Bomhoff v. Bomhoff, (2015) 316 Man.R.(2d) 219 (QBFD)

• Judge: Hatch, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 25, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 316 Man.R.(2d) 219 (QBFD);2015 MBQB 52

Bomhoff v. Bomhoff (2015), 316 Man.R.(2d) 219 (QBFD)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AP.012

Kristy Lynn Bomhoff (petitioner) v. Brian Herman Bomhoff (respondent)

(FD 12-01-01454; 2015 MBQB 52)

Indexed As: Bomhoff v. Bomhoff

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Hatch, J.

March 25, 2015.

Summary:

Married parents of two children, ages five and three, separated. At issue was the appropriate parenting arrangement, the determination of child support under s. 9 of the Federal Child Support Guidelines, including the imputation of income to the father, and the mother's request for retroactive orders regarding child support and daycare costs.

The Manitoba Court of Queen's Bench, Family Division, determined the issues.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - [See Family Law - Topic 2087 ].

Family Law - Topic 2087

Custody and access - Shared parenting - Parenting plan - Married parents of two children, ages five and three, separated - At issue was the appropriate parenting arrangement - The father sought an "equal time share" under which he had the children on Monday, Wednesday and Friday overnights and alternate Saturday overnights - The mother asserted that the father should have the children on Mondays from 6 to 8 p.m., Wednesday and Friday overnights and alternate weekends - The Manitoba Court of Queen's Bench, Family Division, held that it was in the children's best interests that the father have periods of care and control of them on Mondays from 6 to 8 p.m., and Wednesday and Friday overnights with Friday extended to Sunday at 6 p.m. on alternate weekends - This was a consistent schedule that would maintain frequent contact between the parents and children - The father or his designate could remove the children from their daycare early only on his days of care and control - This was in keeping with the mother's request - Daycare provided the children with the opportunity to develop social skills - See paragraphs 45 to 82.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - Married parents of two children, ages five and three, separated in December 2011 - They agreed to a shared parenting regime and that the father would pay child support to the mother of $769 per month - The father unilaterally stopped paying child support in June 2013 on the basis that the parties had a 50/50 time share - The mother asked the court to determine whether the father had 40% or greater care of the children from January 2014 to June 2014 and, if not, whether the Federal Child Support Guidelines amount of support of $1,141 per month (based on the father's income of $82,768) was payable - The Manitoba Court of Queen's Bench, Family Division, held that the father's care of the children in that period was close to 40% - While the agreed on child support of $769 should have been paid by the father, the mother's request for the set off amount of $581 per month was fair given the overall time sharing by the parties - Retroactive support of $2,905 ($581 for five months) was awarded - Since June 2014, the father had the children 45% of the time - The set off amount of $581 per month for that period was inappropriate - The father had clearly assumed at least half of the costs of the children - In the interests of fairness, it was appropriate to uphold the father's child support obligation for that period in the amount of $400 per month (a total award of $2,800) - This would not cause the father hardship as he had some savings that might have accumulated due to not paying child support - See paragraphs 158 to 188.

Family Law - Topic 4045.3

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Child care expenses - Married parents of two children, ages five and three, separated - Under their shared parenting regime, the father had care and control of the children 46% of the time - The father was ordered to pay $200 per month as a set off amount of child support under s. 9 of the Federal Child Support Guidelines - At issue was the father's obligation to contribute to the children's daycare costs - He asserted that he should not have to pay for daycare because he could ensure that the children were cared for during the day by his new partner - The Manitoba Court of Queen's Bench, Family Division, held that the subsidized daycare expense was "necessary and reasonable" and, thus, shareable - Daycare was necessary in relation to the children's best interests, allowing the children to develop social skills in a structured setting - The current net daycare cost was $285 per month - The father's share was $181, while the mother's was $104 - See paragraphs 149 to 157.

Family Law - Topic 4045.3

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Child care expenses - Married parents of two children, ages five and three, separated in December 2011 - They agreed to a shared parenting regime and that the father would pay child support to the mother of $769 per month - Under a consent order, the father was to contribute to daycare costs to a maximum of $400 per month - He ceased paying his 45% share of the children's daycare costs in June 2014 - The mother sought an order for retroactive daycare costs for January 2014 and from July 2014 to December 2014 - The Manitoba Court of Queen's Bench, Family Division, ordered the father to pay his proportionate share of daycare costs - The father had breached the consent order - The daycare cost paid by the mother for that period was $1,559 net - The father's share was $1,068 - See paragraphs 189 to 197.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. non-divorce cases) - Calculation or attribution of income - Married parents of two children, ages five and three, separated - Under their shared parenting regime, the father had care and control of the children 46% of the time - At issue was the determination of child support under s. 9 of the Federal Child Support Guidelines, including the imputation of income to the father, who was self-employed as a trucker - The mother asserted that four expenses claimed by the father should be added back to his income - The expenses were a salary paid to the father's new partner for bookkeeping ($7,800), trailer lease payments that the father paid to his father ($11,113), a home office expense ($750) and an automotive expense ($1,158) - The Manitoba Court of Queen's Bench, Family Division, agreed that these deductions from the father's income were unreasonable - The amounts were added back to the father's income - While these items might be proper income tax deductions, the privilege of deducting particular expenses from income under the Income Tax Act was "trumped by the duty on a parent to pay child support commensurate with their actual income" - See paragraphs 83 to 112.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Married parents of two children, ages five and three, separated - Under their shared parenting regime, the father had care and control of the children 46% of the time - At issue was the determination of child support under s. 9 of the Federal Child Support Guidelines - The Manitoba Court of Queen's Bench, Family Division, ordered the father to pay child support of $200 per month - The father's income was imputed to be $82,768 - The mother's income was $51,272 - The monthly set off amount was $436 - This amount was high, given that the father had three more dependents than the mother - The court was not satisfied that the father could pay $436 per month in addition to his share of daycare costs and retroactive child support and still maintain the standard of living that the children enjoyed in his home - The mother was entitled to a realistic, modest amount that the father could pay and that would recognize that the mother had slightly more time with the children and slightly higher food and utility costs - This was $200 per month - See paragraphs 113 to 148.

Cases Noticed:

Mehling v. Mehling (2008), 228 Man.R.(2d) 145; 427 W.A.C. 145; 2008 MBCA 66, refd to. [para. 84].

L.M.K. v. J.M.K. (2015), 313 Man.R.(2d) 34; 2015 MBQB 1 (Fam. Div.), refd to. [para. 104].

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 116].

Kolisnyk v. Loscerbo - see Loscerbo v. Loscerbo.

Loscerbo v. Loscerbo (2010), 251 Man.R.(2d) 99; 478 W.A.C. 99; 2010 MBCA 1, refd to. [para. 139].

Delichte v. Rogers (2013), 299 Man.R.(2d) 269; 590 W.A.C. 269; 2013 MBCA 106, refd to. [para. 153].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 158].

Counsel:

Kerry Unruh, for the petitioner;

Brian Herman Bomhoff, on his own behalf.

This action was heard by Hatch, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on March 25, 2015.