Baker v. Webb, 2016 NSSC 367

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Baker v. Webb , 2016 NSSC 367 Date: 2016-04-14 Docket: SFH MCA 091137 Registry: Halifax Between: Kaitlin Baker Applicant v. Justin Webb Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore

Summary: Mother applied for child support and a proportionate sharing of the costs for child care and medical equipment (epi- pens). Father’s claim for undue hardship dismissed and child support awarded. Key words: Family, Child support, Undue hardship Legislation: Provincial Child Support Guidelines , NS Reg. 53/98,

section 10 THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Baker v. Webb , 2016 NSSC 367 ENDORSEMENT Kaitlin Baker v. Justin Webb 2010 SFH MCA 091137 April 14, 2016 Tammy Wohler represents Kaitlin Baker Justin Webb appeared without a lawyer Application: Kaitlin Baker applied for child maintenance and a proportionate sharing of the costs for child care and medical equipment (epi-pens ). Decision:

Justin Webb shall pay monthly child maintenance of $707.44 for Chayse and Cole Webb. Payments shall be made through the Maintenance Enforcement Program to Kaitlin Baker. Annually, starting on June 1, 2016 and by June 1 of every year, Justin Webb and Kaitlin Baker shall provide each other with a copy of his or her personal income tax return and all attachments. Reasons: Introduction 1 . Chayse and Cole Webb are Justin Webb’s children. They live with their mother, Kaitlin Baker. In 2014, Ms. Baker applied for an order relating to the children’s parenting and maintenance. In January 2016, Mr. Webb agreed that Ms.

Baker would be the boys’ sole custodian and that he would have no contact with them. 2 . I’m left to determine how much child maintenance Mr. Webb will pay for the children. Ms. Baker wants both the table amount calculated under

section 3 of the Nova Scotia Child Maintenance Guidelines NS Reg. 53/98 and a contribution to her expenses for child care and epi-pens. Mr. Webb says that he will experience undue hardship if he is ordered to pay the table amount. Analysis 3 . I’ll address Mr. Webb’s undue hardship claim first. If I decide that Mr. Webb would suffer undue hardship when paying child maintenance calculated under

section 3 of the Nova Scotia Child Maintenance Guidelines , this will have an impact on my decision about a contribution to child care and epi-pens. First issue: would Mr. Webb suffer undue hardship if I ordered him to pay child maintenance calculated under

section 3 of the Nova Scotia Child Maintenance Guidelines ? 4 . Mr. Webb has the burden of proving he will suffer undue hardship if I order him to pay child maintenance calculated under

section 3 of the Child Maintenance Guidelines . 5 . Mr. Webb says that he must support the children in his new family. There are four children in this family. His wife has two children from a previous relationship. As well, Mr. Webb has a child from a previous relationship. Together, they have a newborn child. Neither Mr. Webb nor Ms. Webb receives child maintenance for these children. 6 . There are two steps in deciding undue hardship claims. First, some circumstance capable of creating undue hardship must exist. Only when this circumstance exists can I consider the second step.

Second , the standard of living in Mr. Webb’s household must be lower than the standard of living in Ms. Baker’s household. 7 . I dismiss Mr. Webb’s claim of undue hardship for two reasons: he has not shown that a circumstance exists which would cause undue hardship if he was ordered to pay child maintenance under

section 3 of the Guidelines and the standard of living in his household is not lower than the standard of living in Ms. Baker’s household. Is there a circumstance that might cause undue hardship? 8 . Mr. Webb claims that his support for his partner’s two children, his older son, and the baby they have together is a circumstance that would cause undue hardship if he was order to pay child maintenance under

section 3 of the Guidelines . 9 . Specifically, clause 10(2)(

d) says that to qualify as a circumstance causing undue hardship, the obligation to support other children is “ a legal duty to support a child, other than” the two children who are the focus of this application. The duty must be a legal one, not merely a choice to support other children. 10 . There is no agreement or order requiring Mr. Webb to support Ms. Webb’s children. Mr. Webb has not adopted them, though he has expressed an intention to do so, saying that he’s saving up to do this. Mr. Webb is neither a parent nor a guardian under the Maintenance and Custody Act , R.S.N.S. 1989, c. 160,

section 8. He and Ms. Webb married in May 2015. They have not yet cohabited for a year as spouses. But for his testimony that he intends to adopt Ms. Webb’s children, I would have no basis for concluding that he stands in the place of a parent to them, so as to have a legal duty to support them under the Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3. 11 . It is clear that Mr. Webb has a legal obligation to support those two children who live with him and are his biological children. 12 . Mr. Webb’s circumstances are similar to those described by clause 10(2)(

d) of the Child Maintenance Guidelines . This is not enough: Mr. Webb must prove that his obligation to support these children would cause undue hardship if he was ordered to pay child maintenance calculated under

section 3 of the Guidelines . 13 . I heard testimony from Mr. Webb and Ms. Webb. Each filed a sworn Statement of Income and Ms. Webb took

part in preparing the Statement of Expenses which outlined their household expenses.

14 . Mr. Webb repeatedly said that he could not afford to pay any more than $250.00 in monthly child maintenance because of the expenses in his household. His wife confirmed this. Both noted that when the Statement of Expenses was filed, they didn’t consider the costs associated with their baby. 15 . According to Mr. Webb the baby’s monthly costs are an additional $200.00 for diapers and formula. 16 . According to Ms. Webb, the baby’s costs are: a. $50.00 for a package of 200 diapers. The baby wears 8 – 9 diapers each day, so a package would last no more than twenty-five days.

Diapers would cost approximately $60.00 each month. b. $50.00 for a case of baby formula which lasts five days. Formula would cost approximately $300.00 each month. c. An unknown amount for clothing and toys. 17 . As well, Mr. Webb purchased a minivan because Ms. Webb’s Cadillac couldn’t transport all the children. Ms. Webb didn’t know what the minivan cost. She said that there was no car payment associated with the minivan. There is a monthly payment of $530.00 owing on the Cadillac, which is for sale. Ms. Webb says that $40,000.00 is still owed for the Cadillac. 18 .

The Webbs’ monthly expenses (without the baby’s costs) are more than $7,700.00 – approximately $92,400.00 annually. This does not include income tax. If I accept Ms. Webb’s estimate of the baby’s costs, their annual spending exceeds $96,500.00 – again, after they would have paid the income tax on this sum. 19 . I reject the evidence of Mr. and Ms. Webb about their expenses. It was not credible.

While they claimed an annual deficit of over $32,000.00, their Statement of Expenses disclosed no bills for credit cards, lines of credit, demand loans or any other forms of borrowing (aside from the $530.00 car loan). 20 . I also reject Mr. Webb’s argument because his household’s financial circumstances are not reasonable. While saying he cannot afford to pay more than $250.00 in maintenance for Chayse and Cole, he and his wife are not approaching their financial circumstances in a reasonable way. For example: a. Mr.

Webb has made no effort to find work during the six to eight months each year when he is unemployed. He said his education was limited and he could do no other work than he did for Dexter’s. In contrast, Ms. Webb testified that Mr. Webb had worked in the past doing plowing, using his father’s truck; b. Mr.

Webb has not investigated subsidized daycare for the three older children who live with him; c. though both spouses are at home and not employed, they continue to pay a friend $800.00 each month to provide after school care to the three school age children; d. though neither spouse is working, they spend $600.00 for gas each month; e. while Mr.

Webb says he cannot afford to pay child maintenance for Chayse and Cole, each month his household spends $300.00 on Christmas, birthdays and gift-giving; $300.00 on entertainment; $200.00 on allowances and activities for the children; and $380.00 on telephones and cable television. 21 . Because the evidence about their expenses is not credible or reasonable, Mr. Webb has not proven that his support for the four children in his home is a circumstance which would cause him undue hardship if I ordered him to pay child maintenance calculated under

section 3 of the Guidelines . 22 . My analysis could stop there: only if there is a circumstance which would cause undue hardship am I required to compare household living standards: see Gaetz , 2001 NSCA 57 at paragraph 15 . 23 . I will conduct the second step of the analysis to show that even if Mr. Webb had proven an undue hardship circumstance, his claim would fail.

Is the standard of living in Mr. Webb’s household lower than the standard of living in Ms. Baker’s household? 24 . The Nova Scotia Child Maintenance Guidelines outline how to calculate and compare household living standards in

Schedule II. 25 . For Mr. Webb, I start with his annual income. He has an annual income of $27,900.00 from Employment Insurance benefits. I deduct from this his income taxes which I estimate at $4,170.00. While unemployed, Mr. Webb pays no Employment Insurance or Canada Pension Plan premiums. At an annual income of $27,900.00, Mr. Webb would pay monthly child maintenance of $406.00 ($4,872.00 annually). Deducting his taxes and child support from his annual income leaves Mr. Webb with income of $18,858.00. 26 . Ms. Webb has annual income of $24,596.00 from Employment Insurance benefits. I estimate her taxes at $3,149.00. This means Ms. Webb has an income, for the purposes of

Schedule II, of $21,446.72. 27 . The Webbs’ total household income is $40,305.00. There are two adults and four children in their home. The low income measure amount for this sort of household is $26,993.00. The Webbs’ household standard of living is 1.49 times greater than the low income measure. 28 . Ms. Baker has annual income of $18,240.00 derived from various sources. By virtue of her child care expense, she pays no income tax. She pays $234.29 in Canada Pension Plan premiums and $130.06 in Employment Insurance premiums, which I must deduct from her income.

I must add the child maintenance she’d receive from Mr. Webb ($4,872.00), so her income is $22,747.65. 29 . Ms. Baker’s household is comprised of one adult and two children. The low income measure for such a household is $17,649.00. Her household standard of living is 1.29. 30 . The standard of living in Mr. Webb’s household (1.49) is higher than the standard of living in Ms. Baker’s (1.29). 31 . I must deny Mr. Webb’s undue hardship claim because his household’s standard of living is higher than Ms. Baker’s: see subsection 10(3) of the Child Maintenance Guidelines . 32 .

Starting on April 15, 2016 and continuing on the fifteenth day of each following month, Mr. Webb shall pay child maintenance of $406.00 for Chayse and Cole Webb. Second issue: whether and, if so, how much Mr. Webb should contribute to the children’s special or extraordinary expenses? 33 . Ms. Baker says her annual expense for child care is $9,808.00 (after tax). This includes only the child care expense she incurs during the day, not while she works evenings or weekends at her second job. 34 . Neither Chayse nor Cole attends school yet. 35 . I conclude that child care expenses are necessary for Ms.

Baker to go to school and, as graduation approaches, they will be necessary for her employment. She has already begun to work, though her job is not permanent. 36 . Ms. Baker asks that Mr. Webb pay a proportionate share of the child care cost. She estimates this at $509.00 per month. 37 . The guiding principle for sharing expenses is that they be shared proportionately: see subsection 7(2) of the Guidelines . 38 . I may deviate from this principle and I choose to do so here. Ms. Baker’s disposable income is $22,747.65.

She receives the Canada Child Tax Benefit and the HST rebate, which add $9,891.84 to her annual disposable income, bringing it to $32,639.49. Mr. Webb’s discretionary income is not so great: it is approximately $ 18,858.00 . 39 . I order the net of tax child care cost to be shared in proportion to the parents’ disposable incomes. Mr. Webb shall pay thirty-six percent of the cost, $294.24 each month, beginning on April 15, 2016. 40 . Ms. Baker buys epi-pens in case Chayse has an allergic reaction. So far, she has purchased two at a cost of $240.00. She has no insurance. 41 . The epi-pens are necessary.

Chayse has been taken to the hospital in the past because of his allergic reactions.

42 . Like the child care expense, I order that this cost be apportioned between the parents, proportionate to their disposable income. Mr. Webb shall pay $86.40 toward the purchase of epi-pens annually. Mr. Webb shall pay $7.20 each month, beginning on April 15, 2016 toward this cost. Conclusion I dismiss Mr. Webb’s undue hardship claim. I order Mr. Webb to pay monthly child maintenance of $406.00 pursuant to

section 3 of the Nova Scotia Child Maintenance Guidelines , $294.24 pursuant to clause 7(1)(

a) of the Guidelines , and $7.20 pursuant to clause 7(1)(

b) of the Guidelines . Mr. Webb’s total monthly payment, beginning April 15, 2016 and continuing on the fifteenth of every following month is $707.44. Payments shall be made through the Maintenance Enforcement Program to Kaitlin Baker. Annually, starting on June 1, 2016 and by June 1 of every year, Justin Webb and Kaitlin Baker shall provide each other with a copy of his or her personal income tax return and all attachments. Directions: Ms. Wohler shall prepare the order and forward it to me to be reviewed and endorsed. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)