J. F.L.D. A.D. 1998 No. 275 J.C. Y. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: MICHELLE O'BRIEN and KEVIN O'BRIEN RESPONDENT Doreen K. Clark for the applicant No one appeared for the respondent JUDGMENT FOR PROVISIONAL ORDER MacLEOD J. October 16, 1998 [1] The applicant is the mother and has sole custody ofCynthia Kelsey O'Brien, born December 4, 1989, a child of theparties. By order dated June 7, 1996, the respondent, KevinO'Brien is required to pay $750.00 per month to the applicantas maintenance for the said child. [2] The applicant applies, pursuant to s. 17 of theDivorce Act, R.S.C. 1985, c. 3 (2nd Supp), to vary this orderand to obtain an order that the respondent provide maintenancein accordance with the Federal Child Support Guidelines(SOR/97-175). The applicant swears, inter alia, that "his income is at least $111,178.00 per year and can be imputed to be more", and further "from April 1, 1997 to March 31, 1998, the respondent's income was salary of $65,122.00 taxable income and $46,056.00 non-taxable income" and "he gets salary plus extra pay for working on commissions created by the government" and, finally, she expects he would earn income from other sources. [3] Her further affidavit shows that he receives annualgross rental income of $10,800.00 from which is to be deductedinsurance of $495.00, interest of $3,460.13, repairs andmaintenance of $1,644.00, property taxes of $462.00 andcapital cost allowance of $1,800.00, leaving a net income of$2,937.69. She does not believe the respondent should beallowed to deduct all of the interest or any of the capitalcost. However, it seems to me that these may be justifiable expenses, and take the net rental income to be $2,937.69. [4] For purposes of this order, it is declared that therespondent, Kevin O'Brien has been found to have a grossannual employment income of $63,500.70, a gross rental incomeof $2,937.69 and additional net income of $22,716.00 beingthat portion of his living allowance deemed to be income, fora total of $89,154.39. He shall pay to the petitioner,Michelle O'Brien, $754.19 per month for the support of CynthiaKelsey O'Brien, such payments to be made on the first day ofeach month, commencing (and being retroactive to) September 1,1998. [5] The respondent, Kevin O'Brien, shall also pay to thepetitioner, Michelle O'Brien, one-half of all extracurricularexpenses within 60 days of the time the petitioner provideshim with receipts therefor. [6] The respondent, Kevin O'Brien shall also pay to thepetitioner, Michelle O'Brien, one-half of all orthodontist'scosts, to the extent that the orthodontist's costs are notcovered by the dental plan of the petitioner, within 60 daysof the time the petitioner provides him with receipts forthese costs. [7] This order and the supporting material shall be transmitted in accordance with the requirements of s. 17(11) of the Divorce Act.
The mother who had sole custody of the nine year old applied pursuant to s17 of the Divorce Act to vary an order requiring the father to pay $750 as child support and to obtain an order for maintenance in accordance with the Federal Child Support Guidelines. The mother argued the father should not be allowed to deduct all of the interest or any of the capital cost associated with his rental income. HELD: 1)The father was to pay monthly child support of $754.19, retroactive to September 1/98. The father's annual net rental income of $2,937.69 and a portion of his living allowance deemed to be income were added to his gross annual employment income. 2)The father was to pay one-half of all extracurricular activities within 60 days of receiving the receipts and one half of orthodontist's costs to the extent they are not covered by the petitioner's dental plan.