According to Justice Robert Spence in Davis v. Davis, 2016 ONCJ 254 (CanLII), Table child support is based on “income” but section 7 expenses is based on “means” and, in this case, those means included the income of the father’s new partner.
In this case, the mother sought a share of the children’s section 7 expenses from the father. The father’s income was $55,796. The mother was on social assistance and therefore she had no ability to contribute to section 7 expenses.
Justice Spence quoted section 7 of the Child Support Guidelines that state “...the court may…provide for an amount to cover…any portion of…expenses… taking into account the means of the spouses…” In this case, the parties’ children had severe disabilities including autism and ADHD. The mother was unemployed, devoting all of her time to the care of the two children. The equities of this case were in favour of the mother. The mother was alleging that the father’s new partner had significant income. The father gave no evidence of the partner’s income. However, in cross-examination, it was suggested to the father that his new partner might have an income of $80,000-$90,000 per year. The father responded by saying he had no idea what her income was. Justice Spence said “I find that response to be disingenuous. Most spouses will know how much their partner earns – if not the exact figure, then certainly the approximate amount. For father to state otherwise, strikes the court as stonewalling, suggesting to the court that he simply does not want his spouse’s income to be considered in this case.”
Even though the court acknowledged that the new spouse has no obligation to support her partner’s former children, Justice Spence stated:
“To be clear, the obligation to pay child support is not that of the father’s spouse. Rather, it is the additional resources made available by his spouse which must be factored into the father’s overall means to contribute to his own child support obligation. In considering father’s ability to pay, his means will include the “third party resources” which, in this case, are the resources available from his spouse.”
It would seem that the distinction between the term ‘income’ and ‘means’ is blurred and may evolve to include the income of the parent’s new partner.
About the author
Steven Benmor, Benmor Family Law Group.