A.A., Applicant, – v. –, 2023 NBKB 210

FDM-13-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: November 30, 2023 Neutral Citation: 2023 NBKB 210 BETWEEN: A.A., Applicant, – and – J.A., Respondent. DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, N.B. DATES OF HEARING: September 27, 28 and 29, 2023 DATE OF DECISION: November 30, 2023 APPEARANCES: For the Applicant, herself For the Respondent, himself

Summary: Divorce Act – Parenting time - Calculation of 40% threshold – Child support – Retroactive child support - Undue hardship BÉLANGER-RICHARD, J.:

INTRODUCTION [ 1 ] The parties separated in 2016. They are the parents of two children, C. (17 years old) and A. (14 years old). [ 2 ] For the last seven years, the two children have been following the same routine, living with their mother from Monday morning until Friday evening and staying with their father every weekend. [ 3 ] Following the separation, the father did not pay child support. In 2019-2020, he paid some but then stopped.

After the filing of these proceedings, the father was ordered to pay, on an interim basis, the Guideline table amount of child support for two children. [ 4 ] In this divorce proceeding, the father asks for a parenting arrangement that would allow the children to alternate every 7 days between their parents’ homes. If the parenting arrangement remains as it has been since 2016, the father alleges that over the course of a year, he exercises at least 40% of parenting time with the children and therefore, he should not be paying the Guideline table amount of child support.

If the father must pay the Guideline table amount, he claims that there is a situation of undue hardship warranting a different amount of child support. [ 5 ] Having heard and received the necessary evidence, I grant a divorce to the mother on the ground that the parties have been separated for over a year pursuant to section 8(2) (

a) of the Divorce Act . TERMS AGREED UPON BY THE PARTIES [ 6 ] At the hearing, the parties agreed on the following terms and they shall be part of the final Order: 1. The parties will have joint decision-making responsibility and in case of a disagreement, the mother will have the final say. 2. However, if there is a health emergency, the parent having the care of the children at the time can make the decision and the parent shall immediately contact the other parent to inform him or her about the health emergency. 3.

Both parents will have the right to receive information concerning the health, welfare and education of the children either directly from the other parent or directly from any third party involved with the children. 4. Each parent must respond to questions or requests from the other parent within 48 hours. 5. The parents will make arrangements to share the holidays and special occasions, including Thanksgiving, Christmas, Family Day and Easter. 6.

Both parents will continue to maintain their children as beneficiaries under their respective health plan with each parent being responsible to pay the premiums of their health plan. 7. Regarding A.’s braces, the parents will share, in proportion of their incomes, the remaining cost. 8. No later than June 1 st of each year, the parents will provide to the other income information. 9. The mother is entitled to 50% of the pension benefits accumulated by the father through his employment during the period of cohabitation, being from December 2002 to January 1, 2016. 10.

The father shall reimburse the mother the sum of $4,451.74 representing 50% of the amount paid by the mother against a judgment obtained in relation to the marital home. The father shall also reimburse the mother 50% of any sum of money that she may pay in the future against that judgment. ISSUES [ 7 ] In this divorce proceeding, the following four issues require a determination: 1. What parenting time

schedule is in the best interests of the children? 2. How can the parenting arrangement that the parties have had since 2016 be characterized for the purposes of child support, retroactively and if the same parenting

schedule remains, on a prospective basis? 3. What child support should be paid, retroactively and prospectively? 4. If the Guideline table amount is ordered, does the father suffer from undue hardship?

POSITION OF THE PARTIES [ 8 ] The mother wants to continue the same parenting arrangement that has been in place since 2016 for the following four reasons: − the children have been doing well in her care; − the current parenting arrangement provides stability to the children; − she can fulfill all the needs of the children; and − the father would be unable, physically, financially and emotionally, to provide for the children’s needs with the parenting time

schedule that he proposes. [ 9 ] The mother claims that since the separation, the children have been living the majority of the time with her and consequently, the father should pay the Guideline table amount. In her application, the mother requested child support retroactive to January 1, 2018, but during final submissions, she changed the date to August 2019. [ 10 ] The father insists on changing the parenting arrangement to one week on, one week off rotating

schedule for the following two reasons: − he wants more time with the children; and − he believes that it is important for the children to live in both homes for their development and evolving social life. [ 11 ] If the parenting arrangement is not changed, the father claims that since the separation, he has had the children in his care at least 40% of the time. Consequently, he should pay child support, retroactively and prospectively, on the basis of a shared parenting arrangement. Given this position, the father suggested that child support should be readjusted retroactively to August 2019.

If he must pay the Guideline table amount of child support, the father claims that this creates undue hardship for him. FIRST ISSUE – PARENTING ARRANGEMENT [ 12 ] This matter is governed by the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp .) as amended (the “ Divorce Act ”) . The relevant provisions in the Divorce Act are the following: 16(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular

with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order. [ 13 ] I will now review the relevant factors that must guide a determination of the best interests of the children with the evidence heard and received in this matter. I note that no evidence was presented with respect to the factors listed in paragraphs (f), (

j) and (

k) in section 16(3), and I therefore consider them to be irrelevant to the analysis. I am mindful that when considering the relevant factors, I must give primary consideration to the children’s physical, emotional and psychological safety, security and well-being as provided in section 16(2) of the Divorce Act .

a) The history of the care and the children’s needs, including their need for stability [ 14 ] Upon separation, the parties agreed that the children would live with their mother from Monday to Friday and would stay with their father every weekend. At the time of the parties’ separation in 2016, the children were respectively 10 and 7 years old. The mother testified that half of the time, the children would have supper at her home on Friday evening before going to their father’s home.

As to Mondays, the children would arrive to their mother’s home half of the time in the morning and half of the time after school. [ 15 ] At the beginning of the Covid-19 pandemic in March 2020, the children stopped going to their father’s home. The mother explained that the father continued to work at his place of employment and she was concerned about the risks for the children’s health. When the father began working from home, the mother allowed the children to go back to their father’s home.

[ 16 ] According to the mother, the children were in her full-time care from March to mid-May 2020 except for a few visits to their father that did not include overnights. According to Kayla Chevarie, a work colleague of the father, they started to work from home in late March 2020 and she understood that the father still did not have the children at his home until late spring.

While the father seems to imply that the mother prevented him to have parenting time with the children during that period, I accept the mother’s evidence that the father still had a few visits with the children and that her concerns were reasonable in the circumstances. [ 17 ] From mid-May to October 2020, the parties changed the parenting time

schedule and agreed that the children would alternate every 7 days between their homes. The mother explained that because of the Covid-19 pandemic, she was not sure of the state of the world and what could happen, and each parent wanted to have the children as much as possible. [ 18 ] However, the children began to have issues at school. The mother testified that the children were often late and unprepared for school. C.’s school attendance was problematic. The mother brought up these issues to the father. The mother testified that they agreed to return to the previous parenting schedule.

The father said that he had no say in the matter and that the mother had simply imposed her will. However, the father did not dispute that there were problems at school and he did not mention how he would have addressed them otherwise. Again, I accept the mother’s evidence that there were problems at school and that the parties returned to the previous parenting

schedule by mutual agreement. [ 19 ] C. failed grade 9. In November 2021, the mother initiated the process for C. to have a psychoeducational assessment. This assessment was completed in August 2022. C. was diagnosed with ADHD, dyscalculia, and anxiety. In September 2022, C. began an adapted learning program at school. Medication was suggested to help C. Initially, the mother was hesitant, but after making further inquiries, she agreed to allow the taking of medication by C. Various dosage and different medication were attempted before the right medication and dosage for C. was found in October 2022.

There is no dispute that the mother was very proactive and took all the responsibility for having the assessment done and the appropriate medication given to C. [ 20 ] In March 2022, C. was suspended from school. A meeting with the parents was set by school representatives to discuss C.’s return to school. The mother texted the date of the meeting to the father. When she tried to contact him about the time of the meeting, the father did not respond to her calls and text messages. The father therefore missed the meeting.

At the hearing, the father was asked why he did not respond to the mother’s calls and text messages. The father testified that he needed time to communicate with the mother. In a text message that he sent to the mother around that time (Exhibit 17), the father explained why he needed time; he wrote that he felt hurt, stressed and frustrated because of these proceedings filed by the mother. [ 21 ] As mentioned earlier, the children are back to their old routine, that is being with their mother from Monday to Friday and with their father, every weekend.

The mother testified that the children usually have supper at her home on Fridays, and on Mondays, they come to her home in the morning to get ready for school. Both parties agree that the parenting arrangement is very flexible as the children can come and go as they wish. [ 22 ] C. is currently doing grade 11 courses but is expected to do as well grade 12 courses during this school year. The mother testified that C. is now doing very well at school. She expects that C. will graduate from high school at the end of this school year. [ 23 ] A. appears to do well at school.

Neither party reported any issues at school or at home regarding A. [ 24 ] By all accounts, C. and A. are two great children. C. is involved in sports and has a part-time employment. A. appears to have a normal social life for a 14-year-old boy.

b) The children’s relationship with their parents and between siblings [ 25 ] Laura Graham has been a long-time friend to both parties. She lived as a roommate at the father’s home from October 2017 to December 2020. Ms. Graham described the father as being “chill” with the children. She commented that the mother is more authoritative or regimental. [ 26 ] Tyler Lepage is Ms. Graham’s partner. He moved in with her at the father’s home in January 2018. Mr. Lepage is also a friend to both parties. Until December 2020, he was seeing the mother and the children at the mother’s home at least once a week. Since Mr.

Lepage and Ms. Graham moved out of the father’s home in December 2020, they have continued to visit the mother every time that they

are in town. [ 27 ] Mr. Lepage testified that at their mother’s home, the children appear happy and enjoying themselves as if a weight was off their shoulders. [ 28 ] When he was living at the father’s home, Mr. Lepage observed that the father was not engaged as much as the mother with the children. Mr. Lepage testified that the children were either secluded in their room or using their electronic devices when they were at their father’s home. [ 29 ] The father agreed that when C. was 13-14 years old, she stayed more in her room.

However, the father testified that nowadays, C. is more interactive and engaged, and A. is rarely in his room. The father admits that A. likes to use his phone. When the father was asked whether he monitors the children’s electronic devices, the father responded that in the past, there was a cut-off time in the evening. His ambiguous answer indicates to me that he has not and is not monitoring the children’s devices. [ 30 ] There is no doubt that the mother and the father love their two children and they have a nurturing relationship with them. But, not surprisingly, the parties have different personalities.

As a result, the relationship between the children and each parent is different and brings different benefits to the children. [ 31 ] As to the relationship between siblings, no evidence was presented. I therefore assume that the children have a normal sibling relationship.

c) Each parent’s willingness to support the children’s relationship with the other parent and their ability and willingness to communicate and cooperate on matters affecting the children [ 32 ] There is no question that both parties are good parents who dearly love their children and both parties respect one another. Despite some hurdles, they have managed to maintain a cooperative relationship and respectful communication between themselves. They have been flexible and accommodating with one another regarding special events and children’s activities.

They have shown flexibility and trust to always make decisions and act in the best interests of their children. [ 33 ] However, while I believe that the father has had good intentions in pursuing a shared parenting arrangement, he has not always been sincere with the mother. For example, he told the mother in late June 2022 that he could not pay C.’s enrollment to summer school because of the payments of his rent and child support (Exhibit 14).

However, the father did not make his payment of child support at the end of June and in fact, did not pay child support until late September 2022. [ 34 ] Here is another example. In November 2022, the father was late in paying for one of the children’s braces because, as he told the mother, he needed to buy a new refrigerator (Exhibit 15).

On cross-examination, the father admitted that he did not buy a new refrigerator and he could not explain why he was late in paying for the braces. [ 35 ] Recently, there have been some communication problems with the father not responding to the mother’s requests in a timely manner. Confronted with Exhibits 16 and 17, the father testified that he needed time and “to be in the right mental place to respond”. These proceedings have had a financial and emotional impact on the father and he has had difficulty coping with the situation.

He testified that the children have seen his reactions to these proceedings, such as his state of anxiety and his shutting down.

d) The children’s views and preferences [ 36 ] The children are respectively 17 and 14 years old. Both parties disagree on what the children’s views and preferences are. The mother claims that the children want to continue the current parenting arrangement and the father says that they would prefer rotating every 7 days between the two homes. [ 37 ] The parties however agree that they did not want to involve the children in these proceedings and this is why they did not ask for a Voice of the Child report. [ 38 ] When all the evidence was heard and the parties had finished their submissions, the father said that he had one last thing to add.

He then informed the Court that he had been told that his daughter C. had prepared a letter and wanted the letter to be given to the judge. This came as a complete surprise to the mother and to the Court. [ 39 ] After questioning the father, I learned that he did not have the letter in his possession and he had not seen it. During the lunch break, he had been told by Jessica Whalen, who is a good friend of the father, that C. had sent a text message to Ms. Whalen informing her of the letter she had prepared for the judge. [ 40 ] The father was not sure what to do, but said that he felt obliged to mention it.

The mother asked the Court not to receive and read the letter. [ 41 ] I explained to the parties the child’s right to be heard in court proceedings, the positive effects for a child to know that he or she has been heard by the judge, and the possible difficulties to have a child comply with a court order when the child has not been heard. After hearing my comments, the mother still maintained her position regarding the letter and told me that they had both agreed not to involve the children in these proceedings.

The father agreed with the mother’s last comment. [ 42 ] Ultimately, I decided that I would not receive and read the letter from the 17-year-old child. I made that decision for the following reasons: 1.

The timing of the letter and the manner it came out raised suspicion because of the following facts: i. being aware of the ongoing proceedings, C. had never expressed to her parents her willingness to share her views and preferences with the Court; ii. despite their close relationship with their daughter, neither parents were aware that C. was thinking and planning to prepare a letter for the Court; iii. finally, I had concerns about Ms. Whalen’s influence over C. as she claimed to be very close to C. I had found that during her testimony, Ms.

Whalen was showing bias in favor of the father and she had tried to undermine the mother’s authority over C. during a recent incident. 2. The parties had agreed not to involve their children in these proceedings. 3. The parties understood that it was their responsibility to explain the outcome of these proceedings to their children and to have them respect the court order. 4. It was in the best interests of the children to have finality sooner than later regarding these proceedings. If I was to receive C.’s letter, I had to obtain A.’s wishes and preferences as well.

This meant further delay in concluding these proceedings.

e) The ability and willingness of each parent to care for and meet the children’s needs and their plans to care for their children [ 43 ] The mother drives the children to school every morning. She has always attended parents-teacher meetings. The father has not attended them in the past, but was in attendance to such a meeting in September 2023. The father claims that he did not attend previous meetings because of his work

schedule or because he was not advised of them. However, he admitted that he receives the same messages from the school than the mother. [ 44 ] The mother is responsible to make and attend the children’s medical appointments. The father attended only a few of them. [ 45 ] The mother is responsible for taking the children to their activities during the week and also during the father’s parenting time on the weekends. The father does not own a car and relies on friends or public transportation for transportation.

As a result, the father only occasionally takes the children to their activities. [ 46 ] The mother testified that the father is unable or unwiling to help her during the week. For example, the father was on vacation during one week in September 2023, but he was still unable to take C. to her football practices during that week.

[ 47 ] Under the current parenting schedule, the children are with their mother from Monday to Friday. Under that parenting schedule, the children have always performed well at school and participate to various activities and sports. [ 48 ] There is no doubt that the mother provides good care, good routine and good discipline to the children and the children have been doing well under her care. This is why the mother insists on keeping the same parenting schedule. [ 49 ] The father called two of his good friends to testify about his parenting skills, Kayla Chevarie and Jessica Whalen.

Kayla Chevarie met the father at work and since 2017, they have become good friends. The father, Ms. Chevarie and her husband, and four other people like to hang out together once or twice a week to do activities. Jessica Whalen has known the father since late 2018. She and her child are part of the group described by Ms. Chevarie. [ 50 ] Ms. Chevarie testified that the father is very loving and nurturing to the children and he gives them a safe place. She said that the children are always engaged in activities with their father unless they prefer not to participate. [ 51 ] Ms.

Whalen described the father’s parenting as relaxed but still with some boundaries. She mentioned how interested the father is in the children’s activities and schooling. Ms. Whalen testified that she is close to C. and C. sends her messages once or twice a week to get transportation. Ms. Whalen observed that C. looks very tense upon leaving her mother’s home, but she appears less stressed at her father’s place. [ 52 ] The father wants the children to spend equal time in each household. He points out that the distance between his home and the mother’s home is short, requiring only a 10-minute walk.

He claims that a

schedule allowing for equal time in each household would ease the financial burden on both parents. He believes that such a

schedule would benefit the children as they are older, have different interests and are building their own social circles. He finds that the children do not spend a lot of time at his home during weekends because of their activities and social life. He wants more time with the children. [ 53 ] The father rents a 3-bedroom apartment. There is also a “non-conforming bedroom” (in other words, a very small bedroom) that is currently used for storage. From October 2017 to December 2020, the father had roommates who occupied one bedroom.

With the children each having one bedroom, the father slept in the living room during that period. [ 54 ] As mentioned earlier, Laura Graham is a roommate who lived at the father’s home from October 2017 to December 2020. Her rent was $300 per month. In January 2018, her partner, Tyler Lepage, moved in with her at the father’s place. Mr. Lepage began paying to the father $250 per month for his rent. Ms. Graham and Mr. Lepage both testified that they were like a family unit when they lived with the father.

They had dinner and watched television together. [ 55 ] The mother testified that the father had difficulty providing the children’s necessities and called Ms. Graham and Mr. Lepage to testify about the financial support they had to provide to the father when they were roommates with him. From time to time, Ms. Graham lent the father small amounts of money. She also mentioned that at least once a month she provided the children with necessities such as various household items, including toilet paper and paper towels. She also purchased a bedsheet and a dresser. Mr.

Lepage also testified that he sometimes bought extra food or household items. Ms. Graham said that the financial difficulties took an emotional toll on the father. He became more reserved. Mr. Lepage commented that the father would isolate himself from the group. [ 56 ] Mr. Lepage also expressed concern about A.’s hygiene at the father’s home. He said that on more than one occasion, he had seen A. wearing the same clothes throughout the weekend and that A. had not even taken a shower.

The father could not remember if this ever happened. [ 57 ] Because of the father’s financial situation, the mother cannot rely on him to make upfront payments when needed. For example, the parties had agreed last year that the father would register C. for summer school. On the last day of registration, the father informed the mother that he did not have the funds to do so. The mother scrambled to pay and enroll C. in summer school. The father later paid his share to the mother.

The same thing happened with the prepayment required for the psycho-educational assessment. [ 58 ] If he had the children on alternating full weeks, the father believes that transporting the children to school, activities, appointments or work would not be a problem. He claims that his current job allows for more flexibility and that he would make the necessary arrangements for the children’s attendance. Regarding the advance payments that may be required from time to time, the

father testified that he would “have to make it work”. CONCLUSION [59] The current parenting arrangement has offered stability and security to the children for the last seven years. They can rely ontheir mother for providing structure and emotional, physical and financial support. The mother ensures that the children’s health orlearning issues are addressed, and that their needs are fulfilled. After overcoming some challenges with C., both children now appear tothrive at school because of the mother’s structured routine, support and love. [60] The father is an interested and supportive parent.

He has an excellent relationship with both children. He is certainly eager tospend more time with the children. However, the mother has been the primary caregiver for the children since the separation and thechildren have benefitted from the parenting structure, environment and

schedule offered by the mother. There was no evidence ledbefore this Court to suggest that the children would benefit more from, or that their needs would be better served with, a differentparenting arrangement, or that the existing

schedule no longer served the children’s best interests. [61] I do not want to undermine the father’s parenting skills or his sincere desire to spend more time with the children. But, the realityis that the current parenting

schedule is in the best interests of the children and I am satisfied that the children have as much time witheach parent as is consistent with their best interests. SECOND ISSUE – CHARACTERIZATION OF THE PARENTING ARRANGEMENT FOR CHILD SUPPORT PURPOSES [62] The father claims that he has exercised at least 40% of the parenting time over the course of a year under the parentingarrangement that has been in place since separation. As a result, he claims that there was a shared parenting arrangement and childsupport should be determined under the shared parenting formula set out in

section 9 of the Federal Child Support Guidelines. [63]

Section 9 imposes a distinct child support regime if a parent who “exercises a right of access to, or has physical custody of, achild for not less than 40 per cent of the time over the course of a year”. Because the Divorce Act does not contain any definition ofshared parenting,

section 9 of the Federal Child Support Guidelines has come to define the term “shared custody/parenting”. Asexplained by Justice Czutrin in L.(L.). v. C. (M.), 2013 ONSC 1801, at para. 34, “when parents are exercising that level of access, childsupport determinations need to be approached in a different manner given the reality of the costs incurred by parents in these types ofaccess and custody arrangements.” [64] The question of whether a parent has met the 40 per cent threshold under

section 9 has generated considerable litigation as theParliament did not find necessary or advisable to stipulate the method of calculation for the threshold. Courts however agree that there isno universally accepted method for how to calculate the parenting time exercised by one parent (Froom v. Froom, (ON CA), [2005] O.J. No. 506 (Ont. C.A.), at para. 2). [65] In L.(L.). v.

C. (M.), supra, Justice Czutrin commented on the two most common approaches to calculating the 40% timethreshold, i.e., in days or in hours, and provided helpful comments on how to allocate responsibility (and consequently time) in somecircumstances such as school days or day care time: 37 The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 percent, the access parent must have the child in his or her care for 146 days per year (Handy v. Handy, [1999] B.C.J. No. 6 (Sask.

K.B.).When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (B.C. Prov.Ct.)). 38 In his paper, “A Practitioner’s Guide to the Economic Implications of Custody and Access under the Divorce Act and the FederalChild Support Guidelines”, Julien D. Payne points out that no matter how the calculation is completed, the relevant period is the amountof time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children((2002) 32 R.G.D. 1-36, at 8).

The calculation includes the time the child spends in swimming lessons, at day care, at school, or with ananny, so long as the parent claiming this time is the parent who during that period is “responsible for their well-being” (Sirdevan v.Sirdevan, [2009] O.J. No. 3796 (Ont. S.C.J.)). 39 In line with this approach, a custodial parent will be credited with time that a child spends sleeping or at school, except for thosehours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent’s home(Cusick v. Squire, [1999] N.J. No. 206 (Nfld. T.D.)).

If there is a fixed drop-off time for the access parent to deliver the child to schoolor daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to thecustodial parent (Maultsaid, at para. 20; Barnes v. Carmount, 2011 ONSC 3925, [2011] O.J. No. 3717 (Ont. S.C.J.), at para. 43).

[ 66 ] Though the method of calculating the threshold is not set out in the legislation, it is clear that 40 per cent is the minimum period of parenting time fixed by Parliament as sufficient to trigger a child support assessment under

section 9 of the Guidelines . Courts cannot ignore this mandatory requirement and do not have the discretion to round up or round down the figure reached ( see L.(L.). v. C. (M.) , supra , at paras. 24 and 34 ). [ 67 ] However, it is important not to get lost in the numbers entirely. In M.(F.) v. H.(T.) , 2016 NBCA 29 (N.B.C.A.) , Justice Baird makes the point that the existence of a shared parenting arrangement requires more than a simple mathematical calculation of parenting time.

She states: 17 The determination whether a shared parenting arrangement exists requires more than a simple mathematical calculation of access time. Issues such as who has the overall responsibility to arrange medical appointments, which parent has the responsibility to drive the children to their appointments, which parent has the primary decision-making responsibility to oversee a child’s health and welfare either at school, or elsewhere, and whether the parents are able to effectively communicate with each other on matters affecting their children, are critical considerations.

This approach is in keeping with the reasons of Bastarache J. in Contino v. Leonelli-Contino , 2005 SCC 63 , [2005] 3 S.C.R. 217 (S.C.C.) . The Supreme Court observes the analysis must consider the child rearing roles of the parents, in addition to the straight mathematical calculation of access time. The analysis pursuant to ss. 9(

b) and (

c) of the Guidelines is undertaken only if the court finds the 40 per cent threshold has been met by the access parent. [ 68 ] The consideration of qualitative factors (the so-called holistic approach) has been criticized (see The TLC of Shared Parenting: Time, Language and Cash , by Rollie Thompson,

article presented at the 27 th Annual Institute of Family Law, Montebello, QC, April 13- 14, 2018) and rejected by the British Columbia Court of Appeal in Maultsaid. v. Blair , 2009 BCCA 102 (para. 21 ). However, such holistic approach has been adopted by the Manitoba Court of Appeal in Mehling v. Mehlling, 2008 MBCA 66 (Man. C.A.) where B.M. Hamilton J.A. stated: 42 So, should the 40 per cent threshold analysis be a strictly mathematical calculation? I think not. Is there a mathematical component to the analysis?

Of course, because the pattern of parenting must be analyzed and this will, by necessity, involve a consideration of the time the children are with their respective parents. In Cabot , this court specifically rejected a "minute-by-minute" calculation method. While I would not categorically rule out an assessment on the basis of hours, it seems to me that an assessment of the time that a parent is with, or responsible for the children and their needs, on the basis of days or weeks, or portions thereof, will be a more realistic approach to the analysis than an hourly accounting.

That being said, the approach to be used for the assessment of time is within the judge's discretion to determine. 43 In some cases, this assessment of time will lead to an obvious conclusion that the 40 per cent threshold has, or has not, been met. But when that result is not obvious, as was the case here, more will be required. The approach must remain flexible to enable the judge to take into account the varied circumstances of different families. By doing so, the assessment will be more realistic, and more holistic, than a strict mathematical calculation of the time with each parent.

In my view, this is in keeping with the equitable goals of s. 9. [ 69 ] The onus is on the parent who is relying on

section 9 of the Guidelines to establish that the 40% threshold has been met. In the present case, the father did not produce any calendars to demonstrate the time he was spending with the children. He relied on the parenting

schedule that both parties had similarly described and on a discussion he had had with people at the Office of Support Enforcement (OSE). [ 70 ] From his discussion with OSE people, the father understood that the parenting time he was exercising on a weekend was equal to 2.25 days and with the addition of 16 days for vacation and holidays, his parenting time with the children was at least 40% of the time over the course of a year. The father admitted that he did not calculate the exact time that the children spent with him for vacation and holidays; he simply accepted the guesstimate proposed by OSE people.

Even if this guesstimate of 16 days for vacation and holidays is used, the father admitted under cross-examination that his parenting time did not reach the 40% threshold. The father did not attempt to provide calculations that would have supported his position. Because the father is a self-represented litigant, I decided to make various calculations with the numbers provided by the father, but in all possible scenarios, I could not arrive to the 40% threshold. [ 71 ] The mother produced a calendar covering a period of 16 months (May 2022 to August 2023).

The calendar indicates when a child was going to the father’s residence or when a child was going back to the mother’s residence. The calendar confirms the flexibility of the parenting arrangement in the most recent months. There were weekends when only one child went to the father’s residence. There were week days when one child spend a night at the father’s residence. However, the calendar also demonstrates that the parenting

arrangement described by the parties was being followed in the majority of the months with a few exceptions. [ 72 ] If I calculate the hours spent by the children in each residence in any given week in accordance with the current parenting arrangement, I come to the following conclusions: Mother’s parenting time on a weekly basis: − Monday from 7:00 a.m. to Tuesday 7:00 a.m.: 24 hours − Tuesday from 7:00 a.m. to Wednesday 7:00 a.m.: 24 hours − Wednesday from 7:00 a.m. to Thursday 7:00 a.m.: 24 hours − Thursday from 7:00 a.m. to Friday 7:00 a.m.: 24 hours − Friday from 7:00 a.m. to 7:00 p.m.: 12 hours Total: 108 hours/168 hours = 64.3% Father’s parenting time on a weekly basis: − Friday from 7:00 p.m. to Saturday 7:00 p.m.: 24 hours − Saturday from 7:00 p.m. to Sunday 7:00 p.m.: 24 hours − Sunday from 7: 00 p.m. to Monday 7:00 a.m.: 12 hours Total: 60 hours/168 hours = 35.7% [ 73 ] I decided to use the calculation by hour because of the responsibility retained by the mother for the Friday supper and for the preparation to school on Monday morning.

Calculation in hours was more reasonable and accurate in these circumstances than using days or overnights. [ 74 ] I note that the Interim Interim Order dated March 2, 2022, and the Interim Order dated May 30, 2022, provide for start and end times for the father’s parenting time that are different from what I have used. However, the proffered evidence was that the parties were not following the times set out in these orders. The father mentioned that he occasionally complained about the non-respect of these orders. The mother testified that she simply followed the children’s wishes and preferences.

Considering the children’s ages and what the calendar tendered into evidence shows, I am satisfied that the children were responsible for the inconsistencies in the start and end times of the father’s parenting time. Even if I had added 2 hours more on Friday and one hour more on Monday, the father would still not reach the 40% threshold; he would be at 37.5%. [ 75 ] In addition to the mathematical calculation of the father’s parenting time, I have considered the parents’ roles in the care of their children.

It is undisputed that the mother has had overall responsibility to oversee the children’s health and well-being either at school or elsewhere, to arrange for medical and dental appointments, to address learning issues, to attend parents-teacher meetings, to drive the children to school, to their appointments and to their activities, and to communicate with the father on various matters affecting the children.

Although the parenting arrangement has been flexible and the parties have been able to communicate with respect, it is evident that the father has not proactively taken responsibility for rearing the children. [ 76 ] Therefore, I conclude that the parenting arrangement that the parties have had since 2016 is not a shared parenting arrangement both in terms of a mathematical approach to the time spent with each parent as well as from a holistic perspective.

THIRD ISSUE – CHILD SUPPORT, PROSPECTIVE AND RETROACTIVE, AND SPECIAL EXPENSES i – Prospective child support [ 77 ] Given the determination made regarding the parenting arrangement, the father must pay the Guideline table amount for two children in accordance with the 2017 New Brunswick table. The father’s current income is $52,854. Therefore, he must pay $760 per month in child support on a prospective basis. ii – Retroactive child support

[ 78 ] From their separation in 2016 until the filing of these proceedings, the parties had no written separation agreement and no court orders addressing child support. [ 79 ] When the mother filed her application in January 2022, she requested child support retroactive to January 2018. She however testified that the father was unable to pay child support prior to August 2019. As a result, in her final submissions, she changed the date to claim retroactivity to August 2019. [ 80 ] In August 2019, the father began paying child support in the amount of $100 on a biweekly basis.

The father testified that that this was the amount he could afford paying to the mother. The parties agree that from mid-May 2020 to October 2020, there was a shared parenting arrangement. Then, in December 2020, the father stopped paying any child support until the mother filed the current proceedings. [ 81 ] The mother filed these proceedings on January 7, 2022. In March 2022, the father was ordered to pay $756 per month in child support on the basis of his 2020 income being $52,558.

According to a statement of the Office of Support Enforcement (page 241 of the Record), he made his monthly payments in March, April and June 2022. His monthly payment was changed to $643 per month following disclosure of his 2021 tax return. The father did not make his monthly child support payments in May, July, August, and September 2022. He testified that he did not have the means to pay child support. The father resumed his child support payment of $643 a month in October 2022.

a) Law and analysis [ 82 ] The landmark decision on retroactive child support claims is D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 .

In that decision, the Supreme Court of Canada set out four factors that a court must take into account in dealing with retroactive child support: • Reasonable excuse for why child support was not sought earlier; • Conduct of the payor parent; • Circumstances of the child; and • Hardship occasioned by a retroactive award [ 83 ] No one factor is decisive and a holistic assessment must be undertaken in looking at all of the relevant circumstances ( DBS , para. 99). [ 84 ] In Michel v.

Graydon , 2020 SCC 24 , the Supreme Court of Canada revisited the principles enunciated in DBS and made the following comments about retroactive support claims that I believe are relevant in circumstances where there is no agreement or court order for child support prior to the commencement of court proceedings:

a) Today parents know they are liable to pay support in accordance with the Tables and their actual income and that they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic (para. 130).

b) The obligation to support one's child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it (para. 79).

c) Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (para. 132).

d) Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations (para. 25).

e) The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (para. 121).

f) Retroactive child support is not exceptional relief as there is nothing exceptional about judicial relief from the miserable consequences that can flow from a payor's indifference to their child support obligations (para. 31).

I will now turn to the four DBS factors. i - Delay [ 85 ] There can be many reasons for the delay to apply for child support on the part of the recipient parent.

These may include: fear of reprisal/violence from the payor parent; prohibitive costs of litigation or fear of protracted litigation; lack of information or misinformation over the payor parent’s income; fear of counter-application for custody; the payor parent leaving the jurisdiction or the recipient parent unable to contact the payor parent; illness/disability of a child or the recipient parent; lack of emotional means, wanting the child and the payor parent to maintain a positive relationship or avoid the child’s involvement; ongoing discussions in view of reconciliation, settlement negotiations, or mediation; and the deliberate delay of the application or the trial by the payor parent ( Michel , para. 85 ). [ 86 ] The mere fact of a delay does not, however, prejudice an application for retroactive child support.

As explained by Justice Martin in Michel (para. 113 ), “[r]ather, a delay will be prejudicial only it if is deemed to be “unreasonable”, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made”. [ 87 ] In the present matter, the father was well aware of his support obligation toward his children and acknowledged that child support was a right of the child. From 2016 to 2019, the mother sympathized with the father’s financial situation and neither party felt the necessity to address the support situation.

However, when the father began to pay some child support in August 2019, he knew that he had an obligation to support his children and that he was not paying the appropriate level of child support. As he testified, he only paid what he believed he could afford.

The father should have realized that the fact that the mother was accepting less support in August 2019 did not mean that she was waiving the children’s entitlement to child support from their father. [ 88 ] Although the mother delayed the filing of her application until January 2022, I do not find this unreasonable in the context of the positive relationship that the parties have had since the separation and the fact that the mother is not seeking support until August 2019. ii – Conduct of the payor parent [ 89 ] With regard to second factor, Justice Bastarache provided a broad definition of what a blameworthy conduct includes by stating that it is “anything that privileges the payor parent’s own interests over his /her children’s right to an appropriate amount of support” (para. 106 in DBS ).

Courts have recognized that a failure to provide full and accurate financial disclosure, or to disclose an increase in income constitutes blameworthy conduct. [ 90 ] Here, the father did not disclose his income until these court proceedings. On its own, that could be considered blameworthy conduct in its expansive sense described by Justice Bastarache.

Also, in failing to meet his financial obligation toward his children, I conclude that the father chose his own interest over his children’s right to support. iii – Circumstances of the children [ 91 ] There is no requirement to prove any need on the part of the children for them to receive retroactive support. In the present matter, the father argued that the mother’s standard of living was higher than his, given the fact that she has a partner who helps her financially. In Henderson v.

Micetich, 2021 ABCA 103 , the Alberta Court of Appeal explained why this type of situation is not exceptional enough to justify not awarding retroactive support: 61 […] Because one parent has married a high income earner, does not make this an exceptional situation. Treating it as such is not the law, nor is it good policy. It has the reverse effect, namely undermining the goals and purpose of the Guidelines . It effectively absolves a payor parent of statutorily prescribed legal obligations.

Where a recipient parent finds a partner who is generous, and willing to support the payor’s children, that generosity is not a substitute for the other parent’s financial obligations to his or her children. As mentioned earlier, this is the kind of relative wealth, needs and means analysis that dominated the law of child support before the enactment of the Guidelines . The policy choice of Parliament and the provinces was to move to a different, more predictable approach — the amount of child support payable is dependent on the Guideline income of the payor and the relevant table amounts.

62 A loss of benefit is presumed where the payor parent fails to pay the amount of support required under the Guidelines : Goulding at para 52 . Fundamentally, regardless of the financial position of the recipient parent or the recipient parent’s spouse, children are entitled to expect and receive child support from both their parents. It is not enough to say, as the chambers judge did here, that an award of retroactive support should not be granted because the children do not need it.

This fails to recognize that the third party, who has been assisting in the support of the children, has no legal obligation to do so, and has the effect of undermining the underlying philosophy of the child support regime.

It would be a most unusual circumstance to say that a child will not benefit from the provision of monies to which they are entitled, and which were previously withheld. [Emphasis added.] [ 92 ] In the present matter, the children were entitled to expect their father to contribute to their support and his failure to do so meant that they did not benefit from what they were entitled to. iv - Hardship [ 93 ] Finally, the fourth factor was summarized by Justice Martin at para. 124 in Michel as follows: This factor takes into account the ease with which the payor might be able to pay the award.

If the award would cause the payor undue hardship, and if the other factors do not militate against it, this factor may weigh against an award or affect its temporal scope to achieve a fair result. It is not necessary that there be no hardship caused by the award for it to be granted.

If there is the potential for hardship on the payor’s part, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of undue hardship… In all cases, hardship may be addressed by the form of payment. [ 94 ] At para. 125 in Michel , Justice Martin went on to say that “hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid.” [ 95 ] A claim for hardship must be tangible and supported by evidence, and the hardship must be undue ( Henderson , para. 70 ).

In Henderson , the payor parent was paying $700 per month on his consumer proposal that he had made after receiving notice that retroactive child support was being sought. His budget and lifestyle appeared to be modest. The Alberta Court of Appeal found that the payor parent’s first obligation was to his children and the consumer proposal could not take priority over his support obligations, past and present.

The Court concluded that any unfairness could be managed through an adjustment to the quantum of the retroactive award, or through a payment schedule. [ 96 ] The following statements made in Henderson are worth repeating: 70 […] There is often financial difficulty when an immediate lump sum cash payment is awarded. However, without more, it is neither undue nor unfair. An assessment of hardship requires the court to have regard to unfairness created in all the circumstances, including hardship to the payor, the recipient, and the child.

It is incumbent on courts to recognize that failure to provide a retroactive award will have the effect of depriving children of payments to which they are entitled. Moreover, the analysis must recognize who has benefitted from failing to fulfill the obligation in the meantime; usually that would be the payor. Hardship is a broad concept and a legitimate concern, but the focus cannot be exclusively on the payor. Rather, the analysis must be in keeping with the purpose of the legislation. [ 97 ] In the present matter, there is undisputed that the father has a modest budget and has had difficulty making ends meet.

However, after subtracting income taxes, other deductions and child support of $760 per month from his income of $52,854, the father has a net disposable income of $2,614 per month according to DivorceMate. After reviewing his budget (Exhibit 13), I believe he should be able to cover most, if not all, of his expenses.

I would add that the payment of his personal debts (debts accumulated after the separation while the father had the benefit of not paying child support) should not take priority over his support obligations, past and present. [ 98 ] I find that any potential hardship can be alleviated by requiring the retroactive amount to be paid periodically rather than in the form of a lump sum. [ 99 ] In DBS , the Supreme Court of Canada establishes that the date to which a child support award should be retroactive is, by default, the date when effective notice was given to the payor parent.

At para. 130 in Michel , Justice Martin explains the concept of effective notice by stating:

[130] Effective notice is a broad concept which goes well beyond actual knowledge of a filed variation application. In para. 121 of D.B.S. , it was defined as “any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated.” In Kerr , the Court further stated that the distinct features of child support “reduce somewhat the strength of concerns about lack of notice . . . in seeking child support” (para. 208).

In some respects, D.B.S. itself provided effective notice of a parent’s responsibilities, by establishing the bedrock principles governing child support. Based on our shifted understanding of the payor’s certainty interest above, certainty materializes in different ways today than it did 14 years ago.

Today, it is provided by the Tables and the payor parents’ knowledge that they are liable according to their actual income and will be held accountable for missed payments and underpayment, even if the enforcement of their obligations may not always be automatic. [ 100 ] In this matter, the mother seeks retroactive child support to August 2019 because she acknowledges that the father did not have the means to pay child support prior to that date.

In August 2019, the father, aware of his financial obligation to his children, began paying child support, but at an amount less than the Guideline table amount. [ 101 ] Considering all of the circumstances and applying a holistic and fair approach, I find that the mother’s request for retroactive child support starting in August 2019 is appropriate.

b) Quantum of retroactive child support and adjustments [ 102 ] While I must calculate retroactive child support from August 2019 to January 2022 (the date of filing for these proceedings), there is also an adjustment to be made to the child support paid by the father since January 2022 in light of the financial disclosure obtained at the hearing. [ 103 ] From 2019 to 2023, the father earned the following incomes: − 2019: $42,260 − 2020: $52,558 − 2021: $44,513 − 2022: $48,497 − 2023: $52,854 [ 104 ] I have used the 2017 New Brunswick table for two children to calculate the father’s child support obligation from August 2019 to now. [ 105 ] In 2019, the father should have paid $612 per month in child support.

From August to December 2019 (5 months), his total child support payment should have been $3,060. In that year, the father paid $100 on a bi-weekly basis and I therefore calculate his total payment to be $1,100 for the period of August to December (11 payments). Therefore, the father owes $1,960 in arrears of child support for 2019. [ 106 ] In 2020, the father should have paid $756 per month in child support from January to mid-May and then again from October to December for a total of $5,670 for these months.

From mid-May to October 2020 (4.5 months), the parties had a shared parenting arrangement and I will use the set-off amount for this relatively short period. In 2020, the mother earned $32,163 and would have paid child support of $466 for two children. The set-off amount is therefore $290 per month for that period of 4.5 months, a total of $1,305. For the year 2020, the father should have paid a total of $6,975 in child support ($5,670 + $1,305). The father continued to pay $100 on a bi-weekly basis during the whole year, which means a total payment of $2,600.

Therefore, the father owes $4,375 in arrears of child support for 2020. [ 107 ] In 2021, the father should have paid $643 per month in child support or a total of $7,716. The father did not pay any child support during that year and he therefore owes the total amount in arrears of child support.

[ 108 ] In 2022, the father should have paid $700 per month in child support or a total of $8,400. The father paid a total of $5,027 in child support according to the records of OSE. He therefore owes the sum of $3,373 in arrears of child support for 2022. [ 109 ] In 2023, the father should have paid $760 per month in child support. From January to November, the father should have paid a total of $8,360. For that period, the father paid $8,257.

There are arrears of $103 for the period of January to November 2023. [ 110 ] The total amount of arrears owed by the father are $17,527 for the period of August 2019 to November 2023 inclusive. [ 111 ] Here is a chart summarizing the father’s financial obligation, his payments and what amount is owing: Year Father’s income Monthly support Total/year Payment made Owing 2019 $42,260 $612 $3,060 (5mths) $1,100 $1,960 2020 $52,558 $756/$290 $6,975 $2,600 $4,375 2021 $44,513 $643 $7,716 $0 $7,716 2022 $48,497 $700 $8,400 $5,027 $3,373 2023 $52,854 $760 $8,360 (11mths) $8,257 $ 103 TOTAL: $17,527 iii – Special expenses [ 112 ] Since separation, both parties have contributed to the children’s special expenses.

For example, both parties contributed, in proportion of their incomes, to the children’s braces. There are three payments of $266.75 each that are left to be made for A.’s braces (February to April 2024). The parties have agreed to share these three payments in proportion of their incomes. The father having an income of $52,854 and the mother having an income of $48,000, the father shall contribute 52% and the mother, 48% to these payments when they are due in 2024. [ 113 ] Both parties benefit from a health plan through their employment.

The mother testified that the children’s medical and dental expenses are fully covered by these two plans. With regard to C.’s medication, there is an uncovered fee of less than $20 on a monthly basis, but the mother is not asking for contribution from the father. [ 114 ] From January to August 2023, C. played rugby at a cost of $213. In August 2023, C. enrolled in football at a cost of $365. The mother asks that the father contributes to these costs of less than $600 a year. She indicated that in 2021, the father paid 50% of the cost of enrolling C. in rugby. A. does not do any sports.

I am not convinced that C.’s extra-curricular activities fall in the category of extraordinary expenses and I will not therefore allow the mother’s request for a contribution in that regard. iv – Payment of arrears [ 115 ] The father testified that prior to March 2022, he was starting to get back on his feet financially. He was able to consolidate his post-separation debts and to rebuild his credit. Ms. Chevarie and Ms. Whalen both confirmed that prior to March 2022, the father appeared doing financially better. However, since he began paying child support, things have been difficult.

The father testified that he had to use his credit cards and make another loan. Ms. Whalen mentioned that she helped the father financially. She even had to buy groceries for him. In November 2022, Ms. Whalen bought him a refrigerator for $345 as he did not have the money to do so. The father has not yet reimbursed her. [ 116 ] Looking at the father’s budget, he has modest means. His rent is not excessive. He does not have a vehicle. However, he still has difficulties to make ends meet because of his personal debts.

As mentioned earlier, his personal debts do not have priority over his child support obligation, past and present. [ 117 ] In light of his financial situation and all of the circumstances, I will order the father to pay $90 per month toward the arrears of

child support. FOURTH ISSUE – UNDUE HARDSHIP [ 118 ] The Federal Child Support Guidelines were designed to provide certainty and consistency with respect to the amount of child support to be paid to the parent who has the majority of parenting time with the children. The presumptive rule whereby this parent receives the applicable table amount is not displaced by economic hardship on the part of the payor parent, unless that hardship satisfied the stringent requirement imposed by the “undue hardship” provision of

section 10 of the Federal Child Support Guidelines. [ 119 ] In Child Support Guidelines in Canada, 2022 , Toronto, Irwin Law Inc., 2022, at page 365, the authors Julien D. Payne and Marilyn A. Payne state that

section 10 of the Federal Child Support Guidelines must be interpreted in light of the objectives defined in

section 1 of the Guidelines and they explain as follows: The objectives of predictability and consistency cannot be achieved if courts frequently deviate from the applicable provincial or territorial table as a result of

section 10 applications. The objectives of the Federal Child Support Guidelines , which are set out in

section 1 of the Guidelines, would be defeated if courts adopted a broad definition of “undue hardship” or if applications under

section 10 of the Guidelines became the norm, rather than the exception. Judicial

interpretation of the Guidelines cannot depend on what the court regards as appropriate policy of what is fair. The requirement that the hardship is “undue” signifies that a stringent criterion will be applied. Some degree of economic hardship may be the inevitable consequence of separation and divorce. In order to meet the requirements of section 10(1), the hardship must be more than awkward or inconvenient; it must be severe, exceptional, excessive, disproportionate, unwarranted, or out of the ordinary, rather than the inevitable consequence of dividing limited resources between two households.

The use of the term “undue” implies something more than the hardship that ensues from a lower standard of living after divorce. [ 120 ] Courts have repeatedly stated that undue hardship is a high threshold to meet. The hardship must be severe, excessive, extreme, disproportionate, exceptional, unwarranted or out of the ordinary. [ 121 ] Under

section 10 provision, a court must proceed with the following 2-step analysis in evaluating an undue hardship claim: − first, determine whether circumstances exist that would cause the applicant or a child to suffer undue hardship considering the non-exhaustive list of factors set out in section 10(2); − second, even if a finding of undue hardship is made, determine if the applicant’s household would have a higher standard of living than the recipient household even after allocating the applicable table amount and in that situation, the court must refuse to deviate from the applicable table amount. [ 122 ] The father admits that his situation does not fit any of the circumstances of undue hardship listed in section 10(2) of the Federal Child Support Guidelines .

In other words, he does not have the responsibility for an unusually high level of debts incurred to support the family before the separation or in order to earn a living. He does not incur unusually high expenses in relation to exercising parenting time with the children, He does not have a legal duty to support other children or to support a person who is unable to obtain the necessaries of life due an illness or disability. [ 123 ] However, the father claims that his financial situation is not sustainable with the parenting time he has with the children.

He says that he is unable to provide them with a standard of living similar to what they have at the mother’s home. [ 124 ] In Comeau v. Newman , 2021 NBQB 197 , Justice d’Entremont faced similar arguments from Ms. Comeau who claimed that her household standard of living was lower in her home than that of Mr. Newman. Ms. Comeau claimed that in the past she had to rely on her mother to help her pay the ordered child support, that she had to use the food bank and that her budget was very tight. In concluding that Ms.

Comeau did not meet any of the conditions listed in section 10(2), Justice d’Entremont went on to say: 37 In the case at bar, Ms. Comeau’s circumstances do not lead to a finding of undue hardship. Her obligation to pay child support per the Guidelines cannot be described as severe, exceptional, disproportionate, unwarranted or out of the ordinary. It is simply an obligation to pay child support per the applicable table amount as most payor parents in Canada are obligated to pay. Her claim in this regard is denied.

[ 125 ] In Child Support Guidelines, 2022 , supra, at page 361, the authors Payne and Payne make the following observation: The existence of a lower standard of living in the obligor’s household does not of itself justify a finding of undue hardship. A parent who earns an annual income of $25,000 will not, therefore, be absolved of financial obligations towards his or her child simply because the primary caregiving parent’s household has two income earners and a combined annual income in excess of $150,000. [ 126 ] I therefore conclude that the father does not meet the threshold of undue hardship.

His situation is no different from that of most payor parents in Canada. The payment of child support may be inconvenient, but it is not exceptional, disproportionate, excessive, extreme, unwarranted or out of the ordinary in the circumstances of this case. COSTS [ 127 ] Both parties were self-represented litigants. The hearing lasted three days. Both parties were well prepared and presented their case in an efficient and appropriate manner. The issues were not complicated but needed a determination by the Court considering the conundrum faced by the parties regarding their parenting arrangement.

Neither party argued for costs. Therefore, each party shall bear their own costs. DISPOSITION [ 128 ] On the basis of the above reasons, I make the following Order: 1. Pursuant to section 8(2) (

a) of the Divorce Act , I grant a divorce to the mother. 2. The parties shall have joint decision-making responsibility and in case of a disagreement, the mother shall have the final say. 3. In case of a health emergency requiring an immediate decision, the parent having the physical care of the children shall make the decision and shall immediately contact the other parent to inform him or her about the health emergency. 4.

Each parent shall have the right to receive information concerning the health, welfare and education of their children either directly from the other parent or directly from any third party involved with the children. 5. Each parent must respond to questions or requests from the other parent within 48 hours. 6. The mother shall have the majority of the parenting time with the children and the father shall have the children from Friday evening to Monday morning. The start and end time for the father’s parenting time shall be in accordance with the children’s wishes. 7.

The parents shall make arrangements to share the holidays and special occasions, including Thanksgiving, Christmas, Family Day and Easter. 8. The father shall pay to the mother child support in the amount of $760 for the benefit of the children C. and A. commencing on December 1 st , 2023 and thereafter on the 1 st day of each month. The child support is based on the father’s 2023 income, being $52,854. 9. The father owes arrears of child support in the amount of $17,527 for the period of August 2019 to November 2023 inclusive.

He shall pay the sum of $90 per month commencing on December 15, 2023 and thereafter on the 15 th day of each month until full payment of these arrears. 10. Both parents shall continue to maintain their children as beneficiaries under their respective health plan with each parent being responsible to pay the premiums of their own health plan. 11. Regarding A.’s braces, the parents will share, in proportion of their incomes, the remaining cost payable in 2024. There are three payments of $266.75 each to be made from February 2024 to April 2024.

Based on their respective incomes, the father shall pay 52% of each payment and the mother shall pay 48% of each payment. 12. No later than June 1 st of each year commencing in 2024, each parent shall provide to the other parent his or her tax return for the previous year and upon receipt, his or her notice of assessment and notice of re-assessment, if applicable. 13. The mother is entitled to 50% of the pension benefits accumulated by the father through his employment during the period of cohabitation, being from December 2002 to January 1, 2016.

The father shall apply with his employer to obtain the division of his pension benefits in accordance with this Order. 14. The father shall reimburse the mother the sum of $4,451.74 representing 50% of the amount paid by the mother against the judgment obtained in relation to the marital home. The father shall also reimburse the mother 50% of any sum of money that she may pay in the future against that judgment.

15. Each party shall bear their own costs. DATED at Moncton, New Brunswick, this 30 th day of November, 2023. __________________________________________ Justice Marie-Claude Bélanger-Richard Court of King’s Bench of New Brunswick