In this motion and cross-motion, the court dealt primarily with the issue of calculation of a step-parent’s child support obligation.
The parties, Mr. and Ms. Hari, began living together in 1999 and married in 2003. They separated in June 2011. The Applicant Mother, Ms. Hari, had one child, JS, from a previous relationship. The parties also had a daughter, T, together. Following the separation, both daughters lived primarily with Ms. Hari, although Mr. Hari continued to have some access time with T. While Mr. Hari acknowledged that he stood in the place of parent to J over the course of his relationship with Ms. Hari, he advised that his relationship with J had broken down subsequent to the separation. Nevertheless, J remained a child of the marriage for the purposes of calculating support.
On motion, Ms. Hari took the position that Mr. Hari should pay table support for both children, less the sum of $180.00 which was the monthly amount Ms. Hari advised she received from JS’s father. Mr. Hari, on the other hand, took the position that he only had a support obligation to T. He argued that he should not have to pay support for JS for the following reasons:
- His expenses do not permit him to pay support for JS;
- He purchased a home and incurred added expenses on the expectation that Ms. Hari would continue to earn the employment income she was earning when the parties separated and would therefore not require support; and
- Mr. Hari relied on the fact that he has no relationship with J.
Justice Shaw began his analysis with a review of the legislation; namely, s. 5 of the Child Support Guidelines which states,
5. Where the spouse against whom a child support order is sought stands in the place of a parent for the child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.
Justice Shaw noted that while JS’s father has a “legal duty” to support JS, the quantum of his ongoing support obligation was unclear, as the court order relating to support was not introduced into evidence. The court then turned to the issue of how to apportion support between Mr. Hari and JS’s biological father. In MacArthur v. Demers, Justice Aston suggested the following three-step approach as a way of apportioning support between a step-parent and biological parent:
- Determine the guideline amount payable by the respondent. This will involve consideration of the table amount, any section 7 add-ons and any undue hardship adjustment.
- Determine the “legal duty” of any other non-custodial parent to contribute to the support of the child.
- In considering whether it is “appropriate” to reduce the respondent’s obligation under the Guidelines, once the non-custodial parent establishes that another non-custodial parent (or parents) has (have) a legal duty to support the child, the onus ought to shift to the custodial parent to demonstrate why the respondent’s obligation should not be reduced by that of other non-custodial parent(s).
Following this approach, Justice Shaw rejected Mr. Hari’s submissions that he should not be obligated to pay support for JS, given that he admitted to standing in the place of parent to JS. The court further rejected Mr. Hari’s submission that his support obligation should be reduced by JS’s biological parent’s obligation, despite the fact that Ms. Hari agreed to same. Reviewing the specific facts of this case, Justice Shaw concluded,
…it is speculation that Mr. Skirving’s obligation is $180.00 per month. There is no court order in evidence…Secondly, it is apparent, from the fact of the support arrears of $5000.00 that Mr. Skirving’s support obligation is not presently enforceable and is presently of no assistance to Jenna. Thirdly, support is the right of the child. It should not be arbitrarily reduced even if the custodial spouse is prepared to accept a reduced amount.
In the end, the court made an interim, interim order that Mr. Hari pay $959.00 per month in support for JS and T, allowing for a further order if and when the parties were able to produce better evidence as to JS’s biological father’s income and support obligation.
Second, the court made a further interim, interim order that Mr. Hari pay spousal support in the sum of $100.00 per month, leaving Mr. Hari and Ms. Hari with 47% and 53%, respectively. Finally, Justice Shaw, agreeing with Mr. Hari’s access proposal, ordered that Mr. Hari have access to Tessa from after school on Monday until 7:00pm on Thursday every second week.