Court File and Parties

CITATION: Homier v. Pacquette, 2011 ONSC 3319

COURT FILE NO.: DC-11-271

DATE: 2011-05-30

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Deborah Homier (formerly Paquette), Applicant (Appellant)

AND:

Daniel Paquette, Respondent (Respondent)

BEFORE: Matlow, Heeney and Pomerance JJ.

COUNSEL: Jerry J. Chaimovitz, for the Appellant

Michael P. Clarke, for the Respondent

HEARD: May 30, 2011 at Hamilton

ENDORSEMENT

[1] This is an appeal from the decision of Brown J. dated August 30, 2010, wherein she refused to order the respondent to pay a proportionate share of the cost for their daughter Danielle to attend the Oxford Learning Centre.

[2] The decision under appeal arose from a Motion to Change brought by the applicant. A final order had previously been granted by Lafrenière J. on March 4, 2008, pursuant to Minutes of Settlement. It ordered that the respondent would pay his proportionate share of s. 7 expenses. Section 7(1)(d) of the Child Support Guidelines lists certain specified expenses, including “extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs”. The expense in question was clearly an educational expense. The question before the motions judge, therefore, was whether this expense was an “extraordinary” one, within the definition s. 7(1.1) of the Guidelines.

[3] At para. 26 of her reasons, the motions judge said the following:

The Applicant’s income for 2009 was $21,508.00. The Respondent’s income for that year was $74,243.00. While the Learning Centre’s costs are certainly not insignificant for parties earning what the Applicant and Respondent earn, if not for the fact that the Respondent is paying full Guideline child support despite having the children for half the time, I would have found that the costs for the program were (and are) not excessive as it relates to the Respondent. However, I must consider the child support and timesharing arrangements.

[4] After quoting s. 7(1.1) of the Guidelines in her reasons, the motions judge said the following, at para. 31:

In view of the very relevant factors in this case, namely the existing timesharing and child support arrangements, I find that the Learning Center program’s costs are not extraordinary within the meaning of section 7 of the Guidelines and I find further that it would not be reasonable to require the Respondent to pay a share of same.

[5] Section 7(1.1) of the Guidelines reads as follows:

(1.1) For the purposes of clauses (1) (d) and (f),

"extraordinary expenses" means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or 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 clause (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 parent or spouse requesting the amount, including the amount that the parent or 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,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.

[6] It is not clear from the reasons of the motions judge which definition she was considering in determining whether the expense in question was “extraordinary”. If it was s. 7(1.1)(a), the court is required to consider the income of the spouse requesting the amount, and the amount of table support being received by that spouse, in determining whether it is an expense that the requesting spouse can reasonably cover. However, it is evident from the reasons that the motions judge considered only the amount of table support being paid by the respondent, and did not consider the income of the applicant as the section requires her to do. While passing reference was made to the income of the applicant earlier in the reasons, there was no considered analysis of her income as it relates to her ability to cover this expense.

[7] Furthermore, the motions judge did not address the key question as to whether the applicant could reasonably cover this expense, which was expected to cost $350 per month. We note that, of the five points argued by the respondent in opposing the motion before the motions judge, he did not suggest that this was an expense that the applicant could reasonably cover.

[8] Failing to address the key question posed by the definition, based upon the factors set out in that definition, constituted a reversible error of law.

[9] If the court was considering the definition in s. 7(1.1)(b), it was once again required to consider the income of the requesting spouse, along with the other factors listed in that section. The reasons of the motions judge reveal no consideration of these factors in arriving at the conclusion that the expense was not extraordinary. Instead, the decision appears to be based entirely on the fact that the respondent was paying full Guideline support while having the children half of the time.

[10] For these reasons, the appeal is allowed, and the matter is remitted back for a rehearing before a different motions judge.

[11] Costs of the appeal are awarded to the applicant fixed at $3,500 all inclusive.

Matlow J.

Heeney J.

Pomerance J.

Date: May 31, 2011