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Federal Child Support Guidelines - Case Updates

Introduction

The guideline cases summarized and reviewed here resulted, primarily, from a Quicklaw search, in mid-November, 1997. Other cases have been collected from the unreported cases distributed by the bar and similar efforts from other provinces.

The summaries and commentary are my responsibility. I have left out most of the cases decided under provincial legislation, where there were no provincial guidelines yet enacted, although a few, in which there is significant analysis that I felt was interesting, have been included. The summaries are, of course, basically limited to the aspects which are of interest from a guideline point of view.

This is neither a complete nor comprehensive list. The usual caveats apply. Since many of the reported cases are "interim", they suffer from the usual complaint that the court has had to make do with insufficient evidence. As no distinction is drawn in the legislation between interim and final orders, the same principles should pertain.

Section numbers used are from the Federal Child Support Guidelines, unless they are otherwise specified as from the Divorce Act. Generally, I have referred to the man as the "husband" and the woman as the "wife", irrespective of the current relationship, that is married, divorced or "common law". Dollar values are rounded off. Dates of cases are the date of the judgment and the case citation is usually the one employed in the Quicklaw database (e.g. [1997] B.C.J. No. 2376).

I have organized the cases in summary form, firstly by province, in alphabetic order, and then under rough groupings correlating to major areas of the statute. Lastly, an alphabetic index consolidates all of the cases, with the citation in full, from which you can ascertain the province and go back to the summary. It goes without saying, but I will say it anyway, read the original case.

CURRENT ISSUES IN THE GUIDELINES

The objectives of the guidelines contain within them laudable promises, as section 1 declares:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

I respectfully suggest that the guidelines are not as simple, efficient, or equitable as the legislators thought, nor are they as carefully drafted as they might have been. Whatever one thinks of the stated principles, or explicit assumptions, of the guidelines, it is difficult to disagree that their execution has been poorly handled.

I will touch on some of the interesting issues that interest me, some that the cases are dealing with and some which are waiting for determination. I follow the order of the statute in these brief comments:

SECTION 3(2) - SUPPORT FOR THE ADULT CHILD

The statute attempts to recognize that "adult children", that is, "children of the marriage" who are over the age of 18 (now the standard age across Canada) are, sometimes, to be treated differently from minor children. If the court feels "that approach to be inappropriate", that is, strict application of the tables and a sharing of section 7 expenses for these young adults, it has the discretion to depart from them.

No criteria are offered to assist the court, or the parties, to assess whether to go with the guidelines or the more traditional inquiry.

The wording of the statute, I argue, appears to require information concerning the child. How else is the court to determine whether it is appropriate or inappropriate to use the guidelines without all the information at hand? The information must be analyzed and compared. How this information should get before the court is not settled in the statute. Common sense would seem to require the parent who asks for the relief to make out the case, but will a court insist on the information if no one provides it and both parents are prepared to accept the table result?.

If there is any controversy about the evidence, it might be pertinent to hear from the child directly, by affidavit or oral evidence. Clearly, counsel opposite has a sensitive choice to consider, namely using the rules to examine the young adult under oath. The unfortunate result of this formulation is that the child is drawn into the heart of the dispute.

This section will have an obvious relationship to the application under s. 7 for "add-ons", and particularly so where the child is at university in another city. Where the child is non-resident, the use of tables may be lead to unfairness. The parent, with whom the child has been living, may claim that an amount should still be coming in to maintain the home for the child’s eventual or periodic return. The payor will argue that this is simply a subsidy to the parent unless the money goes directly to the child. The child’s budget, while away, will usually include a component for residential costs, as well as for food, clothing and the other basics of life, in addition to the tuition, books and other school-related expenses.

The court may be tempted to say no to the tables on this issue alone, to allow for a more crafted solution. One commonly used alternative is to use the tables, have the child’s share paid directly to the child, while away from home, and treat tuition as a s.7 add-on and subject to those considerations.

If the use of the tables is not appropriate, then the questions of "how much" and "for what reason" become important. It should be noted that the language of the section permits, where it has been determined that using the tables is not appropriate, a higher or lower amount to be ordered.

The section calls for a look at the "condition, means and other circumstances of the child", and a look at "the financial ability of each spouse to contribute to the support of the child". This is a different set of criteria, than previously or otherwise in the guidelines. It is the child’s situation, and not the parents’ circumstances, that is the primary focus. The second step looks at the parents’ ability to pay.

There is no presumption or "guiding principle", as there is in s. 7 for example, that the parents should share the cost proportionately, or equally. This litigation can be a forum for a "hardship" argument that might not otherwise meet the s. 10 test "undue" test. The result of the various calculations may drive the court to simply opt for the method that produces the highest dollar result.

SECTION 4 – INCOME OVER $150,000

Where the payor’s income exceeds $150,000, the court has a choice, to use the tables strictly or if it considers that "amount to be inappropriate" to use the tables up to the $150,000 mark and then consider how to deal with the payor’s income in excess of that threshold. The court, in that circumstance, is required to set the appropriate amount having "having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children" and section 7 add-ons. As I argue with respect to s. 3(2), the court has to have all the information to make the determination, whether the parties ask for it or not.

While admittedly these cases will be few, the starting point will be the table amount for a payor earning $150,000. Having determined not to go with the tables, the court has discretion how much, if any, it will order above the table amount, and may decide upon an amount which is more than or less than the calculated, strictly applied, table amount would have been. There is no real guidance in the section for the court to make the "inappropriate" determination nor, having made that determination, how to regard the issue.

SECTION 5 – THE IN LOCO PARENTIS CALCULATIONS

Where there is a child, to whom a payor is found to stand in the place of a parent, the court has discretion to order a different amount in consideration of the natural parents’ "legal duty to support the child". While it does not explicitly say so, one presumes that the amount would never be greater than the table amount. How the court should deal with the "deadbeat" natural parent and the obligation of the custodial parent to support the child and to chase the other natural parent for his or her share of the support, is not clearly spelled out. The cases seem to allow the natural parent to be joined to the action.

Where the child in question is one of a number of children, further issues arise about how the tables are to be used. Consider a simple example: 4 children; one is a stepchild whose natural, non-custodial parent, pays $100 monthly pursuant to an old order. The payor, non-custodial parent, at an income of $50,000, would under the tables pay $405, $663, $864, and $1,029 for one to four children, respectively.

Different results follow depending on how the tables are used. One approach is to look up the table amount for the total number of children ($1,029), and then average the amount ($257.25) and discount for the third party payments. This logic leads to a total child support receipt of $1,029 monthly, with the husband paying $929. Another approach might yield a different result, perhaps a greater inflow of support, but one would expect that the husband’s share would not be greater than the highest table amount. This example changes as the amount being paid by the natural parent increases, or if it is an unreliable amount. Can the stepparent insist upon an inquiry of the natural parent’s means, to determine the table amount that parent should be paying?

SECTION 7 - THE EXTRAS AND ADD-ONS

Section 7 allows the court to augment the table amount by ordering the payment of a share of some or all of additional expenses that may be claimed. The section seems, from my review, to crop up in most of the reported cases, either as the central, but more often as a secondary focus.

Again, in my respectful view, the statute is poorly drafted and ambiguous, generating unnecessary and, so far, very unhelpful litigation. While either parent may make the application under s. 7, it is questionable whether "add-ons" can be "take-offs", that is, used to reduce a table amount where the payor is meeting the expenses directly. One burning topic is the right of parents to enrol the child in activities and then demand a contribution from the other.

The first issue is whether the claim fits into one of the six categories of acceptable expenses. The section then looks for a determination by the court of two broad questions, with subsidiary components:

the necessity of the expense in relation to the child’s best interests; and
The reasonableness of the expense having regard to:
the means of the parents;
the means of the child; and
the family’s spending pattern prior to separation.
The court, having completed the analysis, may then exercise its discretion to add on all, or part, of the accepted expenses.

The criteria for the determination of what is, and is not, "extraordinary", the magic modifying word for subsection (d) (educational expenses) and subsection (f) (extra-curricular activities) are not articulated in the statute. The cases, unfortunately, appear to be quite subjective and arbitrary. It seems possible to find a case to support any expense being, or not being, "extraordinary". Nothing should be presumed to be ordinary or extraordinary (except for hockey, it seems).

While the courts struggle with the meaning of "extraordinary", their quest is by no means simplified by government publications which describe the guidelines as "starting points" or which offer assurances that the "usual" expenditures for families at each guideline level are incorporated into the table amount at each level, all of which has been generated by a mysterious, undisclosed, computer model.

The court has the power, once the add-ons are determined, to determine how the parents will share the cost. The statute invites the court, by calling it a "guiding principle", to have the cost allocated between the parents proportionately to their respective incomes, but this is not a requirement, and the court can do otherwise.

SECTION 8 AND SECTION 9 - SHARED CUSTODY AND SPLIT CUSTODY

Section 8, dealing with "split custody" and section 9, which covers "shared custody", seem to introduce, without any recognition that it is being done, two new legal concepts that are poorly defined and illogically deployed. The new terminology is misleading, ambiguous and confusing. The support provisions are strangely different, although at first blush they seem similar.

"Split custody" means, according to my understanding of the statute, that each parent has custody of at least one of the children more than 61% of the time. Anything less than 61% custody, but more than 39%, means that there may also be a "shared custody" scenario.

Where there is a "split custody" arrangement, the court (absent s.7 add-ons, or s. 10 undue hardship considerations) has no discretion. It must order the higher earning parent to pay the other the difference in the table amounts each would otherwise pay for the child(ren) in the other’s custody.

Where there is "shared custody", that is, the parents have each more than 40% of the child’s time (and this magic percentage becomes ridiculously elusive to count up when one considers school time, sleeping time, or away at camp time, for example) then the court must set the amount in consideration of a number of factors. It has no choice but to consider:

the tables;
the increased costs of shared custody; and
the condition, means, and needs of the parents and the child.
How these factors are to interplay in the court’s consideration is an open guess. The test appears to a broad one, however, and may lead to a result that is higher or lower than the table amount. The simplicity (not to be confused with any idea of the correctness or justness) of the "split custody" calculation is totally confounded by this section and can lead to a highly arbitrary result.

One is hard pressed to figure out and how to prove what the "increased costs" of shared custody might be, as these might be differentiated from the costs where the care and control factor is, say, a mere 39% of the time.

If father has one child 59% of the time and mother has one child 59% of the time, it would seem that they have shared custody of two children, rather than split custody. Their case will then require a potentially expensive, time consuming litigation, and an unpredictable result. If they had "split custody, the calculation of support is simple and done without the necessity of a difficult inquiry. If the split custody model is fair, then one would think that it should apply to shared custody, except in rare circumstances.

SECTION 10 - THE UNDUE HARDSHIP SECTION

When is hardship undue? Section 10 allows the court to order a lower amount than the guidelines’ table amount:

if a parent, or a child, will suffer undue hardship by the strict application of the guidelines; and
the parent’s household has a lower standard of living than in the other parent’s household.
The application for a finding can be made on behalf of either parent, any of the children of the marriage, and on behalf of a child being supported by either of the parents in the custody of a third party. While the statute lists examples of causation of hardship, there is room to go outside the list.

It is mandatory, before the court entertains relief under this heading, that having made a finding of undue hardship, it must compare the standard of living in each household and find the applicant’s household to have the lower one.

The statute creates a complex series of determinations and calculations, the standard of living calculation, which the court may entertain, but which is undertaken in virtually none of the reported cases I have found.

Although the issue is raised in case after case, it rarely succeeds and, in those where it has, with respect, the decisions do not bear up to close scrutiny in light of the statutory requirements.

S.14 THE TEST ON VARIATION

Although the passage of the guidelines, or any change in the amount of support payable under the guidelines, are said to be grounds for the court to vary, some courts are holding that the court still has a discretion not to vary.

This determination has prevailed in two situations generally, where the income of the payor has not substantially decreased, but the amount of child support will decrease with the application of the guidelines and, secondly, in those cases where, as set out in s. 17(6.2) of the Divorce Act, there are "special provisions" of a prior agreement or order that make it "inequitable" to blindly apply the guidelines. Similar provision is found in s. 15(5) of the Divorce Act. The case law that is developing under the "special provisions" considerations bears watching.

SS. 17, 18 AND 19 - THE DETERMINATION OF INCOME

The question of income determination is the subject of much of the litigation.

While the guidelines stipulate, in s. 2(3), that where "any amount is determined on the basis of specified information, the most current information must be used", the guidelines require a court to determine what is "the fairest determination" of the payor’s annual income. To accomplish this task, the statute gives the court discretion to look at prior years’ fluctuations, patterns of income, and non-recurring income amounts.

Where there is a corporate relationship and the court is of the view that the payor’s tax return information does not, in the words of s. 18, "fairly reflect all the money available to the spouse for the payment of child support", it has the power to adjust the corporation’s income and to impute portions of it to the payor.

Expenses can also be looked at and the court is not bound by the income tax appropriateness of a particular deduction, so that the sole proprietor may find the court adding back legitimate expense deductions, where they have an inherent personal value.

Where the payor’s income has been going up steadily, the court is required to use the most recent, that is, the highest amount and, where the income has been fluctuating, to use the average or such other amount it finds most appropriate. Where there are non-recurring amounts in the preceding three years, the court can take whatever part of it into this year’s income it deems appropriate. Non-recurring losses may be adjusted in the exercise of the court’s discretion if it "would not provide the fairest determination of the annual income".

Section 19, which allows the courts to "impute income" in various situations, has attracted considerable attention in the cases. One of the more interesting issues is where there is an argument that a person is "under-employed", an issue which is often raised by the non-custodial parent to raise the custodial parent’s contribution to the extras. It has the unfortunate potential of being used for tactical purposes.

The use of section 19 has not been confined to the situation of the independent entrepreneur, who has the reputation of being able to hide income, run expenses though the company or otherwise makes his (or her) living "under the table". The courts have imputed income in unusual situations, and the cases show no sign of exhausting the possibilities.

GUIDELINES CASES BY PROVINCE:

MANITOBA CASES

Adams v. Adams, Unreported, Man. Q.B., Diamond J., December 15, 1997

Variation of divorce granted April 10, 1997 requiring husband to pay $600 per month for 2 children, now 19 and 21, and then attending University of Victoria. Wife’s income is between $50 - $55,000. Husband’s income is $40,340.

S. 3(2) issue of appropriateness of using guidelines for adult children. Court adjourned case for sworn financial information from each child including income, tax returns, earnings to date, investments, loans, scholarships and bursaries, and R.E.S.P.'s. Mother estimates each child’s budget at $13,770.

Evidence shows 21 year old has income of $9,500 from employment scholarship fund and interest (no evidence of the source of interest) and loans of $1,773. Shortfall before loans is $4,270. Nineteen year old’s income is about $3,000 from employment, $349 from interest, and trust fund of $4593 for total estimated of $8,000, for a shortfall of $5,770, before loans. Court holds inappropriate to use guidelines in each child’s case as bulk of their needs are covered by their means.

Based on their incomes, husband ordered to pay 40% of the children’s deficits commencing January 1, 1998. Pay $335 per month in total.

Andries v. Andries, Unreported, Man. Q.B. Menzies J., June 2, 1997

S. 17 Overtime issue. Court held that history of overtime, increased opportunity for overtime, and steadily increasing income, allows it to find income at the same level as the previous year.

S. 7(1)(c) - Claims for asthma medication and eye care anticipated for one child, and current cost for the other child of glasses and contacts, most of which costs are covered by the husband’s plan. Court considers the effect of Pharmacare, although not applied for. Court orders husband to keep both children covered under his medical plan and to cooperate in processing claims and reimbursing wife.

S.7 (1)(f) Claims for extraordinary expenses for extra-curricular activities. The court held that while baseball and swimming are not extraordinary expenses, the costs of travel to baseball, being country folk, of $500 per year (2576 kilometers @ $.20 per kilometer) was found to be. School levy, unusual for schools to charge, of $60 per sport (3) was held to be extraordinary. Other activities were denied due to evidentiary concerns. One child has undisclosed income, but she does file tax returns. Court grants leave to re-apply on better evidence.

Comment: this case raises the issue of the unfairness of the guidelines in a society where not everyone lives the same way. The rural/urban dichotomy, for example. is ignored in the guidelines and may have to be fought out in a battle over extras.

Cabernel v. Cabernel, Unreported, Man.Q.B., Schulman J., July 15, 1997

Variation application. Two children. The husband is now paying $200 per month for daughter who has remained with the wife throughout. The son has now moved back to live with the wife. The parties agree that the husband should pay $200 per month for the son, although he has made no payments so far.

The court is satisfied that the husband’s income is greater than the $7,500 he indicates. The court is prepared to impute income to the husband ,sufficient to justify a table amount of $200 for the son. The husband is self-employed, has claimed income of $7,500 for the first 10 months of the year, has write-offs of otherwise personal expenses, and has acquired assets without new debt.

It is not clear if the court is ignoring the daughter for whom support is payable under an old order (presumably with the old tax consequences) and treating the son as an only child. That would mean an income of $24,800 to require a $200 payment.

It seems the court might have accepted the parties’ agreement under s. 17(6.4) of the Divorce Act, and discussed the result in that context.

S. 7(1)(c) expenses for drugs of $100 per month is found to be necessary and the proposed orthodontic treatment expected to cost $2,500 is accepted. The claim, under s. 7 (1)(d), for the costs of travel to meet the terms of the youth’s probation is not an accepted as an educational program.

Because the wife’s income is negligible, working as a part time nurse and taking courses, the husband must pay the entire $200 for extras.

Carter-Mackie v. Mackie – Unreported, Man. Q.B., Bowman J., December 9, 1997

This oral decision is too brief to be analyzed, but the court is clear that the guidelines "which we are lumbered with at this point" require averaging of the three years of income where there is "a significant variation in the income from one year to the next". De-registration of R.R.S.P. is excluded as a non-recurring item.

Ireland v. McMillan – Unreported Man.Q.B., Master Harrison, November 3, 1997

Financial disclosure , pursuant to the Federal Child Support Guidelines s.25 (1), is limited to once per year. Section 2(3) which requires the court to use the most current information was held to be a general provision that does not override the specificity of s. 25(1).

Ireland v. McMillan – Unreported, Man. Q.B., Mykle J., December 18, 1997

Variation application to bring $500 support, taxable, under the guidelines. Guideline amount will be $396, which is less that custodial parent’s previous net of $482, but more that the payor’s net cost of about $250 (see decision by Master Harrison, above). Held: the prior order constitutes "special provisions", departure from which "would result in inequity to the child".

Motuzas v. Yarnell, Unreported, Man.Q.B., Steel J., October 28, 1997

Interim child support payable in in loco parentis case. No discussion of contribution or lack thereof by natural father.

Nay v. Carroll, Unreported, Man.Q.B., Clearwater J., April 22 and June 9, 1997

Situation in flux respecting non-custodial parent’s place of residence and change of job prompts court to set arbitrary amount in the interim.

Rayland v. Rayland, Unreported, Man. Q.B., Guertin-Riley J., May 30,1997

The reduction in support, of $444, which will only save the payor $18.00 will create a situation of hardship for the child, so variation application is dismissed. No analysis in these oral reasons.

Regier v. Wensjoe, Unreported, Man.Q.B., Bowman J., October 17 1997

Interim application under the Divorce Act. This case deals with a number of concepts and in novel ways.

Two children in custody of the wife. She earned $6,000 last year and expects to earn less this year, between $2,600 to $6,000. The husband is in Texas, and his income is shown to be $36,610 U.S. for the first 9 months of the year. Both children, who have psychological problems due to sexual and physical abuse, are in therapy. Father denies he was perpetrator. The court is satisfied that the children need therapy, payment for which is made by Texas Criminal Injuries. Court accepts that wife cannot work due her role to meet the children’s needs.

S.7 Add-ons: Music lessons are seen as "education programs", and therefore included. Other activities are accepted as "extraordinary" by virtue of:

their developmental value (for their accepted therapeutic needs) and compensatory value (for a missing father)
the cost of the activities is extraordinary for this family’s economic status; and
consistent with their past history.
Total cost of add-ons for both is $1,710. In the context of this family in poverty, the expenses are "extraordinary".

S.7 (2) Sharing of the expense: The concept of proportionate sharing is a "guiding principle" only held the court, from which the court may depart, in the appropriate case. In the circumstances of the wife’s very low income, the court held that the husband should pay the entire expenses as found, based on the s. 1(a) objectives. The children are to benefit from the financial means of both parents. For the wife to have to pay any share of these costs would diminish her ability to provide for the children’s basic support. The court held it would be "grossly unjust" to make her contribute.

S. 19 Grossing-up and imputing income. The husband is a resident of Texas and therefore the court adjusted his income to account for:

currency exchange; and
differing tax rates.
The conversion of $36,610 U.S. funds to Canadian currency, brings it to $50,157, at an exchange rate of 1.39. The lower tax rate in Texas, effectively 9.3%, in Canada would be 27% higher. The husband’s income is grossed-up for this to $73,200. Table amount is $925.

Shaw v. Shaw, Unreported, Man.Q.B., Menzies J., August 12, 1997

Interim child support for two children.

Husband’s income per T1-1996 was $10,388 of which $52.62 was dividend income and $94.92 capital gain. Expenses reduced income by $3,370 for fence repairs for the farm, then owned by him but now owned by the wife and income reduced by C.C.A. for machinery of $24,257. Schedule III adjustments, per s.5, meant that dividends are actually less, due to income tax gross-up, so the court reduced income by that amount. Section 6, capital gains are higher due to being only taxable in part, so the court increase d income by that difference. Section 11, Schedule III: capital cost allowance for real property is to be included in income, but there is no provision in guidelines for chattels.

S.17 (2) non-recurring expenses: expenses for fence repairs etc. were incurred and even though non-recurring were legitimately incurred in the course of farming.

S.19 (2) court can impute income without regard to provisions of the Income Tax Act as the arbiter of what is reasonable. Here, using objectives that children "continue to benefit from the financial means of both spouses after a separation", the court holds that C.C.A. should be brought back into income as:

the taxpayer is not required to claim it in any given year;
it may not be an actual expense in the year it is claimed; and
the children would have benefited from the actual income derived by the farm.
Smith v. Smith, Unreported, Man. Q.B., Hamilton J., June 18, 1997

Wife’s income is $27,021 (after adjustment for E.I. and CPP, incorrectly it is submitted) Income for 1994 was $29,900 , for 1995 was $32,490 and for 1996 was $30,237 (all adjusted for E.I. and CPP). Court averages these three years to set income at $31,000, which is supported by current income to date $16,181 to the first week in June 1997. Income of $7,197 from curling winnings is ignored for these purposes, but the court orders an annual disclosure of his curling earnings /losses and a distribution of 40% as lump sum child support, but no is consideration of losses is expressed. The court adjusts the cost of day-care, by reducing by 1/3 for tax, to be shared proportionately to incomes as found.

Vivier v. Vivier, [1997] M.J. No. 414, Man.Q.B., Clearwater J., September 3, 1997

Divorce. Two children. Wife in Alberta, husband believed to be in Manitoba. Orders for financial disclosure ignored. S.11 (1)(b) of the Divorce Act and the guidelines require financial disclosure prior to the court granting a divorce. Here, there was a complete failure of financial disclosure despite reasonable attempts. The court held, relying on s. 19(1)(f), that the court is required to impute income where there is a failure to provide information under legal obligation to do so, that it could accept the wife’s affidavit evidence. Based on her version of his past employment/unemployment history and based on previous patterns of employment/unemployment, the court imputed employment income of $13,520 (26 weeks of 40 hours at $13 hour) and 26 weeks of employment insurance at 55% or $7,436. The total is $20,956 and the table amount is payable. Divorce granted.

Vogel v. Vogel, Unreported, Man. Q.B., Beard J., July 15, 1997

Guideline application dismissed "without prejudice" to allow compliance with requirements of the legislation as to evidence of finances and notice of the application.


BRITISH COLUMBIA CASES

Blackburn v. Elmitt, [1997] B.C.J. No. 2569, B.C.S.C., Macaulay J., November 18, 1997

1994 Agreement calling for up to $2,400 monthly to mother for her and two children at time when she was unemployed. Husband is dentist. Older child is special needs and may never be independent. In 1996 agreement, wife gave up spousal support and child support was set at $2,100 tax-free. Husband earned $122,287 in 1996, with a three-year average of $145,734. The wife now earns about $12,000.

S. 19 impute income. The husband has incorporated a company and court determines that his true income is his income, plus the corporation’s pre-tax income, which over three years averages $164,288. At this level, the Guideline table amount is $1,858.

S. 7 claim for extras of $521 per month including counseling for adopted child and activities recommended for behavioural problems, music etc. Court considers that father spends directly $2,000 annually on winter vacation with children so disallows mother’s summer expense of $1,877.

Other expenses allowed, notwithstanding lack of consultation or timing (and enrolment after application brought) which are held not to be determinative. Held, in best interests and reasonable having regard to means of parties, but court excludes cost of music instrument as non-recurring expense and allows a total of $339 per month. Husband to pay proportionately 93% or $315.

Variation test and special circumstances: Relying on s. 17(6.2) "special circumstances" of prior order or agreement. The total payable, on the court’s analysis, is therefore $2,173, which is close to the amount previously ordered, so application is dismissed. Court says no material change and cannot merely rely on section 17 "coming into force of guidelines" as the basis to variation to unravel a comprehensive settlement, following Wang.

Braich v. Braich, [1997] B.C.J. No. 1764, B.C.S.C., Curtis J., July 22, 1997

Divorce proceeding. Interim order called for $10,000 month for wife and two children.

Property division gives wife $2,000,000 and husband has balance of about $5,000,000. Wife is not employed. Husband’s income in now zero, he says, because of different factors, including corporate litigation etc. In previous years he earned from $300,000’s up to highest of $2,434,000. Court says he can earn $150,000 and will, in the near future, be able to afford payments of $1,717 of guideline amount, plus cost of medical dental expenses and ½ of private school tuition, which he will now pay from his assets. The court also ordered him, in the meantime, to post $150,000 as security for the payments.

Carrothers v. Carrothers [1997] B.C.J. No. 1535, B.C.S.C., Lamperson J., June 20, 1997

Son 18, who has graduated from high school, now takes only two courses at college. He works, but his income from employment is only $500 month at Pizza Hut. He is actively involved in hockey, which has become very expensive, which father no longer supports, and in respect of which he has no choice. Previously, when father was bankrupt, he did not contribute. He is required to pay 50% up to maximum of $1,800 annually. Support arbitrarily set at $250 for one year or until full time, employment is found.

Creighton v. Creighton, [1997] B.C.J. 2112, Harvey J.,

Interim proceeding. Husband’s income has dropped from $65,000 to projected $42,500 in 1997 due to injury and wife’s income has risen from $91,000 to projection of $128,000. Court holds appropriate to use current income, 1997, on interim as adjustments can be made later.

Crick v. Crick, [1997] B.C.J. No. 2222, B.C.S.C., Warren J., October 7, 1997

S.9: Shared Custody: Here there was a question is timing of the calculation to determine 40%, but the court says it would not matter in this case as: father lives with his parents; no evidence of increased cost; and he earns more than the wife, so that on "condition, means etc. test, it would not be appropriate to deviate from the tables. The judge notes that s.9 allows for a greater than (not just a reduction in) table amount to be awarded in a shared custody situation.

Income imputed on basis of average monthly income over the year and half of employment.

Cross v. Cross, [1997] B.C.J. No. 1741, B.C.S.C., Meiklem J., July 22, 1997

Variation. Separation agreement incorporated into divorce provided $150 per month per child, for two children, with annual increases. Wife claims guideline amount and s.7 contribution for private school costs. Husband claims "shared custody" on 40% time, and undue hardship. Husband earns $52,000 and table amount is $720.

s. 9: Husband has children ½ of summer, alternating Fridays after school until Thursday, and ad hoc overnights. Excluding hours of school, he has them more than 40%.

Held: "time" does not mean "non-school hours". This interpretation "offends the ordinary meaning of the words of that Section". The court finds that "the underlying premise of s. 9 of the Guidelines" is that in shared custody situations there will be "increased costs to the non-custodial parent which might make the Guideline tables inequitable". On this premise, the court finds that the costs of an overnight relate to the costs of preparing for and attending the next day of school (grooming, lunches, transportation, supplies), so that "it would seem reasonable to be able to add the school attendance hours following overnight access into the computation". In this case, however, it still does not give him the 40%.

S.10 (2): Undue hardship: The court held that the categories are not closed, but undue hardship is not found here.

S.7 (1)(d) private school tuition. The wife enrolled the child without consultation with the husband, and the court has no evidence of "necessity of expense in relation to the children’s best interests". In the absence of full disclosure by her, the court presumes that the expense is within her idea of reasonable for her budget. No contribution ordered.

Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039, B.C.S.C., Macaulay J., September 15, 1997

Variation Application to come under guidelines. 10 year old child in custody of father for whom wife now paying $300 month.

S.7 claim for extraordinary expenses: Child, precocious intellectually, and talented musician, is being home-schooled by father with the assistance of his mother, the child’s grandmother. The child has completed the secondary school curriculum, that is, she is several years ahead of her peer group. Mother would have child schooled at private school, in individualized program, at cost of $575 - $600 per month. Court accepts custodial parent’s decision as to home schooling.

Expenses for home schooling accepted at $500, not $539, as this compares to private school, violin lessons at $557 allowed as in child’s best interests, computer and software at $143 are within means, but camps, even though valuable for socialization and development of non-academic skills, claimed at $225, are held to be beyond means of the parties and set at $150.

S. 19 Impute income: Father earns $40,000 as self-employed computer consultant, but could earn more, but for his efforts to school child. Poor evidence of fathers’ business expenses, such as rent, which may be to himself, and no 1996 tax return or March 31, 1997 financial statement. Court holds "means may be greater than income" and that he has $24,000 in additional "means", as $2,000 monthly shortfall in his budget does not show up as debt, which court accepts is either from his business or from ongoing contributions by his family.

Mother is physician and earns $108,000. Table amount is $811 per month.

S. 7(2) the "guiding principle" of proportionality does not fetter the court’s discretion to consider other factors, including lack of information by custodial parent, the nature of his employment and the availability of contribution from his family. The court here orders parents to share add-ons equally.

Hall v. Hall, B.C.S.C. Master Joyce, May 15, 1997

Life insurance to secure support is not a "special provision" within s. 15.1 of the Divorce Act as it is not a provision which replaces the need for child support. Similarly, medical and health insurance premiums, insofar as there is provision in s. 7(1)(b), do not result in inequity. Application was dismissed, as there would be no benefit under guidelines versus the taxable regime of the prior order.

Hansen v. Hansen, Unreported, B.C.S.C., McEwen J., May 6, 1997

Desk divorce. Parties agreed on lower amount without justifying evidence. Court held no hardship and stayed the divorce.

Jaworsky v. Jaworsky, [1997] B.C.J. No. 2219, B.C.S.C., Macaulay J., October 17, 1997

Variation of divorce. On divorce husband ordered to pay $250 per month per child for three children. One child now adult, one with the wife and one is away from home in Austria on an educational exchange. No special application made for s. 7 expenses, so court orders table amount.

Knill v. Knill, [1997] B.C.J. No. 1668, B.C.S.C., Hunter J., July 11, 1997

Application to vary $200 set in July 1990 for one child. Husband has remarried and has two children of that relationship. His income is $44,323 and table amount would be $378. He argues hardship, as the increase will affect his sole support of his new family. No hardship proved per s. 10.

Wife earned $34,800 in 1996, but expects to earn $29,000 in 1997 due to no overtime. Her ability to work is in danger, as she now has Huntington Chorea and her doctor advises her not to keep this job.

s. 7: Special expenses for son who is asthmatic and has A.D.D. requiring medications of $140 per month, and claims for orthodontia expense of $48 per month and guitar lessons of $60 per month. Court holds that orthodontia, and guitar lessons are not special and that the medications will mostly be subject to provincial plan reimbursement.

Lambro v. Lambro, [1997] B.C.J. No. 2320, B.C.S.C., Drost J., October 21, 1997

Husband’s income $3,200 per month or $38,400 annually. Court says table is $546 for 2 children which it expresses as $273 per child. Add-on $58 for one child who needs tutoring.

Livingstone v. Livingstone, [1997] B.C.J. No. 1860, B.C.S.C., Fraser J., August 11, 1997

She is student. He is more or less retired. Division of assets leaves him with about $725,000 and she has about $240,000. Guidelines do not apply as father prepared to pay more than required. Parents ordered to establish trust, by proportionate contribution, which will generate sufficient income to pay $1,000 per month for child.

Olusanya v. Olusanya, [1997] B.C.J. No. 1776, B.C.S.C., Ralph J., July 25, 1997

Separation agreement provided for joint custody, with an allocation of care and control, and support at $500. Subsequent orders limited care and control and raised support to $800 per month.. Husband’s income was $73,729 in 1996, part of which is employment, part employment insurance, and R.R.S.P. de-registration income. Income is decreasing over the last three years. Held, under s. 17(1)(a), the court can only take income from most recent year, as opposed to under s.17 (1)(b) or (c) which allows an average or the court’s discretion. Employment insurance income was higher in 1996, than in 1995, which was lower that 1994. Court holds that the 1996 figure, being the most recent, "appears to be a fair determination for that source and section 17 should not be applied".

s. 17(1)(a): Capital gains, which have decreased over last three years, are taken as the most recent amount. S. 17(1)(c): RRSP income – court has discretion to include it. No such income in prior two years; court decides to average it over three years as a "fair determination".

s. 7 expenses for after school and day-care are ordered to be shared equally, as incurred, as cannot yet be determined.

S.10 (1) undue hardship claim by husband, based on seasonal unemployment, expenses for child during his periods of care and control and provision of activities for child. Court says hardship is part of his working life and difficulty in paying support during lay-off period does not make it undue.

Megeval v. Megeval, [1997] B.C.J. No. 2454, B.C.S.C., Kirkpatrick J., November 4, 1997

This is primarily a case about damages for assault. Parties agree on table amount. Court orders parents to share orthodontia, which is predicted but not necessarily to be undertaken, proportionately when it happens.

Miller v. Miller, [1997] B.C.J. 1322, B.C.S.C., Master McCallum, May 30, 1997

Interim application.

s. 19: Impute income: Husband self-employed in family business and says income is $40,000, whereas wife argues it is $100,000. Court imputed income based on past draws, current billings less estimate of costs after considering family expenses paid, and less cost of doing business in new manner, now that husband has obtained new premises to live and work out of. Income imputed at $65,000. Table amount is $534.

Wife’s income imputed to be $9,000 based on her estimate of income between $6,000 - $12,000.

S. 7 claim of $1,545 per month. Son very highly involved, with a focus on a career, in equestrian activities costing $1,500 per month. Held this expense is not reasonable in the context of the family, where husband pays $500 child support and $2,500 spousal, giving wife $2,100 per month disposable and leaving him with about $1,600 per month disposable.

Perry v. Perry, [1997] B.C.J. No. 1567, B.C.S.C., Scarth J.,

Variation to reduce $600 month set in 1995 for one child when husband’s income was $69,995. He is a realtor and his income has gone down due to the market, but appears to be on way back up. In 1996 it was $13,000 and in 1997 he estimates between $34 – $40,000. The court imputed income at $35,000 "given the inherent unpredictability of the real estate market and Mr. Perry’s apparent total reliance on that market to produce income…". Wife’s income is $44,000.

S.7 expense for childcare: Wife is stewardess. Court accepts the necessity of the expense, and the fact that father does not see the child. Cost apportioned according to income findings.

Phillips v. Phillips, [1997] B.C.J. No. 2376, B.C.S.C., Hutchison J., October 20, 1997

Variation of 1992 order. Husband’s income is $52,538 and he argues for Schedule III, s. 1(1) deductions for C.P.P. and E.I. premiums, and Union dues.

Held: This is wrong as per Income Tax act s.8 (1). The deduction is only for situations in which the payor makes those payments as an employer to another or on behalf of a third party who is employed as a substitute for the taxpayer performing the taxpayer’s duties. However union dues is a legitimate deduction from income.

Schom-Moffatt v. Moffatt, [1997] B.C.J. No. 2055, B.C.S.C., Morrison J., September 17, 1997

Two children, 18 year old with mother and 12 year old shared on a 50/50 basis. Wife earns $84000. Husband earns $36,000 from his business he says.

s. 19 court imputes income at $72,000 based on credibility in giving evidence, magazine article touting him and his company, and unexplained expenses in company.

s. 7 Add-ons: Claim for orthodontia for younger child, and for university expenses of older child. The parties to share proportionately the orthodontia, but otherwise no support payable for her.

s. 3(2) Over 18: After deduction of the husband’s parents’ scholarship fund, which will pay 18 year old $5,000 annually towards her $10,000 in university expenses, the parents will share the balance proportionately on incomes as found and father to pay guidelines for 18 year old, even though she will be away most of the year at university, on basis that her home will be with her mother even while attending university.

Shiels v. Shiels, [1997] B.C.J. No. 1924, B.C.S.C., Lysyk J., August 21, 1997

S. 4(b)(ii) appropriateness of guidelines where income over $150,000. Husband’s income is $289,339 and table amount is $1,970. Wife requests $2,150 to meet expenses.

Court holds, following section 1 objectives, that "those objectives are not promoted if determination of child support in accordance with s. 3 is too readily departed from, without clear and compelling evidence to warrant doing so."

Simms v. Simms, [1997] B.C.J. 1553, B.C.S.C., B. M. Davies J., June 16, 1997

Divorce case. Evidence heard before May 1, decision is post, so guidelines apply. Three kids of wife’s first marriage and one of this union. Custody of two in loco parentis kids to dad and child of union to him. She retains custody of one of her children. Split custody.

s. 19 Impute income: Court imputes income to wife, who is in a new business with her new common law husband, at minimum wage, being the amount she could earn elsewhere. She would pay $258 for the three in his custody.

Court imputes $15,000 to husband based on work history. Table for the one is $124, which the court reduced by $100, for the natural father’s imputed responsibility pursuant to section 5, which he has not been meeting and in respect of which he is in arrears, and wife pays the difference.

Singh v. Singh, [1997] B.C.J. 1550, B.C.S.C., Master Powers, June 11, 1997

Application to join natural father of child to divorce proceedings of support purposes. Reference to s.5 of Federal Child Support Guidelines in ordering him to participate to limited extent in the divorce.

Stamoulos v. Pavlakis, [1997] B.C.J. No. 2206, B.C.S.C., Pitfield J., October 1, 1997

Parties to provincial action ask court to use guidelines. Court’s remarks, however obiter on guidelines, are interesting and worthy of attention.

RE S. 19 imputing income:

"I do not interpret sections 17 and 18 of the Guidelines to say that they should be applied in a manner which will dictate the economic decisions which must be made in relation to the operation of the business including the investment and re-investment of capital as opposed to its distribution to principals".

"I need not and should not form the requisite opinion in the absence of signs pointing to the structuring of compensation in an attempt to defeat the Guidelines, or to the subsidization of an individual’s personal and living expenses through corporate disbursements either of which conclusions would provide support for the conclusion that "Total Income" from the source was not the fairest determination of "annual income" from the source.

"… adjustments contemplated by sections 17 and 18 should be made sparingly and then only in situation s where one may infer that avoidance of obligations under the Guidelines was intended.

The onus, in section 18, to show the reasonableness of salaries appears to arise after the court has formed the requisite opinion. Court says this should arise after prima facie case is made out. Here no imputing. The court uses three year averages for income determination.

Re s. 7 expenses:

"It is difficult to know what is "extraordinary" when there is regrettably no direction in the guidelines as to what is "ordinary" in the context of expenditures on schooling and extracurricular activities".

Here, the lack of paternity acknowledgement creates special or extraordinary needs. Schooling expense is included, but not clothing, computer and dietary needs.

Valaire v. Valaire, [1997] B.C.J. No. 1893, B.C.S.C., Master Chamberlist, August 1, 1997

Interim child support. Wife , who has custody, owns the company in which husband is employed provides him with salary and benefits. Wife asks that benefits provided be added to his income under s.18, re corporate sources of income.

Company pays some money to the children directly. Court refuses to impute income.

Wang v. Wang, [1997] B.C.J. No. 1678, B.C.S.C., Saunders J., July 11, 1997

Variation application brought by husband. Settlement in 1996 called for $3,000 monthly child support for three children, taxable. Husband says his income is $69,000 and that he should pay $1,181 as per tables. Wife says that the court should impute income over $100,000.

S.17 of the Divorce Act raises the question: "Is a court compelled to vary a child support order made before May 1, 1997 simply because guidelines are now in effect?" In this case the court says no:

"Section 17(1) of the Divorce Act directs that a court "may" – not "must" – make an order varying a previous order, and while s. 17(4) sets as a condition for a variation that there has been a change of circumstances as provided for in the Guidelines, I do not consider that language to require a variation when the change of circumstances is simply enactment of the new statutory framework. More explicit language is required to achieve such a dramatic result."

The court considered on what basis, if there is a discretion, its exercise should be founded. The court considered the provisions of s. 17(6.2) of the Divorce Act, but noted that there is no definition of "special provisions". The court then looked at dictionary meanings of special provisions as "particular provisions", i.e. "provisions … for the benefit of the children", which there were, or if it means "out of the ordinary not usual", which in this case the court found, the prior order having been made in contemplation of the wife’s inability to financially contribute to the children’s support, and particularly the eldest who is severely disabled.

The court accepted that s. 17(6.2)(b) of the Divorce Act applied and that there would be an "inequitable result" as it relates to the parties because:

there was a complex deal which if one term is altered unbalances the bargain as the other terms cannot be undone;
the oldest child’s disability affects the mother’s ability to provide for the family; and
if the reduction were applied, then the wife would seek spousal support, undoing the deal and engendering more litigation.
In the result the application dismissed.


ALBERTA CASES

Brown v. Lacombe, [1997] A.J. No. 1017, Alta. Q.B., Johnstone J., October 20, 1997

A comprehensive agreement provided that the husband had custody of two children on separation, subject to provision for reversion to wife. Child support deferred. Property issues dealt with. The wife returned to school; lived with her parents, obtained her degree. She owes parents a debt for her education of $10,000, but no payments required now. The daughter moved in with wife August 1, 1997. Split custody starting September 1997. Held, there being no expectation of support while the wife was retraining, the Levesque formula was applicable up to May 1, 1997, commencing 8 months after wife gets her degree. Guidelines do not have retroactive effect.

Wife’s income which was $9,627 (included $4,444 RRSP cashed in) in 1994, was $13,592 in 1995, $24,372 in 1996 and expected to be $25,000 in 1997, which latter figure the court accepted as her income. The husband will earn $48,000 and small business profit of $3,500 for 7 months. His income was imputed at $54,000.

Wife paid support: $100 month from September 1, 1995 to December 1, 1996, $127 from January 1, 1997 to July 1, 1997. When the daughter came over in August she ceased making payments. Access costs of $150 per month from September 1993.

Guidelines for her is $379. She pays for May, June and July at this rate. Husband ordered to pay $752 for August, when both children are with her, the son spending his usual summer month with her. Commencing September 1, 1997, the parties will pay according to the table difference in the amount each would pay for one child in the custody of the other.

Channer v. Hoffman-Turner, [1997] A.J. No. 1022, Alberta Court of Queen’s Bench, Kenny J., October 22,1997

Common Law relationship for a few years. Separation in December 1986. Agreement in 1987 to pay $1,500 per month for two children now aged 10 and 12. No provincial guidelines yet in force, but court holds them applicable:

"I am of the view that it is appropriate to apply those guidelines in situations of both married and unmarried persons in order that children may be treated fairly. [Otherwise] … we would be treating children of parents who were unmarried differently than children of parents who were married by using different parameters to deal with the issue of child support. I do not believe that that is appropriate nor does it ensure that children in similar circumstances are treated consistently".

S. 19 impute income: Father earned $88,000 as crown attorney, a position he left for personal/professional reasons, and went into private practice, and then brought application to vary. Current income is low but is expected to improve. The court holds:

"I do not take issue with that choice. He is entitled to make that choice and has done so for reasons, which he feels, are appropriate. When one has two young children to support, however, it is not always appropriate or prudent to make such choices knowing that the choice will directly affect the standard of living of those children. … Having made his choice, however, the court may still impute income to him in such a situation where he could earn a higher income but chooses not to."

Currently, the husband is earning no income, but he expects to earn $50,000. Wife wants imputed income at old level of $88,000. Court imputes $60,000 (without stating the basis for this number) and orders table amount, plus he is to keep his insurance for the children and pay proportionate uninsured health expenses and child care expenses when incurred.

C.H.R. v. E.B.C., [1997] A. J. No. 561, Alta. Q.B., Veit J., May 30, 1997

Provincial statute, but court accepts that guidelines should apply. Three children. Husband earns $2,600 monthly. Babysitting expenses of about $150 per month. Father to pay guideline for one child and proportionate on babysitting. Court will re-consider with respect to the other two in due course.

Elliott v. Elliott, Unreported, Alta. Q.B., Rawlins J., April 9, 1997

Deemed income: Automotive, entertainment, office telephone and travel had personal component on financial statement. The court adds $10,000 to $45,000 income.

Huckell v. Huckell, Unreported, Alta Q.B. June 27, 1997

Variation application of 1996 order of $4,500. 10-year-old child with cerebral palsy requires total care. 11-year-old girl with insulin dependent diabetes requires close watching and care. Wife claims for full-time nanny. Wife earns $10,000. Husband earns $153,567, which yields a guideline amount of $1,920.

Husband to pay 93.85% of add-ons found to be $20,478 per year, payable in monthly instalments. Held: at this level extra curricular expenses were not extraordinary. Husband to pay 100% of medical, after deductibles, and one time cost of $5,000 for renovations to the home required for the child’s health.

Lowry v. Lowry, [1997] A. J. No. 967, Alta. Q.B., Marceau J., October 3, 1997

Variation application. On divorce in 1990, husband required to pay $50 month for one child, who now over 18 is at university.

S. 19: Imputing income for self-employed payor. Income rising in last three years so 1997 is found to be the same as 1996, despite husband’s claim that his income is going down. Court considers reasonableness of his expenses pursuant to s. 19(1)(g), but allows them all based on no evidence to the contrary. Table amount is $167.

S. 7(1)(e) expenses for son going to university in September 1997. School year budget is $10,875,and he can get loan of $6,400. Student has obligation to seek loans, employment before looking to parents. Here budget, less loan, is amount to be shared by parents. Court directs mother to take tax benefit and using Childview determines that cost is net $3,345. Husband pays proportionately.

Claim for table amount for 8 months child at school. He may come home on weekends and mother will maintain the home for him. Held: pay guidelines for months after May 1 prior to going away for 8 months of school, and then $50 per month that he is in university, and $167 in any month child sleeps there 16 nights.

McCargar v. McCargar, Unreported, Alta. Q.B., Veit J., June 25, 1997

Four children, two with wife and two shared equally. Land and business that parties had during the marriage was lost in foreclosure. Wife now earning $26,000 and husband chooses not to pursue employment. Court imputed income to husband equal to wife.

S. 7: One time lump for extraordinary expenses, $410 for older children’s major expenses.

Pay table amount for two older children but no support for younger children in shared custody.

Middleton v. MacPherson, [1997] A.J. No. 614, 29 R.F.L. (4th) 334, Alta Q.B., Moreau J.

Shared custody ordered. Husband earns $31,300 and is living common law with a woman who earned $58,800 and paid $600 net child support to her first husband and $400 in deductible spousal to him. Her children were with them on Wednesday overnight and every weekend.

Wife's income is $14,563 while working on her master’s degree and living with her mother who earns $50,000. Husband wanted income attributed to her.

S.7 Expenses: Husband kept his medical dental for the child, at a cost differential between single and family plan of $32.00 month. Wife paying for counseling for child at $120 per month. The court ordered the therapy to continue and, therefore, found it to be in the child’s best interests. Husband paid for Suzuki schooling and $452 for lessons, lunch, and field trips. Private music instruction and viola rental of $111.00 per month, ballet of $615 annually and Y membership is 100.00.

Counsel submitted 12 questions, which the court considered, providing the following answers:

s. 7(1): Either may apply and the applicant should show detail.
s. 9 shared custody: The court can consider s. 7 expenses, but it is not necessary to do so, nor is the court limited in referring to S.7, as under s.9 the court should look at condition mean needs and other circumstances of the parties and children. The court can spell out the responsibility for payment of the expenses and allocate the parties’ shares.
s.7(3): The tax effect on S. 7 expenses can be estimated until year-end tax review
S.7 (1)(b): Medical dental insurance, where the husband was paying for extended family anyway the expense was not allocated, although otherwise it would be.
S.7 (1)(d): What are extraordinary educational expenses? Here the court considered dictionary definitions and the government publication assertion that the table amounts "are based on an average of what parents at various income levels spend on their children". The court bemoaned the fact that there is no "evidence of what expenses were taken into account when creating the table amounts".
S.7 (1)(f): Extraordinary expenses for extracurricular activities. The court held that these extraordinary extra-curricular expenses are not restricted to special talent issues, but depend on the circumstances of each case.
Shared equal custody was ordered in this case, but the court suggests that the parent with the overnight would have the day counted towards the 40%.
The need for reasons is set out in s. 15.1(6) "special provisions"/"inequitable" cases, s. 10 ‘hardships" cases, but not necessarily for section 9, although advisable.
Undue hardship: include common law’s income and payments of support; issue of hardship to the common law spouse is not the point.
S.9 support is discretionary, but court recommends using the section 8 split custody support as a starting point.
Shared custody and standard of living – child is member of each household, but not children of common law spouse? Unless in loco parentis. Household is a closed category, however court has discretion s. 1(c) to determine if reasonable to include a person.
Held: counseling is extraordinary expense subject to tax deduction. The court does not specify how the tax effect is determined. It allows music and school expenses, excepting mandatory school costs which are, therefore, not unusual. Wife to pay expenses and husband to contribute his percentage share on a monthly basis.

No hardship where husband has children of common law in his household; no evidence of undue financial hardship on him.

Tallman v. Tomke, [1997] A.J. No. 682, Alberta Court of Queen’s Bench, Wilson J., June 27, 1997

Action under provincial legislation. Agreement to pay $150 per month. Variation application. Counsel request guidelines and court accepts it. Special needs child, who has a shunt, has epilepsy and is blind.

S 7 expenses: Court reduces amount it allows for add-on for special day-care and tutoring, where lower level, and cheaper, service is possible. Hospital travel, parking charges and meals disallowed because not specifically listed in 7(1)(c). Tutoring at $83 month is held to be excessive, as no receipts put forward. Special sports costs allowed, but, while held to be a guess, father to pay his share.

Incomes: mother earns $20,000 and father, $49,800. He is ordered to pay guideline amount and proportionate amount of add-ons as allowed.

Tremaine v. Tremaine, Unreported, Alta Q.B., March 24, 1997

Income fluctuating over three year period. Current income held to be average of the last three years. Argument for undue hardship denied. Husband argued that he should only pay for 2/3 of guidelines where there are two children of this relationship and one of another.

Wilk v. Re, [1997] A.J. No. 732, Alta. Q.B., Perras J., July 14, 1997

Application to vary Divorce Judgment, which provides support of $200 per month per child for two children, and for payment of half of post-secondary university costs. Court refuses to apportion hypothetical post-secondary costs, as they require s 7(1)(2) and (3) inquiries

ONTARIO CASES

Anderson v. Anderson [1997] O.J. No. 3219 Jenkins J.

High costs of access, created by custodial parent’s move to another urban centre, are not a basis to reduce the table amount except in cases of shared parenting, s.9, or undue hardship.

Asadoorian v. Asadoorian, Ontario General Division, Fleury J., July 21, 1997

Father’s income fixed at last year’s amount, notwithstanding his claim that he will have less overtime and no guarantee of rewards. Ordered to pay guideline amount.

Bevand v. Bevand, [1997] O.J. 2661, O.C.J. (Gen. Div.) Family Court, Perkins J., June 20, 1997

Variation application. Guidelines not applicable but relevant consideration.

Stepfather ordered to pay support of $650 for child after relationship with her mother for 7 years and treated child as own. Natural father not in picture all that time. Relationship with daughter terminated by him. He enters new union and has child. Income dropping and natural father located.

Mother and natural father settle arrears at $10,800 and payment on them at $150 per month based on his income of $15,400. Court not bound to accept this as fact, but does so in absence of evidence to contrary.

Held: since natural father has poor track record and limited income compared to step-father, court finds it should not readily eliminate the step-father, who has not been in the picture for over 7 years, as source of support. Court refuses to set termination date and orders guidelines amount, if parties do not agree to leave old order with its tax implications as it was.

The court does not refer to s.5, and does not undertake a means and needs analysis based on lack of evidence.

Claridge-Skof v. Skof, [1997] O.J. No. 3112, MacDougall J.

Application by father to reduce payments of $1,300 per month dismissed on basis that result would be less money for children and no real benefit to the payor.

D.E.P. v. B.A.P., [1997] O.J. No. 4265, O.C.J. (Gen. Div.), Aitken J., August 28, 1997

Divorce. Impute income on donut franchise. Credibility seriously in question. Husband claims $17,055 gross income, plus $700 month he "keeps out of the cash register" and $300 from his common law wife. Court imputes income of $30,000 based on lifestyle evidence. Business valuator had imputed $27,300.

Dodd v. Dodd, [1997] O.J. No. 2076, Dunn J.

S. 7 claim for two children, one a talented figure skater and the other a riding enthusiast, which was supported by family history. Parents earn $39,000 and $12,000; table amount ordered at $680 with $123 for extras.

Estrela v. Estrela, [1997] O.J. No. 2916, Jarvis J.

The court imputed income of $45,000 where husband claimed income of about $20,000 but failed to produce financial evidence, on the basis that his company paid many expenses. Husband ordered to pay proportionately for day-care and future educational expenses.

Finn v. Levine, [1997] O.J. No. 2201, Desmarais J.

Child 21 at university. Expense apportioned between parents on Levesque formula without regard to Federal Child Support Guidelines. Child to contribute $2,000 from his own resources to total budget of $15,000.

Forrester v. Forrester, [1997] O.J. No. 3436, Aston J.

S.7 claims by wife for camps, night-time babysitters for when she goes out, etc. Held: first consideration is the necessity of expense relative to the child’s best interests, and expenses must be unusual for as family of the same means. Babysitting must be incurred for custodial parent’s employment, illness, disability, education or training for employment. Guidelines are not a license to enroll the child in lavish activities and then demand reimbursement.

Francis v. Baker, [1997] 28 R.F.L. (4th) 437, O. J. No. 2196, O.C.J. (Gen. Div.), Bennotto J., March 27, 1997

Variation of divorce judgment made in 1987 based on agreement, which calls for payment of $2,500 month. Wife was teacher and husband a lawyer at the time of divorce.

He became rapidly very wealthy after separation, has a current net worth of $78,000,000, and earns about $1 million per year ($945,538). Wife earns $63,000.

S.4 (b): Income over $150,000 issue, whether table amount is inappropriate. Husband argues that size of the table amount makes it inappropriate. Here, court holds table amount is appropriate based on his income and on the understanding that he paid certain expenses directly, such as private school tuition of $25,000. "Need" changes with the income of the parents and that "the guidelines de-emphasize the child care budget" approach. is inappropriate. Wife’s budget sets out budget of $76,700 plus private school of $25,000.

Children to benefit from both father’s wealth while with both parents. Orders table amount of $10,034 on basis that father continue to pay private school tuition of $25,000.

Gordon–Tennant v. Gordon–Tennant, [1997] O.J. No. 3436, O.C.J. (Prov. Div.), Aston Prov. J., August 19, 1997

American divorce registered in Ontario. Held: Federal Child Support Guidelines do not apply.

Haggith v. Trader, [1997] O.J. No. 2351, O.C.J. (Gen. Div.), Marshman J., June 5, 1997

Prior agreement contemplated low child support in consideration of transfer of equity in house over an 8-year period. The court attempts to unravel the financial arrangements to determine what is the benefit, and holds that $25,000 is the child support benefit over the 8 year period.

Although the guidelines are held to be inapplicable in a provincial statute case, the tax law change must be looked at. An increase in child support is ordered to reflect his higher income and the fact that now a new order will not be taxable.

Hautala v. Morgan, Lawyers Weekly Text Order 1716-005, Ontario General Division, Kozak J., July 28, 1997

Father’s income is $3,489 and wife’s is $1,489 per month. Three children of union. Paternity not established for one child of union. Husband has a fourth child for whom he pays $300 monthly.

Held: guidelines for three is $779 and for four is $930. Amount for non-biological child is subject to s.5, the amount "the court considers appropriate, having regard to these Guidelines and any other parent's legal duty to support the child". Support for non-biological child is set at $30 per month and for the other three, he is to pay $600 in total.

The full text of this decision may make the result more clear.

Holtby v. Holtby, [1997] O.J. No. 2237; 30 R.F.L. (4th) 70, O.C.J. (Prov. Div.), Aston Prov. J., May 30, 1997

Variation application. Four are remaining dependant of the six children of the marriage at time of divorce. One child is with the father (originally to be with mother and for whom was to pay $400) one with mother for whom he was to pay $400, one shared, but primarily with father for whom he was to pay $200, and one shared, but primarily with mother for whom he was to pay $300.

Marital property settlement of $175,000 plus $23,000 prejudgment interest, of which $75,000 balance due in 7 years, and husband now paying interest of $250 monthly. Shortly after the divorce, the husband converted his dairy farm to a beef operation in consideration of cost of borrowing and his brief imprisonment. Although there was a cash influx on sale of his dairy quota, he had start-up expenses and it turned out to be a bad year for beef operations. Husband applied for a reduction.

The variation was dealt with based on pre-guideline principles for the period before May 1, 1997, as using the guidelines retroactively would encourage re-examination of virtually every child support order.

The wife earns $10,680, plus the $4,000 interest, for a total of $14,680, but excluding $5,000 for cashed in R.R.S.P. as non-recurring amount under s. 17(1)(c). The table amount payable by her for the two children in husband’s custody would be $219 at this level of income.

Father has imputed income at $40,000 as not "unreasonable". Income is what the person will earn in the future, not what they had earned in the past, although a historical review is a basis to establish future income. In the past, he showed income over $150,000 and he now projects income of $138,000 in future. Expenses have some personal component. Issue of transfer of property to his girlfriend and a corporation.

The court also looked at the prior payment ordered to see what income today would translate to the same amount under the guidelines, and under S.19 (1)(f) imputed to him an income of not less than $40,000 which would require him to pay the wife $570 for the two children in her custody.

s. 8 Split custody: The difference between the two table amounts would be $351, based on incomes as found, but here court orders husband to pay $400. This is justified by an adjustment of wife’s income pursuant to s.17 (6.2) of Divorce Act, the "special provisions" of the agreement to postpone payment of $75,000 on the property settlement and consideration that the payment of interest to her meant she was not subsidizing the husband who had kept the farm for the children’s benefit and his livelihood. The court concluded, because her income is subsistence, it would not be equitable to charge all of this interest income against her child support obligation. Had interest not been payable by husband on the property settlement due, the judge would have reduced wife’s contribution to zero.

S.19 (1)(d) diversion: the husband’s diversions by a transfer of land to his girlfriend and to a corporation do not necessarily mean diversion of income.

S.19 (1)(e): The wife asked the court to impute income from the husband’s net worth of $200,000 that was not being used to generate income, but the court held it was reasonable for him to maintain the farm lifestyle for himself and the children. The court rejected a net worth analysis as the basis for income.

S.3 (2): Where a child will be 18 and going to university away, the court held that here table amounts are reasonable as father will provide home for her and is not asking for contribution to university expenses.

S.10: Wife claimed undue hardship. The court held there was not enough evidence to do the household comparison test. No evidence that the children who live with the father live differently that those who live with her.

Hughes v. Bourdon, [1997] O.J. No. 4263, O.C.J. (Gen. Div.), Aitken J., August 5, 1997

Separation agreement and divorce. Mother has custody of one child. Father has custody of two children of a prior relationship for which he receives no support. He earns $38,664 and Guideline amount is $335. Wife earns $20,280 and her new husband earns $80,689 while he supports another child for $525 monthly.

Hardship claim and day care cost claim. Wife requests past and current day care expense, after reduction of 25% for tax break. Wife acknowledges lower standard of living in husband, but argues discretion to award higher amount. She argues that: he has not been exercising access; that she has high debts from the marriage; that he declared bankruptcy to avoid his debts; and that she relies on generosity of new spouse. She has lost child tax and married equivalent exemption.

Held: S.7 and 10 claims require court to consider all the children and that award will affect children of his prior relationship. Here, no contribution to day-care costs and monthly support amount is reduced to $300.

Irwin v. Irwin, [1997] O.J. No. 3444, Aston J.

Husband’s tax return show $212,000 income, but court imputes income based on personal benefits of car expenses, rent, travel and public relations expenses. Income reduced however to reflect cost of loan to set up new home office.

Support for stepson is ½ of guideline amount for one year to give mother and natural father to assume sole responsibility.

Kowalski v. Kowalski, [1997] O.J. No. 4050, O.C.J. (Gen. Div.), Marshman J., September 23, 1997

Divorce. Wife has custody of teenage twins.

s. 19 issues. Income determination. Husband had extra income from summer employment in two previous years, but declined to take it this year due to uncertainty of locale. Court accepts the explanation as reasonable and therefore no attribution on this account.

House ordered to be sold. High risk husband would squander his share of the proceeds of sale, which after debt would yield $150,000. The court proceeded on the notional basis that his share would be invested and earn income of $9,000. Guideline amount based on his income plus this $9,000.

Add-ons: Extraordinary expense of son being hockey goalie to be shared proportionately for the future. Driver’s education, computer upgrading and football held not to be extraordinary.

L.H.H. v. D.J.M., [1997] O.J. No. 3218, Kozak J.

Three children of marriage in custody of wife. Guideline for three children (one of whom is a stepchild) is $779. Husband pays $300 for a child of another relationship. Held: he should pay guideline amount for 4 children, $930 less the $300 he pays for the fourth child, for a net payment of $630, of which $300 per child is allocated to his natural children and $30 to the step-child.

The summary of the case available to me, at the time of writing this, does not justify the basis of this decision, other than to illuminate that it treats his biological children equally at $300 each.

Marck v. Parotta-Marck, [1997] O.J. No. , Hurley J.

Husband and wife share custody of children. Husband earns $195,000 annually and has additional tax bill of $10,000 annually as result of income tax amendments. Table amount would be $2390, but husband argues he should pay less due to the tax burden. Amount fixed at $2,000 with provision that wife pay all of the children’s expenses, but the orthodontic expense.

Martin v. Girard, [1997} O.J. No. 2517, O.C.J. (Gen. Div.), Kozak J., June 16, 1997

Variation application. Husband has custody of two children in Thunder Bay, while wife lives in different community. On divorce, wife was unemployed and court had ordered father to share cost of access and pay her $1,000 for the summer access.

Husband’s income is $55,590 and wife’s income is $26,000. Table amount is $379. Wife claims undue hardship due to:

student loans of $20,000 from returning to school;
needs to help common law spouse with his education;
needs car and new clothes to work; and
significant access costs between Kingston and Thunder Bay
Held: delete requirement for father to pay $1,000, but otherwise no variation and mother not required to pay support.

Comment: This case does not analyze the hardship issue, nor does the court compare the cost of living between households. There appears to be no real basis articulated to justify the court’s failure to order support.

Meloche v. Kales, [1997] O.J. No. , Cusinato J.

Child in special school for hearing impaired in different city than custodial parent, during the week from September to June. Non-custodial parent has alternating weekends, two weeks in the summer and other access. Argument that he has shared custody of the child when available fails. Court holds that custodial parent has the child 100% of the time subject to evidence of actual physical care by the non-custodial parent. Follows Hall:

The legislation may require this court to count the hours for which each parent has responsibility but I do not think that the court has to interpret the legislation in a way which requires it to inquire into the sleeping patterns of the children.

Nadeau v. Mitchell, [1997} O.J. No. 2833, O.C.J. (Gen. Div.), Jarvis J., July 11, 1997

Variation of divorce judgment.

S. 3(2) Issue of child’s continuing dependency and whether appropriate to use guidelines. Child withdrew from school, then worked, then got medication for A.D.D. and then started to go back to school. Father claims for repayment of support for period when child not entitled to be supported. Court orders repayment from date of school leaving to now, due to lack of notice to father and child not taking medication diligently. Current plan for child to go to university, now seen as viable and father ordered to pay support while she gets high school credits.

S. 19 impute income: Fathers’ income base is $106,000. Because of stock options and discretionary bonus of $14,000 income was $167,233 in 1996. Court ignores stock options, but includes bonus on top of base salary as "equitable and appropriate". Income set at $120,000. Table amount would be $918.

S. 3(2)(b): Inappropriate to use guidelines. Child earns about $7,000 per year, wife earns $40,000 and husband’s and second wife’s health are questionable. Held pay $750.

S.7 extraordinary expense for horse riding which costs $900 month. While evidence suggests this has been helpful to her A.D.D., court accepts that it has slowed her educational progress. Court says it is a luxury she cannot afford and that it is not now in her best interests.

Child is to keep father informed of her progress and to complete an authorization so that he can get information. Ongoing conditions for child’s post-secondary funding set out, including that she works and earns $5,000 per year, chooses courses in consultation with parents and live with mother. Future school budget to be based on proportions of child, father’s and mother’s incomes. If the child not employed, consider using whatever means including credit to finance her share.

Ninham v. Ninham, [1997] O.J. No. 2667, O.C.J. (Prov. Div.), Aston Prov. J., June 27, 1997

Husband has custody of two kids and mom has one. He lives on reserve. Husband not candid re his income, resistant to paying support for ideological reasons and wife is not willing to enforce.

S.19 (1)(b): neither pays tax due to Indian status. The court grossed-up income, which it finds to be $35,000 inclusive of child tax benefit, to $50,000 taxable. Wife’s income of $14,000 is grossed-up to $16,000.

Divorce held up on grounds that father would not honour child support order. Court holds that support must be decided under provincial law because divorce stayed, but since parties’ request Federal Child Support Guidelines figures, the court goes along with it.

Split custody payment worked through on guidelines on incomes as found. Spousal support also ordered.

Quintal v. Quintal, [1997] O.J. No. 3444, O.C.J. (Prov. Div.), Aston Prov. J., August 22, 1997

Prior Order for RCMP constable to pay $1,275 for three children. Position lost due to his misconduct. Income was $51,577 and now is $12,288 pension. Remarried and new wife earns $37,000. He moved with her to New Brunswick to take up her new job. He is looking for work and looking after their child.

s. 19(1)(a) intentionally under-employed issue. List is not comprehensive and it is not necessary to making finding of "under-employed" to impute income. Here, he wants to work and expects to find employment; therefore, it is reasonable to impute income in the near future.

Court held based on his experience and motivation, he should be able to earn income of $25,000, six months from the date of his move to New Brunswick, that is, one-half of his former wage. He could presumably earn this amount as a security guard. If he earns more the court could re-adjust.

Guidelines ordered based on income of $25,000 and pension of $12,000, commencing after the 6 months, with payments, based on pension alone, until then.

Rains v. Rains, [1997] O.J. No. 2516, Pardu J.

Interim application to vary Order requiring payments of $1,000 per month for two children when husband was earning $53,600, but had now moved to the U.S. earning $3,000 monthly.

S.19 application to impute income not accepted on interim application, as there was no evidence that he was intentionally under-employed.

s. 7 claim for $3,568 in add-ons disallowed. Activities for which the cost is disproportionately high in relation to the payor’s income, which would not be included in the usual allowance for recreation which is part of the table amount. Expenses, which may be extraordinary, may be excluded on basis that they are not "reasonably necessary".

"It is not open to a parent to select any recreational activity regardless of cost and then demand the other parent to contribute regardless of cost, arguing that the children will be deprived if they do not have the opportunity."

Thomson v. Howard, [1997] O.J. No. 4431, O.C.J. (Gen. Div.), G. A. Campbell J., October 23, 1997

S.7 Add-ons: No right in custodial parent to enrol child in lavish extra-curricular activities not enjoyed before separation and then demand contribution – not a license. New activities after the separation must be "reasonable" in child’s best interest and flowed from the "spending pattern". Cost must also be unusual.

"For obvious reasons" claims for add-ons and undue hardship to be by formal motion and not orally at the hearing. Most items dismissed in this case due to lack of evidence. Tutoring, new computer, dictating equipment for child, seven groups of activities, two crowns and new bedroom.

Although doctor recommends numerous steps which "may help" to improve child’s academic problems, one of which is tutoring. Court accepts that there is benefit of tutoring, but so would every child in Canada. Claim disallowed. S.7 (2) Here child’s trust fund should be considered and used first for the academic needs. One time expenditure to refurbish child’s room in larger home not an extra. Prescription deductible of $100 is a usual expense. Section 7 is not an indemnification section.

Richardson v. Richardson, [1997] O.J. No. 2608, Pardu J.

Three children, two with mother and 19 year old with father. Court holds older child not fully dependent on father, so no guideline payment pursuant to s. 8.

Sagl v. Sagl, [1997} O.J. No. 2837, O.C.J. (Gen. Div.), E.M.Macdonald J., July 11, 1997

A very interesting case of the rich and devious in Ontario. The court imputes income based on numerous lifestyle analyses. Income imputed at $275,000, and wife is given $4,000,000 lump sum. No amount for private school as a result of high support orders.

Shelleby v. Shelleby, [1997] O.J. No. 2608, O.C.J. (Gen. Div.), Pardu J., June 20, 1997

Interim support. Following separation for two years, husband paid mortgage $1,100, taxes and utilities of $955 and gave wife $3,000 cash, totalling $5,091 and use of leased Cadillac. Wife earns $36,000. He declares income of $45,800 in 1995 and $47,500 in 1996.

S. 18 and 19: Imputing income: Husband is trucker, but his family owns the business, for which he provides services and to which he has resorted to for benefits. Court looks at family’s "relatively affluent lifestyle during cohabitation". Based on her current budget, with adjustment for him not being there, husband is deemed to have at least $5,800 disposable income monthly, plus an amount for capital expenditures.

The company, of which he is president, grosses over $8,000,000 and has corporate income of $133,000. Court imputes income of $150,000 income to him.

He will pay $1,706 on guidelines, proportionately for childcare, and he pays $2,000 spousal. Insofar as he pays for extracurricular activities, when the children are with him, the balance is not extraordinary, so no further contribution required.

Simon v. Simon, [1997] O.R. No. 4145, O.C.J. (Gen. Div.), Kealey J., October 17, 1997

Variation of divorce judgment, which set support at $2,200, indexed when husband, a professional hockey player, had income of $180,000 U.S. At the time of the hearing, the amount payable was $2,246.20.

S. 4: Income over $150,000. Determination of appropriate or inappropriate to use tables. Husband now earns $1,000,000 per year for two years, and perhaps $1,200,000 for the third. Court notes husband’s age, physical problems and competitive and uncertain nature of his employment in future years.

Wife says child budget is $6,085 per month, but court holds many of the expenses are not reasonable. Guidelines table amount would be $9,217. Court holds this is not reasonable. Considering long-term probability of income, court finds "it would be unfair and clearly not in the best interest of any child to experience luxuries and a lifestyle that will be of relatively short duration then suddenly reduced".

Held; pay $5,000 of which $1,000 goes into trust account for child until $100,000 is accumulated at which point, reduce support to $4,500. Commencement of support is May 1 with all payments due to October to be put into trust account.

Comment: this begs the question. Why not order the table amount and put the balance in trust for the future?

Van Wynsberghe v. Van Wynsberghe, [1997] O.J. No 2566, Vogelsang J., O.C.J. (Gen. Div.), June 24, 1997

Interim support on divorce. Comprehensive agreement about one year prior, splitting custody. Now both children with mother. Each parent earns $67,000. Included in husband’s income is $500 month car allowance.

Older child, son, who is over 19, is enrolled, with wife’s support, in 10 month, specialized and intensive, but expensive, course in Vancouver as prelude to film industry career. Shortfall from education fund of $15,400 will be $2,250 per annum for tuition and related expenses. Shortfall of $6,000 for room and board after deduction of child’s earnings of $3,000. Wife claims husband should pay shortfall and table amount for son.

S. 7 expenses for daughter’s for vocal lessons, school music, drama etc., with the exception of voice lessons, are held not to be extraordinary in context of the finding that:

"The table amounts increase with the income of the payor and reflect additional expenses presumed to incur as financial circumstances escalate."

Husband claims that the son’s course is not accredited and that he should take a more lengthy fine arts program. The court stated that a child 19 has the right to choose his education program. Father to pay directly to son ½ of tuition shortfall, as an up-front lump sum and $300 month being ½ of his living expenses shortfall for 10 months, and provide airline tickets for trip there and back if he comes, while mother pays for return trip at Christmas. Parents will share tax advantages, subsidy, scholarship or benefits available to the child.

Table amount for son is denied. Court says language of statute may be "broad enough to include" the son "but his particular circumstances, so far removed from the wife‘s residence, make her receipt of the table amount for his notional care completely illogical and inappropriate".

Westcott v. Westcott, [1997] O.J. No. 3060, O.C.J. (Gen. Div.), Perkins J., July 22, 1997

Divorce. Interim order. Three children with husband two of whom are over 18, at university and have some income and loans. They are held to be dependent children. One child, with wife who was full time homemaker before separation. While she worked part-time for a while, she is now not working claiming health reasons which the court accepts. Spousal support is not included as income for guideline purposes.

Husband earns between $100,000 and $150,000 as real estate agent and as broker. Husband claims declining income. Court took notice of real estate market ("everyone knows …") and imputes income as in previous year, with some discount for it being interim at $139,000. He pays support for one at guideline amount.

Zarebski v. Zarebski, [1997] O.J. No. 2114, G.A.Campbell J.,

Divorce granted despite no financial information about non-custodial parent absent two ½ years. Requirement to have regard to guidelines is not absolute.


SASKATCHEWAN CASES

Bially v. Bially, [1997] S. J. No 352, 28 R.F.L. (4TH) 418, Sask.Q.B., Gunn J., May 28, 1997

Interim application pursuant to divorce. Husband earns $43,450 and wife’s income is $23,437. Pay $767 for three children.

S.7 Extracurricular expenses: Son in hockey, baseball and trombone for total cost of $3,056. Daughter in piano, drama, swimming, baseball, and modelling for total of $1,156. Younger son in hockey, baseball, and swimming is $881. This was the pattern before separation and will continue in the interim, proportionately shared on an as incurred basis. No contribution for new activities unless agreed to.

Childcare is $400 per month but which wife estimates will be $550 because of court order on custody. Court holds the expense is necessary for her to earn income, but that the shareable cost will be consistent with pre-separation pattern, i.e. $400 month.

Gee v. Ng, [1997] S.J. No. 350, Sask.Q.B., Gunn J., May 22, 1997

Application for provisional order. Child of common law union. Guidelines adopted provincially in Saskatchewan. Father earned $35,200 in 1996 and $36,408 in 1995. In 1997, his income will be $38,975 based on information to end of March. Court accepts 1996 income of $35,200.

S.7; Mother works and earns $29,113. Day care cost is $320 monthly which court finds reasonable in circumstances. Share net ,after tax cost, of $226 proportionately.

Gran v. Gran, [1997] S.J. No. 330, Sask.Q.B., Laing J., May 20, 1997

Divorce, two children. Husband, with history of seasonal employment and then unemployment, now earning $8 hour, but expecting to earn $10 - $12 hour. Court fixed income at $11 per hour and extrapolated to annual income of $22,000.

Harrison v. Chalus, [1997] S.J. No. 438, Sask. Q.B., McIntyre J., June 24, 1997

Confirmation of provisional order made February 1, 1997. Question of whether to apply the provincial law pleaded or the Federal Child Support Guidelines. Held: apply the law that was pleaded, however the court adjusted the amount payable to accord with new tax regime.

Hubic v. Hubic, [1997] S. J. No 491, Sask. Q.B., Dawson J., July 24, 1997

Variation of support. Joint custody of two children as per contract. Husband earns $60,684 and wife earns $23,556.

s. 9: Shared custody: Children with father 11/28 days during regular weeks of the year, ½ of Christmas, Easter and summer holidays. Held this is over 40%. No identified increased cost of shared custody. Husband pays the cost of the extracurricular activities now. The court considers the provisions of s. 26(2) of the Divorce Act, which says:

26(2) The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.

Held: use the s. 8 formula for split custody, that is, the difference in the amount each would pay the other, with each to pay the cost of child care while children with them and each to pay the cost of extracurricular activities in which they enroll the children.

Johnson v. Checkowy, [1997] S. J. No 451, Sask.Q.B., McIntyre J., July 17, 1997

Variation application. Issue is income determination. Base income with bonuses (not guaranteed or consistent, but received for the last 4 years), some overtime. Holiday pay is now being paid out and no longer being banked. Investment income that fluctuates

S. 25.1 recalculation. Court observes that no recalculation administration established yet, but that provisions of s. 17(4) allow for variation pursuant to the guidelines, s. 14(a).

S. 2(3) requires court to use most current information to determine income, except where s. 17 is applicable, that is, where it would not provide the "fairest determination". Base salary for 1997 is known. Court uses 1996 figures for capital gains and interest, which fluctuate, on basis that no evidence of change presented, as opposed to averaging for last three years, which would have produced a lower figure.

S.17 (1)(c); court holds overtime and vacation pay to be not included, as non-recurring, but that bonuses paid for last 4 years although discretionary, are to be included.

Katzer v. Egeland, [1997] S.J. No. 672, Sask. Q.B., Baynton J., November 7, 1997

Variation of provincial court order. Saskatchewan legislation refers to the guidelines and adopts them. Question is whether to apply Divorce Act test or provincial statute test.

Held: "The provisions of the Divorce Act make it abundantly clear that a reduced variation threshold now applies and the Guidelines determine the support variation level".

Kofoed v. Fichter, [1997] S. J. No 558, Sask.Q.B., Zarzeczny J., September 29, 1997

S.7 (1)(f): Claim for extraordinary expenses for three children. Husband has gross income $52,444 and wife’s income is $7,433. Expense totalling $2,341 for piano, gymnastics, softball swimming, bowling, cubs, art, music, instrument rentals etc. Father deposes to activities he has kids in and for which he pays.

The Court holds that S. 7 is not compulsory. It looked for definitions of "extraordinary" in dictionaries and "the assumptions implicit in the establishment of child support guideline payment levels generally". The court looked at a government publication which says, "the amounts listed in the tables are only starting points. They are based on averages of what parents at various income levels spend on their children."

Held: this is a middle income family, father supports the children’s activities, and parties agree that this is in best interests of the children. Following Middleton and Bially, these are extraordinary expenses. Father to share the cost proportionately, in addition to his own activities with the children. The wife not to enroll the children in new activities without his agreement.

Kulyk v. Srayko, [1997] S. J. No 639, Sask. Q. B., Wilkinson J., November 10, 1997

Variation of divorce, as varied. Income of $25,209 in 1996 until November, when he was incarcerated for one year. Now, just released, he is searching for work. His incarceration is a consequence of his choices. Court imputes income at 1996 level based on past income, commencing December 1, 1997. Day-care apportioned based on imputed income.

Michie v. Michie, Sask.Q.B., [1997] S.J. 668, McIntyre J., November 6, 1997

Variation of order from October 1992. Three children, eldest is 18 year old at university full time.

Charter Issue: Issue re legal responsibility of divorced parents to pay support for children over 18, where non-divorced only have moral obligation. Dismissed on basis of guidelines and need for children financially to benefit from the resources of both parents.

Husband’s income is $54,844. Wife lives in Swift Current and earns $15,300. Child goes to university in Saskatoon, so had to make the move, and is in residence. University costs are $9,211, inclusive of tuition, fees, and residence, and also her food, transportation and entertainment budget. Child obtained student loan of $8,249 (not available if based on both parents income) of which $1,949 is forgivable on conditions. She contributes $2,150 through scholarship of $1,500, bursary of $250, and savings from job of $400. She is held to be a child of the marriage, even though she is meeting her own expenses through loans.

S.3 (2)(b):Inappropriate to use guidelines because of costs of post-secondary education. Sharing of the cost is not necessarily proportionate, as it would be if the expenses were add-ons under s.7 (2)(b), but according to ability.

Held: pay guidelines for two children at home, and pay $375 per month for each month that the eldest is in school, that is $3,000 for her educational expenses, in the context of her contributing $2,150 through scholarship bursary and earnings to her own budget.

The court does not mention the loan and although there is reference to daughter’s contribution of $2,150 this year, there is no analysis as to why $3,000 is the amount for him to pay. There is no discussion of who pays the balance of her university costs, except that one assumes this will come out of the loan money that daughter will repay.

The wife bears the cost of maintaining the home as her contribution to educational costs. She also bears the cost of looking after her fully for the 4 months that she is at home.

Messier v. Baines, [1997] S. J. No 627, Sask. Q.B., Wright J., September 26, 1997

Variation application. Support for two children. Hardship issue raised. Husband’s income is $26,183.00 and table for two children is 397. He is remarried with 7-year-old daughter who has asthma. His second wife is at home and earns $200-month babysitting

S. 10(2)(d) claim of hardship to child of the second marriage. Court holds this requires a two step analysis, bearing in mind the objectives of the guidelines.

"Second families, and the associated legal duty to support a child of that family are not uncommon. The assumption of such new obligations may by necessity create a certain degree of economic hardship. That hardship is not however necessarily "undue". Similarly, the mere fact that an applicant’s household standard of living is lower than that of the other spouse, due in part to the applicant’s legal duty to another child, does not automatically create circumstances of undue hardship".

Held: no hardship proven here. There was no evidence of the cost of the asthma and secondly, the new wife’s legal duty to support the child is relevant. The Court takes into account the household expenses she is able to write off in her babysitting business, and finds her contribution to household is greater than husband deposed.

Michener v. Michener, [1997] S.J. No. 624, Sask. Q.B., Wright J., September 17, 1997

Interim application pursuant to divorce action. Interim agreement in 1995, to pay $400 for child of marriage and $200 for child of mother’s prior relationship for which she receives no support, although she is obliged to pursue it.

Husband earns base $3,215 monthly, or $38,372 annually and received performance bonuses in 1994, 1995 and 1996, but employer says none for 1997. Wife has no income. Held: most current information is to be used, not past income for that is the income which is available to meet the needs. Guidelines for two would be $540 or $326 for one.

Held pay $450 on interim basis in consideration of s. 5 issue.

S.7 expenses claimed: Child care $180 monthly gross. No information as to subsidies, but in the interim, the court orders the husband to pay $100. Medical expense for drugs of $20. Held: S.7 is an exhaustive list and claims must fall within the categories, which this does not.

S.7 (1)(f) Extraordinary expenses for extra-curricular activities. Court notes not all extra-curricular are extra-ordinary. Here costs are not documented and are in dispute, but claimed to be $200 or $270 per month. Interim order of $150 per month to be paid by father.

O’Hara v. O’Hara, [1997] S. J. No 482, Sask. Q.B., Wright J., July 23, 1997

Variation of Interim Order made in 1995 to bring under guidelines.

S.19 Impute income: Wife argues that court should impute income to husband for farm expenses. Court says deduction of expenses must be unreasonable. No means of determining personal portion of the expenses. Court adds back capital cost allowance for property as per s.11, Schedule III.

S. 10 undue hardship claim based on lower standard living in wife’s household. Wife had waived spousal support. Court adjourns the issue to trial.

Schick v. Schick, [1997] S.J. No. 447, Sask. Q.B., McIntyre J., July 8, 1997

Divorce. Son, aged 16, lives with father. No order of custody required due to child’s age and ability to make his own decisions. Wife’s income is found to be $11,000, following s. 2(3), despite husband’s argument that she used to earn $14,500, where she contends she has a different position with fewer hours. Husband pays $800 spousal support and wants it added to her income for purposes of guidelines. Held: Spousal support is not added to her income for the purposes of the guidelines: S.3 (a) Schedule III.

Husband’s income is imputed to be $45,000 based on current income, as opposed to historical approach when he had better position.

Semenchuk v. Semenchuk, [1997] S.J. No. 480, Sask. Q.B., Wright J., July 21, 1997

Variation of 1991 order. Court rejects averaging of prior years, which would produce lower income figure, where current income information is available.

NEW BRUNSWICK CASES

Melanson v. Melanson, [1997] N.B. No. 253, N.B.Q.B., Smith J., June 9, 1997

Husband has rental income from basement apartment, but claims deduction of costs. Court accepts 40% as reasonable expenses, so that 60% of gross rental is income to be added to husband’s employment income. No analysis of basis for reasonability of the expense.

S.7 (1)(a): Day-care cost is $3,780, which is discounted by her combined marginal rate to $2,713, which is shared proportionately.

NOVA SCOTIA CASES

Bureau v. Bureau, [1997] N.S.J. NO 422, N.S.S.C., Glube C.J.N.S., October 22, 1997

Two children in primary care of Husband.

Assessment of incomes. Court excludes income of father, which is deferral required by 1995-tax law change for professionals. Now incorporated, the husband draws between $8 – $10,000 monthly, which the court fixes as $108,000 annually. Wife’s income fluctuating as she is in a new business, but the court fixes her income at $45,639, based on 1996 information, although estimates indicate it could be $72,500.

S. 7 add-ons for Nanny, who the wife uses when the children are with her, are found necessary. Extra-curricular activities, which keep the children busy every night of the week, are also found necessary, on the basis that the children were always involved in them, despite wife’s claim that these now interfere with her time with them.

Comeau v. Comeau, [1997] N.S.J. No. 409, N.S.S.C., Glube C.J.N.S., October 9, 1997

Divorce. Prior order provides $750 per month for wife and three children. Of this, $425 was to be put in trust. This was allocated as $250 for one child who has A.D.D. and has Conduct Disorder, and $175 for orthodontic expense of another child. Husband earns $51,365, and has a child of his common law relationship. The wife is on welfare due to her long-standing mental health problems.

The eldest child is 22 and she is going to university, as is the 19-year-old. The husband argued he should not have to pay support for these two children during the summer months when they are not in school, are working, and paying room and board as they can. Each are held to be children of the marriage with no reduction in the summer, based on their dependence on mother and the unreliability of their ability to earn and pay for their own support. Their contributions were less than the amount of support which the mother would receive. The court did not formally address the s. 3(2) issue, although it looked at the children’s circumstances.

S.7 add-ons: There is no issue with respect to the orthodontic expense of $137.50 per month which the court orders to be shared proportionately (the wife’s welfare?), the husband to pay $102.94. The private school issue is contested. The court accepts the husband’s contention that the child was wrongly diagnosed with ADD, although it is noted he had serious behavioural difficulty in public school, from which he was withdrawn, and then kept in home schooling for 6 months. He was then placed in private Christian school where, in the last 4 years, his behaviour has moderated and he is performing at an average academic level. The court held it continues to be in his best interests to attend this school, but that the issue should be revisited annually.

The cost is a major issue, but the court accepts that is reasonable and in the children’s best interests. The parents are to pay the cost proportionately with husband paying $162 of the $217 monthly (for 10 months) cost. The husband is entitled to keep the income tax benefits from educational deductions for the three children.

The wife is entitled to spousal support but due to the husband ‘s obligations for child support he cannot afford to pay it. The court preserved her right with a $1 order.

DeBaie v. DeBaie, [1997] N.S.J. No. 420, N.S.F.C., Buchan Fam. Ct. J., October 6, 1997

Variation of support for three children in custody of wife. Husband was paying $300 per month. Husband earns $15,225 and has insurance proceeds remaining of $87,000 on which he earns interest of about $2,400. Two older boys work and pay their own expenses and most of the anticipated post-secondary education costs. The court held that interest income is only 3% and that he could earn 5%, imputing to him the interest income at $5,000 to bring his total income to $20,000 on which he pays the table amount of $382.

Cameron-Masson v. Masson, [1997} N.S.J. No. 207, N.S.F.C., Legere Family Ct. J., May 12, 1997

Wife’s income is $25,570 and husband’s income is $49,800.

S.7 add-ons: Two children, both with Asthma, and one has eczema, and allergy to nuts. Children have history of extra-curricular activities and have baby-sitting costs. Total cost of these activities and baby-sitting is $3,972.

Judge accepted that these were extraordinary and necessary, but since these costs are fluctuating, they should be shared by percentage, payable to wife yearly. No evidence re net costs of babysitter.

Dempsey v. Dempsey, [1997] N.S.J. No. 327, N.S.S.C., Stewart J., July 14, 1997

Divorce. Two children, now 11 and 9. Agreement to pay $1,000 monthly for spousal and child support in place for over 4 years. Custody battle.

Husband earns $39,974 with overtime. His common law wife earns $21,247. The wife earns $15,378 and her common law husband earns $37.821.

S. 7 claims for about $2,000. The court held the expense for hockey and ringette is extraordinary and set the amount at $1,200 per year, inclusive of equipment, camps, etc. Husband to pay proportionately, based on parent’s incomes.

S. 9 shared custody not found here, on basis that father has children less than 146 day/nights per year including after school care.

Harpell v. Keizer, [1997] N.S.J. No. 401, N.S.F.C., Legere Fam. CT. J., September 17, 1997

Application to Vary Decree Nisi pronounced in 1988. Husband now paying $500 per month for four children. Husband has remarried and has two children of that union and two children of his second wife, for whom she receives no support. Wife’s income is about $17,637 including $6,100 in child support. Husband earns about $30,000.

S. 3(2)(b): Eldest child, now over 18, went away to university for first year, but had to leave due to emotional difficulty. He is having difficulty finding work and living at home but will earn $3,000 summer employment. He has secured a student loan and will go to a local university for one year from his mother’s home. The court finds he is a child of the marriage.

S. 10 Undue hardship: Guideline amount for the four children is $701.40. Husband argues that he has four children at home to support. The court says he must seek support from father of the second wife’s children, but that this is a hardship situation and orders a monthly payment of $600. The court considers, speculatively, the second wife’s possibility of working to come to this conclusion.

Monette v. Jordan, [19976] N.S.J. No. 337, N.S.S.C., Glube C.J.N.S., July 28, 1997

Variation application by husband for reduction in support payable for two children. Divorce, one year ago, required husband then employed and earning $50,400 to pay $1,500 child support and $700 spousal. He since quit the job and then another job, at which he was earning $15,588 at the time of his application. He also failed to generate income from two commercial properties he owns. The court imputed income at the level of his stated expenses, $19,500 annually and ordered a table amount.

Raynor v. Raynor, [1997] N.S.J. No.411, N.S.S.C., Davison J., September 30, 1997

Divorce proceeding. Two children. Husband’s income is $63,500. The wife is in a new business, but claims little income so far. Table amount is $838.

S.7: Son has "oppositional personality disorder". He requires activity and is a drain on mother. No evidence of specific amounts, but court says it is clear that he requires special expenses, which the court in its discretion fixed at $162 per month, bringing total child support to $1,000.

While the court looks at her income for the purposes of spousal support, there is no apportionment analysis of the section 7 expenses. The court goes on to say that the parties will share "exceptional uninsured medical optical and dental expenses in proportion to their incomes at the time of such expenses".

Wife claims additional amount for "undue hardship"; not found, but no analysis here.

S.19: Imputing income. Wife requests husband’s pension income be "grossed-up". Court says s. 19(1)(h) makes it clear that court is not to impute income unless the "spouse derives a significant portion of income from the pension payments, which it did not find here.

Robski v. Robski, Unreported, Goodfellow J., October 21, 1997

Divorce. Three children in custody of wife. Interim order, pre-guidelines, requires payment of $1,900 per month. Incomes found to be $68,000 for husband and $42,000 for wife. Wife owes husband on marital property settlement and will be required to pay him interest. Court sets table amount commencing January 1, 1998 less amount for interest. Cost of housekeeper required so wife can work of $11,700 to be shared on net cost basis, proportionately if parties cannot agree otherwise.

Medical dental coverage in force at father’s employment to be continued. Court is concerned about father’s financial management and orders security for child support by making the mortgage back to the husband on the home from the wife, non-assignable and security for support. The court notes that the amendments to the Divorce Act remove security from s. 15(2), but that this is now covered by s. 15.1(4) which allows terms and conditions.

PRINCE EDWARD ISLAND CASES

Acorn v. DeRoche, [1997] P.E.I.J. No. 82, P.E.I.S.C., MacDonald C.J.T.D., August 20, 1997

Variation application. Two children, 16 and 12. Agreement requires husband to pay $225 per child. He earns $23,400 per year. Table amount is $345 per month.

S.7 expenses claimed: 6 weeks babysitting in summer at $75.00 week as in the past. Child is now 12, so court holds not a valid expense, taking judicial notice that most 16 and 13 year olds can care for themselves in the daytime.

Glasses required every year, but only partly covered by insurance. Husband to pay proportionately his share of actual net cost as incurred.

Kaderly v. Kaderly, [1997] P.E.I.J. No. 74, P.E.I.S.C., Jenkins J., August 1, 1997

Divorce. Husband works in Cleveland, U.S.A. and earns $120,700.00 Canadian. Relocation after break-up due to government wage rollback. Wife and four children in PEI. Wife earns $11,000 providing in-home babysitting.

Current cost of access is $6,000 and long distance brings total to $10,000.

Schedule III deductions (not specified here) allowed to husband and court finds his income is $111,000.00. Table for four is $2,100. Husband is credited $300 for "extraordinary life insurance cost", so he pays $1,800.

s. 7(1)(e) post-secondary education costs. Court looks at cost of education and deducts the table amount for the period of schooling. The cost is $6,660, plus tuition for which there is scholarship. Court divides total guideline amount by the number of children to figure guideline amount of $450 for the 8 months of school provides $3,600, so balance to be considered then is $3,060. Court holds that father cannot afford this. Table amount addresses basic support.

Guidelines not intended to "operate so as to provide everything a child may need or which may benefit a child, and leave her mother, who is a spouse, destitute."

Here ordered to pay ¼ of total table amount, i.e. $450, directly to child while in university (8 months).

Hardship test shows mother has lower standard, but judge deducts the access costs from his means for the purposes of assessing spousal support and his ability to contribute towards the cost of post-secondary education.

Spousal support ordered although not all amounts of child support that could have been ordered were ordered.

Laughlin v. Cormier, [1997] P.E.I.J. No. 80, P.E.I.S.C., DesRoches J., August 12, 1997

Common law union with one child. Guidelines not applicable but considered as "useful indication of what might be a "reasonable amount", where jurisdiction is working on guidelines being adopted and tax changes in support for children."

YUKON CASES

Wedge v. McKenna, [1997] P.E.I.J. No. 75, P.E.I.S.C., Jenkins J., August 5,1997

Three children are shared on a two-thirds / one third split by the wife, who is a public sector lawyer, and the husband, who is a lawyer in private practice. The parties’ agreement called for no support being payable, due to the husband’s low income, but to increase at a threshold. The wife argues now that his income should be imputed, based on his long term debt and capital cost allowance, but the court determined her position was a misapprehension, and would impute his income at a level lower than provided by their agreement.

17(6.2) special provisions apply here, as the agreement was comprehensive and had addressed the issue of child support. The guidelines would have provided for an inequitable amount given the special provisions.

Macalister v. Macalister, Unreported, June 10, 1997 S.C.Y.T.

Variation application. The onus is on the applicant to provide evidence. Where likelihood of reducing amount available for the children, then the onus is not met.

Clements v. Clements, [1997] Y.T. No. 72, Y.T.S.C., Goodwin J., July 17, 1997

Variation application to reduce prior order to pay $300 per month for two children in custody of wife. Wife earns $52,000.

S. 19 intentional under-employment issue. Husband has brought previous unsuccessful applications to reduce. He is now at school, in social work and going for bachelor’s and then master’s degree expected in 2003. No work in forestry, in which he had experience. Had gone for one-year hairdressing, but lacked "finger dexterity". Past employment has been seasonal only and, if forced to work, it would delay his studies, he claims.

Court accepts that he is not "making all reasonable efforts to fulfill his obligations towards his children. Although pursuing studies, he could try to find at least part-time or summer employment". Court imputes income of $13,000 - $15,000 based on past work history, which means table award of $63 - $121 monthly and he had offered to pay $50. In a prior application in January 1997, where the circumstances were similar, but the amount would have had tax consequences, he had offered to pay $125. Court orders $125 non-taxable.

NORTHWEST TERRITORIES CASES

Hoover v. Hoover, N.W.T.S.C., Vertes J., July 21, 1997

Application by non-custodial parent to bring support under the guidelines.

Special expenses must fit in s. 7 categories. Held computer equipment is within s. 7(d), extraordinary and necessary. Not every child has ready access to a computer.

The categories of undue hardship are not closed. The reduction in support due to use of the guidelines is not undue hardship:

"The fact that some support orders would be rolled back as a result of the application of the Guidelines must have been foreseen by Parliament. Unfortunately, from the mother’s perspective this is one of those cases."

McCarthy v. McCarthy, [1997] N.W.T.J. No. 69, N.W.T.S.C., Schuler J., October 22, 1997

Variation. Husband now paying $300 per month for two children for 10 months of the year. Children with him for two months.

S. 19: Imputing income. Evidence of current income includes overtime to date of statement. Court imputes income as indicated to date with balance of the year at base rate, without overtime. As husband lives in Alberta, the table for that province is used.

S. 10 Hardship claimed based on husband’s access costs of $1,500 - $2,250 annually. Court holds that it is:

" unable to say that it is "unusually" high. Many parents who live outside the Northwest Territories incur substantial expense to exercise access to their children living in the Northwest Territories. Many parents who live in the Northwest Territories incur substantial expenses to exercise access to their children who live in a different community than they do in the Northwest Territories."

Williams v. Williams, [1997] N.W.T.J. No. 49, N.W.T.S.C., Vertes J., August 14, 1997

Divorce 1995. Variation proceedings. Father has custody and wife pays $200 pursuant to prior order.

Father claims decline in income from $80,000 to $64,000. Wife has moved to Nova Scotia, where she now earns $23,400 employed with her common law husband in a pizza franchise.

s. 19(1)(b): Impute Income. The husband argued the wife was "intentionally under-employed", but court held:

" that the use of the word "intentionally" implies a deliberate course of conduct related to the purpose of the guidelines, i.e. the provision of support. The intentional under-employment must be for the purpose of undermining or avoiding the parent’s support obligation. The court should not impute income in the absence of such a motive since to do so would impose an onerous financial obligation on any parent who chooses to make a change in employment, for example, however bona fide."

S. 7 Child care costs have increased from $600 - $850 monthly and this is required because of shift work. The court held this is special and necessary. However, the original cost was $600 at time of divorce, so that the court, relying on the s.7 (1) discretion to include "any portion", determined that she only shares in the extra amount proportionately.

S. 10 - Undue hardship claim by mother due to high access costs. Because she chose to move to Nova Scotia, "there is nothing "unusual" about high cost of travelling between Nova Scotia and the Northwest Territories". The court is critical of the Standard of Living test.

QUEBEC CASES

E.W. v. M.M.P., [1997} Q.J. No. 3474, Q.S.C., Dalphond J.

Divorce. One child age 15 with mother. Impute income issues. Family business generates cash and bartering for goods and services. Court imputes income from his declared income of $46,000.00 and raises it to $100,000 to account for use of car, bartering income, cash payments, use of credit cards.

Husband to pay health insurance, with wife to pay 20% deductible, and husband to pay private school until wife is financially independent and guideline amount of $700.

CASE LIST BY ISSUES

[NOTE: The cases referred to in this section are cited in the Index; they are more fully cited in the Cases by Province Section]

DIVORCE ACT AND PRACTICE ISSUES

Hansen v. Hansen - where the parties agreed to a lower than table amount, and no hardship found, court stayed divorce.

Ireland v. McMillan – demand for financial disclosure is limited to once per year.

Ninham v. Ninham – fear that parent would not honour the support order prompts court to stay divorce.

Robski v. Robski – security for child support; authority in s. 15.1(4) of the Divorce Act and s. 12 of Federal Child Support Guidelines.

Vivier v. Vivier – to grant divorce, court needs financial disclosure to determine reasonable arrangements made, which if not forthcoming will be based on best evidence available.

Vogel v. Vogel – variation application by payor to bring support under guidelines dismissed, but without prejudice to right to re-apply with proper evidence and notice.

Wang v. Wang – variation under Divorce Act is discretionary and not compelled by guidelines.

Wedge v. McKenna - special provisions of agreement making guideline award inequitable.

Zarebski v. Zarebski - divorce granted despite no financial information from absent parent.

APPLICABILITY OF FEDERAL CHILD SUPPORT GUIDELINES

Channer v. Hoffman-Turner – guidelines should apply to common law situations, so that all children are treated equally.

C.H.R. v. E.B.C. – provincial case; apply guidelines.

Gee v. Ng – Saskatchewan has adopted the guidelines; here, a provisional order.

Gordon–Tennant v. Gordon–Tennant – guidelines do not apply to a foreign order registered in Canada.

Katzer v. Egeland – provincial adoption of guidelines means that test on variation of provincial orders is as per guidelines, that is, under the Divorce Act, and not as per the provincial statute test.

Laughlin v. Cormier – in P.E.I., guideline use is discretionary and not compelled by guidelines in provincial cases, considering province looking at guidelines and tax change in support.

L.H.H. v. D.J.M. - support allocated between two households, as biological children of one payor are treated equally.

Livingstone v. Livingstone – neither parent has income. Court orders proportional contribution to trust fund to create income, where there are significant assets..

S. 3(2) - OVER 18

Adams v. Adams – inappropriate to use guidelines where means of child pays most of the expenses of post secondary education away from home. Here, court demanded sworn evidence from children, and considered interest income, but did not consider the capital assets or loans available to children.

Carrothers v. Carrothers – high school graduate, with part time work and 2 courses at university ordered supported at a fixed amount for one year.

Comeau v. Comeau – children’s incomes considered in determining whether to require support during summer when they are not in school.

Finn v. Levine - child ordered to contribute $2,000 towards $15,000 university budget; parents to pay in accordance with Levesque formula.

Holtby v. Holtby – table appropriate where custodial not asking for contribution to costs of university away.

Kaderly v. Kaderly – court orders ¼ table amount for four children to go to child at university during the school year. No order for section 7 contribution.

Lowry v. Lowry – child to contribute to post-secondary costs; include loans; pay less than table amount where away at school, but table amount when child is at home.

Michie v. Michie – child at university with income, scholarships and loans; these make guidelines inappropriate; two children at home on guidelines and this child supported for each month at school.

Nadeau v. Mitchell – guidelines not appropriate where child and mother have income and father, who has good income, has health problems. Conditions set on sharing of post-secondary costs, where previous history of mother getting support while child not eligible and child not reliably at school. Child to rely on loans if necessary.

Schom-Moffatt v. Moffatt – child away at school. Court orders parents to share proportionately in shortfall after family scholarship and for husband to pay guidelines as mother’s home is child’s home, even while at university.

Van Wynsberghe v. Van Wynsberghe – 19 year old can choose his educational course.

S. 4 - INCOME OVER $150,000

Francis v. Baker – high table amount is no reason not to use guidelines. Children to have equivalent life-style at each parent’s home.

Marck v. Parotta-Marck - table amount reduced to allow for high cost of tax amendments respecting deferred income.

Shiels v. Shiels – objectives of guidelines means that departure from tables should be rare, and court should have clear and compelling reasons.

Simon v. Simon – sudden burst of income, and lack of substantiation of expenses to match table amount, render it inappropriate to use tables.

S. 5 - IN LOCO PARENTIS

Bevand v. Bevand – provincial case; stepfather pays even though natural father has some ability to pay; natural father’s contribution is limited to arrears.

Hautala v. Morgan – reduced amount payable for step-child. Amounts for natural children also adjusted.

Irwin v. Irwin - pay ½ guideline amount for one year to allow natural parents to assume the full responsibility for stepson, where no evidence of why support not being paid by natural father.

L.H.H. v. D.J.M. - less payable for step-child than biological children in this case.

Michener v. Michener - reduction in table amount for prospective claim against natural father.

Simms v. Simms – support reduced by amount court imputes to natural father under order, which is not being paid and is in arrears.

Singh v. Singh – natural father joined to divorce proceedings to participate on support issue.

SECTION 7 ADD-ONS

Acorn v. DeRoche – no babysitting cost for average 13 year old.

Andries v. Andries – cost of extracurricular sports not allowed, but court considers cost of travel in rural area to attend games etc. to be extraordinary.

Bially v. Bially – in interim, follow the prior pattern for extras; no new activities without agreement.

Blackburn v. Elmitt – lack of consultation is not determinative of reasonableness or child best interests. Credit for expenses paid by payor spouse.

Bureau v. Bureau – previous spending habits of family make current extra-curricular costs reasonable; nanny required due to both parents working and each uses her.

Cabernel v. Cabernel – cost of travel to son’s counseling, which is a term of his probation, is not covered as an extraordinary expense for education.

Comeau v. Comeau – husband paying support is entitled to the tax benefits, where wife is on welfare. Review annually the necessity for child to be in private school.

Cameron-Masson v. Masson – history of activities; since cost is unknown and will fluctuate, payable proportionately and twice yearly in advance.

Carrothers v. Carrothers – contribution to very expensive hockey for 18 year old limited due to lack of parent’s control or say as to involvement.

Cross v. Cross – private school expense, in absence of agreement, requires evidence of necessity.

Dodd v. Dodd - expensive activities, above parties’ means, included where historically supported.

Ebrahim v. Ebrahim – court has discretion to consider lack of financial disclosure, the nature of custodial parent’s employment and contributions from his parents, in determining proportion.

Estrela v. Estrela - pay future educational expenses on same proportion as set for day care.

Forrester v. Forrester - guidelines not a license to enroll child in activities and demand reimbursement. Babysitting is only to allow custodial parent to be employed etc.

Gee v. Ng – share after tax cost proportionately.

Hoover v. Hoover - categories are closed. Computer equipment comes under s. 7(1)(d) as necessary and in child’s interest. Required for school purposes and not every child has access to a computer.

Huckell v. Huckell – guideline amount for over $150,000 income makes extra expenses not extraordinary. Payor required to contribute to nanny and other expenses related to disabled child’s needs.

Hughes v. Bourdon - no add-ons where hardship found, even though expense is reasonable.

Jaworsky v. Jaworsky – child away at school, but no claim for s.7 amount, so court orders guidelines.

Kaderly v. Kaderly – university costs met by giving child her equal ¼ share of the full table amount, but no contribution to shortfall, as a section 7, due to parent’s finances.

Knill v. Knill – add-ons not allowed for orthodontia, medications and guitar lessons; reasons not very clear.

Kofoed v. Fichter – inclusion of add-ons is relative to income levels and parties’ attitudes to the activities and their importance.

Kowalski v. Kowalski – share proportionally expense of goalie equipment as incurred; driver’s education, upgrading computer and football not extraordinary.

Lowry v. Lowry – deduct tax benefit of tuition for university student.

Megeval v. Megeval – court orders proportionate share of orthodontia, if and when it is undertaken.

Melanson v. Melanson – discount day care cost by marginal tax rate.

Michener v. Michener – s. 7 expenses must fit the list; in this interim application the court allowed an amount for hockey.

Middleton v. MacPherson – either parent can apply for extra expenses; in shared custody case, court can allocate expenses and responsibility for them.

Miller v. Miller – equestrian costs of $1,500 per month not apportioned where husband's disposable will be $1,600 and wife has total income of $2,100, inclusive of income, spousal and child support, as not within parties’ means.

Nadeau v. Mitchell – horseback riding, which was beneficial for child’s ADD, is now seen as not in her interest and a luxury. Child to rely on loans, if necessary, to pay her share for post-secondary education.

Perry v. Perry – child care for stewardess, custodial parent is necessary for her to earn a living.

Rains v. Rains - add-ons must be proportionately high in relation to the payor’s income, and reasonably necessary. Not open to parent to select any activity and then demand contribution from the other.

Raynor v. Raynor – no evidence of actual expense for special needs child and court accepts it has a wide discretion, topping up table amount by $162 to round it off at $1,000.

Shelleby v. Shelleby – high table amount and payment by husband of direct expenses means no further contribution required.

Stamoulos v. Pavlakis – extraordinary is in context of the family in question and little guidance in guidelines as to what is ordinary.

Tallman v. Tomke – special needs children; expenses for child care allowed, but reduced where court accepts that cheaper services will do.

Thomson v. Howard – no unilateral decision to incur expenses and then demand reimbursement.

Van Wynsberghe v. Van Wynsberghe – extraordinary expenses to be looked at in context of table amount rising with income.

Wilk v. Re – no fixing of post-secondary education costs where not yet incurred, as assessment required under section.

Williams v. Williams – entire expense not necessarily included; here court looks at increase since prior order.

S. 8 - SPLIT CUSTODY

Brown v. Lacombe – no expectation of support while wife is retraining; issue deferred.

Holtby v. Holtby – court to consider standard of living where there is split custody and claim for undue hardship.

Richardson v. Richardson - 19 year old not fully dependent, but in care of one parent does not justify a split custody payment.

S. 9 - SHARED CUSTODY

Cross v. Cross – "time" does not mean exclude school hours; obiter that overnight includes the next day at school.

Crick v. Crick – calculation of time share irrelevant where husband lives with parents and no extra costs. Court notes amount can be increase or decrease.

Dempsey v. Dempsey – 146/365 days/nights required for 40%.

Hubic v. Hubic – use the s. 8 formula and let each pay for the activities in which they enroll the child.

McCargar v. McCargar – pay no support for two children where shared custody and pay tables for other two in custody of mother.

Meloche v. Kales - court assumes custodial parent has 100% of the time, subject to actual physical care by the non-custodial parent. Not to count sleep hours or school hours against the custodial parent.

Middleton v. MacPherson – use the split custody formula as the starting point for support.

S. 10 UNDUE HARDSHIP

Anderson v. Anderson - access costs, short of undue hardship, cannot be taken into account, except where shared custody.

Harpell v. Keizer – hardship found where four children of the marriage and payor has two natural and two stepchildren of his second marriage. The court set a lower than guideline amount. It also stipulated that the amount took into account notional support from father of stepchildren and second wife finding employment.

Hoover v. Hoover - categories are not closed. Reduction in amount of support by coming under the guidelines is not undue hardship

Hughes v. Bourdon – consider other children of parent.

Kaderly v. Kaderly – hardship found, although other parent’s standard is lower, and taken into account on spousal support.

Knill v. Knill – difficult financial circumstances do not meet the s. 10 test.

Martin v. Girard – hardship found where debt to get education, obligation to support new spouse, expenses to start new career and high access costs. Something is wrong with this decision.

McCarthy v. McCarthy – high access costs not unusual in the Northwest Territories or from outside them.

Messier v. Baines - child of second union to be treated equally with other children; a lower standard of living does not automatically create undue hardship.

Middleton v. MacPherson – hardship to common law spouse of payor is not relevant. Hardship to child of common law spouse is not relevant, unless the payor stands in loco parentis to that child.

Olusanya v. Olusanya – court imputing income over entire year means hardship in paying support, but this is not undue, but a fact of payor’s working life.

Tremaine v. Tremaine – no hardship where father claims he has three children in total to support, not just the two of this marriage.

Williams v. Williams – access costs from Nova Scotia to NWT are not unusually high so as to amount to undue hardship.

S. 14 - VARIATION TEST

Blackburn v. Elmitt - coming into force of guidelines does not compel variation, particularly in face of comprehensive agreement that would yield an inequitable result (i.e. less money being paid).

Claridge-Skof v. Skof - no variation where no real benefit to payor and less money will be available for the children under the guidelines.

Hall v. Hall - dismiss variation where no benefit to custodial parent under the guidelines. Insurance costs to secure support are not "special provisions" as not a current provision for the child.

Ireland v. McMillan – lower amount in custodial parent’s hands, as a result of guidelines application, is inequitable to the child.

Katzer v. Egeland – provincial adoption of guidelines changes the test to that of the Divorce Act for the provincial statutes incorporated.

Wang v. Wang – court not obliged to vary prior arrangement due to guidelines enactment, particularly where inequitable result.

SS. 17, 18, AND 19 - INCOME DETERMINATION

Blackburn v. Elmitt – professional’s holding/management corporation’s income imputed to him.

Braich v. Braich – income imputed at $150,000 where significant assets, significant liabilities, and past history of earnings at much higher level, although no income now, and threat of bankruptcy, but no steps taken.

Bureau v. Bureau – income from change of year end excluded.

Carter-Mackie v. Mackie – exclude R.R.S.P. de-registration in averaging the three years’ incomes.

Channer v. Hoffman-Turner – income imputed, where crown attorney leaves for private practice, although court accepts right to make the choice, but at level lower than he used to earn.

Clements v. Clements – intentional under-employment, where father is going to school to obtain degree. Income imputed, as he could work part-time and during summers, at level he earned when working previously, albeit seasonally.

Creighton v. Creighton – use current figures and projections for interim rather than past figures.

D.E.P. v. B.A.P. – donut franchise, lifestyle and business valuation evidence used to impute income.

Ebrahim v. Ebrahim – income imputed where parent spends time home-schooling the child, where business records not well disclosed, expenses claimed do not match debt and where ongoing contributions from his relatives.

Elliott v. Elliott – company expenses have a personal component which court adds to income.

Estrela v. Estrela - impute income in face of poor evidence supplied, but expenses shown to be paid by company.

E.W. v. M.M.P. – court imputes income based on business practices and credibility issues.

Harpell v. Keizer – court imputes interest income at 5% where effective rate is only shown as 3%.

Holtby v. Holtby – projected annual income, not historical income, is what should be determined, although use of past information is the basis to determine what the future income will be.

Irwin v. Irwin - add back personal benefit of business expenses, but deduct cost of loan to construct home office.

Johnson v. Checkowy – bonuses included, where paid for last 4 years.

Kowalski v. Kowalski - court imputes income from investments, although likely capital will be squandered; no imputed income for failure to work extra, as done previously, based on reasonable explanation.

Kulyk v. Srayko – income imputed, at pre-incarceration level, upon release as this was a consequence of payor’s choices (aggravated assault).

Lowry v. Lowry – consider reasonableness of expenses; require evidence.

McCargar v. McCargar – where after business failure wife works and husband chooses not to, impute equal income.

McCarthy v. McCarthy – pattern more reasonable in non-employment situations. Exclude future overtime.

Melanson v. Melanson – rent from basement suite; allowed expenses of 40%.

Monette v. Jordan – income imputed at level of his stated expenses at time of application and earning income, but where he quit the job, as he had the one before it, and which was much higher paying.

Ninham v. Ninham – reserve Indian income grossed up for tax.

O’Hara v. O’Hara - court cannot determine personal portion of expenses without evidence.

Olusanya v. Olusanya – court applies s. 17 to income, s. 2 to employment insurance, as most recent year, use last year of capital gain as decreasing annually for three years, include and average one year’s R.R.S.P. de-registration over the last three.

Perry v. Perry – court takes notice of unpredictability of real estate market and orders at low range of estimate for current income.

Quintal v. Quintal – ex-RCMP has income imputed, as security guard, where job change due to his misconduct.

Rains v. Rains - can’t impute income for under-employment without evidence of intention.

Raynor v. Raynor – s.19(1)(h) imputing income only where a significant portion of payor’s income is derived from the source.

Sagl v. Sagl – very rich and devious parties have income imputed.

Schom-Moffatt v. Moffatt – income imputed due to evidence of company publicity, credibility and unexplained expenses.

Semenchuk v. Semenchuk – use current information, not three year average.

Shelleby v. Shelleby – corporate income, lifestyle, and past support paid, used to impute income, where husband had resort to corporation for his expenses in ways not apparent in financial records. Shareholder husband supplied benefits to the corporation not reflected in his income.

Smith v. Smith – court averages income for three years, where it is supported by current information. Curling winnings, over $7,000 in excess of expenses in prior year, not used in income determination, but ordered to be disclosed annually and 40% paid as child support.

Stamoulos v. Pavlakis – court should not tell payor how to run his business in the absence of evidence to show unreasonability of expense decisions or effort to defeat guidelines.

Simms v. Simms - minimum wage imputed where going into business with no immediate income, but could work elsewhere.

Valaire v. Valaire – no imputation of income to non-custodial parent where the company is owned by the custodial parent.

Vivier v. Vivier – failure of financial disclosure allows court to impute income based on applicant’s evidence of past patterns of income from employment and employment insurance.

Westcott v. Westcott – court takes judicial notice of real estate market to set agent and broker’s income.

Williams v. Williams – intentional under-employment must be motivated vis-à-vis support obligation.


SCHEDULE III ADJUSTMENTS

Phillips v. Phillips – no deduction of C.P.P. and E.I. premiums, except in very rare circumstances set out in Income Tax Act.

Shaw v. Shaw – dividends and capital gains adjusted to actual amounts and CCA added back into income.

Schick v. Schick – no adjustment for spousal support received, under Schedule III.

TAX ISSUES

Haggith v.Trader – court considers non-taxability of child support in ordering variation.

RELATIONSHIP BETWEEN CHILD AND SPOUSAL SUPPORT

Kaderly v. Kaderly – although not all child support needs met, the court ordered spousal support on basis that not all children’s needs to be met.

INDEX TO GUIDELINE CASES

-A-

Acorn v. DeRoche, [1997] P.E.I.J. No. 82, P.E.I.S.C., MacDonald C.J.T.D., August 20, 1997

Adams v. Adams, Unreported, Man. Q.B., Diamond J., December 15, 1997

Anderson v. Anderson [1997] O.J. No. 3219 Jenkins J.

Andries v. Andries, Unreported, Man. Q.B. Menzies J., June 2, 1997

Asadoorian v. Asadoorian, Ontario General Division, Fleury J., July 21, 1997

-B-

Bevand v. Bevand, [1997] O.J. 2661, O.C.J. (Gen. Div.) Family Court, Perkins J., June 20, 1997

Bially v. Bially, [1997] S. J. No 352, 28 R.F.L. (4TH) 418, Sask.Q.B., Gunn J., May 28, 1997

Blackburn v. Elmitt, [1997] B.C.J. No. 2569, B.C.S.C., Macaulay J., November 18, 1997

Braich v. Braich, [1997] B.C.J. No. 1764, B.C.S.C., Curtis J., July 22, 1997

Brown v. Lacombe, [1997] A.J.1017, Alta. Q.B., Johnstone J., October 20, 1997

Bureau v. Bureau, [1997] N.S.J. NO 422, N.S.S.C., Glube C.J.N.S., October 22, 1997

-C-

Cabernel v. Cabernel, Unreported, Man.Q.B., Schulman J., July 15, 1997

Cameron-Masson v. Masson, [1997} N.S.J. No. 207, N.S.F.C., Legere Family Ct. J., May 12, 1997

Carrothers v. Carrothers, [1997] B.C.J. No. 1535, B.C.S.C., Lamperson J., June 20, 1997

Carter-Mackie v. Mackie, Unreported, Man. Q.B., Bowman J., December 9, 1997

Channer v. Hoffman-Turner, [1997] A.J. No. 1022, Alberta Court of Queen’s Bench, Kenny J., October 22,1997

C.H.R. v. E.B.C., [1997] A. J. No. 561, Alta. Q.B., Veit J., May 30, 1997

Claridge-Skof v. Skof, [1997] O.J. No. 3112, MacDougall J.

Clements v. Clements, [1997] Y.T. No. 72, Y.T.S.C., Goodwin J., July 17, 1997

Comeau v. Comeau, [1997] N.S.J. No. 409, N.S.S.C., Glube C.J.N.S., October 9, 1997

Creighton v. Creighton, [1997] B.C.J. 2112, Harvey J.,

Crick v. Crick, [1997] B.C.J. No. 2222, B.C.S.C., Warren J., October 7, 1997

Cross v. Cross, [1997] B.C.J. No. 1741, B.C.S.C., Meiklem J., July 22, 1997

-D-

DeBaie v. DeBaie, [1997] N.S.J. No. 420, N.S.F.C., Buchan Fam. Ct. J., October 6, 1997

Dempsey v. Dempsey, [1997] N.S.J. No. 327, N.S.S.C., Stewart J., July 14, 1997

D.E.P. v. B.A.P., [1997] O.J. No. 4265, O.C.J. (Gen. Div.), Aitken J., August 28, 1997

Dodd v. Dodd, [1997] O.J. No. 2076, Dunn J.

-E-

Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039, B.C.S.C., Macaulay J., September 15, 1997

Elliott v. Elliott, Unreported, Alta. Q.B., Rawlins J., April 9, 1997

Estrela v. Estrela, [1997] O.J. No. 2916, Jarvis J.

E.W. v. M.M.P., [1997} Q.J. No. 3474, Q.S.C., Dalphond J.

-F-

Finn v. Levine, [1997] O.J. No. 2201, Desmarais J.

Forrester v. Forrester, [1997] O.J. No. 3436, Aston J.

Francis v. Baker, [1997} O. J. No. 2196, 28 R.F.L. (4TH) 437, O.C.J. (Gen. Div.), Bennotto J., March 27, 1997

-G-

Gee v. Ng, [1997] S.J. No. 350, Sask.Q.B., Gunn J., May 22, 1997

Gordon–Tennant v. Gordon–Tennant, [1997] O.J. No. 3436, O.C.J. (Prov. Div.), Aston Prov. J., August 19, 1997

Gran v. Gran, [1997] S.J. No. 330, Sask.Q.B., Laing J., May 20, 1997

-H-

Haggith v. Trader, [1997] O.J. No. 2351, O.C.J. (Gen. Div.), Marshman J., June 5, 1997

Hall v. Hall, B.C.S.C. Master Joyce, May 15, 1997

Hansen v. Hansen, Unreported, B.C.S.C., McEwen J., May 6, 1997

Harpell v. Keizer, [1997] N.S.J. No. 401, N.S.F.C., Legere Fam. CT. J., September 17, 1997

Harrison v. Chalus, [1997] S.J. No. 438, Sask. Q.B., McIntyre J., June 24, 1997

Hautala v. Morgan, Lawyers Weekly Text Order 1716-005, Ontario General Division, Kozak J., July 28, 1997

Holtby v. Holtby, [1997] O.J. No. 2237; 30 R.F.L. (4th) 70, O.C.J. (Prov. Div.), Aston Prov. J., May 30, 1997

Hoover v. Hoover, N.W.T.S.C., Vertes J., July 21, 1997

Hubic v. Hubic, [1997] S. J. No 491, Sask. Q.B., Dawson J., July 24, 1997

Huckell v. Huckell, Unreported, Alta Q.B. June 27, 1997

Hughes v. Bourdon, [1997] O.J. No. 4263, O.C.J. (Gen. Div.), Aitken J., August 5, 1997

-I-

Ireland v. McMillan, Unreported Man.Q.B., Master Harrison, November 3, 1997

Ireland v. McMillan, Unreported, Man. Q.B., Mykle J., December 18, 1997

Irwin v. Irwin, [1997] O.J. No. 3444, Aston J.

-J-

Jaworsky v. Jaworsky, [1997] B.C.J. No. 2219, B.C.S.C., Macaulay J., October 17, 1997

Johnson v. Checkowy, [1997] S. J. No 451, Sask.Q.B., McIntyre J., July 17, 1997

-K-

Kaderly v. Kaderly, [1997] P.E.I.J. No. 74, P.E.I.S.C., Jenkins J., August 1, 1997

Katzer v. Egeland, [1997] S.J. No. 672, Sask. Q.B., Baynton J., November 7, 1997

Kofoed v. Fichter, [1997] S. J. No 558, Sask.Q.B., Zarzeczny J., September 29, 1997

Knill v. Knill, [1997] B.C.J. No. 1668, B.C.S.C., Hunter J., July 11, 1997

Kowalski v. Kowalski, [1997] O.J. No. 4050, O.C.J. (Gen. Div.), Marshman J., September 23, 1997

Kulyk v. Srayko, [1997] S. J. No 639, Sask. Q. B., Wilkinson J., November 10, 1997

-L-

Lambro v. Lambro, [1997] B.C.J. No. 2320, B.C.S.C., Drost J., October 21, 1997

Laughlin v. Cormier, [1997] P.E.I.J. No. 80, P.E.I.S.C., DesRoches J., August 12, 1997

L.H.H. v. D.J.M., [1997] O.J. No. 3218, Kozak J.

Livingstone v. Livingstone, [1997] B.C.J. No. 1860, B.C.S.C., Fraser J., August 11, 1997

Lowry v. Lowry, [1997] A. J. No. 967, Alta. Q.B., Marceau J., October 3, 1997

-M-

Macalister v. Macalister, Unreported, June 10, 1997 S.C.Y.T.

Martin v. Girard, [1997} O.J. No. 2517, O.C.J. (Gen. Div.), Kozak J., June 16, 1997

Marck v. Parotta-Marck, [1997] O.J. No. , Hurley J.

McCargar v. McCargar, Unreported, Alta Q.B., Veit J., June 25, 1997

McCarthy v. McCarthy, [1997] N.W.T.J. No. 69, N.W.T.S.C., Schuler J., October 22, 1997

Megeval v. Megeval, [1997] B.C.J. No. 2454, B.C.S.C., Kirkpatrick J., November 4, 1997

Melanson v. Melanson, [1997] N.B. No. 253, N.B.Q.B., Smith J., June 9, 1997

Meloche v. Kales, [1997] O.J. No. , Cusinato J.

Messier v. Baines, [1997] S. J. No 627, Sask. Q.B., Wright J., September 26, 1997

Michie v. Michie, [1997] S.J. 668, Sask.Q.B., McIntyre J., November 6, 1997

Michener v. Michener, [1997] S.J. No. 624, Sask. Q.B., Wright J., September 17, 1997

Middleton v. MacPherson, [1997] A.J. No. 614, 29 R.F.L. (4th) 334, Alta Q.B., Moreau J.

Miller v. Miller, [1997] B.C.J. 1322, B.C.S.C., Master McCallum, May 30, 1997

Monette v. Jordan, [19976] N.S.J. No. 337, N.S.S.C., Glube C.J.N.S., July 28, 1997

Motuzas v. Yarnell, Unreported, Man.Q.B., Steel J., October 28, 1997

-N-

Nadeau v. Mitchell, [1997} O.J. No. 2833, O.C.J. (Gen. Div.), Jarvis J., July 11, 1997

Nay v. Carroll, Unreported, Man.Q.B., Clearwater J., April 22 and June 9, 1997

Ninham v. Ninham, [1997] O.J. No. 2667, O.C.J. (Prov. Div.), Aston Prov. J., June 27, 1997

-O-

O’Hara v. O’Hara, [1997] S. J. No 482, Sask. Q.B., Wright J., July 23, 1997

Olusanya v. Olusanya, [1997] B.C.J. No. 1776, B.C.S.C., Ralph J., July 25, 1997

-P-

Perry v. Perry, [1997] B.C.J. No. 1567, B.C.S.C., Scarth J.,

Phillips v. Phillips, [1997] B.C.J. No. 2376, B.C.S.C., Hutchison J., October 20, 1997

-Q-

Quintal v. Quintal, [1997] O.J. No. 3444, O.C.J. (Prov. Div.), Aston Prov. J., August 22, 1997

-R-

Rains v. Rains, [1997] O.J. No. 2516, Pardu J.

Rayland v. Rayland, Unreported, Man. Q.B., Guertin-Riley J., May 30,1997

Raynor v. Raynor, [1997] N.S.J. No.411, N.S.S.C., Davison J., September 30, 1997

Regier v. Wensjoe, Unreported, Man.Q.B., Bowman J., October 17 1997

Richardson v. Richardson, [1997] O.J. No. 2608, Pardu J.

Robski v. Robski, Unreported, Goodfellow J., October 21, 1997

-S-

Sagl v. Sagl, [1997} O.J. No. 2837, O.C.J. (Gen. Div.), E.M.Macdonald J., July 11, 1997

Schick v. Schick, [1997] S.J. No. 447, Sask. Q.B., McIntyre J., July 8, 1997

Schom-Moffatt v. Moffatt, [1997] B.C.J. No. 2055, B.C.S.C., Morrison J., September 17, 1997

Shaw v. Shaw, Unreported, Man.Q.B., Menzies J., August 12, 1997

Semenchuk v. Semenchuk, [1997] S.J. No. 480, Sask. Q.B., Wright J., July 21, 1997

Shelleby v. Shelleby, [1997] O.J. No. 2608, O.C.J. (Gen. Div.), Pardu J., June 20, 1997

Simon v. Simon, [1997] O.R. No. 4145, O.C.J. (Gen. Div.), Kealey J., October 17, 1997

Shiels v. Shiels, [1997] B.C.J. No. 1924, B.C.S.C., Lysyk J., August 21, 1997

Simms v. Simms, [1997] B.C.J. 1553, B.C.S.C., B. M. Davies J., June 16, 1997

Singh v. Singh, [1997] B.C.J. 1550, B.C.S.C., Master Powers, June 11, 1997

Smith v. Smith, Unreported, Man. Q.B., Hamilton J., June 18, 1997

Stamoulos v. Pavlakis, [1997] B.C.J. No. 2206, B.C.S.C., Pitfield J., October 1, 1997

-T-

Tallman v. Tomke, [1997] A.J. No. 682, Alberta Court of Queen’s Bench, Wilson J., June 27, 1997

Thomson v. Howard, [1997] O.J. No. 4431, O.C.J. (Gen. Div.), G. A. Campbell J., October 23, 1997

Tremaine v. Tremaine, Unreported, Alta Q.B., March 24, 1997

-U-

-V-

Valaire v. Valaire, [1997] B.C.J. No. 1893, B.C.S.C., Master Chamberlist, August 1, 1997

Van Wynsberghe v. Van Wynsberghe, [1997] O.J. No 2566, Vogelsang J., O.C.J. (Gen. Div.), June 24, 1997

Vivier v. Vivier, [1997] M.J. No. 414, Man.Q.B., Clearwater J., September 3, 1997

Vogel v. Vogel, Unreported, Man. Q.B., Beard J., July 15, 1997

-W-

Wang v. Wang, [1997] B.C.J. No. 1678, B.C.S.C., Saunders J., July 11, 1997

Wedge v. McKenna, [1997] P.E.I.J. No. 75, P.E.I.S.C., Jenkins J., August 5,1997

Westcott v. Westcott, [1997] O.J. No. 3060, O.C.J. (Gen. Div.), Perkins J., July 22, 1997

Wilk v. Re, [1997] A.J. No. 732, Alta. Q.B., Perras J., July 14, 1997

Williams v. Williams, [1997] N.W.T.J. No. 49, N.W.T.S.C., Vertes J., August 14, 1997

-X-

-Y-

-Z-

Zarebski v. Zarebski, [1997] O.J. No. 2114, G.A.Campbell J.,