Stewart v. Turner, 2011 ONCJ 7

Brampton Registry No. 408/10 DATE: 2011·I·06 CITATION: Stewart v. Turner , 2011 ONCJ 7 ONTARIO COURT OF JUSTICE BETWEEN: CHRISTINE ELIZABETH STEWART, Applicant, — AND — NEILL STANDON TURNER, Respondent. Before Justice Juliet C.

Baldock Heard on 9 November, 2010 Reasons for Judgment released on 6 January 2011 SUPPORT ORDERS — Assessment of quantum — Child support guidelines — General — Annual income as basis for applying table — Parents of child (now 11 years old) had signed agreement whereby each would calculate his or her child support obligation under guidelines on basis of his or her respective income and whereby they would then set off resulting amounts — Because father’s income was higher, he invariably ended up paying up difference to mother — Mother had recently endured few months of unemployment and argued that, for those months, father should have paid her more because size of setoff was greater — Court rejected mother’s argument — Child support is calculated on annual income and is not adjusted on month-by-month basis.

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

section 7 . Christine Elizabeth Stewart ................................................................................. on her own behalf Neill Standon Turner ............................................................................................ on his own behalf [ 1 ] JUSTICE J.C.

BALDOCK:— The parties are the parents of one child, Allison Karen Turner (“Allison”) born on 29 November 1999, now 11 years of age. [ 2 ] They entered into a separation agreement in March 2009 that provided for shared custody, with parenting time split equally between them. [ 3 ] They also agreed to set off their child support obligations pursuant to the Ontario Child Support Guidelines , O. Reg. 391/97, as amended, based on their respective incomes.

They calculated the differential as being $228.00 per month payable by the respondent father to the applicant mother. [ 4 ] The agreement further provided for a sharing of Allison’s day-care expenses with the respondent father paying 60% and the applicant mother 40%. [ 5 ] The applicant mother has brought a motion to change the support terms of the agreement because of a change in her income as of September 2009. [ 6 ] The reduction in income also affects the parties’ respective contributions to the cost of day care. [ 7 ] The applicant argues that, for the eight months during 2009 and 2010 when she was unemployed, the child support

should reflect her actual income.

However, by the time that the matter came before me, the applicant had found new employment and her 2010 estimate had to be revised. [ 8 ] The parties both agree that, as the applicant mother has not paid her contribution to day care, any reconciliation of payments made or owed will result in her owing the respondent father, but they could not agree on the amount or the method of calculation. [ 9 ] Rather than spend further court time on the accounting, the parties were required to make brief written submissions with their calculations, which I have now had an opportunity to review and consider. [ 10 ] With respect to the monthly child support, I find as follows: Year Income of Parties Table amount Set-off amount 2009 Applicant: $77,259 $697 $66 per month Respondent: $85,599 $763 2010 Applicant $52,450 $485 $238 per month Respondent $80,309 $723 2011 (Projected) Applicant $75,000 $680 Respondent $80,300 $722 $42 per month [ 11 ] Accordingly, effective 1 September 2009, the respondent’s obligation was reduced to $66.00 per month and an adjustment is required for 2009 and 2010.

Assuming that he in fact paid the set-off amount provided for in the separation agreement, he will have overpaid for 2009. [ 12 ] With respect to 2010, the respondent should have paid $238.00 per month. Again, assuming payments of $228.00 have been made, he has underpaid by $10.00 per month. [ 13 ] The ongoing child support as of 1 January 2011 is the set off amount of $42.00 per month. [ 14 ] I reject the applicant’s argument that the respondent should have paid her more for the period of her unemployment.

Child support is calculated on annual income and is not adjusted on a month-by-month basis. [ 15 ] The remaining issue is that of the parties’ respective obligations regarding day-care and other expenses under

section 7 of the guidelines. [ 16 ] The parties acknowledge that the cost of day care is $3,000.00 per year (not $3,600.00 as set out in the separation agreement). I calculate the parties’ contributions as follows: 2009 Applicant 47% Respondent 53% 2010 Applicant 39% Respondent 61% 2011 Applicant 48% Respondent 52% These percentages are to be applied to the day-care cost. [ 17 ] The applicant also asks that the cost of dance lessons be apportioned in the same way. It is her evidence that Allison has been involved in dance since the age of four years. [ 18 ] The respondent objects, citing the provisions of the separation agreement which, at

section 27, set out certain exclusions. This does not in my view capture expenses such as extracurricular activities, summer camp etc . which fall into the category of those expenses that require the consent of the party from whom a contribution is sought (such consent not to be unreasonably withheld). The respondent maintains that, if the cost of dance lessons is to be shared, so then should those expenses that he has incurred for Allison, such as summer camp. [ 19 ] The amounts involved are not unreasonable, having regard to the parties’ respective incomes.

It appears, however, that the parties are having difficulty interpreting their agreement, both as to the strict wording and the overall intent. [ 20 ] Having regard to the fact that all aspects of parenting are essentially shared, I infer that the intent of these parents was to share expenses.

Clearly this is anticipated by the wording in paragraphs 25, 26, 27 and 28. [ 21 ] The agreement is specific as to exclusions and the payment of day care, which is a costly item, but otherwise refers to “special and extraordinary” expenses in general terms. [ 22 ] The annual proportionate shares set out above should be applied retroactively and proactively to day care and, in order to avoid problems in future, the proportionate sharing of extra and extraordinary expenses shall be applied commencing on 1 January 2011 to dance classes, summer camp and other extracurricular activities not expressly excluded by paragraphs 27(

a) and (b). [ 23 ] The parties are to comply with the terms of the separation agreement (paragraphs 25, 26, 27, 28) in this regard.

[ 24 ] I decline to make any order with respect to special expenses (other than day care) in 2009 or 2010 as it appears neither party made any formal request of the other for a contribution prior to the commencement of this proceeding. [ 25 ] This is not a matter that should ever have been brought to court. Valuable time has been spent on issues that the parties should have been able to resolve. Both parties are guilty of intransigence.

The amounts involved are simply not significant enough to warrant court intervention — particularly as the difference between the parties’ respective positions is minimal and any reasonable proposal to “split the difference” could have eliminated the need for court action. Instead, each party chose to rely on “principle”, as he or she interpreted it.

This is not conducive to or reflective of co-operative shared parenting. [ 26 ] These parents should make greater efforts to resolve issues involved in joint parenting, the effectiveness of which will be jeopardized if they continue to engage in disputes over relatively minor support issues. [ 27 ] A final order will issue as set out below: 1. Commencing on 1 January 2011, the respondent shall pay for the support of one child, Allison Karen Turner (born on 29 November 1999), the sum of $42.00 per month based on the following: (

a) the income of the applicant being $75,000.00, for which the table amount is $680.00 per month; (

b) the income of the respondent being $80,300.00, for which the table amount is $722 per month; (

c) the parties’ shared parenting arrangement. 2. For the period from 1 January 2010 to 31 December 2010, the respondent shall pay the sum of $238.00 per month based on: (

a) the income of the applicant being $52,450.00, for which the table amount is $485.00 per month; (

b) the income of the respondent being $80,309.00, for which the table amount is $723.00 per month. 3. For the period from 12 January 2009 to 31 December 2009, the respondent shall pay the sum of $66.00 per month based on: (

a) the income of the applicant being $77,259.00, for which the table amount is $697.00 per month; (

b) the income of the respondent being $85,599.00, for which the table amount is $763.00 per month. 4. The respondent is to be given credit for all payments made pursuant to paragraph 24 of the parties’ separation agreement dated 10 March 2009. 5. (

i) The parties’ respective contributions to the cost of day care is to be apportioned as follows: (a) 2009: Applicant 47% Respondent 53% (b) 2010: Applicant 39% Respondent 61% (c) 2011: Applicant 48% Respondent 52% (ii) Each party is to be given credit for payments already made. 6. Commencing on 1 January 2011, the parties shall each pay their proportionate share of other extraordinary or special expenses for the child as set out in paragraph 5(

c) above. Such expenses shall include but are not limited to dance lessons and day camp. 7. Neither party shall be required to contribute to any further additional expenses for the child without the other’s prior consent, such consent not to be unreasonably withheld. 8. There shall be no adjustment for expenses over and above day care for the years 2009 or 2010. 9. Any net arrears of support or day-care costs owed by the applicant to the respondent as a result of this order shall be paid in four equal monthly instalments commencing on 1 February 2011. 10.

The parties are prohibited from bringing any new or related proceeding with respect to support issues within twelve months, and thereafter only after having complied with the dispute resolution provisions contained in the separation agreement 11. No order as to costs.