QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 438 Date: 2007 12 03 Docket: DIV. No. 570 of 1997 Judicial Centre: Saskatoon, Family Law Division BETWEEN: BARBARA HELEN FLASCH and GREGORY CHARLES FLASCH Appearing: Barbara Helen Flasch petitioner, on her own behalf Gregory Charles Flasch respondent, on his own behalf JUDGMENT McMURTRY J. December 3, 2007 [1] The respondent father applied to vary an order made May 14, 2002 by Justice M.E. Wright. The order provides for child support, payable to the petitioner mother on behalf of the two youngest children, Michael, born March 15, 1990, and Jessica, born December 30, 1991. Mills J. directed a trial on the issues of the residence of Michael in 2006; the incomes of the father and mother, for the purposes of the Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”); and, any s. 7 expenses. At the hearing, the parties agreed that it would be beneficial also to address the issue of any ongoing s. expenses. Residence of Michael [2] Jessica and Michael have lived with the mother since the parties divorced on February 21, 1998. In June, 2006, however, Michael began living in Saskatoon in order to be eligible to play with particular AAA baseball team. To that end, his parents entered into guardianship arrangement with his maternal aunt. Although the agreement stipulated that he live with his aunt, in fact, Michael began living with his maternal grandmother on the west side of the city. While there, his mother paid his grandmother $400.00 each month for room and board and she gave Michael an allowance. [3] In July, 2006, the father decided to move from the west side of Saskatoon to larger, more expensive apartment on the east side, to accommodate what he understood to be Michael’s interest in moving in with him and Jerrilyn, Michael’s older sister. The father mistakenly believed that it was necessary for Michael to live on the east side of Saskatoon, when in fact Michael’s attendance at an east side school satisfied the residency requirements of the baseball league. In September, 2006, Michael moved in with his father and Jerrilyn. [4] Michael’s schedule was very busy. In an affidavit filed with the Court, Michael stated that he played baseball at competitive level, requiring couple of hours practice or play each day and road trip every second weekend. In addition to baseball, Michael played football and attended school. He needed vehicle to be able to keep up his activities. (Michael was permitted to file an affidavit, rather than testify as determined that it was not in Michael’s best interests to testify, particularly as the parties are self-represented.) During the summer of 2006, Michael had the use of his mother’s vehicle because she was in Viet Nam visiting her husband. When she returned in August, 2006, Michael had the use of his step-father’s truck. [5] Michael’s use of his step-father’s truck was conditional upon some rules. The truck had to be parked in his grandmother’s driveway every night. It had to be kept cleaned and regularly maintained and Michael could not take the truck out of town without his mother’s permission. The conditions made it hard for Michael to use the truck and live with his father. [6] The father works for CN Rail as railway conductor. He is away from home between seven and sixteen nights month, depending upon the runs he is assigned. When he is in town, he is available to drive Michael, but his vehicle is not available to Michael otherwise. Problems with transportation eventually lead to Michael spending most of his time at his grandmother’s house. In his affidavit, Michael stated that from mid-September, 2006, until the end of January, 2007, he split his time “approximately equally” between his father’s house and his grandmother’s house. [7] The father’s evidence is that Michael spent more nights at his grandmother’s after September because of conditions placed on the truck, although he said that Michael still ate his meals at his father’s house. The father does acknowledge, however, that he was away from home working almost half of every month. The father also acknowledged that Michael had to make arrangements with others to transport him when he lived at his house. The father testified that Michael stopped living with him after car accident on February 22, 2007 when the vehicle Michael was driving at that time was rendered inoperable. The vehicle was truck loaned to him by his paternal uncle in mid- January, 2007. [8] do not find that there is much conflict in the evidence. I am satisfied that from September 4, 2006 until, approximately, February 22, 2007, the parties shared custody of Michael. Whether the shared custody arrangement, which lasted only short period of time, warrants retroactive support order will be addressed next. Shared Custody [9] In Fraser v. Fraser, 2007 SKQB 398 (CanLII); [2007] S.J. No. 580 QL (Sask. Q.B.) (at paras. 12-15), Ryan-Froslie J. summarized the usual approach taken by courts in shared custody situations following the Supreme Court of Canada decision in Contino v. Leonelli-Contino, 2005 SCC 63 (CanLII); [2005] S.C.R. 217: ¶12 As general rule, child support is paid pursuant to s. of the Guidelines in accordance with the applicable Table. One exception to this general rule is s. of the Guidelines which applies when parents “share” custody of their children, and in particular when parent exercises right of access to or has physical custody of child for not less than 40% of the time over the course of year. Section reads as follows: 9. Where spouse exercises right of access to, or has physical custody of, child for not less than 40 per cent of the time over the course of year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. ¶13 The leading authority with regard to calculating child support pursuant to s. of the Guidelines is the Supreme Court of Canada decision of Contino v. Leonelli-Contino, [2005] S.C.R. 217, 2005 SCC 63 (CanLII). ¶14 Section of the Guidelines provides the Court with discretion in awarding child support in shared custody situations to ensure fairness. That section requires the Court to take into account three factors in determining the appropriate level of child support, namely: (i) The Table support applicable to each party; (ii) Any increased costs associated with the shared custody arrangements; and (iii) The condition, means, needs and other circumstances of each parent and the children for whom support is sought. ¶15 As the Supreme Court of Canada pointed out in Contino, s. does not provide presumption in favour of Table support, nor does it provide presumption in favour of the proposition that parent who exercises access more than 40% of the time will have his or her child support obligation decreased. Rather, s. gives to the Court discretion to review all of the relevant circumstances in an attempt to achieve fair standard of support for the children involved. (Emphasis added) [10] As is noted above, s. directs the court to consider that shared parenting situation exists whenever “a spouse exercises right of access to, or has physical custody of, child for not less than 40 per cent of the time over the course of year. .” In this case, Michael began living with his father at least 40% of the time in September, 2006. This ended in January or February, 2007, which is a period of no more than five months. Thereafter, he resumed living with his grandmother and was supported by his mother. Accordingly, the father does not meet the threshold provided for in s. 9. As Justice Wright explained in Hus v. Hus (1998), 1998 CanLII 13597 (SK QB), 174 Sask. R. 317, [1998] S.J. No. 803: [5] The onus is on the parent wishing to invoke the operation of s. to demonstrate to the court's satisfaction that shared custody arrangement as contemplated by s. is in fact in place, and has been, or will be in place over the course of year. While it is not necessary that there be in all circumstances written agreement or court order to this effect before the onus can be discharged, the court should, in my opinion, exercise caution before imposing s. child support regime on what may be short-term informal custody arrangement. [11] In the absence of shared parenting regime, child support is based on the father’s income and the applicable table. Incomes of the Parties [12] Neither party has filed their 2006 tax return. The father’s T-4 from his long-time employer CN shows earnings of $109,694.49. In evidence he indicated that his union dues for 2006 were much the same as in 2005, which were $1,065.00. Accordingly, find his 2006 income to be $108,629.49. The mother’s 2006 income consisted only of investment income of $1,672.37. The mother also receives an allowance from her husband, from whom she is separated, in the amount of $2,000.00 each month. Section Expenses [13] Both Michael and Jessica have significant expenses in their respective sports, baseball and speed skating. The mother has been responsible for Jessica’s expenses, however, some confusion arose in 2006 with respect to Michael’s. The guardianship agreement, which was for period of three months, provided that the father pay for Michael’s extraordinary expenses. Accordingly, he paid for number of baseball related expenses that previously the mother had paid for. The mother also continued to pay for some expenses. In addition, Michael’s school and clothing expenses were paid by both his mother and his father. [14] The parties have been divorced since 1998. Michael has played AAA baseball since 2004. Jessica has speed skated since 2001. The mother has paid the extraordinary expenses of both children, without reimbursement from the father. It was only in 2006 that the father paid any of Michael’s expenses. Accordingly, 2006 is not the appropriate year to begin reimbursing the father for expenses he may have paid for Michael. To do so would be exceedingly unfair to the mother who has borne the expenses of both children on her own for many years. [15] am satisfied that Michael and Jessica’s expenses related to fees, registration and equipment for baseball and speed skating are extraordinary expenses within the meaning of s. of the Guidelines. am satisfied also that the orthodontic work needed by Michael and the medical/dental fees not covered by the father’s employer’s insurer also fall within s. 7. The baseball and speed skating expenses, as outlined above, may be estimated at $2,000.00 and $1,000.00, respectively, for total of $3,000.00, annually. In addition, the orthodontic work, which is estimated at $2,522.00, should be amortized over two years, which works out to $1,261.00 each year. do not consider the alternative acne treatment, proposed by the mother for Jessica, to be an appropriate health related expense, covered by s. 7, in the absence of medical referral or prescription. Therefore, find the total ongoing s. expenses to be $4,261.00, annually. [16] These parties do not speak to one another, notwithstanding the difficulty it undoubtedly causes their children. It is not practical to order that the mother produce receipts for reimbursement from the father. Two incidents illustrate why not. In the fall of 2006, the mother paid for dental appointment for Jessica and submitted the charge to the father’s insurer for reimbursement. The father was paid by the insurer and he refused in turn to remit the payment to the mother. The second example is the father’s refusal to provide signed insurance forms to the mother, notwithstanding clear direction to do so in the fiat of M-E. Wright J., dated June 28, 2002. In any event, both parties have requested that determine the appropriate amount to be paid by the father each month to cover s. expenses. [17] Section of the Guidelines provides as follows: 7.(1) In child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent's employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health‑related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post‑secondary education; and (f) extraordinary expenses for extracurricular activities. (1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant. Sharing of expense (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Subsidies, tax deductions, etc. (3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim subsidy, benefit or income tax deduction or credit relating to the expense. Universal child care benefit (4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. [18] As noted above in s. 7, the parties are responsible for their proportionate share of expenses according to their income. am attributing income to the mother in the amount of $2,000.00 each month which is the allowance she receives from her estranged husband. Accordingly, for the purposes of s. 7, the mother’s income is $25,672.37. The father’s income is $108,629.49. The father’s proportionate share is 80%; the mother’s is 20%. The current s. expenses total $4,261.00 yearly. The father’s share is 80% of that amount, or $3,408.80. Paid monthly, the amount is $284.00. [19] am directed by the order for trial by Mills J. to determine, amongst other things, the incomes of the parties. Although the mother did not bring an application to vary child support upward, the filing of the application to vary by the father is sufficient to re-determine the issue of child support based on current incomes. The current order, dated May 12, 2002 provides for child support, payable to the petitioner mother on behalf of the two youngest children, Michael, born March 15, 1990, and Jessica, born December 30, 1991, in the amount of $1,065.00 each month. The support order is based on the father’s income at that time of $87,794.00. The father’s income is considerably higher now. Beginning December 1, 2007, the father will pay support in the amount of $1,486.00 each month, based on income of $108,629.49, on behalf of Michael and Jessica, for as long as they remain children within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). In addition, the father will pay $284.00 each month, beginning December 1, 2007, for the s. 7 expenses, until further order, or for as long as Michael and Jessica remain children within the meaning of the Divorce Act. [20] The mother seeks costs for two court appearances, before this was set down for trial, when she was represented by counsel. The mother is entitled to costs in the amount of $500.00, payable forthwith. J. J. E. McMurtry
The parties have two children, a son born March 1990 and a daughter December 1991. A trial on the issues of the son's residence in 2006, the parties' income for the purposes of child support and any s. 7 expenses was held. HELD: 1) From September 2006 to February 2007 the parties shared custody of the son. This is a period of no more than 5 months. Thereafter he resumed living with his grandmother and was supported by his mother. The father does not meet the threshold provided for in s. 9 of the Guidelines.  2) The father's income from employment shows earning of $108,629. The mother's income consisted only of investment income of $1,672.37 and allowance of $2,000. 3) The parties have been divorced since 1998. The son has played baseball since 2004. The daughter has speed skated since 2001. The mother has paid the extraordinary expenses of both children, without reimbursement from the father. It was only in 2006 that the father paid any of the son's expenses. Accordingly, 2006 is not the appropriate year to begin reimbursing the father for expenses he may have paid for him. To do so would be exceedingly unfair to the mother who has borne the expenses of both children on her own for many years.  4) The children's expenses related to fees, registration and equipment for baseball and speed skating are extraordinary expenses within the meaning of s. 7 of the Guidelines. The expenses may be estimated at $2,000 for baseball and $1,000 for speed skating, annually. The orthodontic work, which is estimated at $2,522 should be amortized over two years. The alternative acne treatment, proposed by the mother for the daughter is not an appropriate health related expense in the absence of a medical referral or prescription. The father's proportionate share is 80% and the mother's is 20%. Paid monthly the father's payment is $284. 5) Although the mother did not bring an application to vary child support upward, the filing of the application to vary by the father is sufficient to re-determine the issue of child support based on current incomes. The current support order is based on the father's income of $87,794. His income is considerably higher now. His child support payments are adjusted accordingly.