Court File and Parties
Court File No.: D46328/08 Date: January 22, 2018 Ontario Court of Justice
Between:
MARLEEN M. DAVIS Applicant
— AND —
GARFIELD DWIGHT DAVIS Respondent
Before: Justice Melanie Sager
Heard on: December 4, 5, 6, and 8, 2017
Reasons for Judgment released on: January 22, 2018
Counsel:
- Lauren Israel, counsel for the Applicant
- Deepa Tailor, counsel for the Respondent
Introduction
[1] This case came before the court for a trial on several issues. The case proceeded on December 4th, 5th, 6th and 8th, 2017. After completion of the evidence on December 6th, 2017, the parties engaged in settlement discussions and resolved all of the issues before the court except for the Respondent's (father) share, if any, of special and/or extraordinary expenses claimed by the Applicant (mother) as of January 1, 2017.
[2] After entering into Minutes of Settlement to resolve all other issues, the parties made submissions on December 8th, 2017 on the remaining issue. The court was provided with charts setting out each party's position on the expenses as well as Divorcemate calculations. The court had been provided with each party's case law on the first day of trial.
[3] The following is the decision on the remaining issue before the court.
Background Facts
[4] The following are the background facts relevant to the issue before the court:
(i) The parties have four children namely, Keyanna Rochel Davis born May 17, 1996, Lamarr Andre Davis born October 26, 1998, Khrystian Antwone Ezekiel Davis born July 10, 2009 and Nathanael Jeremiah Davis born December 16, 2011.
(ii) All four children reside with the mother full time.
(iii) The parties agreed that the father's obligation to pay child support for Keyanna ended on December 31, 2015.
(iv) The father has an ongoing obligation to pay table child support for Lamarr, Khrystian and Nathanael.
(v) Both Khrystian and Nathanael are autistic and attend school full time. Khrystian is also diagnosed with Attention Deficit Hyperactivity Disorder and Anxiety.
(vi) Lemarr has been diagnosed with Multiple Sclerosis.
(vii) Lemarr lives at home and attends Centennial College. Lemarr is in receipt of funds from the Ontario Student Assistance Program (OSAP) to cover the cost of his post-secondary education.
(viii) The parties have an RESP for Lemarr.
(ix) The expenses incurred by the mother for Khrystian and Nathanael for which she is seeking contribution by the father are for various therapies and extracurricular activities recommended for the children in relation to their autism diagnosis.
(x) Khrystian and Nathanael have very limited access with their father.
(xi) The father hopes to have increased access over time after becoming more involved with the children's service providers to acquire a better understanding of their needs.
(xii) The mother is in receipt of social assistance of approximately $1373.73 per month.
(xiii) The mother receives government benefits and credits of approximately $1270.00 per month.
(xiv) For the purposes of child support, the father's annual income is $48,000.00.
(xv) From January 1, 2017 to October 31, 2017 the father's child support obligation for Lamarr, Khrystian and Nathanael was $920.00 per month in accordance with his annual income and the Child Support Guidelines.
(xvi) As of November 1, 2017, the father's child support obligation increased to $940.00 per month due to a change in the Child Support Guidelines.
(xvii) Keyanna attends school full time and maintains employment for which she earns approximately $20,000.00 per year. The parties agreed that Keyanna is not entitled to child support from the father.
(xviii) The mother lives alone with her four children.
(xix) The father lives with a roommate.
The Issues
Khrystian and Nathanael
[5] The mother is seeking contribution by the father towards expenses she has and will continue to incur for Khrystian and Nathanael on the basis that these expenses are special or extraordinary as defined in section 7 of the Child Support Guidelines.
[6] As recommended by the various professionals working with the two younger children, the mother has sourced out and obtained the following services for Khrystian and Nathanael:
(i) Occupational Therapy for Khrystian and Nathanael;
(ii) Cognitive Behavioural Therapy for Khrystian;
(iii) Applied Behaviour Analysis therapy for Khrystian and Nathanael; and,
(iv) Extracurricular activities, specifically soccer, swimming and karate for Khrystian and Nathanael.
2017
[7] The mother gave evidence that she projected the following expenses for Khrystian and Nathanael in 2017 totaling $19,163.66:
Khrystian
- (a) $5070.00 on Applied Behaviour Analysis therapy;
- (b) $3520.00 on behaviour therapy;
- (c) $2355.00 on Occupational Therapy; and,
- (d) $508.33 on extracurricular activities.
Total $11,453.33
Nathanael
- (e) $2,600.00 on Applied Behaviour Analysis therapy;
- (f) $3520.00 on behaviour therapy;
- (g) $1040.00 on Occupational Therapy; and,
- (h) $550.33 on extracurricular activities.
Total $7710.33
[8] In closing submissions the court was provided with different totals for actual expenses incurred by the mother in 2017 for Khrystian and Nathanael. The actual expenses the mother claims she incurred in 2017 are as follows:
- (a) $1172.00 on extracurricular activities for Khrystian and Nathanael;
- (b) $1540.00 on Cognitive Behaviour Therapy for Khrystian;
- (c) $5738.00 on Applied Behaviour Analysis therapy for Khrystian and Nathanael;
- (d) $1315.00 on Occupational Therapy for Khrystian and Nathanael.
Total $9765.00
[9] The mother seeks an order requiring the father to pay $508.00 per month towards these expenses from January 1, 2017 until December 1, 2017. The mother provided Divorcemate calculations which sets out the father's share of the expenses based on the following information:
- (a) Father's employment income of $48,000.00;
- (b) Mother's employment income of $28,919.00; and,
- (c) The expenses claimed in paragraph 8 above.
2018
[10] In 2018 the mother projects Khrystian and Nathanael's expenses to be as follows:
- (a) $2000.00 on extracurricular activities in total for Khrystian and Nathanael;
- (b) $5720.00 on Cognitive Behaviour Therapy for Khrystian and Nathanael;
- (c) $3835.00 on Applied Behaviour Analysis therapy for Khrystian and Nathanael; and,
- (d) $6760.00 on Occupational Therapy for Khrystian and Nathanael.
Total $18,315.00
[11] The mother's evidence is that the cost of the therapies for the children will increase as they require some of the therapies more often than she has been able to afford to date.
[12] Based on the mother's projected expenses for 2018 and on a go forward basis, she asks the court to order the father to pay $952.00 per month towards the cost of these expenses commencing on January 1, 2018 and on the first of each month thereafter. This figure is calculated by the mother using the same income figures as those used for 2017; $48,000.00 annual income for the father and the mother earning employment income of $28,919.00.
[13] The father's position is that while the expenses claimed by the mother for Khrystian and Nathanael may be special or extraordinary, he does not have the means to pay the amount being sought by the mother. He is prepared to pay 50% of the cost of the Khrystian's and Nathanael's legitimate special and extraordinary expenses capped at $300.00 per month.
[14] The father questions some of the expenses claimed by mother as according to the father she has not provided adequate proof that she in fact personally paid for some of the expenses. It is the father's position that he should not be required to contribute towards the cost of an expense that the mother has not demonstrated unequivocally that she has paid for the expense.
Lemarr's Post-Secondary Education
[15] The mother requests an order requiring the father to pay 62.4% of Lemarr's OSAP loans once he finishes his education. This figure is calculated based on the same incomes the mother used to calculate the father's share of the other special or extraordinary expenses.
[16] The mother provided evidence confirming Lemarr's enrollment in Centennial College and an OSAP loan of $6075.00. Both parties gave evidence of an RESP for Lemarr but it is not clear how much has been invested for Lemarr's post-secondary education.
[17] With respect to Lemarr's OSAP loans, the father's position is that he has contributed to an RESP for Lemarr and has no ability beyond that investment to assist in paying for Lemarr's post-secondary education. Furthermore, he does not have the means to contribute towards any additional expenses after paying the table amount of child support and up to $300.00 per month towards the cost of the younger boys' special and extraordinary expenses.
Prescription Medications
[18] Finally, the mother requests an order requiring the father to pay 62.4% of all three children's prescription medication not covered by a plan of insurance.
Summary of Issues to be Decided
[19] The issues to be decided by the court are as follows:
(a) Are the expenses the mother is seeking contribution for by the father section 7 expenses as defined by the Child Support Guidelines?
(b) If the answer to (a) above is yes, are the expenses which come within clauses (d) and (f) of subsection 7(1) extraordinary expenses? If yes, are they necessary in relation to the children's best interests and reasonable in relation to the parties' means?
(c) If the extraordinary expenses are necessary and reasonable, is there any reason to deviate from the guiding principle that such expenses should be shared by each party in proportion to their incomes? If yes, what share if any should the father pay?
(d) If any of the expenses are found to be special expenses in accordance with clauses (a)(b)(c) and (e) of subsection 7(1), are they necessary in relation to the children's best interests and reasonable in relation to the parties' means? If yes, is there any reason to deviate from the guiding principle that such expenses should be shared by each party in proportion to their incomes? If yes, what share if any should the father pay?
The Law
Child Support Guidelines – Section 7 Expenses
[20] In an order for child support, the court may provide an amount to cover all or any portion of the expenses listed in clauses (a) to (f) of subsection 7(1) of the Child Support Guidelines taking into consideration 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 parents and those of the child and to the spending pattern of the parents during cohabitation.
[21] The list of special and extraordinary expenses under clauses (a) to (f) of subsection 7(1) of the Child Support Guidelines is exhaustive; if a claim does not fall within any of the listed categories, it must be dismissed: Kilrea v. Kilrea, [1998] O.J. No. 3677 (Gen. Div.), para. 13; and Park v. Thompson, [2005] O.J. No. 1695, (Ont. C.A.).
[22] Those expenses enumerated under clauses (a), (b), (c) and (e) of subsection 7(1) of the Child Support Guidelines are special expenses and do not have to meet the test of extraordinary.
[23] If the expenses fall under clauses (d) or (f) of subsection 7(1) the Child Support Guidelines, the trial judge determines whether the expenses are "extraordinary" within the meaning of the Child Support Guidelines.
[24] 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, [2005] O.J. No. 1695, (Ont. C.A.).
[25] In Titova v. Titov, 2012 ONCA 864, the Ontario Court of Appeal provided the framework for determining whether a recipient of child support will receive contribution towards a section 7 special or extraordinary expense. 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 Child Support 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 expense comes within subsection 7(1)(d) or (f), the trial judge determines whether the expenses are "extraordinary".
[26] The court must also take into account whether the child should contribute towards the payment of the expenses and any subsidies, benefits or income tax deductions or credits relating to the expense and enjoyed by the support recipient before fixing contribution by the payor.
[27] An order for contribution to special and extraordinary expenses under section 7 of the Guidelines is discretionary as to both entitlement and amount. The court has the discretion to apportion the section 7 expense in a different manner than pro-rata to incomes, depending on the circumstances of the case. See: Salvadori v. Salvadori, 2010 ONCJ 462.
[28] Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. See: Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (SCJ); L.H.M.K. v. B.P.K., 2012 BCSC 435.
Analysis of the Evidence
First Question: What is each party's income for child support purposes?
[29] The father's gross annual income is $48,000.00.
[30] The Divorcemate calculations provided to the court by the mother inputs the mother's income as employment income. The calculations are erroneous as the mother is on social assistance and does not earn employment income. The mother's calculations also do not show any income tax deductions or credits for the medical expenses she incurs. No arguments were made by the father that the mother is entitled to a tax deduction or credit for some or all of the expenses claimed by her.
[31] Based on the court's calculations, the mother receives annually from all sources the net amount of $42,996.00 which includes government benefits and credits and table child support. This is calculated as follows:
- (a) $1373.75 per month in social assistance;
- (b) $1270.00 in government benefits and credits; and,
- (c) $940.00 in child support payable as of December 1, 2017.
[32] The mother's income for the purpose of determining each party's share of special or extraordinary expenses does not include the portion of social assistance that is not attributed to her. The court did not receive evidence from the mother as to what portion of her social assistance is attributed to the children and what portion is attributed to her. Therefore, the court is unable to determine the mother's exact income for child support purposes.
Second Question: Do the Expenses claimed by the mother fall within one of the categories of section 7 of the Child Support Guidelines?
Khrystian and Nathanael's Expenses
[33] The mother claims that Khrystian and Nathanael's extracurricular activities are extraordinary expenses under clause 7(1)(f) of the Child Support Guidelines and that the Cognitive Behaviour Therapy, Occupational Therapy and Applied Behaviour Analysis Therapy are special expenses under clause 7(1)(c) of the Child Support Guidelines.
[34] There is no dispute that the expenses claimed for Khrystian and Nathanael come within the enumerated categories of section 7 of the Child Support Guidelines. The question is whether the extracurricular activities are extraordinary expenses and whether the special expenses are necessary in relation to the children's best interests and reasonable in relation to the parents' means.
Lemarr's OSAP Loan
[35] The mother argues that Lemarr's OSAP loans, when they come due, are a section 7 expense to which the father should contribute but that his obligation to do so is suspended until Lemarr completes his education.
[36] Clause 7(1)(e) of the Child Support Guidelines provides that a court can order a parent to pay an amount to cover all or any portion of expenses for post-secondary education. Counsel for the mother referred the court to the case of Coghill v. Coghill (2006) 28734 (SCJ) in support of the mother's position that the court can order the father to pay a share of Lemarr's OSAP loan in the future.
[37] At paragraph 12 of Coghill v. Coghill, Justice Wright examines how a court is to treat student loans when determining the parents' contribution towards the cost of post-secondary education. Justice Wright notes that student loans may be considered contribution by a child towards their education but that it should not be assumed that student loans will extinguish a parent's responsibility to contribute towards the child's post-secondary education under section 7 of the Child Support Guidelines. Justice Wright explains that "It has thus been held that a student loan is not a 'benefit' within the meaning of section 7(3) of the Child Support Guidelines that must be automatically taken into account in determining the amount to be ordered in respect of expenses sought under section 7 of the guidelines…nor should the availability of student loans automatically require a child to obtain such loans."
[38] It is well established through case law that children are expected to contribute towards the cost of their post-secondary education. How much a child is required to contribute depends on the facts of each case. Case law demonstrates that courts consider student loans, along with bursaries, grants and scholarships, contributions by the child to their education. When calculating a parent's contribution towards a child's post-secondary education, a court takes into account student loans received by the child. See: Walker v. Rutledge, [2002] O.J. No. 4521 (S.C.J.) and Liscio v. Avram, [2009] O.J. No. 3406 (S.C.J.).
[39] A child is expected to take advantage of student loans to contribute towards the cost of their education. In their book, Child Support Guidelines in Canada, 2012, Julian D. Payne and Marilyn A. Payne write at page 283, "The appropriate level of the child's loan obligation should be determined by reference to the child's means and capabilities, the financial capacity of the parents, and a fair balance between the child and the parents." See: Neufeld v. Neufeld, [2003] O.J. No. 5382 (Div. Ct.).
[40] The court was given very little information about Lemarr's post-secondary education and the cost of same or Lemarr's ability to contribute towards the cost other than by way of student loans and an RESP.
[41] The court cannot conclude from the case law that it provides authority for the court to grant the order the mother is seeking. Section 7 of the Child Support Guidelines does not include as a special or extraordinary expense loans acquired by children to fund their post-secondary education. As the legislation does not specifically enumerate a child's student loan as a section 7 expense, the court has no authority to order the father to pay 62.4% of Lamarr's OSAP loans upon completion of his education.
[42] In a family where the parents have sufficient means to fund the child's post-secondary education, the court would be less likely to require a child to incur debt for this purpose. In a family where the parents are of limited means, or where one or both of the parents would have to incur debt in order to provide for the education expenses of their adult child, the court may be more inclined to consider the prospect of the child also incurring debt in the form of a student loan as a means of contributing to his or her education. A child would not be expected to incur the maximum debt financing available to him or her unless the parents did not have the means to contribute to the cost of their post-secondary education.
[43] This family is of limited means. The mother is in receipt of social assistance. The father does not have the means to contribute towards this section 7 expense over and above his child support payment and his contribution towards the special expenses incurred by the mother for Nathanael and Khrystian.
[44] Even if the mother had requested a contribution by the father towards the cost of Lemarr's post-secondary education, as opposed to an order requiring him to repay Lamarr's student loans in the future, for reasons set out below, the court would find that it is reasonable in all of the facts of this case for Lemarr to obtain a student loan in the amount of $6000.00 per year as his contribution towards the cost of his post-secondary education. He will have OSAP and the RESP set up by his parents to cover the cost of his education.
Third Question: Are the extracurricular activities paid for by the mother extraordinary expenses for extracurricular activities under the Child Support Guidelines?
[45] In order for the court to find that the extracurricular activities being claimed by the mother are section 7 expenses within the meaning of clause 7(1)(f) of the Child Support Guidelines, the court must find that the extracurricular activities are an extraordinary expense.
[46] "Extraordinary Expenses" are defined by subsection 7(1.1) of the Child Support Guidelines as expenses that exceeds those that the parent requesting an amount for the extraordinary expense can reasonably cover, taking into account that parent's income and the amount that the parent would receive under the applicable table. Expenses that can reasonably be covered are not extraordinary expenses. If clause 7(1.1)(a) of subsection does not apply, then clause 7(1.1)(b) requires the court to determine if the expense is extraordinary taking into consideration the five factors listed in subclauses 7(1.1)(b)(i) to (v). This is a subjective analysis based on the facts and circumstances of the particular case.
[47] Subclause 7(1.1)(b)(ii) of the Child Support Guidelines directs the court to consider the "nature and number" of extracurricular activities when deciding if an expense is extraordinary. Subclause 7(1.1)(b)(iv), directs the court to consider the "overall cost" of the extracurricular activities as part of the analysis. Therefore the court may consider the total cost of a number of extracurricular activities, as opposed to considering each expense individually, when deciding if the expense is extraordinary.
[48] If the evidence does not establish that the extracurricular activities are an extraordinary expense, the inquiry ends there. If the expense is found to be extraordinary, the court must then ask if the expense is necessary in relation to the child's best interests and reasonable in relation to the parties' means.
[49] The mother claims that the extracurricular activities Khrystian and Nathanael are enrolled in are extraordinary expenses as they are recommended to participate in extracurricular activities by their service providers, in part, to assist with their development and to help address issues arising out their autism.
[50] The mother did not argue that the cost of the expenses in relation to the parties' means is extraordinary in that she cannot reasonably be expected to cover this cost. The mother relied solely on the fact that the children are recommended to enroll in physical activities and team sports by their professional service providers.
[51] For 2017, the mother seeks contribution towards extracurricular activities totaling $1172.00 for both Khrystian and Nathanael. Receipts provided by the mother to substantiate this figure do not total $1172.00. The receipts provided by the mother for the cost of extracurricular activities in 2017 total $905.33. The mother's evidence included the following:
| Item | Amount | Year | Notes |
|---|---|---|---|
| Extracurricular Activities (Nathanael and Khrystian) | $905.33 | 2017 | Proof of payment at Tab 68 of mother's affidavit |
| School Fees (Nathanael and Khrystian) | $156.50 | 2017 | No proof of payment provided; only front of cheques provided at Tab 67 of mother's affidavit |
[52] The court was not provided with a breakdown of the costs in relation to each activity or each child. The mother did not explain what the costs for school fees was in relation to. It was not clear whether the mother included the cost of the school fees in her totals for extracurricular activities in 2017. The mother provided receipts totaling $905.33 in extracurricular activities, not including the school fees, for Khrystian and Nathanael in 2017.
[53] The activities are:
- (a) Soccer;
- (b) Karate; and,
- (c) Swimming.
[54] Commencing in 2018, the mother seeks contribution by the father towards a total annual expense of $2000.00 for both boys for extracurricular activities. This is an increase of $828.00 from 2017 based on the mother's calculations and $1094.67 based on the court's calculations.
[55] The mother provided no evidence to explain why the cost of the boys' extracurricular activities would increase by more than $1000.00 in 2018. A court can only make an order based on projected special or extraordinary expenses when there is an evidentiary basis for the projection.
[56] Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support. See Smith v. Smith, [1997] O.J. No. 4833 (Ont. Gen. Div.), paragraphs 14 and 16; Park v. Thompson, [2005] O.J. No. 1695, (Ont. C.A.); Kase v. Bazinet, [2011] ONCJ 718.
[57] The amount of child support payable under the applicable provincial tables is presumed to include an amount for some extracurricular activities for the child or children. See: Laurie v. Laurie, 2002 BCCA 317, paragraph 5; Forrester v. Forrester, [1997] O.J. No. 3437 (Ont. Gen. Div.) and Lee v. Chung, 2011 BCSC 404.
[58] A parent claiming an extracurricular activity is an extraordinary expense is not only required to meet the threshold of necessity and reasonableness, but also must demonstrate unusual cost. See: Forrester v. Forrester, [1997] O.J. No. 3437 (Ont. Gen. Div.).
[59] A custodial parent does not have carte blanche to enroll a child in any number of extra-curricular activities and then look to the non-custodial parent to share all of the costs. See: Forrester v. Forrester, [1997] O.J. No. 3437 (Ont. Gen. Div.), para. 4; Zimmerman v. Doe, para. 11.
[60] Whether an extracurricular activity or activities is an extraordinary expense is a question that must be answered after an analysis of the facts of the particular case. The court may consider the cumulative cost of extracurricular activities when deciding whether the expenses are extraordinary but in doing so must also undergo the analysis of whether the expenses are reasonable and necessary in relation to the child's best interests and the parties' means.
[61] The onus is on the parent seeking contribution towards an expense to establish why the expense should be treated as extraordinary and therefore a section 7 expense. The fact that an expense is being incurred is not evidence of it being necessary or reasonable. See: Costescu v. Costescu, 2014 CarswellOnt 5821 (O.C.J.), para. 71 and Brock v. Sorger, 2015 ONSC 7478.
[62] In Olaveson v. Olaveson, 2007 CarswellOnt 3975 (Sup. Ct.), the court found that the basic costs for registration and equipment commonly associated with a community hockey program should not be considered extraordinary and that Child Support Guidelines tables are intended to cover the usual common costs of raising children, which would include the ordinary expenses for extracurricular activities. Followed in Watt v. Watt, 2011 ONSC 1279.
[63] An averaging of the cost of the actual extracurricular activities in 2017 is $75.44 per month or $37.72 per child and the projected cost for 2018 is $166.67 per month or $83.33 per child.
[64] Considering each extracurricular activity on its own and the amount spent on each one by the mother, they are all common, quite ordinary expenses at relatively low costs. Individually, none of the activities are extraordinary. Considering the amount of child support the father pays and the mother's net disposable income, she can reasonably be expected to cover the cost of these activities.
[65] The court rejects the mother's argument that these extracurricular activities are elevated to extraordinary extracurricular expenses by virtue of the fact that the boys are recommended to engage in these activities as part of their therapies for autism. These types of activities are arguably recommended for all children of Nathanael and Khrystian's ages which is why, in part, it has been determined repeatedly by the courts that the table amount of child support is intended to include the cost of common or usual costs of raising children, including extracurricular activities such as hockey, swimming and soccer.
[66] On the facts of this case, particularly the type of extracurricular activities, the relatively low expense associated with them, and the parents' respective incomes including the table amount of child support payable by the father to the mother, the court finds that these are not extraordinary expenses as defined by subsection 7(1.1)(a) of the Child Support Guidelines.
[67] As the extracurricular activities claimed by the mother do not come within clause (a) of subsection 7(1.1) of the Child Support Guidelines, the court must then proceed to enquire whether these expenses are considered extraordinary in accordance with clause (b) of subsection 7(1.1) of the Child Support Guidelines.
[68] In determining whether the extracurricular activities are extraordinary expenses in accordance with subclauses (i) to (v) of clause 7(1.1)(b) of the Child Support Guidelines, the court considers the following facts:
- (i) The mother is in receipt of $42,996.00 annually from all sources;
- (j) The father is paying the mother $940.00 per month in child support for three children;
- (k) The father's annual net disposable income after all deductions and paying child support is $25,848.00;
- (l) The mother is seeking contribution towards the cost of soccer, swimming and Karate for both boys for 2017 in the amount of $1172.00. She has provided receipts for extracurricular activities in 2017 totaling $905.33;
- (m) The cost of the extracurricular activities claimed by the mother for 2017 is $48.84 per child per month or 10.6% of the father's 2017 monthly child support payment;
- (n) The actual cost of the boys' extracurricular activities in 2017 based on the receipts provided by the mother amounts to approximately 8% of the monthly child support paid by the father. This is a nominal amount of the monthly child support;
- (o) The amount spent by the mother on extracurricular activities in 2017 based on the receipts amounts to 1.33% of her disclosed monthly budget. This is a nominal portion of her budget; and,
- (p) There is no dispute between the parties that it is important for the boys' development for them to participate in extracurricular activities such as soccer, swimming and karate.
[69] Even considering the cost of all of the extracurricular activities together, for the reasons set out above they are not extraordinary expenses requiring contribution by the father over and above the table child support. As a result, the father's share of these expenses is assumed in his monthly child support payment and is not an extraordinary expense as contemplated by section 7 of the Child Support Guidelines.
[70] As the extracurricular activities are not extraordinary expenses, the court does not have to embark on an analysis of whether the expense is necessary in relation to the children's needs and reasonable in relation to the means of the parties.
Fourth Question: Are the special expenses of Occupational Therapy, Applied Behaviour Analysis Therapy and Cognitive Behaviour Therapy for Nathanael and Khrystian necessary and reasonable?
[71] The father concedes that the therapy expenses claimed by the mother come within clause 7(1)(c) of the Child Support Guidelines as they are health related expenses that exceed insurance reimbursement by $100.00 annually and are therefore special expenses.
[72] The father also concedes that these expenses are necessary for the children and having such therapies are in the boys' best interests.
[73] Where the parties disagree is whether the expenses are reasonable in relation to the means of the parents.
[74] Section 7 of the Child Support Guidelines confers upon the court the discretion to order a parent to "cover all or any portion" of health related expenses 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 parents' means.
[75] At Paragraph 21 of Olaitan v. MacDougall, 2014 PECA 5, the court concludes that the exercise of discretion by the court requires it to consider the means of the parties and not only their incomes. This involves consideration of all the financial resources of both parents. This is an important distinction from the straightforward test for calculating basic child support under section 3 of the Child Support Guidelines.
[76] In Piwek v. Jagiello, 2011 ABCA 303, [2011] A.J. No. 1074 (C.A.) the court set out the relevant factors to be considered in determining the "means" of the parents under section 7(1) of the Child Support Guidelines including parental income, the fact that two households must be maintained, the extent of the expense in relation to parental income, the parental debt position, any prospects for a financial decline or increase in the near future, and whether the non-custodial parent was consulted regarding the expense prior to its being incurred. Additional factors to be considered include "capital, income distribution, debt load, third party resources which impact upon a parent's ability to pay, access costs, obligations to pay spousal or other child support orders, spousal support received and any other relevant factors."
[77] Household income should be considered when reasonableness is an issue: See K. (D.J.) v. K. (C.J.), 2006 CarswellBC 1715 (Prov. Ct.). The reasonableness of the expense may be affected by the totality of the income accruing in the two households notwithstanding that the proportionate sharing will only be calculated on the basis of the two parent's incomes. See: Earles v. Earles, 2006 CarswellBC 362 (S.C.).
[78] The mother's evidence is that while she was able to obtain some contributions towards Applied Behaviour Analysis Therapy for both boys through various charities these charitable contributions are no longer available to her. Her evidence demonstrates that she has obtained therapy for the boys at the following hourly rates:
- (a) $25.00 to $65.00 per hour for ABA therapy;
- (b) $130.00 to $150.00 per hour for OT; and,
- (c) $220.00 per hour for therapy for Khrystian with a psychologist.
[79] The following chart sets out a summary of the costs the mother claims to have incurred in 2017 for the various therapies and whether proof of payment was provided:
| Therapy/Service | Service Provider | Total Cost in 2017 | Time Period Services Provided | Is There Proof of Payment? |
|---|---|---|---|---|
| ABA Therapy for Khrystian @$25 per hour | Michelle Rix | $3087.50 | January – August 2017 | No receipts – only invoices provided – Tab 62 of mother's affidavit |
| Psychologist – Khrystian ($220 per hour) | Dr. Rombough | $1540.00 | March – November 2017 | Proof of payment provided at Tab 63 of mother's affidavit |
| Occupational Therapy – Khrystian @$130.00 per hour | Morneau Shepell | $1185.00 | June – September 2017 | Proof of payment provided – Tab 64 of mother's affidavit |
| ABA Therapy for Nathanael @$25 per hour, 2 hours per session | Tingting Huang | $3100.00 | January – August 2017 | No receipts – only invoices provided – Tab 65 of mother's affidavit |
| Occupational Therapy – Nathanael @$130.00 per hour | Morneau Shepell | $130.00 | September 2017 | Proof of payment provided – Tab 66 of mother's affidavit |
| TOTALS with Proof of Payment | $2855.00 | |||
| TOTALS of all receipts | $9042.50 | |||
| DIFFERENCE between expenses with proof of payment | $6187.50 |
The Mother's Budget
[80] The mother's evidence according to her financial statement sworn on November 27, 2017, is that she has a monthly budget of $5687.33. According to the mother's financial statement sworn November 27, 2017, she spends $1062.00 per month in Occupational Therapy and Applied Behaviour Analysis Therapy for both boys. According to the court's calculations, the mother has net disposable monthly income of $3583.00 including child support. Therefore, the mother has a budget that exceeds her income by $2104.33 per month or $25,251.96 per year.
[81] The mother's evidence that she has incurred $1540.00 in cognitive behavior therapy with a psychologist for Khrystian between March and November of 2017 is not reflected in the expenses portion of her sworn financial statement. This results in further monthly expenses of $220.00 and additional annual debt of $2640.00 bringing the mother's annual debt to $27,891.96.
[82] The mother's sworn financial statement only discloses $40.00 per month on children's activities yet the mother in fact spent at least $905.33 in 2017 in extracurricular activities for Khrystian and Nathanael. The deficiency on the mother's financial statement results in a further annual debt of $425.33 bringing her total annual debt to $28,317.29.
[83] Even if the father were ordered to pay the $952.00 per month the mother is seeking towards prospective special and extraordinary expenses for Nathanael and Khrystian, the mother would still run an enormous shortfall each month of at least $1407.78 per month or $16,893.96 per year.
[84] The mother's monthly budget, not including the children's therapies and extracurricular activities, is $4562.33. On her net disposable income of $3583.00, the mother would have a shortfall of $979.33 per month before incurring any special or extraordinary expenses for the children.
[85] It is unclear how the mother paid for the children's therapies in 2016 and 2017 without incurring significant debt. According to the mother's documentary evidence, as opposed to her sworn financial statement, in 2017 she spent a total of $9042.50 on Applied Behaviour Analysis Therapy and Occupational Therapy for the boys. In 2016, she spent $7217.50 on these therapies. According to the mother's evidence, despite spending approximately $15,000.00 more than she receives annually in 2017, the mother has debt in relation to her living expenses of only $5607.06. The mother did not explain how she paid for these expenses without incurring significant debt. This evidence gives support to the father's concerns about whether the mother is actually personally paying for these expenses.
[86] In terms of household income, the parties' oldest daughter, Keyanna, who lives with the mother, gave evidence that in 2017 she will earn approximately $20,000.00; the same income she earned in 2016. Keyanna gave evidence that she does not help the mother with the household bills whereas the mother said she did in fact get financial help from Keyanna. In any event, the mother's household income including child support is approximately $63,000.00.
[87] The mother's only assets are a 2006 Pontiac Montana valued at $2100.00 and $8200.00 in an RESP for Khrystian and Nathanael.
The Father's Budget
[88] As noted above, the father earns $48,000.00 per year. After deductions from income including his union dues of $708.00 per year and child support of $940.00 per month, he has net disposable monthly income of $2154.00.
[89] At trial the father relied upon his financial statement sworn on November 16, 2017, which discloses a budget of $1695.00 per month (after deductions from income). He only spends $500.00 on rent, $200.00 on groceries and $50.00 on meals outside the home per month. He discloses a budget of $50.00 per month on clothing and $105.00 per month on cell phone and internet. His most significant monthly expense, other than child support, at $470.00 is his car.
[90] The father's budget is extremely modest and other than the $100.00 per month for dental expenses and $50.00 as repayment of a debt to the dentist, his expenses are somewhat fixed. There is little give in the father's ability to meet his expenses especially if an expense, such as rent, should suddenly increase.
[91] Based on his sworn Financial Statement, after meeting his modest expenses, the father is left with $459.00 per month from which he could contribute towards special or extraordinary expenses.
[92] Questioning of the father did not produce evidence that the father's budget is inflated or that any of his expenses were inappropriate or could be reduced.
[93] The father shares his apartment with a roommate. His household income is one and the same as his income. There was no evidence to suggest his income would increase in the near future or his expenses would decrease.
[94] According to the father's sworn Financial Statement, he has no assets and discloses debt of $4800.00.
[95] There is no dispute by the father that the expenses being claimed by the mother are special expenses as defined by section 7 of the Child Support Guidelines. The father's position is that he is incapable of contributing to the expense to the extent the mother asks of him. He also questions the true amount being incurred by the mother for the expenses in light of her failure to prove payment of the expenses by her.
[96] The father has offered to pay up to a maximum of $300.00 per month towards the children's "legitimate" special or extraordinary expenses. If he were to pay $300.00 per month he would be left with a surplus of $159.00 per month.
The Mother's Position
[97] It is the mother's position that for 2017, in addition to child support of $920.00 per month, the father should contribute $508.00 per month towards the cost of the children's expenses she incurred in the amount of $9765.00 which she claims to be extraordinary extracurricular activities and special health related expenses.
[98] For 2018 and go forward, the mother's position is that the father should contribute $952.00 per month over and above the $940.00 per month he pays in child support as his proportionate share of the projected $18,315.00 she will incur in extraordinary extracurricular activities and health related special expenses for Khrystian and Nathanael.
[99] As stated above, the mother's calculations for both 2017 and 2018 are based on the mother having employment income of $28,913.00 when she is in fact in receipt of social assistance. As the mother is in receipt of social assistance, section 4 of Schedule III of the Child Support Guidelines is triggered. It provides that when calculating a party's income pursuant to section 16 of the Child Support Guidelines, the court shall deduct from the mother's income "any amount of social assistance income that is not attributable to the parent or spouse."
[100] The court did not receive evidence as to what portion of the mother's social assistance is attributable to her and what amount is attributable to the children. As a result, the court is left to estimate when calculating the amounts payable by each parent under section 7 of the Child Support Guidelines.
The Father's Position
[101] The father acknowledges that the therapies are good for the boys and important for their development.
[102] While the father does not question whether the boys have received the therapies, he argues that the mother should not be entitled to contribution by him towards any expense for which she has not proven payment by her. He questions whether some of the expenses incurred in the past were actually paid by the mother as she provided copies of invoices but did not provide evidence of payment of many of the invoices, specifically $6187.50 of Applied Behaviour Analysis Therapy in 2017 for both Khrystian and Nathanael.
[103] The father argues that while the expenses are necessary and in the children's best interests, he does not have the means to contribute towards the expenses to the extent requested by the mother.
[104] In addition to the lack of proof of payment, the father also brings to the court's attention that some invoices do not indicate who the service provided were for.
[105] The father did not provide the court with Divorcemate calculations.
Calculations based on the evidence
[106] As the extracurricular activities are not extraordinary expenses, the costs associated with extracurricular activities will not form part of an order requiring the father to contribute towards section 7 expenses. The court can extrapolate from the mother's arguments and the calculations that she provided to the court that not including extracurricular activities, she seeks an order for contribution by the father of $447.00 per month towards the cost of therapies in 2017 based on total expenditure of $8539.00; and, $848.00 per month commencing on January 1, 2018 based on total projected expenses of $16,315.00.
[107] As stated above, it is not known to the court how the mother has paid for these therapies. The mother's financial statement sworn November 27, 2017, suggests she is spending $1062.50 per month in therapy for Khrystian and Nathanael. This represents 30% of her $3668.00 net monthly disposable income and only leaves her with $2605.50 to cover the balance of her monthly budget of $4624.83. The evidence is that the mother does not have the means to afford the therapies at the rate she has paid to date. Simply put, it is not possible or sustainable for the mother to continue to incur these expenses at the rate she has over the past two years.
[108] As the mother has not provided evidence of payment of the cost of Applied Behaviour Analysis therapy in 2017 at a cost of $6187.50, she has not met her evidentiary burden of demonstrating that she has in fact paid $8593.00 towards the children's therapies in 2017.
[109] The mother provided the court with evidence that in 2017 she paid for Occupational Therapy and Cognitive Behavioural Therapy totaling $2855.00. The father acknowledges that these expenses are necessary for both Nathanael and Khrystian and he is willing to contribute a reasonable amount towards these expenses based on his means.
[110] The court agrees with the parties and finds that the Cognitive Behavioural Therapy and Occupational Therapy are necessary for both Nathanael and Khrystian.
[111] As the cost of the therapies are special expenses which the court has found to be necessary for the children, the question that now must be answered is whether the expenses are reasonable in relation to the parties' means.
2017
[112] Given the parties' respective incomes, their means, their debts and their household incomes, the court finds that the special expense of $2855.00 in 2017 was a reasonable expense in relation to the parties' means. This is an amount the parties' can afford, although with difficulty, to contribute towards therapies for Khrystian and Nathanael.
[113] Given the number of children the mother supports in her home and the father's willingness to contribute towards the cost of the children's therapies to a maximum of $300.00 per month, the court sees no reason to move away from the guiding principle in subsection 7(2) of the Child Support Guidelines that a special expense should be shared by the parents in proportion to their respective incomes.
[114] The difficulty the court has calculating the parties' proportionate share of this expense arises as a result of a lack of information regarding the portion of the mother's social assistance attributable to her and what if any portion of the cost of the therapies entitles the mother to a tax credit. As a result, the court will exercise its discretion to order the father to pay an amount towards these expenses that may not be in proportion to the parties' incomes based on a contextual analysis of the evidence.
[115] Based on all of the facts of this case and specifically the parties' means, the father will be required to pay $175.00 per month towards the cost of Khrystian and Nathanael's therapies. This is a fair amount to require the father to contribute considering the following evidence:
- (a) The father is left with $459.00 per month after paying child support and covering his modest expenses from which he can contribute towards the children's special expenses.
- (b) There was no evidence that the boys will receive the therapies for a short or fixed period of time.
- (c) Neither party has the means to contribute towards the cost of the therapies for the children in excess of $3000.00 per year.
[116] If the mother had provided evidence to support her claim that she incurred special expenses of $8593.00 in 2017, the court would have found that while the therapies are necessary in relation to the children's best interests, the cost of approximately $9,000.00 per year is not reasonable given the parents' means. Therefore, the father would not be ordered to contribute towards $9000.00 in special expenses annually in proportion to his income.
2018
[117] The mother has not provided sufficient evidence to substantiate a claim for a contribution by the father towards $16,312.00 in special health related expenses commencing in 2018 nor can she demonstrate that it would be reasonable, given the parties means, to incur these expenses.
[118] Furthermore, if the court concluded that the expenses are reasonable even in the amount of $16,312.00 per year given the parties' means, the court would still have the option of ordering a sharing of the expenses in an amount that is not in proportion to income. The court would exercise its discretion and order the father to pay an amount he can afford given his means.
[119] There is no dispute that the therapies the children are receiving are in their best interests. It is a matter of fact that neither party has the income or the means to pay for the therapies recommended for Nathanael and Khrystian in the amounts requested by the mother. It is just not feasible. The cost of these expenses are disproportionately high in relation to the parties' incomes.
[120] Counsel for the mother argued that if necessary, the parents should incur debt to enable the boys to obtain the therapies they need. This would be a persuasive argument if the therapies were for a short time and temporary. That is not the case here.
[121] The court acknowledges that there are long wait lists and insufficient resources available based on need, but the parents will have to look elsewhere to obtain these services for Khrystian and Nathanael.
[122] The mother has given evidence that she would like to be able to increase the frequency with which the boys receive therapy. As a result, she estimates the cost of special expenses in 2018 and each year thereafter, to be $16,312.00. While an increase in the frequency of the recommended treatment for the boys' would be in their best interests, the evidence before the court clearly demonstrates that neither party can afford to incur costs for therapy in the amount being sought by the mother.
[123] As the parents cannot afford to spend the amounts being sought by the mother for therapy for Khrystian and Nathanael in 2018, the court will exercise its discretion under the Child Support Guidelines to fix the father's contribution towards these expenses in an amount that is not in proportion to the parties' incomes.
[124] Commencing on January 1, 2018, the father shall continue to pay $175.00 per month as contribution towards the children's special expenses, specifically the costs associated with Occupational Therapy, Applied Behaviour Analysis Therapy and Cognitive Behaviour Therapy.
Order
The order is as follows:
1. Commencing on January 1, 2017, and on the first of each month thereafter, the father shall contribute $175.00 per month towards the cost of special health related expenses incurred by the mother for Khrystian and Nathanael. The father will receive credit towards this payment for any amounts paid by him through the Family Responsibility Office.
2. Every year on June 1st and December 31st, the mother shall provide the father with proof of payment of the special expenses she incurs for Nathanael and Khrystian.
3. If the mother no longer incurs the expenses associated with Occupational Therapy, Applied Behaviour Analysis Therapy and Cognitive Behaviour Therapy, she shall immediately notify the father and the Family Responsibility Office in writing.
4. The parties shall share equally the cost of any prescription medication for the children, Lemarr, Khrystian and Nathanael, not covered by a plan of insurance available to the parents through employment. The amount subject to sharing shall not exceed $200.00 per month. This order does not preclude the mother from bringing this issue back before the court if there has been a material change in circumstances.
5. If either counsel has an issue with the Divorcemate calculations the court has relied upon and attached to this Judgment, they shall notify the Trial Coordinator within 10 days of the date of this decision and an appointment will be scheduled for counsel to address the court on this issue.
6. If either party seeks an order for costs, they shall serve their cost submissions on opposing counsel within 20 days from the date of this decision. Their cost submissions shall be no more than 4 pages not including attachments and a Bill of Costs. The party responding to the request for costs shall serve their responding cost submissions within 20 days of receipt of the request for costs. The responding cost submissions shall be no more than 4 pages not including attachments. The party moving for costs shall have 10 days to reply to the responding submissions and such reply shall be no more than 2 pages.
7. Cost submissions shall be delivered to the Trial Coordinator's Office.
Justice Melanie Sager