Court File and Parties

Court File No.: Halton F465/01 Date: 2013-06-28 Ontario Court of Justice

Between:

Boguslawa Kloc Applicant

— And —

Wlodzimierz Wozniak Respondent

Before: Justice Sheilagh O'Connell

Heard on: February 22, 2013 and March 25, 2013

Reasons for Judgment released on: June 28, 2013

Counsel:

• B. Kloc, acting in person
• K. Janczaruk, for the respondent

O'CONNELL, J.:

1: INTRODUCTION

[1] The applicant mother commenced a motion to change on July 20, 2012, seeking the respondent father's contribution to the following expenses for the child, Justina Nina Kloc-Wozniak ("Justina"), born October 24, 1997:

1. retroactive travel costs to the United States for medical treatment for Justina;
2. retroactive medical and incidental expenses incurred for Justina's treatment in the United States;
3. future tutoring expenses for Justina;
4. ongoing and future horseback riding lessons for Justina;
5. future orthodontic treatment for Justina.

[2] The court received evidence and heard submissions, including the affidavit evidence of both parties and the viva voce evidence of Ms Kloc regarding her claim for special and extraordinary expenses, otherwise known as "section 7 expenses" under the Child Support Guidelines, O. Reg. 391/97, as amended.

[3] The main issues in this hearing is whether the expenses sought and claimed by the mother properly qualify as section 7 expenses and if so, what, if any, contribution should the father make towards those expenses, either on a retroactive or future basis.

[4] It is not disputed that the father's income is $77,500.00 per annum and the mother's income is approximately $21,000.00 per annum, including child tax benefits. The mother is seeking that the father pay 85% of the expenses claimed. The father currently pays child support for Justina in the amount of $712.00 per month, in accordance with the Child Support Guidelines.

2: BACKGROUND AND EVIDENCE

[5] The parties started living together in 1994 and separated in September of 2001 when Justina was four years old. The parties have joint custody of Justina, with her principle residence being with the mother, pursuant to the final Order of Justice Agro, dated February 26, 2002. On November 18, 2002, a further final order provided that the father have alternating weekend access with Justina, however, the father has had very limited or no contact with Justina for several years. The parties disagree regarding the reasons for this limited contact.

[6] The father was ordered to pay the table amount of child support for Justina in accordance with his income, however, there has never been an order for section 7 expenses. Prior to commencing these proceedings, the mother has not sought an order for contribution to what she believes are Justina's section 7 expenses. In the past, the parties appeared to be able to agree on some expenses, such as Justina's tutoring.

The Retroactive Expenses for Justina's Treatment at Avalon Hills' Residential Eating Disorder Program

[7] Justina is 15 years of age and she has had a challenging childhood and adolescence. Justina has suffered from anxiety and depression for a number of years. She has also been diagnosed with an obsessive compulsive disorder and in 2010, she was diagnosed with anorexia nervosa, an eating disorder.

[8] Justina was first treated in 2005 by Dr. Bakht, a psychiatrist at Joseph Brant Hospital. Dr. Bakht diagnosed a general and social anxiety disorder and prescribed medication. Justina was also referred to counselling with Ms Gwen Clayton, a social worker at the hospital.

[9] In 2007, Justina was being treated by Dr. Roy, who determined that Justina was clinically depressed and recommended therapy at R.O.C.K. (Reach Out Centre for Kids), a children's mental health centre, to assist her in coping with depression. In 2008, Justina started therapy with Ms Mary Cook, a therapist at the Halton Centre for Cognitive Therapy. In 2009, Justina attended a three month program called YODA (Youth Overcoming Depression and Anxiety) at the Woodview Children's Centre.

[10] In April of 2010, while receiving treatment for anxiety and depression, Justina was diagnosed with anorexia nervosa. Justina was initially treated for this condition by Dr. Jennifer Couturier, a psychiatrist at the Pediatrics Eating Disorder Program at the McMaster Children's Hospital. When her situation became critical, Justina was transferred to the Eating Disorder Clinic at the Hospital for Sick Children, where she remained hospitalised for four months. Justina was admitted to the hospital in August of 2010 and discharged in November of 2010.

[11] Upon her release from Hospital for Sick Children, Justina received follow-up treatment from Dr. Couturier, her treating psychiatrist at the McMaster Eating Disorder Program. Justina's condition did not improve. In 2012, Dr. Couturier directed that Justina obtain further residential treatment and recommended that Justina attend the Avalon Hills Residential Eating Disorders Program ("Avalon") in Utah, United States.

[12] Dr. Couturier was unable to identify a suitable treatment facility for Justina in Ontario, hence the recommendation that Justina receive out of country treatment in the United States. Dr. Couturier requested approval from OHIP to fund the out of country treatment for Justina.

[13] On December 15, 2011, the Ontario Ministry of Health and Long Term Care approved funding for Justina's treatment for anorexia nervosa at the Avalon program in the United States. According to the documentation filed as evidence in this proceeding, the funding does not cover the application fee, academic tutoring, prescriptions or psychological testing as these are not insured benefits covered by OHIP. Further, if "acute medical intervention" is required at an alternate facility, the cost of additional medical services (unrelated to the current diagnosis) are not covered by the funding agreement.

[14] Justina was admitted to the Avalon program in January of 2012 and discharged in June of 2012. The father was aware of Justina's need for treatment and agreed that Justina should attend the program. Both parents signed the contract for admission to Avalon Hills on January 1, 2012. The daily rate for room and board, therapy and treatment, to be funded by OHIP, was $1,600.00 per day. The admission fee of $500.00, which the mother paid, as it was not covered by OHIP. The contract also provides that the contracting parties agree to pay for the additional costs and expenses incurred by the patient.

[15] During the six months that Justina was a patient at Avalon Hills, the mother travelled to Utah on three occasions. Justina's older brother and sister each travelled to Utah on one occasion each. Avalon covered only the first flight when the mother travelled with Justina for her admission to the program between January 11 to January 13, 2012. However, the mother's hotel and meal costs were not covered during those two days, not were the remaining flights, hotel, and meal costs covered when travelling to Utah to visit Justina and to bring her back to Canada at the end of the program. The father did not visit Justina while she was in residential treatment.

[16] According to the mother's evidence, Avalon encourages the parents and family members to keep in contact with the child and to visit when possible. After Justina was admitted in January of 2012, the mother and Justina's older sister (an adult) visited her in March of 2012. The mother testified that the trip in March was very important as it was the first time that Justina had authorization to have family visits at Avalon and Justina's therapist wanted to start family therapy. While there, the mother, Justina and the older sister participated in three family therapy sessions. The mother returned again in June of 2012, this time with her adult son, and again participated in family therapy prior to travelling back to Canada with Justina.

[17] On each occasion that the mother visited Justina, the mother incurred flight, hotel and food costs for both herself and her two older children. The mother is seeking reimbursement for the expenses of her flight, car rental and hotel accommodation for herself and her other two children when they visited Justina in Utah. She is not seeking reimbursement for meals and gas.

[18] In addition, while at Avalon, Justina fell and broke her wrist. She required hospital treatment at a nearby hospital. The cost of this treatment was not covered by the Ministry of Health or Avalon. Justina also continued to take prescription medication for her anxiety and depression that was not covered by OHIP funding or Avalon, as well as other miscellaneous expenses.

[19] The mother testified that information was provided to Avalon regarding the father's medical insurance through his employer. If Avalon was unable to be reimbursed for expenses that were not covered by the Ministry or by the father's insurance benefits, then Avalon would charge these expenses to the mother's credit card. The mother made a claim as well through the father's insurance but some expenses were not covered.

[20] The expenses that the mother is claiming in this trial were not covered by the Ministry or the father's insurances. In total, the mother is claiming the following expenses that she incurred as a result of Justina's treatment in Utah:

Charges by Avalon Hills to the mother's credit card for medication, off-site activities, meals:

• Reed's pharmacy for prescription medication: $1,233.00
• Canyon View Orthopedic: $400.00
• Bear River Health: $50.00
• Other transactions: $659.00
• Total Costs: $2,682.29

Expenses for Justina's emergency hospital treatment:

• Cache Valley Hospital for broken wrist: $264.00
• Medical Group expenses: $75.00
• Total Costs: $339.00

Mother's Flight, rental car and accommodation costs:

• Total flight costs for mother and other children: $3,532.00
• Car rental: $859.15
• Hotel accommodation: $712.26
• Total Costs of Travel: $5,154.22

Tutoring Expenses for Justina

[21] Justina struggles academically. In 2009, Justina was referred for a psychological assessment by the Halton District Catholic School Board to assess her level of cognitive and academic functioning. At the time of the referral, Justina was experiencing difficulties in the areas of reading and written language. In addition, her teachers also cited that attention and processing difficulties as areas of concern. A psychological assessment report was completed on April 24, 2009 by Dr. Gabrielle Mauro, a psychologist with the Halton Catholic School Board and filed as evidence at the hearing.

[22] Dr. Mauro determined that Justina has a learning disability and concerning emotional issues, particularly with anxiety. Dr. Mauro made, among other recommendations, the following:

a. Justina will benefit from an individualised education plan to address her needs of basic reading skills, spelling and reading comprehension;

b. Justina should also be given consideration for the "Learning Disability Learning Centre" to develop skills in reading and writing and basic math computation;

c. Justina should be involved with the school based child and youth counsellor in order to work with emotional difficulties expressed at school;

d. Justina should continue to access support and counselling for her anxiety if her problems persist. ROCK (Reach Out Centre for Kids) or other psychological support agencies are strongly recommended.

[23] As a result of these recommendations, Justina was placed in a special education program at school and an individualized education program was developed for her. In addition, Justina was enrolled in the tutoring program at the YMCA in 2009 and 2010 after this assessment was concluded. The mother testified that although Justina gets specialised assistance at school, there are approximately ten to fifteen students in the special education class and Justina does not get the intense individual assistance that tutoring provides.

[24] The father paid for Justina's tutoring through the YMCA program. The cost was $30.00 per hour and Justina was receiving two hours of tutoring each week. The mother testified that Justina enjoyed the tutoring program at the YMCA and it was helping her academically. Unfortunately, that program no longer exists. The mother has researched a number of different alternatives, including the Oxford Learning Centre. She anticipates that the tutoring will cost $40.00 per hour and that two hours each week will benefit Justina. The mother testified that she cannot afford to pay for the cost of tutoring without the father's contribution.

Orthodontic Treatment

[25] Justina went for an orthopedic consultation with Dr. Pawel Zajac on September 12, 2012. Dr. Zajac found a "class one malocclusion" with "a deep overbite and anterior crowding." He recommended braces. The total fee, according to his report, is $5,195.00 ($4,900.00 for the braces, and $295.00 for the examination, x-rays and consultation at the first appointment). The orthodontist's report, dated January 4, 2013, and the breakdown of the expense were introduced as evidence in this hearing.

Horseback Riding Lessons for Justina

[26] While at Avalon, Justina received horseback riding lessons, which proved very beneficial for her. The mother paid for the horseback riding lessons. The mother has found horseback lessons close to their home that she would like to enrol Justina in during the summer, as well as other summer programs. The cost of the horseback riding lessons is $470.00 for ten group lessons (ten weeks). There are also fall programs available.

[27] The mother filed a letter dated January 7, 2013 from Dr. Charles Bentley, a registered psychologist who treated Justina at the Avalon Program. Dr. Bentley was not available for cross-examination, but in his letter, he described the horseback lessons that the residents enjoyed as "deliberate therapeutic activities" and stated that the horseback riding lessons were designed to help the patients build self-esteem and confidence. Dr. Bentley viewed this as "an essential part of the program" and recommended that Justina continue to have similar opportunities to participate in "therapeutic and experiential activities" in her home environment.

3: THE LAW AND GOVERNING PRINCIPLES

[28] The mother's claim for special or extraordinary expenses is brought under section 7 of the Child Support Guidelines. The relevant sections are as follows:

7. Special or extraordinary expenses. -- (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

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.

(2) Sharing of expense. -- The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

(3) Subsidies, tax deductions, etc. -- Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

[29] The definition of "Extraordinary expenses" is set out at section 7 (1.1) of the Guidelines:

(1.1) Definition, "extraordinary expenses" . -- 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.

[30] 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 section 1( a ), which reads as follows:

(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;"

[31] 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, 197 O.A.C. 158, 252 D.L.R. (4th) 730, 13 R.F.L. (6th) 415, [2005] O.J. No. 1695, 2005 CarswellOnt 1632 (Ont. C.A.).

[32] In awarding section 7 special and extraordinary expenses, the trial judge determines each party's income for child support purposes and determines whether the claimed expenses fall within one of the enumerated categories of section 7 of the Guidelines. The court must be satisfied that the special or extraordinary expense is:

1. necessary "in relation to the child's best interests"; and
2. reasonable in relation to the means of the parents and those of the child and to the family's spending pattern prior to the separation.

[33] In Correia v. Correia, 2002 MBQB 172, [2002] M.J. No. 248, 29 R.F.L. (5 th ) 28, Justice Allen set out a number of factors to be taken into account in determining the reasonableness of a section 7 expense in relation to the means of the parents:

1. the combined income of the parties;
2. the fact that two households must be maintained;
3. the extent of the expense in relation to the parties' combined level of income;
4. the debt position of the parties;
5. any prospects for a decline or increase in the parties' means in the near future; and
6. whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.

[34] The list of special and extraordinary expenses under clauses 7(1) ( a ) to ( f ) is exhaustive. If a claim does not fall within any of the listed categories, then it must be dismissed. See Kilrea v. Kilrea (1998), 82 A.C.W.S. (3d) 952, [1998] O.J. No. 3677, 75 O.T.C. 269, 1998 CarswellOnt 3652 (Ont. Gen. Div).

[35] Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support. See Smith v. Smith (1997), 75 A.C.W.S. (3d) 703, [1997] O.J. No. 4833, 48 O.T.C. 316, 1997 CarswellOnt 4493 (Ont. Gen. Div.), paragraph [14] and [16] ; D'Urzo v. D'Urzo (2002) , 30 R.F.L. (5th) 277, [2002] O.J. No. 2415, [2002] O.T.C. 419, 2002 CarswellOnt 2104 (Ont. S.C.); Park v. Thompson, supra ; Zimmerman v. Doe , 159 A.C.W.S. (3d) 407, [2007] O.J. No. 2896, 2007 CarswellOnt 4721 (Ont. S.C.).

[36] Clause 7 (1)(d) of the guidelines provides that a court has the discretion to order that a payor contribute to an expense such as tutoring if the expense is extraordinary (that is, an expense that exceeds the amount which the recipient would reasonably be expected to cover taking into account the table amount of support payable and the recipient's income), reasonable and necessary. See: O'Connor v. Houlder [2012] O.J. No. 3986 , per Justice Ellen Murray.

[37] It is also clear from the case law that a custodial parent does not have carte blanche to enrol a child in any number of extra-curricular activities and then to look to the non-custodial parent to share all of the costs. See Forrester v. Forrester , 73 A.C.W.S. (3d) 479, 11 O.F.L.R. 61, [1997] O.J. No. 3437, 1997 CarswellOnt 3212 (Ont. Fam. Ct.), paragraph [4] ; Zimmerman v. Doe, supra . In the case before me, the parties have joint custody, although the mother is clearly making all of the decisions regarding Justina's welfare.

4: ANALYSIS

[38] Although representing herself, the mother presented her evidence in a clear, organized and concise manner. She prepared a detailed document brief which contained supporting documentation for all of the expenses claimed, both past and future. The mother testified in a straightforward and credible manner and she withstood cross-examination well.

[39] The mother is to be commended for the efforts that she has made over the years to meet Justina's special needs. I will address each category of the section 7 expense claimed by the mother separately below.

The Retroactive Expenses Incurred for the Avalon Hills Residential Eating Disorder Program

[40] I reject the father's submission that treatment for Justina's anorexia nervosa could have taken place in Ontario and that it was not reasonable or necessary to attend the Avalon program in Utah. If there was similar and available treatment for Justina in Ontario, then the Ontario government would not have funded Justina's entire out of country treatment at the Avalon program at a cost of $1,600.00 per day, nor would Justina's psychiatrist have recommended it. Justina was previously hospitalised at the Hospital for Sick Children's Eating Disorder Clinic for a period of four months and upon discharge, she did not improve.

[41] If the father did not agree with the Avalon treatment program, then it is difficult to understand why he signed the contract consenting to the treatment program and the costs associated with it. The father offered no evidence of similar programs to treat Justina's eating disorder in Ontario.

[42] The medical and prescription costs incurred by the mother while Justina attended this program, including the hospital treatment for Justina's broken wrist, are clearly health related expenses that fall under section 7(1) ( c ) of the Child Support Guidelines . The evidence establishes that the mother paid for the expenses and that the father's insurance did not cover them, nor did Avalon. The expenses clearly exceed insurance reimbursement by at least $100.00 annually and will be allowed. The total cost paid by the mother was $2, 022.00. The $650.00 "miscellaneous expenses" are not section 7 expenses and cannot be claimed by the mother.

[43] The mother's claim for the flight, car rental and hotel accommodation costs so that she and her other children can visit Justina and participate in family therapy is more difficult. I recognise that it was very important for the mother and Justina's older siblings to travel to Utah to participate in family therapy with Justina.

[44] These expenses could be described as "health-related", but in my view, they do not fall into any of the enumerated categories under section 7 , and should not be allowed. In particular, it is not reasonable that the father should be responsible for the costs of the mother's other two children's flight and hotel accommodation. The father does not have a legal obligation to support these children. However, I will allow $1,175.00 towards these expenses, which is the cost incurred by the mother to attend and retrieve Justina from the program at its conclusion.

Tutoring

[45] The mother's evidence is that the tutoring expense for Justina totals approximately $3,840.00 annually or $320.00 per month. Given the mother's modest financial circumstances and the table amount that is payable, I have no difficulty in finding that the tutoring expenses are "extraordinary" educational expenses under section 7 (1) (d) of the Guidelines. I find that the amounts claimed by the mother for tutoring expenses are reasonable, given the combined income of the parties, the fact that two households must be maintained, the extent of the expense in relation to the combined income of the parties and the debt position of the parties.

[46] The evidence also satisfied me that the tutoring expense is necessary. Indeed, the father voluntarily paid this expense in the past. Justina is struggling academically and she has a learning disability. The 'one to one' learning experience offered by a private tutor is not available in the special education class that Justina is placed at school, where she is in classroom setting with at least fifteen other people.

Orthodontic Expenses

[47] Justina needs braces. She will be 16 years of age in October of this year and if she does not get them now, she may not have an opportunity to do so later, nor is it desirable for her to do so. The mother does not have insurance and she cannot afford them without assistance from the father. The evidence was unclear as to whether the father's insurance would cover a portion or all of the cost of the braces. I find that the orthodontic expense is a reasonable and necessary health-related expense to which the father should contribute.

Horseback Riding Lessons

[48] The mother's evidence is that the horseback riding lessons total approximately $470.00 for ten group lessons in the summer. If she continues in the fall, then the total annual cost would be approximately $940.00. Given the mother's limited financial circumstances, this expense does not fall under the usual and ordinary extra-curricular activities that should be included on the table amount of child support payable. It is an "extraordinary" expense under section 7(1.1) of the Guidelines.

[49] In my view, it is also a reasonable and necessary expense, given Justina's very special needs. It has been strongly recommended by her treating psychologist at the Avalon program that Justina continue to benefit from this extra-curricular activity in her home environment. The activity was an important therapeutic component of that program from which Justina greatly benefited.

[50] In conclusion, the annual allowable ongoing special expenses are horseback riding lessons of $940.00 and tutoring of $3,840.00, for a total annual cost of $4,780.00 or $398.00 per month. In my view, the father's contribution toward these expenses should be $338.00 per month or 85 percent of the total cost. In addition, Justina's orthodontic expense totals $5, 195.00. The father's proportional contribution to this cost is $4,415.75. The father has requested that if he is ordered to contribute to this expense, then he would like to pay the orthodontist directly and this is permitted. Finally, the father's contribution to the mother's retroactive medical expenses claimed for the Avalon program totals $3,197.00 and the father should pay $2,717.00 of that expense to the mother, which is 85 percent of the total medical expenses claimed.

5: FINAL ORDER

[51] For the above reasons, I make the following final order:

1. The father shall also pay the mother the sum of $338.00 per month for the section 7 tutoring and horseback riding expenses, commencing July 1, 2013, in addition to the table amount of child support previously ordered.

2. The retroactive section 7 expenses owed by the father are fixed at $2, 717.00 and this shall be paid no later than 30 days from the date of this order, or at a rate of $150.00 per month, commencing July 1, 2013.

3. The Family Responsibility Office is asked to adjust their records in accordance with this order.

4. The father shall make inquiries with his insurer to cover the costs of the child's orthodontic expense forthwith and arrange directly with the child's orthodontist to pay this expense. If the father's insurance does not cover the expense, or covers only a portion of this expense, then the father shall contribute 85% towards the balance of Justina's orthodontic expenses, to be paid directly to the orthodontist in a manner arranged between them. The total orthodontic cost is $5,195.00. If the father does not take the steps outlined in this order by August 30, 2013, then the entire cost of $5,195.00 shall immediately become due and payable.

5. The parties shall exchange their complete income tax returns and notices of assessment and the mother shall provide the father with copies of all receipts for the children's special expenses by June 1st of each year.

6. A support deduction order shall issue.

[52] If the either party seeks costs, then they shall serve and file costs submissions, with a bill of costs and offers to settle attached, within 30 days. Any written response to costs submissions shall be served and filed within 20 days.

Released: June 28, 2013

Signed: "Justice Sheilagh O'Connell"