(FAMILY DIVISION)
Citation: McPhee v. Thomas, 2010 NSSC 367
Date: 20101018
Docket: 50077
Registry: Sydney
Between:
Blair McPhee
Applicant
v.
Ellen (McPhee) Thomas
Respondent
Judge: The Honourable Justice Theresa M. Forgeron
Heard: August 10 and October 18, 2010, in Sydney, Nova Scotia
Decision: October 18, 2010
Counsel: Ellen Thomas, unrepresented and not appearing
Blair McPhee, on his own behalf
By the Court:
I. INTRODUCTION
[1] This application to vary is made pursuant to the provisional sections of the Divorce Act. Mr. McPhee seeks to reduce child support for two reasons. He claims undue hardship, and a finding that his oldest son is no longer a child of the marriage. In an unsworn letter to the court, Ms. Thomas disputes the undue hardship claim. Her position on the status of her eldest son is not known.
II. ISSUES
[2] The issues to be determined are as follows:
a) Has the undue hardship claim been established?
b) Is the child, Blair, a child of the marriage?
c) What is the appropriate child support order?
III. ANALYSIS
[3] Has the undue hardship claim been established?
[4] Position of Mr. McPhee
[5] Mr. McPhee states that child support should be reduced because of his new legal obligations flowing from his relationship with his partner, Lora LeTemplier. He and Ms. LeTemplier have a three year old son, Zachery. In addition, Mr. McPhee is helping to support his two stepchildren, 10 year old Brianna, and 18 year old Dillon. Mr. McPhee states that he cannot meet the financial demands of his new family and pay child support.
[6] Mr. McPhee claims that his former spouse, Ms. Thomas, must have a higher standard of living than he does because high priced, discretionary items have been purchased for the parties’ children. Further, he states that Ms. Thomas is living with another man.
[7] In her unsworn letter, Ms. Thomas denies that she is living in a common law relationship. Mr. McPhee countered this by stating that Ms. Thomas told him otherwise. Mr. McPhee stated that in July 2010 he spoke with Ms. Thomas who advised that she and Dillon had moved to Springdale, Newfoundland to live with Mr. Penny. No details of Mr. Penny’s financial circumstances were provided to the court.
[8] Legal Analysis
[9] Section 10 of the Federal Child Support Guidelines provides this court with the discretionary authority to veer from the table amount if certain conditions have been met. First, the court must find that undue hardship has been created by the circumstances. Second, if circumstances of undue hardship have been found, the court must compare the standards of living of each household. If the payor has a lower standard of living after the payment of child support, then the court may reduce the table amount of child support. However, the court can also refuse to reduce child support, even when there is a finding of undue hardship and a lower household standard of living: Hanmore v. Hanmore [2000] A.J. No. 171 (C.A.) para. 9, leave to appeal to the Supreme Court of Canada refused at [2000] S.C.C.A. 182.
[10] In Hanmore, supra, the Alberta Court of Appeal distilled the following legal principles applicable to this case:
a) A narrow definition of “undue hardship” must be adopted to ensure that the objectives of the Guidelines will not be defeated. Only exceptional circumstances will justify a reduction in child support: para 10;
b) The burden of proof is on the person claiming the relief: para 11;
c) “Hardship” is defined as “difficult, painful suffering”, and “undue” is defined as “excessive, disproportionate.” To succeed, one must prove that the hardship is exceptional, excessive, or disproportionate in the circumstances. This produces a “very steep barrier” to a successful claim: paras 11 and 17, and quoting from Barrie v. Barrie (1998), 230 A.R. 379 (Q.B.);
d) A departure from the Guidelines for undue hardship should be the “exception and not the norm”: para. 13, and quoting from Hansvall v. Hansvall, [1998] 4 W.W.R. 202 (Sask. Q.B.);
e) The formation of a second family, and the obligation to support other children is not uncommon. A certain degree of economic hardship is expected, and is not necessarily undue: paras 15 and16, and quoting from Jackson v. Holloway, [1998] 5 W.W.R. 556 (Sask. Q.B.) ; and Messier v. Baines (1997), 161 Sask. R. 132 (Sask. Q.B.)
[11] Similar statements are also echoed in Poirier v. Poirier (2004) 220 N.S.R. (2d) 388, (S.C.); Forrest v. Forrest 2006 N.S.S.C. 112 (S.C.); and Tutty v. Tutty 2005 N.S.S.C. 338.
[12] Decision on Undue Hardship Claim
[13] It is recognized that Mr. McPhee has a legal duty to support his three year old son, and his stepson of his second relationship. Mr. McPhee’s application for undue hardship must, nonetheless, fail because the financial circumstances of Mr. McPhee’s life do not constitute “painful suffering” that is “disproportionate” or “excessive.”
[14] Many families are experiencing financial difficulties in the present economy. This often arises when people are displaced from their jobs. Mr. McPhee, however, remains seasonally employed with Marine Atlantic. Not only is Mr. McPhee employed, but his income is actually more than what is was when the last variation order issued. In 2009, Mr. McPhee realized the benefits of a retroactive and ongoing pay increase. His income has thus increased from $28,269.
[15] Further, little evidence was advanced as to the financial circumstances of Mr. McPhee’s current partner. Mr. McPhee failed to supply income tax returns, and documentation to prove the financial means of Ms. LeTemplier. In addition, it also appears that Ms. LeTemplier was restricting her job search efforts to a single field.
[16] Further, Mr. McPhee did not provide convincing evidence of where his sizeable retroactive pay was spent. In 2009, Mr. McPhee earned $53,000 - $23,703 more than what he earned in 2008. Yet, scant evidence was led as to how this significant windfall impacts upon Mr. McPhee’s financial circumstances.
[17] In summary, if an undue hardship claim is advanced, accurate and comprehensive details of the financial circumstance of both Mr. McPhee and Ms. LeTemplier should have been supplied. Further, both Mr. McPhee and Ms. LeTemplier are expected to exhaust all efforts to increase their incomes and decrease discretionary expenses before consideration can be given to reduce the payment of a preexisting child support obligation. As a result, the application to vary the child support payable on the basis of an undue hardship claim is dismissed in the absence of evidence to support a claim of difficult financial suffering that is excessive or disproportionate in the circumstances.
[18] Is the child, Blair, a child of the marriage?
[19] Mr. McPhee states that his eldest son Blair graduated from high school and moved out of Ms. Thomas’ home in June 2010. Mr. McPhee also states that Blair has obtained his own apartment in Corner Brook and has not confirmed continuing education.
[20] Based on the evidence before me, I find that 18 year old Blair is living on his own in Corner Brook Newfoundland. His mother and brother live elsewhere. Blair has thus withdrawn from the charge of his parents. Therefore, unless Blair immediately supplies documentary proof that he is enrolled, and is attending an educational program, no child support will be payable for him. Rather, Mr. McPhee will pay the Guideline amount of child support for one child.
[21] Mr. McPhee states that he will pay child support for Blair if Blair is continuing his education. However, Mr. McPhee wishes to pay the child support directly to Blair, presumably because Blair is no longer living with Ms. Thomas. The amount to be paid to Blair cannot be determined at this hearing because I have not been supplied with the following information: proof of all income earned by the child; proof of enrollment in an educational institution; proof of any scholarships or bursaries or other means obtained to offset the cost of post secondary school expenses; and proof of expenses. If Blair is attending school, this information is to be obtained so that a decision can be made on the quantum of child support to be payable.
[22] What is the appropriate child support order?
[23] Mr. McPhee will pay child support to Ms. Thomas based upon his income. The income calculation is difficult to ascertain because Mr. McPhee did not supply the court with his most recent pay stub. Mr. McPhee’s income is composed of both employment and EI benefits when he is on lay off. His 2009 income was $53,000 which included a substantial retroactive payment. Mr. McPhee’s pay stub for April 15, 2010 shows a year-to-date income of $16,286.48. In the circumstances, I find that Mr. McPhee’s income will be in the vicinity of $35,000 for 2010.
[24] The last court order stemmed from a hearing held in September 2009, and from an order dated January 2010. Child support will be varied from the date of the last court order and will be based upon a child support payment for two children in the amount of $517 until July 2010. Commencing August 1, 2010 child support will be payable for one child in the amount of $309, subject to the caveat that child support can be adjusted if the child Blair supplies proof that he continues to remain a child of the marriage. In addition, arrears accumulating under previous orders will continue to be collected at the set rate until they are paid in full. All other terms of the previous court order will remain effective.
[25] This order is also subject to confirmation pursuant to the provisions of s. 18 and s. 19 of the Divorce Act.
Dated at Sydney, Nova Scotia, this 18th day of October, 2010.
Justice Theresa M. Forgeron