Court File and Parties
Court File No.: D49312/09 Date: 2016-09-26
Ontario Court of Justice
Between:
ABIOLA ABENI ODUWOLE Acting in Person Applicant
- and -
TROY DAVID MOSES Respondent
Counsel:
- Dion R. McClean, for the Respondent
Heard: September 13 and 19, 2016
Justice: S.B. Sherr
Reasons for Decision
Part One - Introduction
[1] The applicant (the mother) has brought a twice amended motion to change this court's support order dated February 12, 2010 (the existing order). She has asked for an increase in child support retroactive to the date of the existing order. She asked that this recalculation include the children's special and extraordinary expenses (section 7 expenses), pursuant to section 7 of the Child Support Guidelines (the guidelines).
[2] The respondent (the father) asked that the mother's claim for retroactive support be dismissed. He agreed that child support should be increased prospectively based on his 2015 income.
[3] The affidavits and financial statements filed by the parties constituted their direct evidence. The parties were permitted to give supplemental oral evidence and cross-examine each other.
Part Two – Background Facts
[4] The parties are both 39 years old.
[5] The parties have two children (the children). Daija is almost 17 years old and Amiya is 9 years old.
[6] The children have always lived with the mother.
[7] The mother is a research technician at a Toronto hospital.
[8] The father is employed with Canada Post as a supervisor.
[9] The parties have similar incomes.
[10] The mother first issued an application for custody and child support in this court on November 5, 2009.
[11] On February 12, 2010, the parties reached a consent. The terms of their consent were incorporated into the existing order. These terms included:
a) The parties have joint custody of the children.
b) The primary residence of the children is with the mother.
c) The father shall have reasonable access on reasonable notice to the mother.
d) The father shall pay child support of $600 per month to the mother. This amount was less than the guidelines table amount based on the father's annual income of $56,572.[1]
e) The father shall annually provide the mother with copies of his income tax returns and notices of assessment.
[12] The mother testified that the parties resumed their relationship in August 2013.[2] They regularly saw one another. While they did not live together the mother deposed that they would sometimes spend weekends or travel together.
[13] The parties became engaged to marry in July 2014.
[14] The mother deposed that her relationship with the father deteriorated in early 2015. She said that they were "on and off – mostly off".
[15] The mother testified that she and the father resided together from May of 2015 until the end of July 2015 when they separated for the last time.
[16] The father paid the mother the $600 each month set out in the existing order from February 2010 until November 2015. At that time, he went into default. The father deposed that this was due to depression and anxiety which resulted in his going on short-term disability and then on long-term disability. The father presently works three days per week, but receives his full income due to his disability supplement.
[17] The mother issued her motion to change on January 27, 2016. This motion sought a prospective increase in child support and sole custody of the children.[3]
[18] The mother amended her motion to change on April 20, 2016 and for the first time sought a contribution to the children's section 7 expenses.
[19] The mother amended her motion to change again on June 1, 2016 and sought retroactive support from the father.
[20] The father married another woman in 2016. They continue to live together.
[21] The father has not paid any child support since July 2016. He is $2,950 in default under the existing order.
Part Three – Retroactive Support
3.1 Legal Considerations
[22] The father's motion to change support is governed by subsection 37 (2.1) of the Family Law Act which reads as follows:
Powers of court: child support
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
[23] Any support claimed after an application is issued is prospective support, not retroactive support. Ordinarily, once entitlement to support has been established, an applicant who has provided notice of a support claim, and who then proceeds reasonably to a disposition of the claim, is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. To do otherwise would only provide parties with an incentive to delay the final hearing. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).
[24] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:
Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
The conduct of the payor parent.
The circumstances of the child.
The hardship that the retroactive award may entail.
[25] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.
[26] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).
[27] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121).
[28] The recipient will lack a reasonable excuse where they knew higher payments were warranted but chose to do nothing about it. (D.B.S., par. 101).
[29] The difference between a reasonable and unreasonable delay is often determined by the conduct of the payor. If they inform the recipient of income increases in a timely manner, do not pressure or intimidate the recipient, they will have gone a long way to showing the delay was unreasonable (D.B.S., par. 102).
[30] The court should take an expansive view of what constitutes blameworthy conduct. Blameworthy conduct is anything that privileges the payor's own interests over the children's right to an appropriate amount of support (D.B.S., par. 106).
[31] The more material the increase in income, the less likely the payor will be presumed to believe they were meeting their obligations (D.B.S., par. 108).
[32] Courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable guideline tables is not required — nor is it recommended. While the date of effective notice should be chosen as a general rule, this will not always yield a fair result. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case (D.B.S., par. 130).
[33] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past (D.B.S., par. 125).
3.2 The Mother's Position
[34] The mother asked that child support, including section 7 expenses, be recalculated back to the date of the existing order. She asked that the father be required to pay the guidelines table amount in accordance with his actual annual income each year as well as 50% of the children's section 7 expenses.
[35] The mother claims that the father has consistently misrepresented his income to her. The mother claimed that she accepted the father's representation that he earned $56,572 when the existing order was made in February 2010, when he was actually earning much more.
[36] The father's annual income since 2010 has been as follows:
2010 - $73,655
2011 - $68,370
2012 - $69,406
2013 - $77,124
2014 - $72,798
2015 - $72,798
[37] The mother testified that the father never disclosed his increases in income to her. She said that she asked him for more support in the spring 2013, but the father claimed that he could not afford to give her more.
[38] The mother gave several reasons for accepting less than the guidelines table amount in the existing order, such as:
a) The father begged her at the time to take less child support.
b) The $600 each month was more than the father had been paying her.
c) The father had orally agreed to pay 50% of the children's section 7 expenses.
[39] The mother testified, "I made a big mistake, I admit that".
[40] The mother conceded that she did not make a written request for increased support prior to starting her motion to change.
[41] The mother gave several reasons for not bringing her motion to change earlier, such as:
a) She wanted to avoid court proceedings.
b) She wanted to remain friends with the father.
c) She trusted that the father would eventually meet his support obligations.
[42] The mother submitted that the father engaged in blameworthy conduct by:
a) Not revealing his increases in income and paying support in accordance with his annual income.
b) Not complying with their oral agreement to pay 50% of the children's section 7 expenses.
c) Failing to pay the court-ordered support, starting in November 2015.
[43] The mother testified that she had to stop Amaya from participating in her cheerleading program in 2016 because she was not receiving sufficient support from the father and she could no longer afford it.
[44] The mother submitted that the father would not suffer hardship if the court makes a retroactive support order. She points out that he was able to afford a wedding and buy a Honda Accord since this case started.
3.3 Position of the Father
[45] The father's position is that no retroactive order should be made.
[46] The father complied with the support terms of the existing order until he stopped working in November 2015.
[47] The father submitted that his paying the court-ordered support, even when he and the mother were a couple, is indicative of his good faith.
[48] The father states that the parties had agreed that $600 each month for support was fair even though it was less than the guidelines table amount. He said that the mother never expressed any dissatisfaction with this amount until he advised her in late 2015 that he planned to marry.
[49] The father said that he never read the court order and was unaware of the requirement to make annual financial disclosure.
[50] The father said that the mother never asked him for his income tax returns or notices of assessment prior to the court case. He said that she actually assisted him in budgeting.[4]
[51] The father denied entering into an oral agreement with the mother to pay 50% of all section 7 expenses for the children. He said that he told the mother that if he agreed to a child participating in an activity he would contribute to the expense. He denied that the existing order was contingent on such an agreement.
[52] The father testified that the mother rarely sought his input on the children's activities. He said that she would usually enroll the children in a program and then demand 50% of the expense. He said that he tried to be a good father and paid for some of these programs, even when he didn't agree that the child should attend them.
[53] The father submitted that the circumstances of the children have not been disadvantaged – their needs have always been well met.
[54] The father testified that a retroactive award would cause him significant hardship. He deposed that he is already in considerable debt. He said that his spouse earns under $15,000 per annum.
3.4 Explanation for Delay
[55] The mother did not provide a strong explanation for failing to bring her motion to change support earlier.
[56] The evidence did not support the mother's contention that the existing order was premised on a side oral agreement for the father to pay 50% of the children's section 7 expenses.
[57] If the parties had agreed to an equal sharing of section 7 expenses, the court would have expected this important term to be incorporated into the existing order. No viable explanation was given by the mother about why this didn't happen.
[58] There is no question that the mother would often ask the father to pay for 50% of section 7 expenses after the existing order was made. Sometimes he would agree to pay, sometimes he wouldn't. If the mother felt that the father was not properly complying with an oral agreement she had the ability to move to the court for an order for the father to pay towards these expenses – an order that would be capable of enforcement.[5] She didn't do this.
[59] The evidence supports the father's position that the mother would sometimes consult with him about a child's activity, but would also enroll a child, at times, in a program without consultation and then ask for compensation. The mother attributed this to difficulty in communicating with the father.
[60] The mother presented as exceptionally capable. Her court materials were exemplary. She also presented with a forceful personality. Yet, she never: asked the father for his annual income tax returns, moved for increased support or move to enforce the purported oral agreement. If she had felt that it was worth her while to come to court to seek more support she would have done so a long time ago. She made a choice not to.
[61] It became clear that the major reason why the mother did not seek increased support earlier was because she was involved in a relationship with the father from (at least) August 2013 until July 31, 2015. The mother was not going to seek increased child support from the father when they were engaged to be married or while they actually lived together.
[62] The evidence does not support the mother's contention that she was seeking increased guidelines table support from the father in 2013. There is no documentation supporting that.
[63] In fact, the mother was lending the father significant money during this period. She deposed that she lent him $7,338 in 2013 to help him pay off his loan for his Lexus, $2,000 in September 2013 to buy a car and $10,817 in 2014 to assist him in paying off a consumer proposal in bankruptcy.
[64] It makes little sense that the mother would be seeking a monthly increase in support from the father at the same time that she was advancing large lump sums of money to him.
[65] This evidence indicates that there was some intertwining of the parties' financial affairs during this period.
[66] The triggering event for the mother taking action appears to have been the father's default in paying $600 each month starting in November 2015.
[67] The court finds that the dates of effective and formal notice are the same – the date the motion to change was issued (January 27, 2016).
3.5 Blameworthy Conduct
[68] The father has engaged in some blameworthy conduct.
[69] The father should have produced his annual income tax returns to the mother and revealed that he was earning more income. Support should have been increased during the periods he was not in a relationship with the mother.
[70] This blameworthy conduct is partially mitigated by the following:
a) The father complied with the support provision of the existing order for over five years. There is some basis for his subjective belief that he was not required to pay the guidelines table amount, even if his income went up.
b) The father paid for some of the children's section 7 expenses.
c) The father continued to pay the mother $600 each month for support when the parties were together.
d) The mother never sought financial disclosure from the father.
3.6 Circumstances of the Children
[71] There was some disadvantage in the circumstances of the children due to the father's failure to pay adequate support. Amaya had to stop the cheerleading program she enjoyed because the mother could no longer afford it.
[72] However, for the most part, the circumstances of the children have not been disadvantaged.
[73] The mother deserves considerable credit for this.
[74] The mother presented as being very angry with the father at the trial. She had some justification for feeling this way. The mother has been financially generous with the father. She has: accepted less than the guidelines table amount of support; assumed most of the financial obligations for the children and lent considerable money to the father. She has been the parent most instrumental in assisting the children to meet their considerable potential.
[75] In return, the father has not complied with the existing order since November 2015, even though his income has remained the same. In addition, the father sold his Lexus vehicle and used the proceeds to pay creditors other than the mother – even though the mother was the person who advanced him the funds for the car. He has reduced his monthly debt payments to her to $100 per month from $450 per month. At the same time, he found the money to pay for a large wedding this year.[6]
[76] The father characterized the mother's motion to change as being revenge for his getting married. To be charitable, his attitude towards the mother was ungracious.
3.7 Hardship
[77] The six-year retroactive award sought by the mother would definitely cause the father financial hardship. However, the retroactive order this court intends to make will not cause hardship to the father.
3.8 Final Analysis
[78] Balancing all of these factors the court will make its support order retroactive to August 1, 2015. This is the day after the parties ended their relationship for the last time. At this point the father should have been paying support in accordance with his income.
[79] The support recalculation shall include the children's section 7 expenses from August 1, 2015.
[80] The court will not order retroactive support before this date as the mother chose not to make a timely claim, primarily due to the parties being in a relationship, and having their financial affairs partially intertwined from at least August 2013 until July 31, 2015.
Part Four - Section 7 Expenses
4.1 Incomes
[81] The parties agreed to use the father's 2015 income for the support calculation. This income was $72,798.
[82] The mother deposed that her annual income is $64,349, including child tax benefits.[7] However, her year-to-date pay stub as of July 30, 2016 reveals her regular income projecting to an amount comparable to the father's. This is not surprising as she earned $74,888 in 2015. The court will use the same incomes for the parties in making its support calculations. They will each pay 50% of the children's section 7 expenses permitted by the court.
4.2 Legal Considerations
[83] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 77 O.R. (3d) 601, (Ont. C.A.).
[84] In awarding section 7 expenses, the trial judge calculates each party's income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of section 7 of the guidelines, determines whether the claimed expenses are necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation." If the expenses fall under clauses 7(1)(d) or (f) of the guidelines, the trial judge determines whether the expenses are "extraordinary". Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits. See: Titova v. Titov, 2012 ONCA 864.
[85] Unlike section 3 of the guidelines which presumptively provides for the table amount of child support, an order for section 7 expenses involves the exercise of judicial discretion. When exercising its discretion, the court should also consider the objectives of the guidelines, including clause 1(a), which reads as follows:
1(a) "to establish a fair standard for children that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;"
[86] The relevant provisions of the guidelines read as follows:
7. (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
The guidelines define "extraordinary" as follows:
(1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account;
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
4.3 Section 7 Expenses from August 1, 2015 until September 30, 2016
[87] The court will break down the section 7 expenses into two parts. The first part will be for section 7 expenses incurred from August 1, 2015 until September 30, 2016 (the first period); the second part for ongoing section 7 expenses (the second period).
[88] The mother has asked for a contribution towards the following section 7 expenses for the first period (which is 14 months):
For Daija:
| Expense | Amount |
|---|---|
| Basketball Registration for May 2016 Tournament | $1,040 |
| Travel Costs to Washington | $900 |
| Travel costs to Georgia | $280 |
| Travel costs to Indianapolis | $300 |
| Private School costs at Prep. School | $4,000 |
| University Preparation Course and Tutor | $354 |
| Total: | $6,874 |
For Amaya:
| Expense | Amount |
|---|---|
| Piano | $1,100 - $79.16 per month |
| School Bus | $1,400 – for 10 months of school |
| Camp | $525 |
| Cheerleading | $1,175 |
| Basketball | $200 – travel costs |
| Total: | $4,400 |
[89] The father submitted that he should only be required to pay his proportionate share of piano expenses for Amaya and basketball travel expenses for Daija. He is strongly opposed to paying for the private school costs for Daija.
[90] Save and except for the school bus and camp expenses claimed for Amaya, the mother must first establish that the above expenses are extraordinary as defined in subsection 7(1.1) of the guidelines. The court must consider whether the expenses are more than the mother can be reasonably expected to afford, taking into account her income and the table amount of child support she receives.
[91] The court finds that the expenses claimed are extraordinary as defined in subsection 7(1.1) of the guidelines. The mother is a single parent supporting two children. She earns annual income of $72,798, but that is not enough to expect her to reasonably afford the expensive programs and activities these talented children are involved in – even with the father's guidelines table contribution.
[92] The expenses are also extraordinary taking into account:
a) The amount of the expenses.
b) The income of the mother and the guideline table amount of support she would receive.
c) The number and nature of the educational programs and extracurricular activities.
d) Daija's special basketball talent.
e) The overall cost of the programs and activities.
[93] The next step for the court to consider under subsection 7(1) of the guidelines is whether the extraordinary expenses are reasonable and necessary in relation to the children's best interests and in consideration of the means of the spouses and their spending pattern prior to their separation.
[94] The court finds that the school bus and camp fees are reasonable and necessary for Amaya. They are required for the mother to provide care for Amaya while she works.
[95] The parties agreed that Amaya should attend French Immersion School. This school is outside of the mother's area and Amaya must take the school bus to get there.
[96] The father felt that Amaya should have stayed with him instead of going to camp this past summer. The court disagrees. This was an opportunity for Amaya to have positive experiences with her peers. Further, the father's relationship with the children is currently strained.
[97] The court finds that the cheerleading expense for Amaya was reasonable and necessary. This was a program that assisted in Amaya's social and emotional development. It was a program she enjoyed considerably. The court also considered that it is appropriate for the mother to focus relatively equally on the respective skills and interests of her children.
[98] Daija was described by the parties as an exceptional basketball player. She plays at an elite level and will likely have the opportunity to attend and play basketball at an American college on scholarship next year.
[99] The parties agreed that Daija had legitimate section 7 basketball expenses, but disagreed on the particulars.
[100] A major source of contention was how Daija's basketball career is being handled. For years Daija played for a Rep team called Toronto Matrix. In the spring 2015 the mother had a falling out with the team's coach and transferred Daija to a Rep team called "A Team". The father did not agree with this move.
[101] The mother enrolled Daija in September 2016 into a private high school in Durham that caters to elite athletes. The mother testified that there are several advantages for Daija in going to this school. This school has an elite basketball team which she says will be heavily scouted by American colleges. The school has top-level training facilities. It has programs to prepare Daija for attending college. Additionally, Daija will not have to practise at late evening hours, which was the case when she attended public high school and played for a Rep team.
[102] The mother did not consult the father about this move. The father would prefer Daija to go to public school and play basketball for Toronto Matrix. He says that she developed her basketball profile in that structure and it should continue. He also said that the Durham basketball program is new and does not have an established track record.
[103] Despite the mother's unilateral action,[9] the court finds that it is necessary and reasonable for Daija to attend the private school in Durham. It will provide her with the most support for her to succeed in her basketball career. It will ease her previously difficult schedule. Further, the mother was able to establish that the costs of the private school are likely less than if Daija had continued with Toronto Matrix or "A Team". This is because all travel and tournament registration costs are included in the school's tuition fee.[10] This is an important factor as the father's support payments since November 2015 have been irregular.
[104] Similarly, the court finds that the costs of the university preparation course and tutor were reasonable and necessary for Daija and in her best interests. They were incurred to give her the best chance to succeed. This is a critical year for her.
[105] The travel costs for the basketball tournaments in the United States were also reasonable and necessary in relation to Daija's best interests.[11]
[106] Amaya is now also playing basketball for a Rep team. The $200 travel costs claimed for a basketball tournament is reasonable and necessary in relation to her best interests. She too, should be able to pursue basketball at a higher level.
[107] The court will allow gross section 7 expenses of $6,874 for Daija and $4,400 for Amaya for the first period.
[108] It is the net cost of these expenses that must be considered as the mother is entitled to claim some tax credits and benefits for them.
[109] Subsection 7(2) of the guidelines states that the guiding principle in determining the amount of a special expense is that the expense is shared by the parents or spouses in proportion to their respective incomes. The court will follow that principle here and have each parent pay 50% of the children's net section 7 expenses.
[110] A software analysis[12] shows that the father's proportionate contribution to these expenses, after taking into account any available tax credit or deduction related to the expenses is $5,088 for the first period.[13]
4.4 Section 7 Expenses after September 30, 2016
[111] Amaya will continue to have school bus, piano, camp and basketball expenses. These are allowable section 7 expenses.
[112] The section 7 expenses for Amaya project to $3,075 over the course of the year.[14]
[113] A software analysis shows that the father's share of the net amount of these expenses is $87 per month.
[114] In the event that Amaya resumes cheerleading the father will also be required to pay 50% of these expenses.
[115] Daija presently does not have any section 7 expenses. She will likely be going to college next year and ongoing support will need to be recalculated at that time. How support will be determined will largely depend on where she attends college and what scholarships, bursaries or grants she is entitled to. It is premature to make that calculation.
Part Five – Ongoing Support and Arrears
[116] The parties agreed that the records of the Family Responsibility Office accurately reflect the father's present arrears based on the existing order. These records show that the father is $2,950 in arrears as of September 1, 2016.
[117] The guidelines table amount for two children at an annual income of $72,798 is $1,075 per month. This increases the father's monthly table obligation by $475 per month. For the 14 month period since August 1, 2016, this increases the arrears by $6,650 (14 x $475).
[118] The arrears are further increased by $5,088, being the father's share of the children's section 7 expenses accrued from August 1, 2016 until September 30, 2016 as calculated in part four above.
[119] The total arrears are now fixed at $14,688 ($2,950 plus $6,650 plus $5,088).
[120] There is no justification for the father having failed to pay proper support since November 1, 2015. He has bought another car and made a large wedding. He sold a Lexus vehicle and paid creditors instead of the mother. He has intentionally avoided his obligations to the mother. This is unfair.
[121] The father shall be required to pay the mother $6,000 by November 30, 2016. Provided he makes this payment, he may then pay the balance of arrears at the rate of $300 per month, starting on December 1, 2016. However, if the father defaults on any ongoing or arrears support payment for more than 30 days, the entire amount of arrears shall immediately become due and payable.
Part Six – Conclusion
[122] A final order shall go as follows:
a) The father shall pay child support to the mother in the sum of $1,075 each month, starting on October 1, 2016. This is the guideline table amount for two children, based on the father's annual income of $72,798 per annum.
b) The father shall pay the mother $87 each month for his proportionate share of section 7 expenses for Amaya, starting on October 1, 2016.
c) The father shall also pay 50% of Amaya's cheerleading program expenses, if she attends this program.
d) Arrears of child support, including the father's proportionate share of the children's section 7 expenses, are fixed at $14,688, as calculated in this decision.
e) The father shall be required to pay the mother $6,000 towards the support arrears by November 30, 2016. Provided he makes this payment, he may then pay the balance of arrears at the rate of $300 per month, starting on December 1, 2016. However, if the father defaults on any ongoing or arrears support payment for more than 30 days, the entire amount of arrears shall immediately become due and payable.
f) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source (such as income tax or HST returns) or from any lottery or prize winnings.
g) The parties shall exchange their complete income tax returns and notices of assessment by June 30th each year.
h) The mother shall provide the father with all section 7 expense receipts by June 30th each year.
i) A support deduction order shall issue.
[123] The parties shall have until October 5, 2016 to make written submissions if they believe that there are any mathematical or inputting errors in the software analysis that will be sent to them with this decision. The other party will then have 7 days to make written response. The order shall not be taken out until this time period elapses, or until the court addresses any submissions made.
[124] If either party seeks costs, he or she shall make written submissions by October 18, 2016. The other party will then have until October 28, 2016 to make a written response. The written submissions shall not exceed three pages (not including any offer to settle or bill of costs) and shall be delivered to the trial coordinator's office on the second floor of the courthouse.
Released: September 26, 2016
Justice S.B. Sherr
Footnotes
[1] The guidelines table amount for an income of $56,572 was $850 per month.
[2] The father testified that his relationship with the mother was on and off between 2010 and 2015 and that they often spent weeknights and weekends together. He was a weak historian and could not identify times when they were together. The court found the mother's evidence on this issue more precise.
[3] The parenting issues are in case management.
[4] The mother confirmed this.
[5] Section 55 of the Family Law Act states that a domestic contract is unenforceable unless made in writing, signed by the parties and witnessed. This does not preclude the court from considering oral agreements when exercising its discretion with respect to retroactive orders.
[6] The father testified that his wife's family and friends paid for the wedding.
[7] This was deposed in the mother's last financial statement filed with the court.
[8] These are the elements of the alternate test for determining extraordinary expenses set out in clause 7(1.1)(b) of the guidelines.
[9] Communication between the parties has entirely broken down in 2016.
[10] The mother was also able to negotiate Daija's tuition down to $4,000 from $10,000.
[11] The court's understanding was that the father did not contest these expenses. He also went on some of these trips.
[12] The software analysis will be attached to this decision for the parties. The parties did not prepare software calculations.
[13] The 14 months of expenses were inputted as being incurred in one year, so the father's monthly contribution of $424, set out in the software, was multiplied by 12, not 14 months to get the final total.
[14] $950 for piano, $1,400 for school bus, $525 for camp and $200 for basketball.