Sheppard v. Perry, 2014 ONCJ 552

Court File: 119/12 DATE: 2014-10-24 Citation: Sheppard v. Perry , 2014 ONCJ 552 Ontario Court of Justice Orangeville BETWEEN: MATTHEW RYAN SHEPPARD Applicant (Responding Party) and EMMA JAYNE PERRY Respondent (Moving Party) Heard: October 22 nd , 2014 Released: October 24 th , 2014 Justice B. E. Pugsley Appearances: Applicant and Wendela Napier Respondent and Duty Counsel Daniel Pole ENDORSEMENT 1 . This is a motion brought by the Respondent (mother) for interim child support and interim spousal support pursuant to the Family Law Act RSO 1990 c. F.3 as amended. Ms.

Napier appeared as counsel for the Applicant (father) on a limited retainer to argue the motion. 2 . The parties cohabited from on or about June of 2007 until the summer of 2012. They have one child: Dylan Robert Sheppard (M) (DOB: July 31 st , 2008). They have agreed to share residential care of Dylan between them equally. 3 . Immediately after the separation of the parties the Applicant commenced the Application herein. The Respondent’s answer did not engage the issue of spousal support. On consent, in July of 2014 the Respondent was permitted to amend her Answer to include such a claim. 4 .

The parties disagree on two issues: the amount of child support and the entitlement to and amount of spousal support. 5 . The parties’ respective income is unequal. The quantum of child support that should be paid by the higher income earner (the Applicant) to the lower income earner (the Respondent) is the first area of dispute between the parties. 6 . The Applicant is an auto worker and submits that his annual income for 2014 will approximate $66,138.00, based on an extrapolation of his year to date.

The Respondent submits that the Applicant’s income for 2014 ought to be based on his last full year’s income: 2013: $72,328.00. The Respondent’s income is about $30,900.00 per year for the purposes of this motion. 7 . Historically, the Applicant’s disclosed employment income (adjusted to deduct his union dues pursuant to

schedule III of the Child Support Guidelines (Ontario) O.Reg. 391/97 as amended)(the Guidelines ) has been as follows: 2011: $64,956.00; 2012: $59,608.00; 2013: $72,328.00. 8 . The Applicant submits that he should pay the Respondent as child support on a differential basis the monthly sum of $348.00 per month based upon the best evidence of what he will make this year: about $66,138.00. He states that he had more hours and fewer layoffs in 2013 than this year and that his employment income is subject to the vagaries of the sales of the products produced by Chrysler Canada in Brampton from year to year. 9 .

The Respondent submits that the proper way to discover the Applicant’s income is to look to the last income tax he has filed with the Canada Revenue Agency: $72,328.00 in 2013. 10 .

Section 15 of the Guidelines sets out how the income of the support payor is to be determined.

Section 16 provides that the starting point is the line item “Total Income” (Line 150) in the payor’s tax return, adjusted under

schedule III. That would indeed be

$72,328.00. Section 17 (1) provides that where a court believes that the

Section 16 calculation “would not be the fairest determination ofthat income”, the court may look to the last three years of the payor’s income to try and determine a fair amount. Here that would beyears 2011, 2012, and 2013, because 2014 is not yet complete. The Guidelines do not restrict the discretion of the court in approachingsection 17 (1), nor does the law require that the three years’ income be averaged although an average of those three years leads to anannual sum of about $65,600.00. The Applicant by his own evidence looks to a better year than that in 2014.

There is no evidence as towhether the Applicant’s income is spread evenly over the calendar year as the employer’s production changes month to month orbetween model years. 11. Because the parties are very close on the issue of the Applicant’s annual income, and share custody, the actual difference in theamount paid between the Applicant’s calculation and that of the Respondent is about $60.00 per month. 12. Bak v.

Dobell 2007 ONCA 304 , [2007] O.J. 1489 (Ontario Court of Appeal) notes that the drafter’s decision to start withthe presumptive Line 150 amount was intended to be a clear and easily accessed source of the payor’s income, with limited discretiongiven to the court to adjust that figure under

section 17. In my view this is entirely in accordance with the overall aim of the Guidelinesthemselves: to provide a quick and relatively easy means to ascertain the amount of child support that a payor ought to pay based ongross income and the number of children. The Guidelines were never intended to be perfect, only fair and speedy. This intention favoursa presumptive reliance on the

section 16 default income determination. 13. The Applicant submits that the Line 150 income needs to be changed to reflect what his current October income suggests his 2014year end income will be. By implication this would be the “fairest” determination of his income. As I have just observed however, theintent of the drafters of the Guidelines is simplicity and predictability. Essentially what the Applicant is asking me to do is to overridethe plain wording of

section 16 because his income may not be as high this year as last. Annual income levels are rarely identical everyyear. I do not believe that

section 17 is an invitation to the court to abandon the

section 16 presumption every year based on a fairnessassessment as this frustrates the presumptive reliance on

section 16. Further, I do not believe that a difference of $15 dollars a weekchild support engenders a resort to a fairness analysis. 14. The Applicant submits that he has to pay $800 per month to go back and forth to work. This is not a proper deduction from the Line150 amount and does not lead to a fairness argument. 15. Further, had the matter been argued in May when the motion was served the

section 16 default income was well established at over$72,000.00, and unavoidable. Support ought to have been paid at the higher rate long ago. It is also notable that the issue here is interimsupport. If circumstances and income change the final order can adjust support. 16. I decline to adjust the income determined under

section 16 of the Guidelines and the Applicant’s income for child support purposesis $72,328.00 per year. 17. Based on the differential in the incomes of the parties the proper sum payable by the Applicant to the Respondent for child support is $403.00 per month. The Respondent’s motion for interim child support was issued on May 20th, 2014. A proper start date for the support payable here is therefore June 1st, 2014. The Applicant has been paying child support in the interim and should be credited forthose payments when calculating any arrears resulting from this start date. 18.

The Respondent after two years of litigation only now amends her claim to seek spousal support from the Applicant. Her motion isfor interim spousal support. Such an interim order is to be focused on tiding the parties over until the issue of final and retroactivespousal support can be determined on a full body of evidence. Here the Respondent has been able to make ends meet since separationwithout spousal support. In my view the Respondent clearly gets past the

section 29 threshold definition of spouse in the Family LawAct based on both the length of time the parties cohabited and the birth of Dylan, but the evidence sufficient to apply the principles of aspousal support order, and the calculation of the quantum of any such order is both limited on this record and highly contested. The factthat the parties do not make the same income is not the only factor to be assessed. Any order that may be made after the evidence of theparties has been tested in the crucible of cross-examination can be made retroactive. I decline to make an interim spousal support ordertoday. 19.

The Applicant filed an offer to settle the motion. The offer was for a lesser amount of child support and no spousal support. Neitherparty has been completely successful on the motion. There shall be no order for costs. 20. Therefore a temporary order shall issue: 1. Commencing on June 1st, 2014, and on the 1st day of each month thereafter, the Applicant (father) shall pay to the Respondent (mother) for the support of the child of the parties Dylan Robert Sheppard (M)(DOB: July 31st, 2008) the monthly sum of $403.00.

Thissum is based upon the Child Support Guidelines (Ontario) for one child under the shared custody of the parties and applied to thedifference between the Applicant’s annual income of $72,328.00 for 2013, and the Respondent’s annual income of $30,900.00 for 2013. 2. Any payments made by the Applicant on account of the previous child support order herein shall be credited towards any arrearscreated by this order. 3. Support Deduction Order is made. 4.

The Respondent’s claim for interim spousal support is dismissed without prejudice to her claim for spousal support being revisitedif desired at a trial of this issue. 5. No costs. ________________________

Justice Bruce E. Pugsley