Astronomical Child Support Award Ordered by the Ont. SCJ: Desrochers v. Tait

The Applicant Wife filed an Amended Amended Notice of Motion against the Respondent Husband in the Toronto Superior Court of Justice for various final and temporary reliefs, including, but not limited to a claim for child support in the amount of $33,051.08 monthly.

The parties began living together in 1998 and were married merely 4 years later. There was one child of the marriage who was born on September 16, 2003. The parties separated on January 11, 2004. The Wife alleged in her court materials that her spouse's income during and after their marriage was often sporadic and nominal, and furthermore, that she was forced to support the Husband both emotionally and financially throughout their marriage. The Husband contended that the Wife did not support him during the marriage, and often suggested that he get a job bar-tending in times when he was making a meagre income.

The Husband only began paying child support in May 2005 in the amount of $350.00 monthly. At the time, the Husband disclosed to the Wife that he was making $40,000.00 per year, when in fact he earned $82,542.00. The Husband continued to make the same child support payments of $350.00 monthly to the Wife in 2006, despite his income having risen to an astronomical $3,579,000.00. According to the Court, the Husband only reluctantly increased his child support payments in July 2007 to $3,203.00 per month. When the Husband's income increased yet again in 2008 to approximately $6,632,626.00, the Husband unenthusiastically increased his child support payments in July 2008 to $5,000.00 monthly.

The Court remarked on the lack of candour and frankness with which the Husband attended to his disclosure obligations. The Husband often refused to provide up-to-date financial information when asked or ordered to do so by the Court or the opposing side. However, the Court refused to entertain the idea of striking the Husband's pleadings, as it was satisfied that the Husband would complete his disclosure obligations with no further delay.

Just prior to the said court proceeding, the Husband conceded that he was in arrears of child support, and thus, made a lump sum payment of $200,000.00 to the Wife on a without prejudice basis. During the proceeding, the Wife argued that a three year rolling average of the Husband's income should be used to determine his child support obligation, with Guideline support being applied on the full income each year. The Husband objected to the Wife's proposition, arguing that to ordinarily apply the Guidelines would be excessive in this particular situation. Further, the Husband viewed the Wife's request for Guideline income as nothing more than a means of wealth transfer from him to his spouse. The Court, however, rejected the Husband's perspectives, concluding that "he does not seem to understand that child support is no such thing". The Court went on to look at the objectives of the Child Support Guidelines, highlighting that one of it's' purposes is to establish a "fair standard of support for children that ensure that they continue to benefit from the financial means of both spouses after separation". Although the Court was cognizant of Section 4 of the Guidelines which allows a Court to deviate from a strict application of the Tables where a payor spouse's income is over $150,000.00, the Court also noted that there is a presumption favouring Guideline support, and to deviate from this presumption requires there to be "clear and compelling evidence" to demonstrate that Guideline Support should not apply. According to the Court, the sheer size of the Table amount is not a sufficient reason to depart from applying them.

After a lengthy analysis, the Court concluded that it was satisfied that the Table amount of child support should apply to the case at bar, and further, that based on the facts of this case, the three year rolling average should also apply. The Court reasoned that it would be much more equitable for the wife to receive child support based on a formula that helped average out the highs and lows characteristic of the Husband's income over the years. The Court further made an order for retroactive child support in the amount of $724,582.00, highlighting that despite the Husband's ability to pay proper child support in the past, he did not volunteer to increase payments as his income escalated. The Husband, however, was given credit for the voluntary payment of $200,000.00 that he chose to make to the Wife in 2008, and the actual support payments that he did in fact make over the years. Resultantly, the arrears balance owing by the Husband to the Wife in lieu of child support "forthwith" was $429,928.00. With respect to s.7 extraordinary expenses, the Court ruled that since the Wife's proposed budget included the child's current special expenses (Montessori school and the non-insured health and dental expenses), there should be no Order as to these expenses, leaving it open to the Wife to ask for s.7's when the child is older and incurring additional extraordinary expenses.

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