Court File and Parties

Court File No.: Orangeville 158-12 Date: 2014-02-11 Ontario Court of Justice

Between:

Tamarra Williamson Applicant,

— AND —

Steven Rezonja Respondent.

Before: Justice S.R. Clark

Trial re: Child Support and Private School Fees

Trial held on: January 7 and 8, 2014

Judgment released on: February 11, 2014

Counsel:

• Mr. Daniel Gordon Pole, for the Applicant
• Mr. Larry Haskell, for the Respondent

CLARK, J.:

1:0 INTRODUCTION

[1] The applicant mother, Tamarra Williamson (the mother) is seeking a final order for retroactive and ongoing child support as well as a proportionate share for private school tuition for the subject male child, Ayden Gabe Williamson, presently 8 years old, and in grade 3.

[2] She contends retroactive child support should be fixed from 2009, 3 years prior to the date of the Application (November 16, 2012), pursuant to the legal principles set out in the seminal case of D.B.S. and S.R.G. v. T.A.R. and L.J.W., 2006 SCC 37, 2 S.C.R. 231 (hereinafter referred to as D.B.S.).

[3] The respondent father, Steven Rezonja (the father) agrees to pay child support retroactive to January 2013, when the Application was served on him, or alternatively, from November, 2012, when it was filed. He does not agree, however, to make any contribution toward Ayden's school fees. He submits this is an unreasonable expense which is not within the means of the parties.

2:0 BACKGROUND

[4] The issues of custody and access are moot. The father has had no meaningful contact whatsoever with Ayden since shortly after his birth. He concedes custody and is not seeking access.

[5] The parties met in 2004 and moved in together in 2005. Ayden was born on August 30, 2005. Shortly thereafter, in December, the relationship deteriorated. She left with Ayden and moved to her mother's home. She continues to reside there to the present.

[6] She did not pursue a claim for child support earlier because she was afraid the father's behaviour would pose a threat to Ayden.

[7] She now claims she can no longer support him on her own.

[8] The father filed an Answer, dated February 14, 2013, initially contesting paternity. However, if proven, he would pay guideline support.

[9] The mother then brought a motion, dated June 11, 2013, for child support and a contribution to Ayden's school fees. Justice Pugsley made a temporary order on June 27, 2013 for support retroactive to January 1, 2013 in the amount of $770.00 per month on annual income of $86,000.00. He also ordered payment of a further $150.00 per month retroactive to the same date as the father's approximate proportionate contribution to extraordinary expenses. No determination was made, however, on the issue of private school fees.

[10] Thereafter, the matter continued to be case-managed. A settlement conference was held on August 8, 2013. A trial management conference was held on October 2, 2013. On November 27 and December 18 the trial issues were addressed and the trial date of January 7, 2014 was confirmed.

3:0 SUMMARY OF THE TRIAL EVIDENCE

3:1 Tamarra Williamson

[11] She is presently 45 years of age.

[12] She met the father on a "blind date" some time in 2004. As the relationship developed, they lived together briefly. He purchased a house where they resided in the Fall of 2004. She discovered she was pregnant. He asked her to marry him (although they never did). Ayden was born approximately 9 to 10 months after they moved in together. Their relationship was "fine" at first. However, it was short-lived after Ayden was born.

[13] To this day, she has no clear explanation why the relationship broke down. In late October, 2005, the father started to exhibit bizarre behaviour. It seemed to come "out of nowhere". He was no longer interacting with them. She did not know if he was going to work or not. He had a well-paying job at the Honda plant in Alliston. He told her people were "out to get him". He wasn't sure what he was going to do about this. He would sometimes sleep on the couch in his clothes, with his keys in his pocket. She described, "It got crazy and scary". She had occasion to meet his mother. They talked about his behaviours. His mother decided he needed to be "assessed". When they all attended for this purpose, she was not allowed into the examination room by his mother. She was deeply offended by this, as he was her fiancé. From this point forward, he stopped coming home and communicating with her. He stayed with his mother. He continued to pay the expenses on the house, however. She understood he was admitted to a mental health facility for a period of 72 hours. Shortly thereafter, around Christmas 2005, she received a letter from him, through his lawyer, advising he was selling the house and she was required to leave. She was not working at the time.

[14] In January, 2006, she and Ayden moved in with her mother who helped to support them financially. She found employment in a camera lab in Orangeville for a period of 3 to 4 years. She also worked at a Reitman's clothing store as well as the Bulk Barn. She is still employed there.

[15] Although she knew where to reach the father, she did not approach him about child support for 6 years, from 2006 to 2012, because she felt it was "unsafe" for Ayden and her to be anywhere near him. Given his earlier behaviours, she had safety concerns. Although she was never given any information about his mental health condition, she did not want him involved with Ayden if he was unwell or unhealthy. She acknowledged he never threatened them verbally or physically, however.

[16] She never stopped the father from seeing Ayden, as she knew this was the law. However, she also knew he was not interested. It was also her impression his own mother wanted nothing to do with Ayden either.

[17] She described Ayden as being in good health. However, two years ago when he was in grade 1 at Princess Margaret Public School, he got into trouble "socially". She received calls from the school principal about disputes he had with other children in the schoolyard. More importantly, she was concerned he was behind in his reading. His teacher spoke to her about this briefly. She knew the first 5 years of a child's life are the most important, and she wanted Ayden to have every opportunity in this regard. She believed he could not have dealt with these issues had he stayed in the public system. Since enrolling him at the Hillcrest Private School for grade 2 in 2012, he has been doing very well. His reading has improved significantly. He is more engaged and now loves going to school. Ayden is also actively involved in community activities including soccer and swimming. He also plays hockey at the AA novice level.

[18] Tuition fees total $9,900.00 per year (10 months at $990.00). There are other expenses for a school uniform and some attendant travel costs for school trips.

[19] She realizes this is a significant expense, however, the difference she sees in Ayden's interest and enthusiasm for school is like "night and day".

[20] Her mother has been paying the tuition fees in the form of a "gift" for the time being. However, she expects to be reimbursed. It is therefore more of a "loan". She intends to pay her mother back.

[21] Her income in 2012 was $21,567.00. She anticipates her 2013 income will be approximately the same. The father's income is in the range of $80,000.00. He should, therefore, be responsible for 80% of the tuition fees.

[22] She intends to keep Ayden in private school regardless of whether the father is ordered to contribute or not.

[23] On cross-examination, she agreed she never followed up to determine if the father's condition ever improved. She never asked if he wanted any contact with Ayden. She believed the onus was on him in this regard. She acknowledged she sent Ayden to daycare and then kindergarten in private, not public facilities. Counsel suggested it should be no surprise, therefore, that Ayden was slightly behind in his reading, and that any "social issues" could have been dealt with had he been placed in the public system earlier. Counsel also challenged why it was necessary to send Ayden to private school when less financially onerous options could have been exercised. For example, she could have hired a tutor, or sent him to a learning centre (such as Kumon) to deal with his reading issues. Furthermore, had Ayden remained in the public system, his issues could have been identified and any recommended "testing" would have been at no cost. Although she did not disagree, this would have taken time. She believed something needed to be done right away.

3:2 Wendy Darrow

[24] She is the maternal grandmother. She also testified about the father's behaviours. She could not put it in words, but stated, "He wasn't right". Her belief is he was aloof, and did not know how to deal with the situation. She was concerned. She told her daughter to get out of the relationship and come to live with her. When asked why she believed her daughter had not contacted the father about child support for 6 years, she explained he would then have felt entitled to access. She stated quite frankly, "We didn't want this", and so they left it alone. They both agreed, however, when Ayden was older, access might take place because he would be able to verbalize if the father's behaviours were a concern. She acknowledged it was expensive sending Ayden to private school, but he was doing well. Part of her rationale for wanting him there is because he already had some "strikes" against him. He is an only child. He is in a single-parent family. He is also physically large. She did not want him to be considered as a "dumb kid" by other children. She was also concerned if he did not have the "basics" by age 5, he could be "vulnerable". She intends to contribute to the tuition fees, but feels the father should pay his proportionate share.

3:3 Gail Hooper

[25] She is the owner and principal of the Hillcrest Private School. She prepared a letter in October, 2013. This was made an exhibit. In her opinion, Ayden needs extensive work in developing his writing skills, math calculation fluency skills, reading comprehension strategies, and sight vocabulary. An assessment by a speech pathologist and an occupational therapist would also be beneficial. She recommended a psychological assessment also be conducted. She described Ayden as a "non-reader" when he first came to her school. She suspected a learning disability and possible Tourette's syndrome. She acknowledged some children do quite well in the public school system. Her concern for Ayden, however, is that by the end of grade 1, he had not met his milestones. In cross-examination, she agreed psychological testing would be available in the public system, but there would likely be a significant waiting list. She believed if Ayden had remained in the public system, he might have "floated along" without his needs being identified or addressed. She stated he has come "quite far" in grade 3. She remains guarded, however, as to whether he is developmentally delayed.

3:4 Steven Rezonja

[26] He met the mother through one of his friends at work in 2004. She became pregnant in November 2004. By October or November, 2005, the relationship was over. She is the one who ended it. One day she merely told him, "It's all over. I'm done". He took the rejection very hard. He suffered from depression for a period of time. He was admitted into a psychiatric unit for a period of 2 to 3 weeks. He was off work for a period of 2 years. However, since his return, he has had no further problems. He believes his mental health issues were directly caused by her treatment of him.

[27] He heard virtually nothing from her until he received a letter from Legal Aid Ontario, advising he had not been paying child support. He immediately contacted his counsel some time in December, 2012.

[28] He was never consulted by the mother at all about the decision to send Ayden to private school.

[29] His position on the private school fees is this is an inappropriate expense. He never went to private school himself. This was never discussed nor contemplated. Furthermore, he feels Ayden could function just as well in the public system.

[30] Although his salary would allow him to contribute, he has other expenses, including caring for his mother who is on disability.

[31] He is prepared to pay ongoing guideline child support.

[32] Any retroactive child support should be calculated as of January 1, 2013.

[33] He also agrees to pay a reasonable proportionate share of other section 7 expenses.

[34] On cross-examination, he stated the Legal Aid letter (dated some time in September, 2012) did not come to his attention until late in December, or early January, 2013. He never contacted the mother after she left him because it was a "nightmare" being with her. He did not trust her. Although he was aware he was entitled to access to Ayden, he did not want anything to do with her. He preferred to wait until Ayden was ready to decide for himself whether he wanted to have a relationship.

[35] He adopted the position agreed by his counsel that his annual income for purposes of calculating any retroactive child support is $82,000.00 up to and including December 31, 2013. Ongoing child support would be based on annual income of $80,000.00.

4:0 SUBMISSIONS

4:1 The Mother

[36] Counsel for the mother asks the Court to consider the following points:

1. Regarding retroactive child support:

• This is a somewhat unusual case, given the significant passage of time. Although she made no effort to contact the father from 2006, her explanation for the delay should be accepted. She had legitimate concerns for the safety and security of the child. Therefore, it was not reasonable to approach the father because of his mental health condition.

• However, child support should go back 3 years from the date the father was put on notice, at the very least. The Court should take an expansive and holistic approach to this issue, according to D.B.S.

• The Court should also accept the evidence of the maternal grandmother who stated her daughter was not emotionally able to approach the father about this issue because she feared him.

• Regarding the father's conduct, although there was no deceit or deliberate misinformation provided by him, nonetheless, he is not entitled to merely "write off" his son. It is not necessary that any conduct be intentional. Considering he had a positive obligation to support Ayden, this constitutes moral blameworthiness.

• Regarding the present circumstances of Ayden, this is not merely a needs-based determination. The Court should be mindful that over a significant number of years the mother has earned only $20,000.00, while the father has earned $80,000.00. Accordingly there should be no hardship for the father to address this issue.

2. Regarding private school fees:

• The mother has sacrificed significantly. The fees represent almost half of her annual salary.

• Although there were no discussions between the parties, the Court should consider the father really has no other expenses. He is not legally bound to assist his mother, or at least cannot do so at the expense of his son.

• Although there has been no pattern of private schooling for this family historically, there was an identifiable need and benefit to sending Ayden there.

• The Court should also consider that any contribution toward the tuition fees by the father is tax deductible.

• The evidence from the owner of the private school speaks for itself. It has been of great benefit to Ayden and will continue to address his needs in the most meaningful way possible.

• Accordingly, the fees should be paid on the basis of an 80/20 split in favour of the mother. Alternatively, the Court can consider a more equitable contribution, of at least 50%.

4:2 The Father

[37] Counsel for the father asks the Court to consider the following points:

1. Regarding retroactive child support:

• This is actually a straightforward case. This was a short relationship. There were two versions of why the parties broke up. Regardless, the father has acknowledged his legal responsibility. There is nothing blameworthy about his conduct. He took reasonable and appropriate legal steps to advise her he was selling the house. These are hardly the actions of an individual who was acting in a bizarre manner or who was somehow posing as a threat to her or Ayden.

• In any event, the mother clearly made an informed and conscious decision she was not going to request any child support at all. She knew exactly where the father lived and worked. Basically, she traded off child support so she could exclusively have Ayden. It is clear from her actions she was consciously intending to eliminate him from Ayden's life altogether.

• It is disingenuous for her to say she was not emotionally able to make inquiries about child support until late 2012 or early 2013. The fact is, she resided with her mother and had the continued support from her both financial and emotional.

• Any retroactive child support should only commence in either September or December, 2012 and not 3 years prior to this time. The mother has not properly accounted for the delay. There has been no blameworthy conduct on the part of the father.

2. Regarding private school fees:

• This is something the mother should have raised with him prior to making the decision.

• It is not an absolute necessity.

• Ayden's needs could have been otherwise met in a public school setting. It is not altogether surprising that a child in the early formative years at school might have adjustment problems.

• Children learn at different rates and stages. It is entirely conceivable Ayden could have caught up academically had he remained in the public system.

• Other alternatives such as tutors and learning centres would have been a more reasonable expense.

• Had Ayden remained in the public system and still required academic testing, this expense could have been covered.

• Although it is hard to disagree that a private school setting is likely better for any child, it is arguable that if Ayden needed it at all, he could have gone for 1 year to "correct" whatever concerns there were and could then have returned to the public system.

• There is no history of the parties or any family members ever having gone to private schools where this tradition somehow needed to be carried on.

• It is not clear whether this is a tax deductible expense or not.

5:0 ANALYSIS

5:1 Issue 1 – Should there be retroactive child support?

[38] Two of the more important principles identified in D.B.S. is that both parents have an obligation to ensure their child receives the appropriate amount of support in a timely manner, and when faced with a retroactive claim, the Court must balance the payor's interest in relying on the status quo with the need for fairness and flexibility.

[39] Retroactive awards cannot simply be regarded as orders to be made only in exceptional circumstances. Rather, a modern approach compels consideration of all relevant factors. Thus, while the propriety of such an award should not be presumed, it is not only to be found in rare cases either.

[40] Generally, a claim for retroactive support should be calculated as of the date of "effective notice", that is, when the recipient made the request, either informal or formal.

[41] Unless the payor has demonstrated bad faith or blameworthy conduct, the award should not be more than 3 years before such notice.

[42] Four main factors must be considered as follows:

1. The reason for the delay in bringing the claim.
2. The conduct of the payor.
3. The circumstances of the child.
4. Any hardship that may be caused by a retroactive award.

[43] None of these factors is decisive. The Court, therefore, should strive for a holistic view of the matter and decide each case based on its particular factual matrix.

[44] Applying the above-noted criteria, the Court finds the following:

1. Reasons for delay in bringing the claim

• It is important to remember the right to child support is that of the child. Therefore, any delay by the recipient parent is merely one factor to consider.

• Usually it is the conduct of the payor that often determines the reasonableness of the delay.

• When examining the balance between the father's interest in certainty and fairness to his child, since there was no original agreement or Court order in place for child support, it can hardly be said that certainty was important to him. In fact, the only thing certain was he knew he had a son and was paying nothing.

• That said, the Court finds the mother's reasons for delay to be unconvincing. She never discussed finances at all with him after she left the relationship. For the next 6 years, her sole concern, rightly or wrongly, was to ensure the father had no part in her or Ayden's life. Her testimony about being fearful of him because of his erratic behaviour is more perceived than real. She was merely prepared to assume and accept his behaviour never changed over time. The Court also finds she exaggerated her fear the father would somehow retaliate against her if she pursued a claim for support. She never did explain how she found him to be so difficult to deal with if they never discussed finances.

• Although it may have been costly to have hired counsel to take the father to Court, given her income, she is certainly sophisticated enough to have sought some advice or general information from other sources or to merely correspond with him requesting financial disclosure and child support.

• Accordingly, the Court finds she did not pursue a claim because she was quite prepared to "go it alone". It cannot be she did not know where the father was, or did not know how to make a claim.

2. The Conduct of the Payor

• The Court should take an expansive view of what constitutes blameworthy conduct.

• It is anything that privileges the payor's own interests over his child's right to an appropriate amount of support.

• No level of blameworthy behaviour should be encouraged. Therefore, even where a payor does nothing active to avoid his obligation, he might still be acting in a blameworthy manner if he consciously chooses to ignore it. Simply put, a payor who knowingly avoids or diminishes his support obligation should not be allowed to profit from such conduct.

• The Court finds there is a degree of blameworthiness in this case. The father obviously concluded, given the brevity of the relationship, and his belief the mother left him, that he was "home-free". It must have become clear to him, not unreasonably however, the mother wanted to raise Ayden on her own. He also knew he "caught a break" by not having to pay support. He continued to "lie in the bushes". He had information from some of his colleagues at work, who were in similar circumstances, that the going rate for child support was in the range of approximately $600.00 per month. There was an obvious incentive to continue to ignore that which he otherwise knew was his legal obligation. He therefore maintained a financial informational advantage. He must have known the mother was not making very much money, but he was. He has had no other significant personal expenses, save and except supporting his own mother. This moral obligation, however, should not trump his legal obligation to Ayden.

• This factor, therefore, carries some weight, and must be properly and fairly considered when balancing all of the other factors.

• Otherwise, once he was notified of his legal responsibly to pay child support, he responded accordingly and conceded his obligation to pay, albeit from the time he was served with the Application.

3. The Circumstances of the Child

• The Court must consider the needs of the child at the time the support ought to have been paid, and not the time of the Application.

• However, the Court is entitled to consider both present and past circumstances. A child who has gone through hardship due to not being properly supported may be compensated.

• On the other hand, a child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than one who is currently in need.

• Although there is nothing specific to suggest Ayden has been significantly deprived, the Court is entitled to consider the mother works for nominal wages and has been paying all the expenses in the course of raising him. Were it not for the contributions of her own mother, she and Ayden would not be leading anything other than a basic lifestyle.

• Clearly, Ayden would have been in a better position these last several years if there was more money available for his upbringing. However, there is otherwise little evidence of his past or present needs being unmet.

4. Any Hardship that may be caused by a Retroactive Award

• It is clear from the evidence the father has had the ability to pay these last several years. Accordingly, hardship is not a particularly live issue.

[45] When balancing all of the above-noted factors, the Court is not satisfied there should be a retroactive order made.

[46] The mother clearly demonstrated a settled intention she was going to have nothing to do with the father and was quite prepared to raise Ayden on her own.

[47] This is indeed, noble of her. In no way is the Court being at all critical. In fact, it seems rather ironic had she acted more in the nature of a "scorned" ex-partner, she could have "gone after him", so to speak.

[48] The Court is quite cognizant the father should not profit from his inaction, particularly when considering it is Ayden's right to have had the benefit of proper support from both of his parents.

[49] However, unfortunately, but not unfairly, the mother chose not to advance any of his interests in this regard for ill-considered reasons, or at least reasons only best known to her.

5:2 Issue 2 – Private School Tuition

[50] Section 7(1)(d) of the Federal Child Support Guidelines confers a discretion on the Court to provide for the payment of all or part of this expense which meets the child's particular needs.

[51] However, this must satisfy the dual test of reasonableness and necessity.

[52] The following non-exhaustive list of factors are relevant to a determination of whether this expense is appropriate:

1. whether one or both parents attended private school.
2. whether the child had been enrolled in a private school prior to the separation.
3. whether there had been an expectation the child would have a private education by express agreement or otherwise.
4. whether the parents can afford same.
5. whether there are special needs public school cannot provide, thereby making private education in the best interests of the child.

[53] The case of Correia v. Correia, 2002 MBQB 172 identifies other factors to assist in determining the reasonableness of this expense:

1. the combined income of the parties.
2. the fact that two households must be maintained.
3. the extent of the expense in relation to the parties' combined level of income.
4. the debt position of the parties.
5. any prospects for a decline or increase in the parties' means in the near future.
6. whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.

[54] In the circumstances of this case, the Court is not satisfied this is a reasonable or necessary expense. Although it may be for the mother, it is not something the father should be responsible for having to contribute. The Court makes this finding for the following reasons:

1. This was never discussed between them.

2. There was never any agreement about a commitment to this educational plan for Ayden.

3. It is hard to argue against a private school education for any child. There is a difference, however, in something being desirable, but not necessary. Where an expense crosses the line from reasonable to a luxury, the Court has the discretion to disallow it.

4. It is quite telling the mother never advanced any claim whatsoever at the time Ayden started in private school in grade 2.

5. The Court is not satisfied private school was as necessary for Ayden as has been made out. Without being critical, the Court asks, rhetorically, what student in the early years of primary school does not experience some "social issues?" There was really no meaningful evidence given about what these were. The hint of being "bullied" in the schoolyard was far too generic and conclusory.

6. Of more significance, of course, is whether there were academic learning issues regarding reading and other developmental concerns. The Court is not satisfied these issues would have been either unidentified or unattended to in the public system. Rather, it was a choice by the mother, with the assistance of the maternal grandmother that this is where they wanted to spend their money.

7. The Court finds, respectfully, the mother has not discharged her obligation to mitigate this expense by ascertaining, for example, whether counselling, if necessary at all, would be available through public expense.

8. Furthermore, she has not demonstrated why Ayden's needs could not be met in a publically-funded school system.

9. Although it was of interest to have heard from such a caring and enthusiastic witness as Gail Hooper, this was self-serving evidence. It did not represent an independent clinical opinion addressing the need for private schooling as being in the best interests of Ayden in general, and the need for this school, in particular.

6:0 CONCLUSIONS

[55] For the above-noted reasons, the Court is not prepared to make a retroactive child support order prior to December 1, 2012, the month following the date of the Application. Counsel have agreed the father's income on which the table amount should be based for this period is $82,000.00 up to and including December 31, 2013.

[56] Ongoing child support will be based on annual income of $80,000.00.

[57] There will be no order made requiring the father to contribute to private school fees.

[58] There is an acknowledgment, however, of a contribution toward general section 7 expenses. The Court sees no reason why the amount set by Justice Pugsley in the temporary order dated June 27, 2013, should be fixed at anything different from $150.00 per month. This will also be retroactive to December 1, 2012.

7:0 ORDER

[59] The Court makes the following final order:

1. The applicant mother, Tamarra Williamson, shall have sole custody of the child, Ayden Gabe Williamson, born August 30, 2005.

2. Access to the said child by the respondent father, Steven Rezonja, shall be upon request, and at the discretion of the said applicant mother, not to be unreasonably withheld.

3. The temporary order made by Justice Pugsley, dated June 27, 2013, is hereby varied as follows:

   The respondent father, Steven Rezonja, shall pay child support to the applicant mother, Tamarra Williamson, on behalf of the said child, Ayden Gabe Williamson, born August 30, 2005, in the amount of $738.00 per month, commencing December 1, 2012, on annual income of $82,000.00, up to and including December 31, 2013. Ongoing child support shall be paid from January 1, 2014 in the amount of $724.00 per month on annual income of $80,000.00. The said respondent father shall also pay $150.00 per month for section 7 expenses for the said child, retroactive to December 1, 2012.

4. The parties shall exchange financial disclosure annually, including copies of income tax returns, and any notices of assessment or reassessment, by July 1, commencing in 2014.

5. A support deduction order shall issue.

8:0 COSTS

[60] Although it appears the father was the more "successful" party in this trial, he should not consider this a "victory". By the barest of margins, he has escaped a more onerous financial fate. He should strongly consider leaving "well enough alone".

[61] Accordingly, the parties should absorb their own costs.

[62] However, if this remains an issue, the father shall provide written submissions within 20 days. Any submissions from the mother shall be submitted within 15 days thereafter. Any responding submissions by the father shall be submitted within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between them.

Released: February 11, 2014

Justice S.R. Clark