Walling v. Holosney

2011 BCSC 104 Walling v. Holosney IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Walling v. Holosney, 2011 BCSC 104 Date: 20110128 Docket: E8798 Registry: Chilliwack Between: Sharon Beth Walling Claimant And Robert Lenord Holosney and Richard Kenneth Holosney Respondents Before: The Honourable Mr. Justice Bowden Reasons for Judgment In Chambers Counsel for the Claimant: N.J. Harold Counsel for the Respondent, Robert Holosney: K.E. McNeilly Place and Date of Trial/Hearing: Chilliwack, B.C. November 23, 2010 Place and Date of Judgment: Chilliwack, B.C. January 28, 2011 [1] The applicant, Sharon Walling, seeks an order determining the quantum of child support payable by the respondent, Robert Holosney, and a variation of the interim consent order of Justice Williams made on October 27, 2009, regarding child support and costs of this application. [2] The applicant and the respondent lived in a common law relationship which ended on July 1, 2009. Two children were born to the relationship; namely, Jared Holosney, who was born on October 18, 2006 (age 4), and Justin Holosney, who was born on May 15, 2008 (age 2). [3] This action had been set for trial for the week of October 4, 2010; however, a week before trial, the parties settled all of the outstanding issues except child support. The applicant seeks payment of the full table amount of child support. The respondent seeks to pay on a set-off basis pursuant to s. 9 of the Federal Child Support Guidelines, S.O.R./97-175 [Guidelines]. [4] The applicant is a care aide employed on a part-time basis at Chilliwack Hospital. The respondent is a corrections officer and works at Fraser Regional Correctional Centre and Ford Mountain. His normal shift is four days on and four days off. [5] The parties have agreed that during the school year, the respondent will have the children in his care from noon on his first day off until 5:00 p.m. on his fourth day off. The result is that the respondent has the children for three and a half days out of every eight. This equate to 43.75% of the children's time for 38 or 39 weeks of the year. [6] The parties share the children equally, week on week off, over the 10 weeks of the summer. They share the children equally for the two-week Christmas holiday and the one- or two-week school spring break. This represents 50% of the children's time for 13 or 14 weeks of the year. [7] The applicant receives all of the child tax benefits and child care benefits available to parents. [8] The applicant alleges that the respondent has four undeclared sources of income, namely: 1) $400 a month from his brother, Richard Holosney, towards the payment of the mortgage on the residential property; 2) $400 a few times each year from a farmer who cuts hay on their acreage property; 3) rent of $400 per month from a tenant of a property owned by the respondent's mother's company; and 4) payments for work he does for his brother's landscaping business. [9] The respondent answers those allegations as follows: 1) He has not denied receiving $400 each month from his brother and that is because Richard Holosney is a co-owner of the property and pays for his share of the mortgage payments. 2) There is no evidence that the respondent receives payment for hay removed from his property. He says that he has received $1 per year from the farmer who cuts the hay because that helps maintain the farm status of the property. 3) He says the rental income has always belonged to his mother's company. 4) He says he does help his brother from time to time with his landscaping business but does not receive payment for that. [10] While acknowledging that the respondent has physical custody of the children more than 40% of the time and accepting that the respondent will have less income this year than last, the applicant says that the undeclared sources of income of the respondent and the assistance available to him from his family which, she says, reduces his cost of caring for the children, justify the exercise of the Court's discretion under s. 9 of the Guidelines to depart from the Guidelines in this case. [11] The respondent says that the family help available to him is not a factor in this case. There is no indication that either the applicant or respondent require babysitters. Further, he says, his family has offered to help the applicant but she chooses not to accept their offer. [12] Both parties referred to Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217 [Contino], as the leading case in this area of law. Analysis and Decision [13] Section 9 of the Guidelines provides: 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [14] In Contino, the Supreme Court of Canada approved the set-off approach as the starting point for the discussion following which the factors under ss. 9(b) and (c) have to be considered. [15] A court will depart from the set-off amount if it is inappropriate in light of the factors considered under ss. 9(b) and 9(c). The set-off amount must be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child, especially in light of the fact that many costs are fixed. This may be a problem in cases where there is a great discrepancy in the incomes of the parents. It may also be a problem in cases where one parent actually incurs a higher share of the costs than the other, such as taking responsibility for clothing or activities for the child. [16] It was noted in L.R.C. v. J.M.C., 2008 BCSC 408, that the child tax benefit does not form part of the recipient's income; it is a relevant consideration under s. 9 of the Guidelines. In the case at bar, the applicant receives $567 per month in child tax benefits and $200 per month for the universal child care benefit. [17] The objective of s. 9 is to give a court the discretion necessary to adjust child support in situations of shared custody so that the children do not experience significant differences in the standards of living that each parent can offer in their homes. [18] Applying s. 9(b), the respondent will have the increased costs of providing food, clothing, diapers, supplies, and other items for the children as they grow. [19] Under s. 9(c), the parties' income-earning ability is not dissimilar. The applicant's hourly rate is $21.94 and the respondent's is $27.62. The applicant's means are somewhat greater than the respondent's in light of her receipt of all of the benefits and tax deductions for the children. Their transportation and housing costs are also not dissimilar. [20] I note that if the respondent was required to pay the full table amount of child support of $775 per month, the applicant would have 60% of the combined net disposable income, or $3,669 per month, while the respondent would have 40% of the combined net disposable income, or $2,452 per month. [21] If an adjustment were made by the set-off of what one parent is required to pay under the Guidelines against what the other parent is required to pay, the set-off amount payable by the respondent would be $344 per month, the applicant would still have a higher percentage of the combined net disposable income, at 53% or $3,238 per month, while the respondent would have 47% of the combined net disposable income, or $2,883 per month. This should not result in a noticeable difference to the children's standard of living in each of their parent's homes. [22] Having considered the factors referred to in s. 9 and the approach indicated by the Supreme Court in Contino, I am satisfied that the respondent be required to pay child support at the set-off amount under s. 9 of the Guidelines in the amount of $344, commencing retroactively November 1, 2010. [23] The respondent shall also be entitled to costs at Scale B. "Bowden J."