Lalonde v Potier: Motion to Change

On December 11, 2012, in the Ontario Superior Court of Justice, Justice Robert Beaudoin heard a Motion to Change the amount of child support payable by the Respondent Father as originally set out in the parties’ Separation Agreement, dated April 3, 2006.  In his judgement, Justice Beaudoin reviews the methods for determining support in a “hybrid claim;” namely, where one parent has physical custody of one child and the parents share custody of another.

Background

The parties were married on June 5, 1993, and separated on September 30, 2005.  There were two children of the marriage, M, born November 18, 1997, and D, born April 7, 1999.  After they obtained a custody and access assessment, the parties agreed to share custody and physical care of their sons on a week about basis.  As a result, child support was paid using the straight set-off approach (child support is calculated individually for each parent, and the parent with the higher income pays the other parent the difference between their respective support obligations).

On January 31, 2010, M began to live with the Applicant Mother on a full-time basis, while D continued to split his time between his parents’ residences.  At that point, the parties were unable to agree on the approach for determining support. While initially the Respondent Father accepted the Mother’s two-step approach to calculating support, in May 2011, he obtained legal advice and subsequently took the position that he had overpaid support. For the following 5 months, the Respondent Father made only one payment of $385. The Respondent Father then recommenced paying support in varying amounts, and at the time of the Motion was paying $783 per month.

On the Motion to Change, the Applicant Mother sought child support in the amount of $1,100 per month and proposed an additional $100 per month for s. 7 special expenses.  The Respondent Father, on the other hand, argued that his support obligation should only be $833 per month and sought a readjustment of child support retroactive to June 2010.

Justice Beaudoin’s Analysis

Justice Beaudoin examined sections 8 and 9 of the Federal Child Support Guidelines (FCSG) dealing with issues of split and shared custody.   The hybrid set-off approach taking into account economies of scale proposed by the Father was arrived at by first setting off the child support payable by the Mother for D against the amount of support payable by the Father for two children, which was $783.  The Father further proposed that he add an additional $100 per month to that amount.  The Mother, in contrast, arrived at the amount of support $1,100 per month from June 1, 2011 to September 2012, and then $1,220 per month from September 2012 onward (taking into account s. 7  expenses), by calculating the amount of support resulting in the mother having 54% of the parties’ net disposable income (NDI).

In the end, Justice Beaudoin accepted the Father’s argument that the hybrid set-off approach to calculating child support should be applied and ordered the Father to pay support in the amount of $883 per month retroactively to June 2011.  He further ordered that the Applicant’s claim for special expenses be reduced from $662.74 to $520, and ordered that the Father pay his proportionate share ($312 per month).

Of particular concern to Justice Beaudoin was the lack of disclosure on the Mother’s part regarding her living situation with her new partner, and the effect of a lack of disclosure on the court’s standard of living analysis.  While both the Mother and Father appeared to have new romantic partners, the Applicant Mother claimed that her “roommate”, Mr. Dufton, was merely a friend she was helping out, and not the man she had been in a conjugal relationship with for 6 years, as claimed by the Respondent.  In the end, Justice Beaudoin was not convinced by the Mother’s budget, her claim regarding a debt to her father, and the unexplained relationship with Mr. Dufton, who was living with the Applicant but only paying $200 per month towards household expenses.

Finally, in this case, also, the parties opted to argue the motion on the basis of their respective incomes, as they argued that they could not afford the expense of a time-consuming Contino budget approach to child support.  Although “recent cases indicate[s] the courts will try to find a middle ground in determining child support in [such] hybrid situations”, as Justice Beaudoin suggests,

In the absence of evidence supporting a Contino budget analysis, the court is left to rely on the financial statements of the parties and a consideration of household incomes and the distribution of the NDI with an eye to ensuring that children enjoy comparable standard of living in each home.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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