ONTARIO COURT OF JUSTICE
BETWEEN:
Melissa Garnes
Applicant/Moving Party
— AND —
Nick Cyvelos
Respondent/Responding Party
Before Justice D. Szandtner
Motion Heard on March 5, 2025
Endorsement released on March 19, 2025
M. Garnes............................................................................................ self-represented Applicant
E. H. Merifield................................................................................... counsel for the Respondent
SZANDTNER J.:
1Ms. Garnes (the mother) commenced her application on July 23, 2024. Mr. Cyvelos (the father) is the responding party. He filed his Answer on September 20, 2024.
2The mother was given leave to bring a motion for a temporary order for the father’s contribution to special and extraordinary expenses for their child.
3The parties married in 2015. There is one child of the marriage born in 2016. In 2020 the parties separated. The parties entered into a separation agreement on February 11, 2022.
4The mother’s motion seeks a temporary order that the father contribute his proportionate share towards tuition at the child’s current private school. She seeks contribution for the 2023/2024 school year, the 2024/2025 school year and going forward.
5The mother seeks the following financial contribution from the father:
a) For the 2023/2024 school year, the child’s tuition was $20,600.00. Based on his 2022 income, the father’s proportionate share is 67.2% or $13,843.20.
b) For the 2024/2025 school year, the child’s tuition was $24,300. Based on his 2023 income, the father’s proportionate share is 69% or $16,767.00.
c) The mother seeks this retroactive amount owing for the tuition she paid. In the alternative she seeks a 37.5 % contribution from the father for those years.
d) The mother further seeks an order that the father contribute a minimum of 37.5% towards tuition at the child’s school This amount should be paid directly to the mother by February 1, 2025 of each year. (the re-enrolment deadline).
6The father’s position is that the private school is not a reasonable or necessary expense. He argues that the child’s best interests could be met in a public school setting with some additional private tutoring and extra-curricular supports.
7The father was represented by counsel and the mother was self-represented at her motion.
8The mother filed a Notice of Motion, a factum, an affidavit and a sworn financial statement. She made oral submissions.
9The father filed a factum, a sworn financial statement and an affidavit. The father’s counsel made oral submissions.
10An order for contribution to special and extraordinary expenses under s. 7 of the guidelines is discretionary as to both entitlement and amount.
11The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under s. 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See Park v. Thompson 2005 14132 (ON CA), [2005] O.J. No. 1695 (OCA)
12The court has the discretion to apportion the s.7 expenses in a different manner than pro-rata to incomes, depending on the circumstances of the case. Salvadori v. Salvadori 2010 ONCJ 462, [2010] O.J. NO. 4425 (OCJ); Buckley v. Blackwood, 2019 ONSC 6918.
13The first step for the court to consider is whether the cost of the private school is more than the mother can reasonably be expected to afford, taking into account her income and the table amount of child support she receives.
14The mother is a teacher. Her employment income in 2023 was $108,237.00. She receives child support from the father. Her financial statement sets out a disability benefit of $542.05 per month and an annual allocation from the Ontario Autism Program Fund (OAP fund) of $741.67 per month. The OAP fund cannot be relied on year to year. She has also resorted to a GoFundMe campaign to raise money for the child.
15The cost of the child’s private school is in excess of $20,000.00 per year. The court finds that this expense is more than the mother can reasonably be expected to afford. The tuition is an extraordinary expense.
16The second step is for the court to consider if the expense is necessary in relation to the child’s best interests and reasonable in relation to the means of the spouses and the child and the spending pattern of the family prior to separation.
17The court makes the following findings of fact with respect to whether or not the expense is necessary in relation to the child’s best interests:
a) The child was diagnosed with Autism Spectrum Disorder in 2019.
b) His doctor identifies the child’s issues as expressive speech delay and social skills delay.
c) He is currently in Grade three at his private school where he has been attending since Grade two.
d) He was enrolled in a different private school in Grade one.
e) The parties separated in 2020 and entered into a separation agreement in June of 2022.
f) The separation agreement granted the mother sole decision-making following consultation with the father. She enrolled the child in his current school and asked for the father to contribute 37.5% of its cost.
g) The child’s current private school serves students from grade 1 through 12. It offers the full regular curriculum and maintains individualized programming for students with learning disabilities and learning style differences.
h) The child had immediate access to Occupational and Speech Therapy supports within a month of enrolment. The child attends a social skills class (provided twice a week.)
i) The private school uses a pod-system for math and language. This divides students into smaller groups based on their individual levels. The child is in a modified program working at the Grade two level for math and language. This allows him to address his deficits while staying with his age group.
j) The child’s private school class size is 10 students. His pod classes range from 3-7 students.
k) The current ratio of teacher to student provides the child with assistance in keeping him focused, helping him with transitioning between tasks and addressing any behavioural issues that may arise.
l) The public school settings available to the child do not offer the same low teacher/pupil ratio. All students with autism are fully integrated in the regular classroom. There are no designated support staff for these students. Education assistants for children with special needs are assigned on a school-wide basis and not to specific classrooms. In one of the local schools, two educational assistants serve the entire school population. One on one support is not available for prolonged periods.
18The court makes the following findings of fact with respect to whether or not the private school expense is reasonable in light of the financial means of the parties:
a) The mother earns approximately $100,000.00 annually as a teacher. She earned $107,421.00 in 2024.
b) The father has 20 years of experience in the financial services industry. His Notices of Assessment reflect an annual income of $149,964 (2021), $157,128 (2022) and $183,826 (2023). His current net worth is $1,425,152.00.
19The court finds that the private school expense is reasonable and necessary and is in the child’s best interests. The father’s proposed educational plan for the child is deficient. This child has been diagnosed with autism. He has special needs. It is not credible that the after school tutoring he proposes will mitigate the lack of attention and support available to the child in the public school setting. The private school plan has clearly superior supports for this child.
20The court acknowledges that the private school tuition is expensive. However, these parties are able to afford this expense based on their current employment.
21Having determined entitlement, the final step of the analysis is the start date for the temporary s.7 expenses for the private school tuition claimed. The mother seeks one year of retroactive s.7 support in her Notice of Motion as part of the temporary order.
22The court has jurisdiction to order temporary child support retroactively. See: Dickie v. Dickie, 2001 28203 (ON SC), 17 R.F.L. (5th) 304 (Ont.S.C.J.); Kowalik v. Kowalik, 2011 1551 (SCJ).
23The Supreme Court of Canada in Colucci v. Colucci, 2021 guides the court’s analysis. Colucci sets out that the presumptive start date to change support should be the date of effective notice to the payor. The case sets out that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the payor to “independently assess the situation in a meaningful way and respond appropriately.”
24In this case, the mother served her application on the father on July 26, 2024. This is the date of formal notice. However, the court makes the following findings of fact with respect to when the father had effective notice of the mother’s s.7 claim for tuition sharing:
a) The mother had final sole decision-making responsibility following consultation with the father pursuant to the parties’ 2022 separation agreement.
b) The father was aware that the child was enrolling in his current school for Grade two in the fall of 2023.
c) The father was aware that the mother had chosen the current private school to better meet their child’s academic and social needs and development.
d) The father had direct access to information from the child’s teachers and his doctors to understand the supports his current school provided. He has had direct contact with the school when he picked the child up at the school for the past two school years.
e) The mother was actively seeking the father’s financial contribution to the private school expense from the date it was incurred. The father was aware of the quantum of the tuition expense and simply refused to contribute his proportionate share.
25Based on the above findings of fact, the court finds that the date of effective notice is September 1, 2023. This is the appropriate start date for the temporary s.7 order in this case.
26The mother has an exceptionally strong claim to this proportionate s. 7 sharing of the private school tuition on the evidence before the court. She has been significantly financially disadvantaged by bearing the cost of the entire expense to date. It is therefore appropriate to include a modest retroactive period in the temporary order pending the final decision on all of her claims by a trial judge.
27The temporary order shall go on the following terms:
a) For the 2023/2024 school year, the child’s tuition was $20,600.00. Based on the parties’ 2022 Notices of Assessment (father’s income $157,128.00; mother’s income $93,119), the father’s proportionate share owing is 63% or $12,978.00.
b) For the 2024/2025 school year, the child’s tuition was $24,300. Based on the parties’ 2023 Notices of Assessment (father’s income $183,826; mother’s income $108,237), the father’s proportionate share owing is 63% or $15,309.00. The father is ordered to pay the mother the arrears of $28,287.00 within 5 days.
a) The father shall pay his proportionate share (63%) of the private school expenses on an ongoing basis commencing April 1, 2025. This includes any fees that are charged in advance to secure re-enrolment for the child for the 2025/2026 school year. His share is due within 30 days of receiving a copy of the invoice provided by the private school from the mother.
b) Support Deduction Order to Issue.
28If the mother seeks costs of this motion she shall serve and file written submissions by April 1, 2025. The father will then have until April 8, 2025 to serve and file his written response. The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator’s office.
29The return date set for May 8, 2025 at 10:00 am will be a settlement conference. The parties are to exchange offers to settle in advance of the conference.
Released on March 19, 2025
Justice Szandtner