Case Studies

An Increase in Child Support

In this case that began in 2011 and ended with a final order in 2013, the Applicant filed a Motion to Change a 2007 order and sought an increase in the amount of child support payable.

Applicant's Position:

The Applicant sought an order for the following:

• An increase in child support because the Applicant believed that the Respondent’s income was higher than reported based on his lifestyle.
• An order seeking imputation of income to the respondent;

Respondent's Position:

The Respondent claimed that his income has been less than $30,000 for the last three years and remains under $30,000.

Background

The Applicant and the Respondent began living together in 2001 and separated in 2003. There were 3 children from the relationship. Custody, access and child support were resolved in a court proceeding with a final order in June 2007. The parties had joint custody of their three children with the primary residence of the children being with the Applicant mother and generous access with the Respondent father.

The Respondent father was ordered to pay $598 per month in child support for his 3 children based on his stated income of $30,000 per year. The Respondent father was self employed.

In 2011, the Applicant sought counsel to change the final order of 2007 based on the fact that the Respondent father was frequently behind in his child support payments and the rent she was paying was getting to expensive to afford without it.The Respondent was self-represented.

The Respondent father ran a seasonal business and was busy during the summer months but not during the winter months. During the winter months the Respondent father travelled extensively to luxury resorts and posted evidence of this on his Facebook account, which his children would then see and read about.

The Applicant sought a change in the amount of child support she was receiving.

• The respondent was self-employed, as he was in 2007 when the order was made. When the order was made in 2007 the respondent did not provide full disclosure about the income he was making and therefore the current support order is based on his income as he stated it to be.
• From observations of the respondent’s lifestyle, it was evident that he earned substantially more income than he stated, or that his income had increased substantially since the order was made.
• The Respondent’s 2012 Financial Statement showed an income for 2010 at $22,742, and 2009 of $25,642 and 2008 of $25,760. The respondent failed to produce a 2011 Notice of Assessment despite several written requests for full and complete financial disclosure from the Applicant’s counsel.
• The Respondent was ordered to and eventually did however provide some financial disclosure, although it was incomplete.

Results of the Final Order varying the Order of 2007:

• The Respondent was ordered to pay support for the children in the amount of $1,177 per month, commencing January 1, 2011, based upon an imputed annual income of $60,000.
• The Respondent was ordered to pay his proportional contribution to the cost of the childcare or special or extraordinary expenses for the children.
• The Respondent was ordered to pay the Applicant’s costs which were fixed at $900.00.

Child Sues Parents for Child Support

In a recent case, the Applicant (an 18 year old girl) sued the Respondents (her mother and step-father) for child support for herself.

Applicant's Position:

The Applicant seeks an order for the Respondent step-father to pay her child support and contribute to her post-secondary expenses, on the basis that he acted as a parent to her.

Respondent's Position:

The Respondents seek an order dismissing the Applicant's case on the basis that the Respondent Step-father never acted as a parent to her and that the Applicant repudiated her relationship with both her mother and him when she moved out of their home.

Background

When the Applicant was 4 years old, the Applicant's mother began dating a man who would later become her spouse. When she was 8 - 10 years old, the Applicant and her mother moved in with the Respondent step-father. When she was 13, her mother and her step-father had a baby together. When she was 15, her second brother was born. In and around that time, the relationship between the Applicant and the Respondents became strained.

The Applicant moved out of the family home when she was 16 years old due to a very poor relationship with her mother. Prior to this, there were 2 incidents with police involvement, the last resulting in a restraining order. After she moved out, the Applicant struggled for a while, but with the support of various other family members, including her maternal grandmother, and Ontario Works, she was able to graduate from high school. She applied for a student loan and started a four- year program in university in September 2012.

The Applicant's biological father was not known to her and had never been part of her life. The Applicant claimed her step-father to be her father as he was the only father she had known. The Step Father was the sole breadwinner of the household, and the Applicant's mother was a stay-at-home mother with the two younger step brothers.

The Respondent step-father claimed to have never acted as a parent to the Applicant and that she never accepted him as a father. The Respondent mother claimed that she raised the Applicant by herself, as a single parent since her birth. The Respondent mother claimed that the Applicant never treated the Respondent step-father as her father and never expressed any affection towards him. The Respondent step-father had no role in any educational, health or other significant decisions concerning the Applicant. The Respondent mother made all of these decisions until the Applicant took control of her own life.

Analysis and the Law:

According to the Family Law Act, a "parent" includes "a person who has demonstrated a settled intention to treat a child as a child of his or her family." The Respondents argued that they were clear with each other from the beginning of their relationship that the Respondent step-father would not be involved in disciplining the Applicant and he did not act as her parent.

However, the young age of the Applicant when the parties began residing together, the fact that she had no other person acting as a father, that the Respondent step-father drove her and her mother to soccer games, that his parents treated her like the other grandchildren, that he was the sole breadwinner from 2007 supporting the whole family, and that he claimed her as a dependent in 2007 and 2008, supports the Applicant's position that he acted as her parent.

The Respondent step-father's 2012 income was $91,117.73. Guideline support for one child would be $810 per month. However, the Applicant was also seeking contribution to s. 7 expenses which includes residence. Since guideline support is for such expenses as shelter, for the Respondent step-father to pay both full guideline support and s. 7 expenses for university residence would be duplication. Furthermore, he was supporting the Respondent mother and their two sons as well as being the family's sole breadwinner.

The Applicant provided a budget that included University tuition and residence, text books, living expenses and dental expenses. The Applicant applied for an OSAP loan, (part of which was a grant, and the remainder was a loan), and she planned to work during the summer.

The judge felt that it would be reasonable to expect the Applicant to cover half of her post-secondary education expenses which totalled $13,188.87 (tuition, residence, books) through a combination of her loan, grant, and summer job.

In terms of the monthly child support payments, as stated above, the judge felt that it would not be reasonable to use the guideline of $810 per month as shelter is covered in the s.7 contribution to her university residence expense. Given, the Applicant's modest budget of $650 per month for living expenses and given that she could make some contribution of her own towards those expenses, the judge found that a monthly child support amount of $400 would be reasonable.

Final Order:

• The Respondent step-father was ordered to pay child support to the Applicant of $400 per month commencing September 1, 2012.
• The Respondent step-father was ordered to pay $550 per month to the Applicant commencing September 1, 2012 as his 50% contribution to the Applicant's post-secondary education expenses of tuition, residence and books. The Applicant was ordered to provide the Respondents with receipts by December 31st of each year for said expenses.
• The Respondent step-father was ordered to pay $625 to the Applicant as his fifty per cent contribution to her net dental expenses for her wisdom teeth extraction within 30 days of receiving receipt for same.