IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Poirier v. Poirier, 2004 NSSC 23
Date: 20040129
Docket: 1201-51365
Registry: Kentville
Between:
Catherine Jean Poirier
Applicant
v.
John Robert Poirier
Respondent
D E C I S I O N
Judge: The Honourable Justice Suzanne M. Hood
Heard: October 16, 2003, in Kentville, Nova Scotia
Counsel: Jean Dewolfe for the applicant
Patrick L. Casey for the respondent
By the Court:
[1] Catherine Poirier and Robert Poirier are the divorced parents of two sons: Kyle aged 10 and Troy aged 8. Catherine Poirier applies to vary the child support provisions of the corollary relief judgment dated December 23, 1997 which provided for child support of $600.00 per month.
[2] Catherine Poirier says that Robert Poirier’s income has increased. I am satisfied that it has and that this constitutes a sufficient change in circumstances so as to allow me to consider the variation application.
[3] Robert Poirier’s 2000 income was $51,553.00 and in 2001 it was $57,700.00. In 2002 he earned a bonus bringing his total income to $99,528.00; however, in her submissions counsel for Ms. Poirier indicates that she is willing to base child support upon Mr. Poirier’s stated current income of $58,661.56 which include CPP payments. I accept that to be his income. Child support for two children based upon that income is $787.00 per month.
[4] Ms. Poirier incurs significant child care costs because she is a captain in the Armed Forces who is required to be deployed for up to three months each year. In her affidavit sworn on October 9, 2003, Ms. Poirier states that when she was in Cold Lake, Alberta she “tried to use the Military Family Resource Centre to arrange child care when I was required to be away”. She went on to say, “However, I find it very expensive ($100.00 per day up front for 24 care), and stressful for the children because of having to stay with various caregivers in the caregivers’ homes, which sometimes had them sleeping on mattresses on the floor.” As a result, she hired a live-in nanny so that the children can remain in their own home when Ms. Poirier is on temporary duty assignment.
[5] Ms. Poirier acknowledges that the nanny performs tasks for her other than child care and, rather than seeking 45% of the net cost based upon the relative incomes of Mr. and Mrs. Poirier, she seeks 25% of the net cost or $182.00 per month.
[6] Mr. Poirier submits that he should not have to pay the full table amount for child support according to the Child Support Guidelines on the basis of undue hardship. He says that in his case the undue hardship is a result of two factors: his access costs and his existing order requiring him to pay child support for a child of a previous relationship.
[7] Section 10 of the Child Support Guidelines deals with undue hardship. It provides as follows:
Undue hardship
10. (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
...
(b) the spouse has unusually high expenses in relation to exercising access toa child;
...
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and ...
Standards of living must be considered
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.
[8] In Gaetz v. Gaetz [2001] N.S.J. No. 131 (N.S.C.A), Freeman, J.A. said in para. 15:
The Guidelines authorize a court to depart from awarding child support as calculated in the tables only when the payor spouse or a child, on whose behalf a request is made, would suffer undue hardship. This is determined by a two-step test. First, s. 10(2)(a) to (c) of the Guidelines, lists circumstances which must be considered ... Only when circumstances capable of creating undue hardship are found does the second step become relevant - the comparison of the standards of living of the households of the payor spouse and the custodial spouse.
Unusually High Expenses in Relation to Exercising Access
[9] Section 10(2)(b) of the Child Support Guidelines uses the words “unusually high expenses”. In this case, Mr. Poirier lives in Head of Chezzetcook and the children reside in Greenwood. Mr. Poirier says that to exercise access twice each month he must make two trips each way twice a month or 700 kilometers per trip totalling 1,400 kilometers per month. He says in his affidavit the cost is $140.00 per month.
[10] Ms. Poirier says Mr. Poirier has only taken the children two weekends per month on two occasions since she returned with them to reside in Nova Scotia in April 2002. She also indicated a willingness to share some of the access costs by sharing in the transportation of the children. However, this cannot occur when she is deployed.
[11] Before determining whether the access costs actually cause undue hardship to Mr. Poirier, I must first conclude that they are “unusually high”.
[12] Mr. Poirier exercises access by bringing the children to his home in Head of Chezzetcook. Although he travels 700 kilometers to exercise access, that 700 kilometers is made up of four trips per weekend. The children actually reside approximately 175 kilometers from Mr. Poirier’s home in Head of Chezzetcook.
[13] In other cases, courts have considered what unusually high access costs are. In Champion v. Champion, 2001 PESCTD 104, MacDonald, J. concluded that 80 miles per week to exercise access (approximately 532 kilometers per month) did not constitute unusually high access costs.
[14] In Mayo v. O’Connell, [1998] N.J. No. 239, Justice Cook of the Newfoundland Supreme Court - Unified Family Court concluded that, if access were in fact exercised, the access costs to travel from St. John’s, Newfoundland to Florida return were unusually high even if shared jointly between the parents. He concluded that the cost of airline tickets for two persons from St. John’s to Florida return would be over $5,000.00 full fare economy or almost $3,400.00 for excursion fares. In that case, the access order provided for one trip per year in one year and two trips per year in alternate years.
[15] In Ellis v. Ellis, [1998] N.S.J. No. 84 (S.C.), Justice Tidman concluded that travel from Winnipeg to Nova Scotia three times per year where the custodial parent paid half of the cost of the trips did not constitute unusually high access costs.
[16] In Williams v. Williams, [1997] N.W.T.J. No. 49 (S.C.) , the cost of travel from Nova Scotia to Yellowknife to exercise access was not found to be unusually high.
[17] There is usually some cost to a parent in exercising access. If a child or children live in another community, these costs are higher than would be the case where the parents both reside in the same community. However, the Child Support Guidelines provide that the expenses of exercising access must be “unusually high” before the court can consider whether they constitute undue hardship. I conclude that Mr. Poirier’s cost of exercising access may be high because of the distance the children live from his home and the fact that he may, on some occasions, have to make the return trip twice each weekend to pick the children up, bring them to his home, return them to their home and return to Head of Chezzetcook. However, I cannot conclude that these are “unusually” high access costs. Travelling a distance of 175 kilometers by car a maximum of eight times per month at a maximum cost of $140.00 per month is not an unusually high cost. Furthermore, Ms. Poirier has indicated that she will assist Mr. Poirier in transporting the children and there have been some months when access had not occurred on two weekends.
[18] I therefore cannot conclude that Mr. Poirier has demonstrated that his access costs are a circumstance which may cause him undue hardship as contemplated by s. 10(2) of the Child Support Guidelines.
A Legal Duty to Support a Child
[19] Mr. Poirier pays child support pursuant to court order for his 18 year old daughter from a previous marriage. The order requires him to pay $300.00 per month but that amount is tax deductible. Mr. Poirier’s evidence was that his daughter is now 18 years of age. He has therefore met what I consider to be the threshold test under s. 10 (2)(d): that he has a legal duty to support a child who is under the age of majority. I am therefore satisfied that this is a circumstance which may cause him to suffer undue hardship. However, Mr. Poirier must satisfy the court not only that it may cause him undue hardship (s. 10(2)) but that it would cause him undue hardship if Guideline child support is awarded (s. 10(1)).
[20] In this case, the net cost of child support for this child is $200.00 or less per month because the child support is tax deductible. Furthermore, this child, although now under the age of majority, as defined in Nova Scotia, may be of the age of majority where she resides in Ontario. In any event, she will reach the age of majority in Nova Scotia within one year. She would then continue to meet the requirements of ss. (d) only if she is unable “by reason of illness, disability or other cause, to obtain the necessaries of life”. There is no evidence before the court about the child’s circumstances which gives any indication of the likelihood of Mr. Poirier’s ongoing legal duty to support her.
[21] Mr. Poirier must satisfy the court not only that there would be a hardship but that the hardship is undue. In Mayo v. O’Connell, Justice Cook said at para. 17:
Undue hardship is a tough threshold to meet. Synonyms for undue include: excessive, extreme, improper, unreasonable, unjustified. It is more than awkward or inconvenient. ... In other words, the fact that any of the provisions of s. 10(2) of the Guidelines may apply to the Applicant is not, of itself, determinative of the undue hardship issue. The hardship must be undue to satisfy the requirements of the s. 10(1).
[22] Mr. Poirier has not provided evidence to the court that the hardship is “undue”. In fact, the evidence could be considered to be to the contrary. The payment is tax deductible and may end within one year. Mr. Poirier has remarried and his spouse, Cindy Poirier, has annual income of $23,884.00. She also has an investment from which she took additional income in 2002 to bring her total 2002 income to $28,924.00. As is apparent from Mr. Poirier’s statement of financial information, he shares expenses with Cindy Poirier. In his affidavit sworn October 15, 2003, he refers in paragraph 8 to the company vehicle which he drives, which is a 2003 Chevrolet 3/4 tonne truck. It is apparent from that affidavit that Mr. Poirier has personal use of that vehicle because he states that he claims the cost of gas for personal use in his budget but not the insurance because it is insured as part of the company’s fleet. He has no vehicle loan or lease payment for the vehicle. He also acknowledges in his reply affidavit that he works on an airplane as a hobby and has a cabin cruiser, although it is not in running condition.
[23] Under all the circumstances, I am not satisfied that Mr. Poirier will suffer undue hardship if he is required to pay child support in the full table amount of $787.00 per month. Accordingly, that is the amount he shall pay, effective August 1, 2003 (the application having been made in July 2003).
Section 7 Expenses
[24] Ms. Poirier seeks $182.00 per month from Mr. Poirier as his share of the child care expenses. Mr. Poirier’s income is 45% of the total income of both. As indicated above, Ms. Poirier seeks a sharing of only 25% of the net cost of the nanny in recognition of the fact that the nanny performs tasks other than child care. I accept that this is a reasonable apportionment of Ms. Poirier’s costs for child care. I therefore conclude that Robert Poirier shall pay to Catherine Poirier $182.00 per month as his share of the child care expenses, effective August 1, 2003.
Hood, J.