007 statement.

He also deposed that he had paid for Ashley’s karate lessons at $91 monthly until she quit due to transportation problems with Boivin. He also asserted that he paid for all her dental work and took her on some family trips to Florida in 2006. 5.6: Boivin’s Financial Statement and Budget [ 64 ] Boivin filed a financial statement and budget on the argument of the motion. She did not show Morin’s monthly child support income of $450 as monthly income that she was receiving as she asserts through counsel’s argument in her factum that she is receiving no support from him effective November 21, 2011.

This information was not examined or cross examined on. [ 65 ] On the argument of this motion, Boivin shows Ashley’s current monthly share of expenses totalling at $775.30. The total of Boivin and Ashley’s current monthly living expenses is $2,785.93 or $33,431.16 annually. She has apportioned about ⅓ to ½ of their joint living expenses to Ashley. She shows a very modest rental payment on an apartment and utilities totalling nearly $900 monthly.

She and Ashley both incur the cost of cell phones, groceries, internet and satellite, contents insurance, clothing, hair care and beauty products at a minimal monthly charge. She maintains a life insurance policy at a cost of $15.80 monthly. Her largest monthly expense in addition to her accommodation expense is the cost of her car lease at $470.

Boivin’s current monthly income is about $75 short of covering her current expenses even without Morin’s $450 child support payment. [ 66 ] Boivin’s financial statement discloses that she drives a leased 2008 Ford Fusion, owns furniture and furnishings totalling $5,000, and has three small bank accounts totalling $1,102 and a small life insurance policy of $10,000. She owns no real property ( i.e. , a home) and has no debts other than a small amount owing on her credit card of $150 as of November 14, 2011. [ 67 ] Under a “proposed” budget, Ashley’s monthly expenses have increased to $2,005.62.

Boivin’s “proposed” budget includes a mortgage payment of $1,500 monthly, realty taxes and utilities, a car loan or lease payment, increases to Ashley’s clothing budget and increased entertainment, vacation and schooling and activity expense. Again Boivin has shown Ashley’s share of monthly expenses at ⅓ to ½ of their total monthly expenses.

Boivin’s “proposed” monthly budget is now $5,531.70 or the annual figure of $66,380.40. [ 68 ] Interestingly, Boivin’s proposed budget shows no savings towards Ashley’s post-secondary education. 5.7: Morin’s Financial Circumstances [ 69 ] The best and only up-to-date evidence that I had relating to Morin’s financial circumstances is the filing of a transcript of questioning conducted by Smith’s lawyer in May of 2011. [ 70 ] Morin had previously testified before Justice Zaltz (and referred to in His Honour’s reasons) that he set up two registered funds in Ashley’s name for her post-secondary education.

One such plan was valued at $4,485.75 and the second plan totalled $67,164.75 as of June 30, 2007. Ashley is noted as a beneficiary of these plans with what appeared to be a surrender value of $17,164.85. No current evidence was filed or sought relating to these plans by Boivin or Smith. [ 71 ] On questioning by Smith’s counsel, Morin produced his 2007 and 2008 notices of assessment from Revenue Canada. He also provided his form T-4 summaries for taxation years 2009 and 2010. Morin testified under oath that he had been dismissed from Ford Motor Company as of March 29, 2011.

He undertook to provide Smith’s lawyer with a copy of the decision related to a grievance he had filed related to that dismissal and to forward Boivin’s lawyer copies of his 2009 and 2010 notices of assessment. Questioning of Morin revealed that he had not applied for unemployment benefits and was awaiting the outcome of grievance procedures due to his work dismissal. Until the grievance was resolved, he said he would not look for work. He did not expect success with the grievance. He thought the matter would be resolved within six months of the date of his questioning ( i.e. , January 2012).

The grievance decision was not filed at this hearing. To my knowledge, Morin did not produce it. [ 72 ] Morin’s tax summaries for years 2007 and 2008 and statements of remuneration for taxation years 2009 and 2010 show the following income: 2007 $95,793.09 2008 $65,684.18 2009 $71,744.89 2010 $63,608.70 [ 73 ] Morin could not recall the last time he made a child support payment for Ashley.

He offered that it was the last time the Family Responsibility Office “took it off.” [ 74 ] As of the date of argument of this motion, Boivin had not produced nor sought to produce Morin’s employment and current income particulars. Any income information received relating to Morin was secured by Smith.

[75] I now turn to the law as it relates to the issue of child support between parents under the F.L.A. and the OntarioGuidelines. 6: THE LAW [76] The F.L.A. establishes the

definitions of child and parent for support purposes. Subsection 1(1) reads as follows: 1.

Definitions.—

(1) In this Act, “child” includes a person whom a parent has demonstrated a settled intention to treat as a child ofhis or her family, except under an arrangement where the child is placed for valuableconsideration in a foster home by a person having lawful custody; . . . “parent” includes a person who has demonstrated a settled intention to treat a child as a child ofhis or her family, except under an arrangement where the child is placed for valuableconsideration in a foster home by a person having lawful custody; . . . [77] The obligation to pay child support is imposed by s.31(1) of the F.L.A. It reads: 31. Obligation of parent to support child.—

(1) Every parent has an obligation to provide support forhis or her unmarried child who is a minor or is enrolled in a full time program of education, to the extentthat the parent is capable of doing so. R.S.O. 1990, c. F-3, s. 31(1); S.O. 1997, c. 20, s. 2. [78] A parent cannot unilaterally withdraw from the role of the parent. Case law has determined that each case is to bedecided on its own unique set of facts, taking into account all factors viewed objectively. Modern society has moved away from a rigiddefinition of the family.

One jurist describes the approach in determining whether a parental role has been assumed and whether childsupport should be paid as the reality of the relationship and the best interests of the child. The right to child support is the right of a childand independent of a parent’s own conduct notwithstanding delay in pursuing support, attempts to contract out of support or the failure todisclose an extramarital affair that may have led to the conception of a child. See: • Chartier v. Chartier, [1999] 1 S.C.R. 242, 235 N.R. 1, 134 Man.

R. (2d) 19, [1999] 4 W.W.R. 633, 193 W.A.C. 19, 168D.L.R. (4th) 540, 43 R.F.L. (4th) 1, , [1998] S.C.J. No. 79, 1999 Cars​well​Man 25; • Cornelio v. Cornelio, , 94 O.R. (3d) 213, 65 R.F.L. (6th) 129, [2008] O.J. No. 5362, 2008 Cars​well​Ont8005 (Ont. S.C.); and • Ballmick v. Ballmick, 2005 ONCJ 101, 18 R.F.L. (6th) 10, [2005] O.J. No. 1209, 2005 Cars​well​Ont 1205 (Ont. C.J.). [79] When the non-disclosure of an extra-marital affair led a husband to believe that he was the biological father of thechildren when he was not, the court found that non-disclosure may well have been a moral wrong.

The fact of non-disclosure did nothowever afford the father the legal remedy to recover child support paid or permit him to stop paying child support. See: • Cornelio v. Cornelio, supra; • Spring v. Spring (1987), (ON SC), 61 O.R. (2d) 743, [1987] O.J. No. 1569, 1987 Cars​well​Ont 1022(Ont. U.F.C.); and • Hautala v. Morgan, [1997] O.J. No. 3218, 1997 Cars​well​Ont 3642 (Ont. Gen Div). [80] In T.D.G. v. L.M.G., 2009 NBBR 207 , 2009 NBQB 207, 351 N.B.R. (2d) 22, 904 A.P.R. 22, [2009] N.B.J. No.241, 2009 Cars​well​NB 350 (N.B.Q.B., Fam.

Div.), the conduct of a person pre and post DNA test results was determinative of hisintention to treat the child as a child of his or her family. The father’s argument that he could only have formed an intention to treat achild of his family once he became aware of his child’s true paternity was rejected. The court relied on the reasoning in Cornelio v.Cornelio, supra. [81] The F.L.A. provides that a child support order should recognize that each parent has an obligation to support their childand apportion that obligation according to the Guidelines. See subsection 33(7) which reads as follows:

(7) Purposes of order for support of child.— An order for the support of a child should, (

a) recognize that each parent has an obligation to provide support for the child; (

b) apportion the obligation according to the child support guidelines. [82] Subsection 33(11) provides that a child support order shall be made in accordance with the Child Support Guidelinessubject to the exceptions in subsections (12) and (14) of the F.L.A. as follows:

(11) Application of child support guidelines.— A court making an order for the support of a child shalldo so in accordance with the child support guidelines.

(12) Exception: special provisions.— Despite subsection (11), a court may award an amount that isdifferent from the amount that would be determined in accordance with the child support guidelines ifthe court is satisfied, (

a) that special provisions in an order or a written agreement respecting the financial obligations ofthe parents, or the division or transfer of their property, directly or indirectly benefit a child, orthat special provisions have otherwise been made for the benefit of a child; and (

b) that the application of the child support guidelines would result in an amount of child supportthat is inequitable given those special provisions. . . .

(14) Exception: consent orders. — Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines on the consent of both parents if the court is satisfied that, (

a) reasonable arrangements have been made for the support of the child to whom the order relates; and (

b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines. [ 83 ] An application for variation of a child support order shall be in accordance with subsections 37(2.1) and 37(2.2) of the F.L.A. which reads as follows:

(2.1) Powers of court: child support.— In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may, (

a) discharge, vary or suspend a term of the order, prospectively or retroactively; (

b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (

c) make any other order for the support of a child that the court could make on an application under

section 33.

(2.2) Application of child support guidelines.— A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines. [ 84 ] O. Reg. 391/97 made under the F.L.A. and first proclaimed in force December 1, 1997 created the Child Support Guidelines .

Section 1 of the Guidelines reads as follows: 1. Objectives. — The objectives of this Regulation are, (

a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation; (

b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective; (

c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and (

d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances. O. Reg. 391/97, s. 1 ; O. Reg. 25/10, s. 1. [ 85 ]

Section 3 of the Guidelines sets a presumptive rule for an order of support for a child under the age of majority.

Section 3 reads as follows: 3. Presumptive rule.—

(1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child 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 parent or spouse against whom the order is sought; and (

b) the amount if any, determined under

section 7. [ 86 ]

Section 5 of the Guidelines is an exception to the presumptive rule in subsection 3(1) of the Guidelines.

Section 5 reads as follows: 5. Spouse in place of a parent.— Where the spouse against whom an order for the support of a child is sought stands in the place of a parent for a child or the parent is not a natural or adoptive parent of the child, the amount of the order is, in respect of that parent or spouse, such amount as the court considers appropriate, having regard to these guidelines and any other parent’s legal duty to support the child. O. Reg. 391/97, s. 5 . [ 87 ]

Section 5 of the Guidelines provides the court with discretion to determine what appropriate amount of child support a parent should pay under

section 5. [ 88 ] The reasoning employed by different courts as to the appropriate amount of child support to be paid by a person standing in the place of parent or is not a natural or adoptive parent of a child is varied. Courts have employed techniques of apportionment, percentages, and top-ups in relation to the obligation of step-parents. One Ontario decision states the obvious conclusion that there is a lack of clarity or consistency as to the appropriate approach to take. See Zacharias v. Zacharias , 2011 ONSC 2176 , 4 R.F.L. (7th) 395, [2011] O.J. No. 1645, 2011 Cars​well​Ont 2414 (Ont.

S.C.). [ 89 ] In Mancuso v. Weinrath and Hewko , 2005 BCSC 1606 , 22 R.F.L. (6th) 165, [2005] B.C.J. No. 2509, 2005 Cars​well​BC 2757, Justice Joel R. Groves of the British Columbia Supreme Court thoroughly canvassed the different step-parent child support approaches found in current case law. The court considered these factors: • the stated objectives of the Guidelines, • that a biological parent generally bears the primary responsibility for support of their children, • that the upper limit of a step-parent’s child support obligation is generally the amount of the Guidelines that corresponds to their income,

• that each case must be decided on the basis of its particular facts applying a structured but not formulaic approach. SeeSquires v. Severs, 2000 BCSC 853, 97 A.C.W.S. (3d) 494, [2000] B.C.W.L.D. 795, [2000] B.C.J. No. 1083, 2000 Cars​-well​BC 1150 (B.C.S.C.). [90] The court also found that

section 5 cases do not mean that a court simply subtracts the obligation of the natural parentfrom the step parent’s obligation. The exercise of discretion should be broadly based. See Singh v. Singh, , 74A.C.W.S. (3d) 447, [1997] B.C.J. No. 2195, 1997 Cars​well​BC 2162 (B.C. Master). [91] In Mancuso v. Weinrath and Hewko, supra, the court ordered the step-father to pay the full table amount for his incomeless one-half of the table amount that the biological father was liable to pay in support. This approach was preferred by Justice StanleyB. Sherr in Hilliard v.

Popal and Dixon, 2010 ONCJ 619, 98 R.F.L. (6th) 243, [2010] O.J. No. 5726, 2010 Cars​well​Ont 10488 (Ont.C.J.). [92] In Chartier v. Chartier, supra, the Supreme Court of Canada said that the obligation of a biological father does notnecessarily displace that of a stepparent. The court dismissed the concern that a child might collect support from both a biological parentand a step parent. The court said: [42] . . . I do not accept that this is a valid concern. The contribution to be paid by the biologicalparent should be assessed independently of the obligations of the step-parent.

The obligation to supporta child arises as soon as that child is determined to be a “child of the marriage”. The obligations ofparents for a child are all joint and several. The issue of contribution is one between all of the partieswho have obligations towards the child, whether they are biological parents or step-parents; it shouldnot affect the child. [93] However, collecting support from a biological parent and step-parent does not necessarily mean that a step-parent shouldpay the full table amount under the Guidelines. For an interesting

article on the issue of contribution and the different obligations ofnatural and step parents, see Bala Nicholas, “Who is a parent? Standing in the Place of a Parent and the Child Support Guidelines s.5”Special Lectures on Family Law, (Toronto: Irwin Law, Fall 2006). [94] Also note that, in Dutrisac v. Ulm, 2000 BCCA 334, 138 B.C.A.C. 282, 75 B.C.L.R. (3d) 159, [2000] 6 W.W.R. 54, 226W.A.C. 282, 187 D.L.R. (4th) 461, 6 R.F.L. (5th) 132, [2000] B.C.J. No. 1078, 2000 Cars​well​BC 1120 (B.C.C.A.), Appeal JusticeWilliam A. Esson made it clear that Chartier v.

Chartier, supra, was irrelevant to the issue of how child support should be apportionedbetween parents. The court said that, in holding that a stepparent cannot unilaterally terminate that status, the Supreme Court saidnothing about the power of a court either under the Divorce Act or provincial legislation to grant a reduction in the amount of support thata step parent might pay. [95] In Reis v. Thompson, 2009 ABQB 156, 5 Alta. L.R. (5th) 70, [2009] 8 W.W.R. 341, 64 R.F.L. (6th) 140, [2009] A.J. No.264, 2009 Cars​well​Alta 353 (Alta. Q.B.), the court referred to cases which interpreted

section 5 of the Federal Child SupportGuidelines, SOR/97-175, as amended. (It should be noted that the Ontario Guidelines and Federal Guidelines contain similar languagewith the exception of the use of “parent” found in the Ontario Guidelines.) The court found that the wording of sections 3 and 5 of theFederal Guidelines created a hierarchy of support: the obligations of those standing in the place of a parent are made secondary to thoseof natural parents.

The court examined the use of the words “such amount as the court considers appropriate”, “having regard to theseGuidelines” and “any other parent’s legal duty to support the child.” [96] In Reis v. Thompson, supra, the court considered the child’s higher standard of living while she was living in her step-father’s household than what she would have had had she lived in her biological father’s household. The court “topped up” the step-parent’s obligation and reduced the step-parent’s obligation from $1027 per month to $690 per month.

Included in this calculation wasthe natural father’s table amount for support. [97] The court in Reis v. Thompson acknowledged Professor Julien Payne’s suggestions in “Child Support Obligations ofMultiple Parents”, (2000) 2 Sask. Advocate, that it was entirely possible in the exercise of the

section 5 discretion that a court couldreduce the amount of support that a step-parent paid to zero if that was found appropriate.

Professor Payne proposed that if the totalamount of “. . . any other parent’s basic financial contribution would be sufficient to provide a ‘fair standard of support’ for a child, thedetermination of the extent of the step-parent’s legal duty could end there and his or her contribution could be nominal.” He also opinedthat “. . . if the sum of the other parent’s basic financial contribution were insufficient to provide a fair standard of support for the child,the stepparent could be called upon to top up the available funds to a point where they are sufficient for that purpose.” [98] In Reis v.

Thompson, the court followed Professor Payne’s recommendations stated above and the rulings in Vongrad v.Vongrad, 2005 ABQB 52, [2005] A.W.L.D. 2733, [2005] W.D.F.L. 3405, [2005] A.J. No. 632, 2005 Cars​well​Alta 747 (Alta. Q.B.) andU.V.H. v. M.W.H., 2008 BCCA 177, 254 B.C.A.C. 183, 86 B.C.L.R. (4th) 199, 426 W.A.C. 183, [2009] 2 W.W.R. 63, 292 D.L.R. (4th)433, 59 R.F.L. (6th) 25, [2008] B.C.J. No. 717, 2008 Cars​well​BC 798 (B.C.C.A.), in arriving at a quantum of support payable. [99] In Vongrad v. Vongrad, supra, Justice Richard P.

Marceau rejected a proposal that would have limited the stepparent’spayments over time gradually shifting back primary responsibility to the biological parent. Instead, he relied on the child’s increasedstandard of living with the stepfather as a standard that would fix the stepfather’s higher income as the maximum amount he might beexpected to contribute.

The stepfather’s Guideline amount was then ascertained as the threshold that he might be required to contributeand “. . . the entire situation was to be considered including the child’s standard of living with the biological father.” The court alsostated that the stepfather could not “simply walk away” and the child “. . . should not receive more than the child would have received ifonly one parent was responsible to pay maintenance for him.” [100] In U.V.H. v.

M.W.H., supra, the seminal issue was whether a stepfather was required to bear the primary support obligationfor the children leaving the natural father, whose income was greater than the stepfather, with only a secondary obligation. The courtfound that the natural father should pay the Guideline table amount commensurate with his income and “topped up” the stepfather’ssupport payment.

[101] Messrs. Philip Epstein and Aaron Franks in their Annotation to U.V.H. v. M.W.H., find that: . . . notwithstanding Chartier v. Chartier and cases such as Wright v. Zaver, , 49O.R. (3d) 629, 7 R.F.L. (5th) 212, [2000] O.J. No. 2391, 2000 Cars​well​Ont 2208 (Ont. S.C.), affirmedat Wright v. Zaver, , 59 O.R. (3d) 26, 158 O.A.C. 146, 211 D.L.R. (4th) 260, 24R.F.L. (5th) 207, [2002] O.J. No. 1098, 2002 Cars​well​Ont 887 (Ont. C.A.), and Swindler v. Belanger,2005 SKCA 131, 275 Sask. R. 129, 365 W.A.C. 129, [2006] 7 W.W.R. 229, 261 D.L.R. (4th) 361, 22R.F.L. (6th) 1, [2005] S.J.

No. 709, 2005 Cars​well​Sask 784 (Sask. C.A.), the court should not interprets. 5 to require a series of stepparents to pay the full table amount. The British Columbia Court ofAppeal in this case has avoided the “piling on” effect by significantly reducing the support obligation ofthe stepparent. [102] U.V.H. v. M.W.H. prescribes a roadmap for determining a stepparent’s obligation for child support. The followingprinciples were applied:

Section 3 of the Guidelines sets out the presumptive rule that a biological father must pay child support in accordance withthe appropriate Guidelines table amount;

Section 5 is an exception to the presumptive rule found in

section 3. It imports a discretion to determine what is“appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child”; 3. A

section 5 analysis requires that the legal duties of the biological father be considered when support from a step-parent issought. Such duties must be quantified; the “other parent” should be before the court or other evidence satisfactory to thecourt relating to the other parent’s status; 4. A mother cannot choose to give a natural or biological father a “pass” in favour of pursuing the stepfather for all thesupport the children require; 5.

The “piling on” of Guidelines amounts would result in a standard beyond one that is reasonable in the context of thestandard that the children have previously enjoyed, such that a “windfall” or “wealth transfer” is unlikely to be“appropriate”. Where three or more parents’ contributions are needed to provide the children with a reasonable standard ofliving, then the stepparent and non-custodial parent (biological father) may well be required to pay full Guidelinesamounts; 6.

Where a natural or adoptive parent is not available or unable to pay full Guidelines support, the stepparent may well haveto pay his or her full table amount; 7. The inquiry of appropriateness under the Guidelines is not a wide open discretion; the inquiry like the Guidelinesthemselves must focus on the children and their needs; 8. The objectives found at

section 1 of the Guidelines which include a “fair standard of support” and “reduction of conflictbetween parents” are relevant to the determination of appropriate support by a stepparent; 9. Primacy should be given to the children’s standard of living given the “children first” perspective of the Guidelines. [103] U.V.H. v. M.W.H. has been followed with approval in C.S. v. M.S., 2009 NBCA 66, 349 N.B.R. (2d) 239, 899 A.P.R. 239,311 D.L.R. (4th) 210, 75 R.F.L. (6th) 240, [2009] N.B.J. No. 334, 2009 Cars​well​NB 454 (N.B.C.A.), and considered in Truong v.Truong, 2012 ONSC 3455, 217 A.C.W.S. (3d) 852, , [2012] O.J.

No. 2862, 2012 Cars​well​Ont 7865 (Ont. S.C.), per Justice Thomas A.Bielby. In C.S. v. M.S., supra, the New Brunswick Court of Appeal held that the trial judge made a reversible error in failing to considerthe child support obligation of the biological father before utilizing

section 5 of the Guidelines to fix the amount of child support payableby a stepfather. [104] Wright v. Zaver, , 49 O.R. (3d) 629, 7 R.F.L. (5th) 212, [2000] O.J. No. 2391, 2000 Cars​well​Ont 2208(Ont. S.C.), affirmed at Wright v. Zaver, , 59 O.R. (3d) 26, 158 O.A.C. 146, 211 D.L.R. (4th) 260, 24 R.F.L. (5th)207, [2002] O.J. No. 1098, 2002 Cars​well​Ont 887 (Ont. C.A.), found that, where

section 3 of the Guidelines applies, it mandatespayment of the table amount for a natural parent. This case involved the Ontario Child Support Guidelines. In Wright v. Zaver, supra, anatural father had been foreclosed from any involvement in his son’s life by the child’s mother. She negotiated a lump-sum payment forchild support of $4,000 and resisted his efforts to seek access to his child. She was receiving full up Guidelines support from the child’sstepfather. The court found no authority in

section 3 of the Ontario Guidelines to order anything other than the table support for thechild notwithstanding the stepfather’s payment of child support, the natural father’s limited rights of access, the mother and naturalfather’s original “bartering away” of child support and the unique circumstances of the case. The court found that only a stepfathercould apply for apportionment of support under

section 5. The court ordered support in accordance with

section 3 of the OntarioGuidelines. [105] Kobe v. Kobe (2002), (ON SC), 30 R.F.L. (5th) 135, [2002] O.J. No. 1250, [2002] O.T.C. 186, 2002Cars​well​Ont 1139 (Ont. Fam. Ct.), dealt with the issue of a stepfather’s support where the children lived with him during his marriage totheir mother. Eventually the relationship between the stepchildren and the stepfather deteriorated. The children’s natural father waspaying full up Guidelines support in the sum of $654 monthly based on his income of $46,527.27. The stepfather’s child support wasreduced from the full up Guidelines amount of $1,410 monthly to $950 per month.

What is interesting about Kobe v. Kobe, supra, ishow Justice Derek Mendes de Costa addresses the issue of stepparent child support and interprets

section 5 of the Guidelines. Afteracknowledging that

section 3 of the Guidelines provides that the table amount “is” the amount of child support for a natural parent, hesays that he believes that following Francis v. Baker, [1999] 3 S.C.R. 250, 246 N.R. 45, 125 O.A.C. 201, 177 D.L.R. (4th) 1, 50 R.F.L.(4th) 228, , [1999] S.C.J. No. 52, 1999 Cars​well​Ont 2734, and the reasoning of Justice Michel Bastarache therein thatParliament intended that there be a presumption in favour of the table amount for a proceeding under

section 5 of the Guidelines. Hedescribes the presumption as a rebuttable one but that a stepparent must provide clear and compelling evidence to rebut the presumption. At the same time, he opines that, under

section 5 of the Guidelines, a court may make a child support order for an amount that is lessthan the table amount. [106] In Kobe v. Kobe, supra, the court did not consider the custodial mother’s means and did not consider the relationshipbetween a child and a stepparent as a relevant consideration under

section 5 of the Guidelines. Instead the court applied what it describedas principles of equality expressed in Chartier v. Chartier and then awarded child support at $1,714 per month; this combined amount

($654 plus $950) exceeded the Guideline table amount based on the income of the stepfather. The court expressed that they did not consider this amount a windfall for the mother. The court did not use the subtraction or “top up” method and at the same time did not order “full up” Guidelines support from the step-father. [ 107 ] Kobe v. Kobe , supra , can be contrasted with the decision in Zacharias v. Zacharias , supra , with some caution. That caution is that Zacharias v. Zacharias is a ruling for interim child support and can be distinguished on that basis alone.

On an interim motion under the Divorce Act , the court did not award “full up” table support under the Guidelines nor use the “top up” method for a step-father’s obligations for child support. The stepfather was directed to pay the sum of $400 monthly, which sum represented that portion of a monthly sum from Veteran’s Affairs that the stepfather was receiving for the stepchildren. The court found that the primary obligation for child support rested with the children’s biological father. [ 108 ] The “subtraction” method was used in Depatie v. Squires , 2011 ONSC 1758 , 199 A.C.W.S. (3d) 1234, [2011] O.J.

No. 1267, 2011 Cars​well​Ont 1876 (Ont. S.C.), even though the biological father was not a party before the court with the stepfather. The biological father’s long and continuous support for his child was considered a relevant consideration. [ 109 ] In Hilliard v. Popal and Dixon , supra , the step-parent was ordered to pay an amount “closer to the guidelines” approach. The court rejected the straight set off or subtraction method (deducting the biological father’s support from the step-father’s support) and reduced the step-father’s support obligation by 50% of the biological father’s support obligation.

In order to avoid future litigation or uncertainty, the court fixed the step-father’s 50% deduction as the monthly sum of $130. The court considered a reduction in the step- father’s support as an “appropriate” amount under

section 5 in order to avoid the windfall argument and said “. . .

section 5 of the guidelines envisions a fair apportionment of the child support obligation between a biological and step-parent.” The court did not refer to the B.C. Court of Appeal decision in U.V.H. v. M.W.H. in arriving at its calculation for step-parent support. [ 110 ] In Truong v. Truong , supra , the court declined to award full up Guidelines for a stepfather where the parties were a husband and wife who had two children as a result of their marriage. One child was their biological child and the second child was as a result of the wife’s first marriage.

The biological father was not before the court and the mother had not pursued the biological father for support after he abandoned an access application. There was “some financial information before the court that the natural parent was making in excess of $100,000 at the time he was seeking access.” The court awarded full up Guidelines support for their biological child and 50% of the Guidelines table amount for the second child. The court said that “Clearly

section 5 of the Guidelines is a deviation from the presumptive rule established by

section 3.” The court also relied on U.V.H. v. M.W.H. , stating that a

section 5 analysis requires a court to consider the legal duties of a natural parent but “she could not however, choose to give the father a pass in favour of pursuing the stepfather for all the support the children required.” With this final award, the court reduced an interim award by $200 monthly that was being paid pursuant to the Guidelines. [ 111 ] Turning last to the issue of retroactivity, the law relating to the appropriateness of a retroactive order and the evidentiary and statutory requirements to be considered in making a retroactive order are found in the case of D.B.S. v. S.R.G.; Laura Jean W. v.

Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 Cars​well​Alta 976. [ 112 ] There are several important principles to be found in these cases. They include: 1. Child support is the right of the child. As much as possible, child support should provide the child with the same standard of living the he or she enjoyed while the parents were together; 2.

While child support orders should provide payor parents with the benefit of predictability and a degree of certainty in managing their affairs, such an order does not absolve the payor parent — or the recipient parent — of the responsibility of continually ensuring that the children are receiving an appropriate standard of living; 3. Delay in seeking child support is not presumptively justifiable. A recipient parent will generally lack a reasonable excuse where she or he knew higher child support payments were warranted but decided arbitrarily not to apply.

The court should consider the reason for the recipient parent’s delay in seeking child support, the conduct of the payor parent, the past and present circumstances of the child, including the child’s needs at the time the support should have been paid and whether the retroactive award might entail hardship. 4. In determining to make a retroactive award, a court shall strive for a holistic view of the matter and decide each case on the basis of its particular facts; 5.

Retroactive child support should as a general rule be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but to no more than three years in the past; 6 Effective notice does not mean taking legal action; all that is required is that the topic be broached; 7. A payor parent who knowingly avoids or diminishes his or her support should not be allowed to profit from such conduct. Where the payor parent has engaged in blameworthy conduct, the date when the circumstances changed materially will be the presumptive start date of the award; 8.

A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. 7: ANALYSIS [ 113 ] The request before me is a difficult one. On the first part of this motion, the evidence relating to Ashley’s paternity was convoluted and confusing, marked with an endless series of allegations as to who knew what and when. Smith asserted Boivin committed a fraud upon him and the court. Boivin countered this suggestion saying that Smith agreed to be Ashley’s father regardless of her paternity. No one pressed for DNA testing until several years following Ashley’s birth.

The evidence revealed that Boivin and Morin’s lawyers negotiated an out-of-court agreement that he pay less than full up Guidelines support. Smith’s lawyers did not press for verification that Morin was paying full up Guidelines support at the time Morin’s agreement was negotiated. I could go on and on. [ 114 ] As it relates to child support, I find that I am being asked to rectify and/or adjust what was either agreed to or ordered to be done in the past — all without the real participation of Morin then and now.

[ 115 ] I find that the law and legal

interpretations of sections 3 and 5 of the Ontario Child Support Guidelines (some of which are referred to herein) are not clear or consistent. There is still continuing debate over what is meant by Chartier v. Chartier , supra , and the child support obligations of stepparents. Ashley now is several years older and I know little about her present circumstances but for the fact that, for years 2003 until 2012, she was a dependant for child support purposes and I assume continues so.

Smith has not disputed that Ashley remains a dependent; he feels however that his obligations have been satisfied by many years of overpayment. [ 116 ] At the outset of this exercise, let me state that it is regrettable that the 2007 Morin and Boivin’s motion to change were not heard together or at least consecutive to one another. Subsection 33(5) of the F.L.A. contemplates this. Having Morin’s motion resolved several years ago and prior to considering Smith’s support obligations creates an impediment to having the best and most current evidence relating to Morin’s financial circumstances before me now.

To be fair and entirely accurate, Smith brought a request to combine proceedings between Boivin, Morin and him which was dismissed by Justice Zaltz. There was a similar request by Smith that Justice Zaltz hear the Smith motion to change as he had heard the Morin motion to change. Justice Zaltz declined that request also. My impression is that Morin was and clearly is a necessary party to any

section 5 guidelines analysis and, as such, his support obligations should have been quantified at the same time that Smith’s obligations were being assessed.

No party appealed the various orders made and I was left with what I had before me, a complex mix of stale-dated evidence related to Morin and less-than-adequate disclosure related to his circumstances in assessing Smith’s obligations. [ 117 ] Having provided this overview, I now propose to deal with the first question as to whether Smith is a parent for child support purposes to Ashley. [ 118 ] This finding is satisfied overwhelmingly on the evidence before me. Frankly, by the time of the argument of this motion, there was no serious argument advanced on this issue.

Smith has and continued to treat Ashley as a child of his family even when he learned she was not his biological child in 1999. His 2001 minutes of settlement and the recitals therein confirm his status as a parent. His ongoing relationship with Ashley, albeit strained, supports that conclusion.

Smith has exercised access to Ashley throughout the years, treated Ashley as a child of his own, she has joined in on family vacations, celebrated family holidays and, although the passage of time may have reduced the timing and frequency of her visits as any adolescent may be wont to do; in all respects in law Smith is a parent.

I do not propose to deal with this issue in any significant way in this analysis as the evidence is just that overwhelming in favour of supporting this finding. [ 119 ] In demonstrating the intention to treat Ashley as a child of his family, it is immaterial that Smith may have been led to believe she was his biological child (as Smith alleged), was deceived that she was his child (as Smith alleges) or simply ignored the fact that she might not be his biological child (as Boivin alleged).

Not only could I not conclude precisely what happened, but these issues are immaterial to issue of a finding of parentage and Smith’s resulting obligation to pay support for Ashley. Following Ashley’s birth, Smith engaged in a long standing relationship with Ashley where he was a parent to her in every respect and precisely acknowledged so in the 2001 minutes of settlement.

Paragraphs [77] through [80] of this ruling refer to those authorities that support the conclusion that Smith is responsible in law for Ashley’s support. [ 120 ] I now turn to the second and third question dealing with the issue of what is Smith’s support obligation for Ashley and whether it should be terminated. [ 121 ] I propose to summarize Smith’s position on this motion as follows: 1. Smith argues that his support obligations to Ashley are fully satisfied as he has overpaid Ashley’s support for years and Boivin has provided Morin with a pass on retroactive and ongoing support time and time again.

Smith thinks that one option is that I should exercise my discretion under

section 5 of the Guidelines and terminate Ashley’s support altogether as I should find that he has well satisfied any support obligation he has owing. 2. Alternatively, Smith says a “top up” approach to support calculation should apply.

Schedule “A” is a

summary of what Smith calculates he would have paid if he had “topped up” Ashley’s support and Morin had paid what he was presumptively required to pay pursuant to the Guidelines. As the primary support obligation for Ashley rests with Morin, Smith proposes that the threshold Guideline amount for Ashley should be consistent with Morin’s income and this was more than sufficient to meet Ashley’s needs and standard of living at $1,095 per month.( i.e. , Morin’s sum of $450 and Smith’s of $645). Under these calculations, Smith has substantially overpaid Ashley's support for the years 2004 to 2010. 3.

Smith says I should reject the cumulative approach to his support calculation as this would amount to a transfer of wealth to Boivin which U.V.H. v. M.W.H. , views as inappropriate and as adopted in C.S. v. M.S. Smith asserts that Ashley does not require both Morin and him to pay full up Guidelines support to enjoy a reasonable standard of living. Attached hereto at

Schedule “B” is a

summary of Smith’s calculations relating to the cumulative method of calculation. 4. Smith says a subtraction method of calculation ( i.e. , using Smith’s income as a threshold Guidelines amount and subtracting Morin’s presumptive Guidelines contribution) would be inappropriate, again, given the “passes” that Boivin has given Morin. 5. Smith proposes that he is prepared to continue paying his current amount of $645 per month in addition to maintaining Ashley’s RESP. 6. All in all, Smith asserts that it is a judicial error to order child support for Ashley without taking Morin’s primary support obligation into account. [ 122 ] Boivin’s position on this motion is as follows:

• Smith should pay full up Guidelines support as Ashley’s parent. This amounts to the cumulative approach in determining his support obligation. According to Boivin, Morin’s contributions and income are immaterial to Boivin’s support request from Smith. She relies on the decision in Chartier v. Chartier for this position. Attached hereto at

Schedule “C” is a

summary of Boivin’s calculations relating to ongoing and retroactive support from Smith for years 2003 until and including taxation year 2011. Under these calculations, Smith owes her the sum of $91,891 for retroactive support for Ashley. [ 123 ] In coming to my conclusions, I have considered the following factors: 1. Ashley has two parents in law. Chartier v. Chartier supports the proposition that each is a parent; one’s relationship as a parent cannot be unilaterally terminated. The obligation to pay child support may be joint, what is not clear is how that obligation is to be apportioned; 2. Modern

definitions of parent and child relationships and the question of child support are based on “children first”, “the realities of the modern family” and “a child’s best interests” perspectives; 3. The Ontario Child Support Guidelines contain objectives that the Guidelines are established to provide a “a fair standard of support” and to “benefit from the financial means of their parents”. Those objectives also provide that the Guideline calculations ensure “guidance in setting levels of child support” so that child support levels ensure “consistent treatment of parents or spouses and their children in similar circumstances”;

Section 5 of the Guidelines states that support for a step parent is governed by “such amount as I consider appropriate”, “having regard to the guidelines” and “any other parent’s duty to provide support”; 5. Smith assumed the role of Ashley’s parent, knowing full well at least from 2001 onwards that he was not Ashley’s biological father and that he was committing to paying child support for her. The 2001 minutes of settlement confirm this; 6.

Ashley remains a dependent for support purposes from Smith regardless of the nature of their ongoing relationship, that it may be strained and not a typical “father-daughter” arrangement; 7. Smith was granted and exercised extensive access rights to Ashley in priority to Morin; 8. There may have been a number of boons, passes and calculations in favour of Morin by Boivin but the question at all times is whether this conduct or decision making by Boivin should justify terminating Ashley’s support by Smith. In other words, should Boivin’s actions deprive Ashley of a fair standard of support? I would think not. 9.

Ashley should have the benefit of support by all of her parents, provided it is a fair standard of support; 10. Smith has agreed to continue to contribute at least the sum of $645 per month on account of Ashley’s support so long as she is a dependent. [ 124 ] The piling on of Guideline child support obligations is controversial as the cases reveal. Some jurists say this is wrong in law to do and especially so without fixing or determining what the biological father’s obligation is in the first place. Other jurists argue that Chartier v.

Chartier stands for the proposition that it is immaterial what the biological parent or “other parent” pays — that resort should primarily be to the Guidelines table regardless of the “piling on” effect as the child benefits from the enhanced support. One jurist describes the application of the Guidelines tables to a step-father a rebuttable presumption that he or she must meet. U.V.H. v.

M.W.H. specifically disagrees with the practice of piling on or “full up Guidelines support” for stepfathers as an indirect transfer of wealth or windfall to the child that is inappropriate or contrary to the Guidelines objectives of “fair standard of support”. [ 125 ] The ensuing confusion and differences of opinion have resulted in orders that apportion, deduct, top up or apply percentages in the exercise of discretion when the question of step parent support is calculated. Messrs. Epstein and Frank see U.V.H. v.

M.W.H. as the logical roadmap for stepparent support apportionment and endorse its application. [ 126 ] Can it be fairly said that Boivin engaged in a series of preferences, boons and passes where Morin’s obligations were considered? I think the easy answer to that is yes. Consider these factors: 1. Boivin took no steps to determine Ashley’s paternity following her birth in 1995 until 2001 and Morin did not pay any child support until 2001; 2. Boivin gave Morin a pass when she negotiated less than full up support or the Guideline table amount in 2001 and he paid that “less than full up support” until 2006; 3.

She did not ensure that Morin provided her with ongoing financial disclosure after 2001; 4. She brought no variation proceeding against Morin until 2007; 5. She “forgave” any retroactive variation of Morin’s support from 2003 to 2006; 6. According to her most recent evidence in late 2011, she receives no child support from Morin at all; 7. She has not pressed Morin to provide up-to-date financial or employment information so that his ongoing child support obligation is current and appropriate; 8. From years 2007 to 2010, he paid less than full up child support on his reported income.

The evidence before me does not reveal that Boivin pursued Morin for his significant underpayment; 9. She has not pursued him for his unpaid support at this time. [ 127 ] Compare this with how Boivin has approached the question of child support from Smith: 1. Smith is described as a child of Boivin and Smith’s relationship in a 1997 domestic contract. Under that contract, he temporarily paid reduced child support or “not a full up child support Guidelines amount” as he paid off a dental loan; 2.

Boivin sought to vary Smith’s obligations to Ashley and this resulted in the 2001 Smith minutes of settlement and resulting order where Smith paid full up child support for his income at that time. This clause is to be contrasted with the Morin domestic contract which gave her a right of variation to “determine” if full up Guidelines child support was payable. There was no commitment that Morin ever do so; 3. Boivin’s domestic contract with Morin specifically acknowledged that Smith’s support was considered a priority over Morin’s support obligations; 4.

Smith’s 2001 minutes provided an obligation that he give Boivin up-to-date financial information thereafter;

5. Boivin says she now seeks retroactive support from Smith dating back to 2003 as his prompt failure to disclose his income increases was “blameworthy”; 6. Boivin now seeks full up Guidelines table support from Smith dating back to 2003. She is not prepared to “forgive” any arrears. She calculates she is owed a payment of over $90,000 from him. [ 128 ] It also seems to me that the following factors are equally important in assessing Smith’s obligations: 1.

Schedule “D” is a calculation of what Morin should have been paying pursuant to the Guidelines. Together with Smith’s obligations, this is the child support that Boivin could have been receiving for Ashley; 2. Morin has never paid support for Ashley in accordance with

section 3 of the Guidelines and the full up table amount for his income; 3. Instead of the amounts in

Schedule “D”, Boivin has been receiving the sum of $1,095 per month for Ashley’s support; 4. It cannot be said that Ashley’s standard of living was increased or enhanced by Morin or Smith. The evidence does not reveal that Ashley resided on any basis with either of them so that she had the benefit of their substantial incomes at any time; 5. Under a means and needs test rather than resorting to the Guideline table amounts, Ashley’s current monthly budget is shown at $775.30. Ashley’s proposed budget shows monthly expenses increased to $2,005.62.

Boivin has apportioned one-third to one-half of her total living expenses to Ashley’s care. Such expenses include a house and car purchase; 6. On the hearing, Boivin did not lead evidence on how she arrived at or calculated Ashley’s proposed expenses; 7. On the hearing, Boivin did not lead evidence on why she had not collected what was due and owing from Morin; 8. It may be that Morin is no longer employed and Smith should then share a greater portion of Ashley’s expenses but Boivin did not present evidence as to why Morin was unavailable or incapable of work; 9.

In fixing Smith’s child support obligation, I am faced with options that deduct a percentage of Morin’s child support payment from Smith’s share of child support (such as proposed in Mancuso v. Weinrath and Hewko or Hilliard v. Popal and Dixon ) or simply deducting Morin’s obligations from Smith’s topped up support (as ordered in Reis v. Thompson ) as Morin is not paying support based on his reported income; 10.

Schedule “A” and “B” are schedules that reflect different measures for the calculation of Smith’s obligations. 8: CONCLUSIONS [ 129 ] This case is so peculiar on its own special set of facts that the question of “appropriate” support for Ashley is truly vexing. I am really beset with gaps of critical evidence as to Morin’s present income and support obligations. Judge Zaltz’s order of $450 monthly on account of Morin’s child support is clearly inaccurate and inconsistent with

section 3 of the Guidelines as Morin is making considerably more income than he reported to the court. He has consistently underpaid child support for years, together with passes or boons for retroactive support.

Add to that that Boivin asserts that he is presently paying nothing to her at this time. [ 130 ] Boivin’s choices have limited Ashley’s opportunities for an enhanced standard of living with two payor fathers — Morin and Smith. [ 131 ] The evidence reveals that Morin and Smith may be contributing to education plans with their savings for Ashley but again this is unclear. [ 132 ] I find that piling on child support obligations for Morin and Smith ( i.e. , having them both pay full up Guidelines support) would clearly result in a wealth transfer to Boivin.

In the calculations for Smith’s 2006 income, the total Guidelines amount proposed would exceed Boivin’s proposed monthly expenses for Ashley ( i.e. , $3,830). It is not clear if this exceptional income year qualifies for a recalculation under

section 17 of the Guidelines. Boivin’s proposed child care budget shows

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