Marsh v. Gibson, 2011 ONCJ 275

Toronto (North York) Registry No. D51424/10 DATE: 2011·IV·01 CITATION: Marsh v. Gibson , 2011 ONCJ 275 ONTARIO COURT OF JUSTICE BETWEEN: ANDREA MARSH, Applicant, — AND — MARK GIBSON, Respondent. Before Justice Robert J.

Spence Heard on 29 March 2011 Reasons for Judgment released on 1 April 2011 SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Add-ons — Calculation of contribution — Reasonableness of expense — In relation to means of parents or spouses — Parents of child (now 17 months old) had never married or cohabited — They worked in different sectors of health field but earned about same annual income — Custodial mother worked complex 6-week cycle at local hospital consisting of 12-hour shifts rotated among days, nights and weekends that could sometimes result in her absence from child and home for 13 or 14 hours (including travel time) followed by further absence of 8 or 9 hours if she required immediate sleep — Mother had conducted meticulous research into merits of live-in nanny versus live-out nanny and concluded that latter was best option under these circumstances — In fact, mother had found qualified nanny with standard hourly rate of $12 that would increase to $18 for overtime — Father did not dispute mother’s need for nanny’s assistance but he argued that mother had less costly options open to her — Court was not prepared to dispute mother’s research or her conclusion in favour of live-out nanny but court did agree with father that, regardless of arrangements that mother chose, father’s obligation to contribute had to be limited to what was “reasonable” as defined in

section 7 of Child Support Guidelines — In this case, for those intervals where nanny would otherwise be billing overtime, it would be reasonable for mother to arrange to have second caregiver at standard hourly rate of $12 — Needless to say, mother was still free to retain just one nanny and to pay her overtime, but mother could not pass that additional expense on to father in expectation that he would pay proportional share on inflated amount — Court calculated total numbers of hours of mother’s absence from child and home for 6-week work cycle and multiplied it by $12 to arrive at reasonable nanny-childcare expense for that interval, which court extrapolated to $35,984 per year, on which father was ordered to pay his proportional share.

STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended],

section 7 . Family Law Rules , O. Reg. 114/99 [as amended], clause 14(6) ( e.2 ) and Form 14B. Susan E. Harris ............................................................................. counsel for the applicant mother Barbara J. Puckering ................................................................... counsel for the respondent father [ 1 ] JUSTICE R.J. SPENCE:— The narrow issue in this case is the amount of support the father should be required to contribute pursuant to

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended (“Guidelines”), for nanny-childcare expenses, incurred by the mother. [ 2 ] On 1 November 2010, the parties consented to an order granting sole custody to the mother. That order is silent as to access.

[ 3 ] In order to resolve the nanny expense issue, the court must first decide the following: 1. the respective incomes of the parties; 2. the actual nanny expense incurred — or likely to be incurred — by the mother; and 3. whether it is reasonable for the father to contribute his proportional share of that actual expense, or whether he should be contributing some lesser amount. 1: BACKGROUND [ 4 ] The child (Owen) is approximately 17 months old. He was born as a result of a brief relationship between the parents.

The parties never married; nor did they live together. [ 5 ] The father works as a paramedic for the City of Toronto. The mother works as an emergency room nurse for Sunnybrook Health Sciences Centre. [ 6 ] It is not disputed that, for the purposes of calculating support, the father’s annual income is approximately $97,519 per year. As a result, the father has agreed to pay the Guideline table support of $857 per month.

He has also agreed to pay his proportionate share of the mother’s medical and dental plan in respect of the child, amounting to $648 per year, and the cord blood banking cost of $177 per year. 2: THE LAW [ 7 ] The court’s jurisdiction to order the father to contribute to the nanny expenses arises from

section 7 of the Guidelines , which provides, in part [my emphasis]: 7. Special or extraordinary expenses.—

(1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under

section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; . . .

(2) Sharing of expense.— The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. 3: THE MOTHER’S INCOME [ 8 ] The mother argues that, for the purposes of determining

section 7 expenses, I should impute her income at approximately $82,000 per year. She bases this on the letter from her employer which states that “her gross monthly salary is $6,776 ($41.70 hourly)”. The father argues her income should be imputed at a much higher level given her history of overtime, as well as the evidence of how much she has earned so far in 2011. [1] I have concluded that the best evidence of the mother’s likely income for 2011 is her income to date for 2011, extrapolated over the entire year.

For her pay period ending on 18 March 2011, the mother earned gross income of $21,763, covering six two-week pay periods, or an average of $1,813 per week. This extrapolates to approximately $94,306 per year. For purposes of deciding the issue before me, I impute this amount to the mother on an annual basis. [2] [ 9 ] The father’s proportionate share of the total incomes of the parties is almost 51% ($97,519 divided by $191,825). [3] 4: THE NANNY EXPENSES [ 10 ] The mother works a difficult and complicated 6-week shift rotation at Sunnybrook Hospital.

These generally consist of 12-hour shifts rotating among days, nights and weekends. However, these shifts are not necessarily predictable and can result in overtime requirements. Accordingly, she must have a degree of flexibility when it comes to her child care arrangements. Compounding this is the fact that she may arrive home early in the morning, after being absent from Owen for 13 or 14 hours (including travel time), and then go straight to sleep for 8 or 9 hours.

This necessitates continuing child care, as the mother is sleeping while Owen is awake and active. [ 11 ] The parties each filed extensive documentation on what each expects the nanny expenses should be on a go-forward basis. In the mother’s case, she estimates that the total annual cost of a live-out nanny will be $41,500 per year. The father accepts that a nanny, or child-care expense, is a necessary expense as defined by

section 7 , but he argues that there are less costly alternatives than what the mother has proposed. He would be willing to pay his proportionate share of an annual child-care expense in the range of $20,000 to $25,000. [ 12 ] The father argues that the mother is free to make whatever arrangements she wishes for Owen’s care, but his own obligation to contribute should be limited to what is “reasonable” as defined in

section 7 of the Guidelines . I agree with that argument.

[ 13 ] The mother conducted very extensive research, including interviews with potential caregivers and discussions with various agencies to ascertain what might work for Owen and the costs involved. The father had suggested that a live-in caregiver might be less costly than the live-out option chosen by the mother. There appears to be pros and cons of both options.

The pros and cons include financial considerations, but they also include such things as whether a nanny is willing to work the difficult hours that are required, and the need to have reliable and dependable day care on which the mother can count. [ 14 ] Based on the evidence, I am not satisfied that a live-in nanny would in fact be a less expensive option, after taking into account the additional costs of food, utilities, furnishings and agency fees.

As well, because of the complexity of the mother’s schedule, a live-in nanny would have to agree to work very extensive hours, failing which she would be free to leave her employment, necessitating a renewed search by the mother for child care. This renewed search would not only disrupt her child-care arrangements, and possibly place her job in jeopardy, but it would also result in further nanny agency fees being incurred by the mother. [ 15 ] On the father’s own evidence, [4] the mother requires child care for 346 hours during each six-week period.

Week 1 requires 90 hours of child care, and week 6 requires 67 hours of child care, with the other four weeks ranging from 40.5 hours to 54 hours per week. The most serious complication is that weeks 6 and 1 run back-to-back and require a total of 157 hours of child-care over a two-week period. There are legal restrictions dealing with overtime, including the need for an employee to consent to working these kinds of hours.

Consequently, the mother had had to juggle these considerations, as well as the other financial considerations in coming to the option that she ultimately chose. [ 16 ] The live-out nanny (“Christine”) whom the mother did hire to care for Owen is an early childhood educator (“ECE”). Christine deposes that live-out nannies with ECE qualifications can generally expect to be paid in the range of $12-$16 per hour. However, Christine has agreed to work for a pay rate of $12 per hour, and $18 per hour for hours worked in excess of 88 hours bi- weekly. [ 17 ] The mother’s research has been exhaustive.

In the circumstances, I am not prepared to second-guess the mother’s research and her ultimate decision regarding the appropriateness of a live-out nanny versus a live-in nanny. I might have taken a different view if the income differential between the parties was so great that the mother’s expectation was that she could purchase the “Cadillac” of day care knowing that the father would have to pay for most of that expense.

However, in these circumstances, where the mother will be paying for essentially one-half of this expense, it is not in her own financial interests to take on a more expensive option if a less costly option would work equally as well for her and for Owen. [ 18 ] That said, I am not persuaded that it is reasonable to expect the father to pay for overtime at the rate of $18 per hour for non-specialized child care. [5] It is this overtime component that appears substantially to add to the overall cost of childcare.

I am not critical of the mother’s decision to hire Christine; nor am I critical of Christine herself for seeking time-and-a-half for overtime beyond 88 hours bi-weekly. Nevertheless, in my view, it is reasonable to believe that the mother could arrange for that overtime component to be covered by a second caregiver at the rate of $12 per hour. That is not to say that the mother is not free to make whatever arrangements she wishes, including having only one caregiver, and including paying that caregiver $18 per hour for a portion of the childcare.

Rather, the issue is about what is reasonable in the circumstances, in terms of the father’s requirement to contribute to the child-care expenses. [ 19 ] Accordingly, I do not accept the mother’s calculation of $41,500 as an annual cost for which the father should be required to contribute proportionally. Nor do I accept the father’s range of between $20,000 and $25,000. His figures are unrealistic in the unique circumstances of this case.

Instead, I take the total number of hours per six-week period (346) required for childcare, and multiply that by a rate of $12 per hour, for a total of $4,152 per 6-week period. That comes to $35,984 per year for child care costs. I recognize that this amount, while much less than the $41,500 proposed by the mother, is still not an inconsiderable cost for childcare. However, that cost must be weighed in the context of an annual combined income of over $190,000.

Further, in the life of this child, it will remain at that level for a relatively short period of time, until Owen is in school full time, at or around the age of five years, at which time the child-care costs should begin to decline appreciably. [ 20 ] As I noted earlier,

section 7 expense contributions may be ordered by the court having regard to 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 parents. The guiding principle is always that the expense is to be shared in proportion to the parties’ respective incomes. [ 21 ] Based on the foregoing, I have concluded the following: 1. the nanny expense is necessary to enable the mother to perform her employment duties; [6] 2. a reasonable amount for that expense, for apportionment purposes, is $35,984 per year; and 3. I see no reason to depart from the guiding principle set out in

section 7 of the Guidelines , that the day-care costs should be shared proportionally by the parents. Specifically, I would not require the father to pay less than his proportionate share of $35,984. In that regard, I rely also on my observations set out in the following paragraph of my reasons. [ 22 ] In considering the “means” of the father and in the overall exercise of my discretion, I take into account not only the absolute number of dollars that he earns on an annual basis, but the fact that he would appear to have no unusual or burdensome expenses for which he is responsible.

In fact, when he filed his financial statement, he specifically declined to disclose his expenses, setting out only his income and assets. I infer from that non-disclosure that he has only himself to support, as well as minimal other financial obligations. [7] [ 23 ] While counsel did provide me with a number of Divorce-Mate calculations, I was not provided with any calculations that incorporate the income and child-care figures at which I have arrived in these reasons. As a result, I have had to use those figures in my own Divorce-Mate calculations, which I attach as Appendix “A” to my reasons.

As the calculations reveal, the father is to pay a total $2,281 per month for child support, made up as follows:

1. table support — $857; and 2. nanny expenses, cord blood banking and medical health insurance — $1,424. 5: CONCLUSION [ 24 ] The order of the court is as follows: 1. Commencing on 1 September 2010, the father shall pay to the mother, for the support of Owen, the sum of $2,281 per month, with credit to the father for amounts paid by him pursuant to my order dated 1 November 2010. 2. On or before 1 June each year and for so long as the mother seeks contribution toward

section 7 expenses, the parties are to make full reciprocal financial disclosure, including reasonable documentation verifying the expenditures incurred by the mother in respect of

section 7 expenses. 3. At such time as the mother no longer seeks contribution toward

section 7 expenses, on or before 1 June each year the father is to make full financial disclosure to the mother. [ 25 ] These orders are in addition to the orders that I made at the outset of argument pursuant to the consent filed by the parties on 29 March 2011. [ 26 ] In the event that I have made any arithmetic miscalculations, the parties are to contact me by motion via Form 14B under clause 14(6)( e.2 ) [procedural, uncomplicated or unopposed matters] of the Family Law Rules , O.

Reg. 114/99, as amended, within 10 days of the date of the release of this decision, with the necessary corrections, so that I may make the needed adjustments to my order. [ 27 ] Should either party wish to make costs submissions, these are to be made orally, and the parties are to contact the trial scheduling office for a mutually agreeable date.