Schryver v. Schryver, 2014 ONSC 1824

CITATION: Schryver v. Schryver, 2014 ONSC 1824

DIVISIONAL COURT FILE NO.: DC-13-68-00

DATE: 2014-03-20

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

HEENEY, PARFETT and VARPIO, J.J.

BETWEEN:

Gabrijela Layla Schryver

Appellant

– and –

Brian Franklin Schryver

Respondent

Self-represented

Self-represented

HEARD: March 17, 2014

ENDORSEMENT

PARFETT J.:

Introduction

1On May 31, 2013, a decision was issued by the Superior Court of Justice pursuant to an application by the Appellant seeking child support and section 7 expenses. The Appellant contends that the judge made two errors in his analysis of the issue of section 7 expenses. Firstly, she argues that the judge erred in finding that the older child, Nicholas had withdrawn from parental charge such that no s. 7 expenses were payable. Secondly, she states that the judge misapprehended the evidence with respect to the funding payable for respite care for the younger child, Alexander. We agree.

Background

Background

2Both children of this marriage are disabled. The older child, Nicholas has been residing full-time at Sunbeam Lodge, a facility for seriously disabled children since before the separation. Although the majority of Nicholas’ expenses are paid for by the government, certain expenses remain the responsibility of the parents. The Appellant has sole custody of both children pursuant to an earlier order of the Superior Court of Justice and she remains legally responsible for Nicholas. In consultation with health care professionals at the home and with the funding providers, she makes decisions concerning the nature and level of certain services for Nicholas such as massage therapy and reflexology. These services are funded, but if is recommended that Nicholas receive more care than is funded, the Appellant must pay the shortfall.

3The younger child, Alexander resides with the Appellant, but is confined to a wheelchair. As a result of Alexander’s disabilities, the Appellant receives various government subsidies including subsidies for respite care. Some of the subsidies are paid directly to the Appellant and disbursed at her discretion. Other subsidies – in particular the respite care subsidies – are paid only if the expense is actually incurred and only upon presentation of receipts.

Analysis

Analysis

4The judge wrote a thorough and detailed analysis of the issues in this application. He found that the Separation Agreement entered into by the parties on August 15, 2006 governed the issues of child support and payment of s. 7 expenses. Neither party disputes this finding. In that agreement, the parties agreed that the Respondent would pay $600/month in child support and 50% of any unfunded health care costs. Significantly, Nicholas was residing at Sunbeam Lodge on a full-time basis at the time that this agreement was signed.

5As noted earlier, the judge found that Nicholas was not a child of the marriage as defined in s. 2 of the Divorce Act because he was in full-time residence at Sunbeam Lodge and therefore had withdrawn from parental control. As such he concluded that no child support or s. 7 expenses were payable on Nicholas’ behalf. In our view, this was an error in law. Nicholas remains the legal responsibility of the Appellant and although she does not incur the full cost of his care, she does incur some costs and that fact ought to have been taken into consideration. The Respondent agreed, pursuant to the Separation Agreement, that he would pay 50% of the unfunded health care costs of both children. The judge failed to give effect to the Separation Agreement in this regard.

6In addition, the judge misapprehended the method of payment of the respite care subsidies in determining the arrears of s. 7 expenses payable on behalf of Alexander. The Appellant’s claims regarding s. 7 expenses did not include any claim for respite care expenses because those expenses had been paid for out of the respite care subsidies. Furthermore, the Appellant only received the respite care subsidy for respite expenses actually incurred. Consequently, these subsidies ought not to have been deducted from the remaining s. 7 expenses incurred by the Appellant. In fairness to the judge, the financial evidence presented in this matter was often difficult to comprehend.

7On the other hand, the Respondent correctly pointed out that s. 7 expenses are discretionary and should be proportional to the incomes of the parties. He is prepared to pay 50% of all reasonable s. 7 expenses, but argued that it would cause him significant hardship to pay all of the expenses claimed by the Appellant. Given the lack of evidence before this court concerning the Respondent’s financial circumstances, we are not in a position to properly calculate these expenses and exercise our discretion as to what contribution the Respondent should make toward those expenses.

Conclusion

8Therefore, this matter should be remitted to the application judge to correctly calculate the s. 7 expenses of both children and to determine both the arrears and the manner in which they should be repaid, taking into consideration the financial situation of both parties.

Parfett J.

Heeney R.S.J.

Varpio J.