Rogers v. Fleet, 2016 NSSC 189

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Rogers v. Fleet, 2016 NSSC 189 Date: 20160720 Docket: SFHMCA 061412 Registry: Halifax Between: Christy Louise Rogers Applicant and Adam Daniel Fleet Respondent Judge: Associate Chief Justice Lawrence I. O’Neil Heard: March 9, 2016 in Halifax, Nova Scotia Counsel: Christie Rogers, Self Represented Adam Fleet, Self Represented By the Court : Introduction [ 1 ] By order dated January 13, 2016, Mr. Fleet was ordered to pay child support of $663.00 each month for the support of his daughter, date of birth March 22, 2007. This order did not vary Mr.

Fleet’s earlier Court ordered obligation to pay $222 per month for special or extraordinary expenses, which requirement is contained in a 2010 order as a contribution to meet the child care expense. [ 2 ] Mr. Fleet accepts an obligation to pay the table amount of child support for his daughter. That amount is $663 each month. [ 3 ] Mr. Fleet has asked the Court to not order him to contribute to the claimed child care cost of $222 per month. As stated, he is currently subject to an order to pay this amount. His daughter lives primarily with her mother. Mr.

Fleet earns $78,394 per year and his former partner earns less than $30,000 per year. Mr. Fleet filed an Undue Hardship Application on February 12, 2016.

[ 4 ] Mr. Fleet says his claim of undue hardship supports his argument that he should not be required to assume part of his child’s child care expense. He argues that although the child’s mother has a modest income per annum, she lives with her parents and the income of her parents should be considered when the merits of his undue hardship application are being assessed. Mr.

Fleet says he supports another child and is enrolled in a five (5) year debt repayment program and these factors weigh in favour of his not being required to contribute to the child care expense related to the parties’ daughter. [ 5 ] In addition, he says that child care expenses were charged by Ms. Rogers’ parents in earlier years and a contribution to the child care expense was paid by Mr. Fleet during period(

s) when Ms. Rogers was unemployed. He says these payments were effectively over payments by him. [ 6 ] In her letter filed with the Court and dated February 9, 2016, Ms. Rogers says she received employment insurance benefits for the period April 2012 to September 2012. She also claims child care expenses in 2014 including $661.50 paid for the excel program at school and $375.00 for child care in July and August 2014. She says $2,000 was also paid to her mother for child care for the period January to June 2014 and for the period September to December 2014. [ 7 ] Ms.

Rogers says payments to her mother were ineligible for a tax benefit because of the family relationship. Conclusion [ 8 ] The Child Support Guidelines, SOR/97-175 permit the Court to deviate from the child support tables when ordering child support under certain circumstances. If the Court is satisfied ordering the table amount of child support would cause undue hardship for a payor, it may make a child support order deviating from the child support tables. (Section 10 of the Child Support Guidelines). Herein, Mr.

Fleet does not object to paying the table amount of child support. [ 9 ] The parties are reminded of the language of

Section 10 of the Child Support Guidelines: Undue hardship 10

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. [ 10 ] The undue hardship provision does not apply to s.7 payments directed to be made as a contribution to meeting a child’s special or extraordinary expense. The Court will therefore not order Ms. Rogers to disclose her parents’ incomes as part of her obligation to disclose her household income, as is the case when undue hardship is raised by a prospective payor. [ 11 ] However,

Section 7 of the Child Support Guidelines permitting the Court to order the payment of special expenses has a discretionary component. A prospective payor need not show undue hardship to persuade a Court a contribution to a child’s special expenses should not be ordered.

Section 7 provides: 7.

(1) Special or Extraordinary Expenses In a child support order the Court may, on either spouse’s request, 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 spouses and those of the child and to the family’s spending pattern prior to the separation:

(

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 spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. . . . . . [ 12 ] The Court therefore does not find it necessary to consider Mr. Fleet’s undue hardship application as a basis for not ordering a contribution by him to meeting this expense. The Court will therefore not order Ms.

Rogers to produce the income information of other persons in her household. [ 13 ] The parties will be provided a return date to make submissions on whether a contribution to the child’s child care expense should be ordered. ACJ