Court File and Parties

COURT FILE NO.: FS-15-84767 DATE: 2019 01 08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ARMIN MISTRY Frances W. Wood, for the Applicant Applicant

- and -

NAUZER MISTRY Antonietta F. Raviele, for the Respondent Respondent

HEARD: October 29, 2018 and November 1, 2018

REASONS FOR JUDGMENT

Fowler Byrne J.

Background

[1] Armin Mistry and Nauzer Mistry were married on December 25, 1995, and separated in October 2015. Their divorce was effective in 2018.

[2] To their credit, the parties were able to resolve all outstanding issues, which was reflected in the Final Order of Tzimas J., dated May 8, 2017 (the “Final Order”). In particular, para. 19 of the Final Order dealt with past and future s. 7 expenses in relation to their son Yazad Mistry, born June 15, 2000, and their daughter Yasna Mistry, born January 8, 2002. Unfortunately, little or no payment was made towards these expenses and the parties became locked in a dispute as to what s. 7 expenses Mr. Mistry should pay to Ms. Mistry. His resistance to payment is based on two arguments: (1) he does not believe Ms. Mistry was the individual who actually paid for the expenses, and accordingly, he does not feel it is appropriate that he reimburse her for expenses she herself did not incur; and (2) he did not consent to the expenses before they were incurred.

[3] The result was a two day trial disputing approximately $8,700.00.

Facts

[4] It is not disputed that since separation, the children have lived primarily with Ms. Mistry. She continued to incur s. 7 expenses, some of which Mr. Mistry contributed to, some which he did not.

[5] The relevant paragraphs of the Final Order are as follows:

13. The Respondent Father shall pay child support to the Applicant Mother in the amount of $900.00 per month based on an imputed income of $60,000.00.

14. The Applicant shall pay for 25% and the Respondent shall pay 75% of the children’s reasonable and necessary s.7 expenses. The expense shall not be incurred without each parties’ consent and such consent shall not be unreasonably withheld.

[6] Neither party sought to vary any provisions of the Final Order. Accordingly, it can be inferred that the total family income is approximately $80,000.00 per year.

[7] A summary of the expenses sought for Yazad are found at Appendix “A” to this judgment. A summary of the expenses sought for Yasna are set out in Appendix “B” to this judgment. The total amount at issue in this trial is $8,788.47.

[8] Some of these expenses pre-date the Final Order. Accordingly, only some of the expenses claimed are subject to para. 19 of the Final Order, which required each party’s consent prior to the expense being incurred. In addition, Ms. Mistry was unable to provide proof of payment for many of the expenses. She claimed that some were paid for in cash or a receipt was unavailable. While at times this evidence was untenable, Mr. Mistry does not take issue with the fact that payment was made and that the children actually participated in the activities in dispute. As indicated above, his dispute is that Ms. Mistry herself did not pay for the expense or that he did not consent to the expense. His evidence at trial was that until he had proof that she earned the money herself that paid for the s. 7 expense, he would not pay his share.

[9] Mr. Mistry agrees that most of the extracurricular activities enjoyed by his children – sailing, Air Cadets, music, skiing and leadership training – commenced prior to separation. He does indicate, however, that the ski instructor certification was not pursed while they were together. Ms. Mistry indicated in her evidence that the children were not eligible for that activity until they were 16 years old, which was post-separation for both children.

[10] It is also uncontested is that prior to separation, Mr. Mistry’s parents paid for a great many of these expenses – his estimate is 80 percent. It appears that the paternal grandparents played a very active role in the children’s lives. In fact, for a period of time after separation, Ms. Mistry continued to live with the children and the paternal grandparents.

[11] Mr. Mistry acknowledges that Yasna needs glasses and that they are often changed or upgraded. He also acknowledges Yazad’s overbite and that he has been seen by an orthodontist for some time. He had his wisdom teeth removed as a precursor to maxillofacial surgery to address Yazad’s overbite. Mr. Mistry acknowledged having the invoice from Yazad’s orthodontist for approximately two years, but he did not pay it. It is not known at this time if anticipated maxillofacial surgery will be covered by OHIP.

[12] Mr. Mistry also acknowledged that Yasna suffers from adrenal hyperplasia, which was diagnosed in 2009 or 2010 by Dr. Curtis of the Hospital for Sick Children. She was treated with cortisol earlier in her childhood to prevent fusing of the bones and stunted growth. One of the side effects of the condition and its treatment is excessive hair growth all over Yasna’s body, including her face. Mr. Mistry acknowledged that hair removal for Yasna was in Yasna’s best interests.

[13] Until last year, Yasna was dealing with her excessive hair growth by shaving, waxing, using creams or threading. Ms. Mistry and Yasna now wish to pursue laser hair removal for Yasna as a more permanent solution, which was not available to her until she turned 16 years old.

[14] Due to bail restrictions in place for Mr. Mistry, there has been and continues to be a prohibition on direct communication between the parties. This has made the request for consent or reimbursement of s. 7 expenses difficult.

[15] On June 23, 2017, a teleconference took place between Tzimas J., Ms. Mistry (who was self-represented at that time) and Ms. Lagoudis (counsel for Mr. Mistry). From the endorsement, it is clear that the optometrist and laser hair removal expenses with respect to Yasna were raised. Mr. Mistry was ordered to discuss these expenses with his counsel and work towards a resolution of outstanding payments.

[16] On that same day, Ms. Mistry was encouraged to create an excel spreadsheet of the expenses she claimed, invoice dates and dates of payment, and to attach proof of payment to that document. Given that this teleconference occurred only one month after the Final Order, it can be inferred that this order was with respect to expenses incurred prior to the Final Order only.

[17] A further case management conference was scheduled specifically to deal with s. 7 expenses on November 3, 2017. It can be inferred from the endorsement of Tzimas J. that she had an excel spreadsheet of the expenses sought by Ms. Mistry. No resolution was reached.

[18] On July 24, 2018, a trial management conference was held with respect to the outstanding s. 7 expenses. At that conference, Ms. Mistry was ordered to produce proof of payment for all s. 7 expenses being claimed in the past and in the future. Accordingly, it can be inferred that additional expenses were claimed, and either no consent was sought from Mr. Mistry before the expense was incurred or else consent was sought but was denied or ignored.

[19] A number of emails were produced, showing Ms. Mistry’s request for contribution and/or reimbursement of s. 7 expenses. An email dated June 30, 2017, was sent from Ms. Lagoudis, counsel for Mr. Mistry, to Ms. Mistry, which indicated that Mr. Mistry would pay his share of Yasna’s hair removal treatment prior to her next scheduled appointment on July 6, 2017. While there was some confusion, his contribution up to the end of June 2017 was eventually paid.

[20] In an email from Mr. Mistry’s counsel to Ms. Mistry, on June 7, 2017, Mr. Mistry indicated his preference to pay for s. 7 expenses directly to the provider.

[21] In an email dated March 26, 2018, Ms. Mistry again contacted Ms. Lagoudis. She requested payment of s. 7 expenses and indicated that Tzimas J. requested confirmation of payment at the case conference (which was probably the case management conference of November 3, 2017). She also attached an updated expense report dated March 2018. Unfortunately, that expense report was not attached to the exhibit.

[22] In an email dated April 3, 2018, from Ms. Mistry to Tzimas J.’s assistant and copied to Mr. Mistry’s counsel and Pervin Mistry (Mr. Mistry’s mother), Ms. Mistry requested the court’s assistance for payment of s. 7 expenses by Mr. Mistry. She also indicated that Yazad’s college education and other fees had to be paid. She indicated that to apply for OSAP loans, Mr. Mistry’s Notices of Assessment were required, including income information. Clearly, contribution to Yazad’s educational costs was requested prior to the expenses being incurred.

[23] An email dated May 24, 2018, was produced, sent by Ms. Mistry to Pervin Mistry. In that email, she requested payment of s. 7 expenses and indicated that a spreadsheet was attached. Unfortunately, no spreadsheet was attached to the exhibit. Pervin Mistry was reminded that Yazad’s college education fees had to be paid and arrangements needed to be made for these expenses. This same email was forwarded to Mr. Mistry’s previous counsel who indicated she would forward it to Mr. Mistry. At that that time, Mr. Mistry had no counsel of record in the family law proceedings.

[24] Another email was produced, dated May 31, 2018, from Ms. Mistry to Tzimas J., the crown attorney, victim’s services and past and present criminal counsel of Mr. Mistry. In this email, Ms. Mistry outlined the difficulties she was experiencing in communicating with Mr. Mistry due to the bail restrictions.

[25] Finally on October 23, 2018, Ms. Mistry retained counsel who wrote to Mr. Mistry’s counsel, attaching an excel spreadsheet of expenses being sought. Unfortunately, the excel spreadsheet was not attached to the exhibit.

[26] It is clear that numerous requests were made for repayment of s. 7 expenses that had already been incurred. While the evidence does show that Mr. Mistry reiterated that his consent was required before payment could be demanded, the evidence does not show that he required proof that Ms. Mistry paid for these expenses herself. It appears that this position was advanced only at trial.

[27] Under cross-examination, Ms. Mistry admitted that she incurred a number of s. 7 expenses without seeking Mr. Mistry’s consent. She indicated that Mr. Mistry usually ignored her request or refused to pay anything. When the expenses needed to be paid, she could not wait indefinitely. She would simply pay for the expenses and then seek reimbursement afterwards. An excel spreadsheet was produced by Ms. Mistry at trial and marked as exhibit A for the assistance of the court. Ms. Mistry indicated that this is the spreadsheet she always used and which was attached to the emails, but was updated from time to time as expenses were incurred. Accordingly, with a few exceptions, there is no evidence that Ms. Mistry sought Mr. Mistry’s consent prior to the expenses being incurred.

Issues

[28] The following issues are to be determined:

a. Are the expenses claimed “reasonable and necessary”?

b. If the expenses are proper s. 7 expenses, is Mr. Mistry relieved of his obligation to pay if these expenses were paid by Ms. Mistry’s extended family members?

c. Is Mr. Mistry responsible to pay for any proper expense for which his consent was not sought prior to them being incurred?

Law

i. Reasonable and Necessary

[29] Section 31 of the Family Law Act, R.S.O. 1990, c. F.3, states that a parent is obligated to support their unmarried child, to the extent that they are capable of doing so, if the child is a minor; enrolled in a full-time program of education; or by reason of illness, disability or other cause, is unable to withdraw from the charge of his or her parents. Mr. Mistry’s obligation to support Yasna is clear. Given that Yazad is no longer a minor, ceased being a full-time student in September 2018 and no evidence has been provided to show that Yazad is unable to withdraw from the charge of his parents due illness, disability or other cause, Mr. Mistry’s obligation to support Yazad ceased at the end of September 2018. As stated by Ms. Mistry, Yazad is living at home, taking a few part-time courses and trying to determine what he will do next. He may again become a child of the marriage in the future, but that issue is not before the court at this time.

[30] Section 7 of the Federal Child Support Guidelines, SOR/97-175, states as follows:

Special or Extraordinary Expenses

7. (1) In a child support order the court may, on either spouse's request, 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 spouses and those of the child and to the family's spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least of $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and 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.

Definition of “extraordinary expenses”

7 (1.1) For the purposes of paragraphs (1)(d) and (f), the term

“extraordinary expenses” means

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

iv. the overall cost of the programs and activities, and

v. any other similar factor that the court considers relevant.

[31] In Titova v. Titov, 2012 ONCA 864, 29 R.F.L. (7th) 267, at para. 23, the Ontario Court of Appeal set out the following steps for determining whether to make an award for s. 7 special or extraordinary expenses and how to quantifying such an award:

a) Calculate each party's income for the purposes of determining contribution to s. 7 expenses;

b) Determine whether the expense in question falls within one of the enumerated categories set out in s. 7 of the Guidelines;

c) Determine whether the expense is necessary in relation to the child's best interests and is reasonable in relation to the means of the spouses and to those of the child and to the family’s spending pattern prior to separation;

d) If the expense falls under s. 7(1)(d) or (f), determine if the expense meets the definition of “extraordinary”;

e) Consider what amount, if any, the child should reasonably contribute to the payment of the expense;

f) Apply any tax deductions or credits; and

g) Finally, determine how much of the remaining amount each party should pay.

[32] In the case before me, most of these questions have already been agreed upon. The only issue to determine is the third item on the list of Titova; namely, whether the expense is necessary in relation to the child's best interests and is reasonable in relation to the means of the spouses and to those of the child and to the spending pattern prior to separation.

ii. When Expenses are paid by a Grandparent

[33] It is clear from the evidence that prior to separation, the grandparents of the children regularly contributed to many of the children’s expenses. In his evidence, Mr. Mistry stated that approximately 80 percent of the children’s expenses were covered by his parents. In her evidence, Ms. Mistry indicated that sailing, skiing, and air cadets were frequently paid for by the paternal grandparents.

[34] For a period of time following separation, Ms. Mistry continued to reside with the children and the paternal grandparents. She provided evidence that she often asked Mr. Mistry to pay for various expenses for the children through the paternal grandparents. It is not clear from the evidence whether the paternal grandparents paid for any of the children’s expenses during this period.

[35] Ms. Mistry now relies on her own extended family in order to continue funding the children’s expenses. She indicated that the contributions made by her mother were only a loan, but was vague on the terms of repayment. She indicated there is no formal requirement or deadline by which she must repay these monies. She also indicated that she has been using the $15,000 that she received for spousal support in order to pay for these expenses. She could not, however, provide any evidence of these monies being used and claims to have converted these funds to cash, which remains in her home. Ms. Mistry’s evidence with regards to who has paid for the expenses to date lacks credibility, and I find it unlikely that she paid for these expenses herself.

[36] Mr. Mistry takes the position that these contributions by the grandparents or other family members were gifts, and accordingly Ms. Mistry has in fact incurred no expenses with regards children. Indeed, given that there was no clear trail between Ms. Mistry and the third-party provider for many of the expenses, Mr. Mistry maintains that unless he has proof that the monies came from Ms. Mistry herself through money that she earned, he would not pay his share in the expenses.

[37] In the case of Lefebvre v. Gowan, 2014 ONSC 6221, Smith J. reviewed this very issue. In that case, the children lived with their maternal grandmother, but the mother did not always reside in the house. The court stated that the fact that the maternal grandparents were voluntarily assisting their daughter to provide the required support for her daughter did not mean that the father was not required to pay support. In addition, the fact that the child’s paternal grandmother advanced funds to pay for the child’s special expenses was not a valid reason for the father to not contribute to special expenses: at para. 9. The maternal grandparents are not the custodial parents and are not legally required to pay those costs.

[38] This case was cited with approval by the Ontario Court of Appeal case of Squires v. Crouch, 2016 ONCA 774, at para. 12. In that case, the maternal grandmother paid for music lessons for the child. The court noted that in that case, financial arrangements between the mother and maternal grandmother suggested the possibility of reimbursement of those special expenses. Citing Lefebvre, the court held, at para. 12, that the “fact that grandparents help a separated child pay the expenses of the grandchildren does not in the ordinary course absolve the other parent from financial responsibility.”

[39] In the case before me, I find that there is little possibility that any funds will be repaid to the maternal grandmother or other family members. Ms. Mistry was very vague on the terms of repayment, and as indicated above, I do not find her credible on this issue. In addition, it appears that it was the practice of this family to use the resources of both sets of grandparents to support the children and their activities without any question of repayment. The only thing that has changed is that parents have separated and the paternal grandparents appear to no longer be funding the activities.

[40] However small a possibility that the maternal grandmother will be repaid, it is still the responsibility of Mr. Mistry and Ms. Mistry to support the children. The generosity of the children’s grandparents does not absolve them of this responsibility. Accordingly, whether or not the maternal grandmother contributed to the children’s expenses, Mr. Mistry is not absolved of his responsibility to pay for 75 percent of the proper s. 7 expenses.

iii. Is Consent Necessary?

[41] Consent was not necessary prior to the Final Order of May 8, 2017. Accordingly, for the expenses claimed between the date of separation and May 8, 2017, it is sufficient that this court finds that expenses claimed are proper in order to require Mr. Mistry to make those payments.

[42] After May 8, 2017, para. 19 of the Final Order governs all future s. 7 expenses. Mr. Mistry argues that he should not be forced to bear his proportionate share of expenses for which no consent was sought. The expenses to which he specially raised objections at trial were the CSIA instructor programme and Yasna’s additional laser hair removal treatment for her entire body.

[43] The court has already considered this issue on numerous occasions. If an order states that prior consent is required prior to a s. 7 expense being incurred and no such consent was sought, then the paying party loses their right to seek reimbursement: see Dover v. Timbers, 2012 ONSC 3230, at para. 98, and Luftspring v. Luftspring, [2004] O.J. No. 1538 (Ont. C.A.), at para. 2.

[44] The court has also stated that if the requirement of consent is included in a court order, the parties are entitled to expect that their consent will be obtained: Smith v. Angel, 2014 ONSC 6787, at para. 34. The expectation that consent be obtained in advance will avoid the accumulation of expenses that the paying spouse did not have an opportunity to plan for or consider: Lalande v. Pitre, 2017 ONSC 208, at paras. 108, 113.

Analysis

[45] I will address each group of expenses in turn.

i. Port Credit Yacht Club Sailing Regatta (Appendix A: Item 1)

[46] This expense was incurred prior to the Final Order, and accordingly, the consent of both parties in advance of the expense is not required. At trial, Mr. Mistry admitted that the children were involved in sailing prior to separation. Ms. Mistry conceded that the paternal grandparents paid $2,500 towards sailing in 2015. Ms. Mistry acknowledges that Mr. Mistry paid for sailing in 2016, but not for the regatta fee. She uses this payment as evidence that some request must have been made to Mr. Mistry for these expenses.

[47] Ms. Mistry provided a bank statement that showed a cheque of $120.00 coming out of her sole account on July 22, 2016, which she indicates was a payment of the regatta fee. She has produced no invoice or cancelled cheque. Mr. Mistry conceded, though, that Yazad was involved and that the fees were probably paid for him to participate.

[48] Given that Yazad was involved in sailing in 2016 and that Mr. Mistry already contributed towards that expense, it would be reasonable and in Yazad’s best interests if he was to complete his involvement for that year. It does not seem reasonable to support Yazad’s participation in a sport and then refuse to pay the necessary expenses to fully participate. Accordingly, Mr. Mistry should pay his share of Yazad’s regatta fees for this year.

ii. School Fees, Uniform Fees, School Music Fees (Appendix A: Items 2, 7; Appendix B: Items 24, 30, 36)

[49] The various fees charged by a high school on a yearly basis are quite straightforward. These fees are required by all students. Mr. Mistry has already conceded that these expenses are extraordinary for his family. Given the nature of these fees, they appear both reasonable and necessary for the children’s education.

[50] Ms. Mistry was able to produce a bank statement showing that “cheque 12” for $60.00 came from her account on September 28, 2018. This was to pay for Yazad’s music festival. The rest of the payments were made in cash. She claims that receipts are not given out for these types of expenses. Mr. Mistry claims this is not the case and in fact has contacted the school and has verified that receipts can be issued on request. While Mr. Mistry does not deny that the expenses were required and were paid, he is disappointed by Ms. Mistry’s efforts to even provide the simplest evidence of her expenditures.

[51] Only items 2 and 24 were incurred prior to the Final Order. The subsequent expenses should not come as a surprise to Mr. Mistry – they have been payable since before separation. That being said, without evidence that Ms. Mistry asked that Mr. Mistry pay these additional fees prior to them being incurred, she cannot now seek his contribution. While communication is challenging in these circumstances, Ms. Mistry has shown she could communicate with Mr. Mistry through his counsel.

[52] Accordingly, Mr. Mistry shall pay his proportionate share of items 2 and 24, and shall not be required to pay for items 7, 30 or 36, due to Ms. Mistry’s failure to seek prior consent.

B. Consultation with Dr. Morowetz (Appendix A: Item 3)

[53] This expense was incurred prior to the Final Order. This is clearly necessary and reasonable given Yazad’s overbite was well-known to Mr. Mistry and he understood that maxillofacial jaw surgery was a possibility. A consultation expense is the proper first step and should be paid. When it is determined that Yazad is to proceed with the maxillofacial surgery, and if he is a child of the marriage to which support is owed at the relevant time, Ms. Mistry must obtain Mr. Mistry’s consent first to any s. 7 expenses, and that consent must not be unreasonably withheld.

i. Air Cadets (Appendix A: Items 4, 6, 8, 11)

[54] It is agreed that Yazad was involved in Air Cadets prior to the parties’ separation. The expenses involve yearly registration fees and additional fees for trips and activities. Yazad was successful in this programme, graduating in 2018. The totality of the expenses claimed since separation is $1,069. This is not a significant amount and is reasonable given the parties’ respective incomes.

[55] Only item 4 was incurred prior to the Final Order, and I have no difficulty ordering Mr. Mistry to pay his share. It is reasonable that Yazad be given the opportunity to finish the activity in which he has been so involved for many years and to enjoy the rise in rank and his eventual graduation. These activities are now at an end and will not be incurred any further.

[56] From the evidence, it can be inferred that Ms. Mistry incurred the remaining expenses after May 8, 2017, prior to seeking Mr. Mistry’s consent. She admitted in cross-examination that she did not seek his consent and only sent spreadsheets of his expenses on several occasions, with no response. Accordingly, for the reasons set forth above, she is not entitled to seek reimbursement from Mr. Mistry for these remaining items (6, 8, and 11).

ii. Ski Instructor Qualification (Appendix A: Items 5, 9, 21; Appendix B: Items 26, 31, 44)

[57] The Canadian Ski Instructor’s Alliance (CSIA) certification course (items 5 and 26) was incurred prior to the Final Order, so Mr. Mistry’s consent was not required. This was a one-time expense so that the children would be qualified to teach skiing (either as a volunteer or as a job). Ms. Mistry gave evidence that it was always her intention that the children be qualified as instructors, given their prior years in lessons. It simply was not available to them prior to separation as they had to be 16 years of age in order to qualify. Given the children’s prior participation in skiing, it seems reasonable that they take the extra step required so that they could actually earn part-time income from the sport. Yasna is also able to instruct as a volunteer, which can contribute to her volunteer hours required for her high school diploma. Accordingly, Mr. Mistry should pay his proportionate share of items 5 and 26.

[58] Payment of the annual dues thereafter (items 9, 21, 31, 44) were made after the Final Order. Again, no evidence was provided that consent was acquired before they were incurred or paid. In addition, Yazad was not a child of the marriage when the CSIA membership fee became due in October 2018 (item 21), so Ms. Mistry is not entitled to be reimbursed for this amount. Accordingly, Mr. Mistry is not required to pay his proportionate share of items 9, 31, 44.

iii. Graduation Expenses (Appendix A: Items 12, 13, 14, 15, 16)

[59] These various expenses (photos, gowns, prom, etc.) total $411.48. It would be unreasonable for Yazad to not participate in these events, given the significance of high school graduation. Granted, a few of the activities were probably not mandatory, such as the breakfast or the trip to Canada’s Wonderland, but it would be unfair to deny these experiences to Yazad, given the parties’ means.

[60] Unfortunately, all of these expenses were incurred after the Final Order, and no evidence was provided to show that Mr. Mistry’s consent to these expenses was requested. But for this failure to seek consent, these expenses would be found to be reasonable and necessary. As such, none of the expenses need be reimbursed by Mr. Mistry.

iv. Post-Secondary Costs for Yazad (Appendix A, Items 10, 17, 18)

[61] Yazad applied for and was accepted to Georgian College in the Marine Technology programme. He was required to take a marine medical examination as part of the process. This cost of $178.00 was paid by Ms. Mistry. Yazad stayed in school for only a week or two at most before deciding that the programme was not for him. His mother was able to have his tuition reimbursed, but she still incurred the cost of residence, of which $1,190.00 could not be refunded.

[62] Mr. Mistry was aware of the programme for which Yazad applied, as he was sent information regarding it by Ms. Mistry in the winter prior to the programme. He indicated in his evidence that he contacted the school directly, trying to obtain evidence about possible bursaries or OSAP. Information about the cost of the programme and residency fees was available to him.

[63] Mr. Mistry indicates that this information was insufficient. He wanted more information about what bursaries or student loans were available to Yazad, and Ms. Mistry and Yazad were not forthcoming on that issue. Accordingly, he paid nothing.

[64] Mr. Mistry was advised of Yazad’s programme and was able to ascertain the expenses involved. He failed and/or refused to pay anything towards it. Until the time Yazad quit his programme, his residency fees and his marine medical exam were proper expenses to which Mr. Mistry should have contributed. Accordingly, Mr. Mistry should pay his proportionate share of items 10, 17 and 18.

v. Car Insurance (Appendix A: Items 19, 20)

[65] The claim for item 20, which was for car insurance from October 30, 2018, onwards, was withdrawn at trial. Item 19, for September and October 2018, is a reasonable and necessary expense. If Yazad was to use the family car, even as a casual driver, he is required to be insured. The only caveat is that Mr. Mistry is only obligated to contribute if Yazad was a child of the marriage at the time the expense was incurred and Mr. Mistry’s consent was obtained in advance.

[66] As indicated above, Yazad turned 18 in June 2018 and ceased being a full-time student in September 2018. Accordingly, Mr. Mistry is only obligated to pay for his proportionate share of insurance for September 2018. Unfortunately, again, Ms. Mistry failed to provide evidence that she sought Mr. Mistry’s consent to this expense in advance. Accordingly, Mr. Mistry is not required to pay this expense.

vi. Leadership Programmes (Appendix B: Items 22, 23, 27, 28, 29, 32, 33, 34, 35)

[67] Yasna is a very accomplished young lady. She has seized the opportunity to participate in leadership training whenever possible. Her mother has supported her in these endeavors. She was invited to attend the Ontario Educational Leadership Centre (“OELC”) for yearly courses to enhance her leadership skills. She completed her first course just prior to separation in 2015 and participated again in the summers of 2016, 2017 and 2018.

[68] Ms. Mistry is claiming contribution for a small fee of $83.90 for that programme in 2016. This was prior to the Final Order and therefore consent is not required. Given Yasna’s participation prior to separation and the minimal cost associated with it, I find that this expense is reasonable and necessary. Mr. Mistry should pay his share of this amount.

[69] For the subsequent years after the Final Order, evidence of Ms. Mistry seeking contribution for this amount can be found in her financial statement, sworn November 23, 2015, found in the Trial Record, wherein she listed “leadership courses” for Yasna in the yearly sum of $900.00. It can be inferred that this was in relation to the OELC courses she had started that summer. While not necessarily a direct request for consent, the expenses were clearly claimed in advance of them being incurred. Accordingly, this is sufficient communication to Mr. Mistry of Ms. Mistry’s request for contribution for these expenses, which he either denied or ignored.

[70] In 2017, a total of $923.21 was paid to the OELC for leadership courses. In 2018, the total expenses paid were $973.01. Such courses are clearly in Yasna’s best interests, and presumably Mr. Mistry agreed to allow her to participate while they continued to live together in the matrimonial home in 2015. While the course itself is expensive, it is only once per year and will end when Yasna graduates from high school.

[71] Accordingly, I find the expense both reasonable and necessary for Yasna’s best interests, and Mr. Mistry should pay his proportionate share of all OELC expenses.

[72] Ms. Mistry also claims contribution for a leadership in training course from May 2016. This was prior to the Final Order. I find this is an appropriate s. 7 expense and Mr. Mistry should pay his proportionate share.

[73] Finally, Ms. Mistry also claims contribution towards Yasna’s participation in the Phoenix Leadership Project. She indicated that many OELC students attend this programme as well, and Yasna very much wanted to attend. Ms. Mistry has provided no evidence that she sought Mr. Mistry’s consent before Yasna was enrolled. Accordingly, Mr. Mistry is not required to contribute to that expense.

[74] Therefore, Mr. Mistry is required to contribute to the expenses outlined in items 22, 23, 27 to 29, and 33 to 35. He is not required to contribute to item 32.

vii. Laser Hair Removal (Appendix B: Items 37, 38, 39)

[75] Yasna’s diagnosis is not disputed. The excessive hair growth that is the result of this diagnosis and treatment is not disputed. Mr. Mistry disputes the expense, stating that he has seen no medical evidence which recommends laser hair removal as the appropriate treatment for Yasna. That being said, he admitted in cross-examination that previous hair removal was done with Yasna’s best interests in mind.

[76] The record shows that the issue of laser hair removal was discussed between the parties since at least the June 23, 2017, teleconference. While there is no formal request for contribution for ongoing laser hair removal treatments, Mr. Mistry was aware that Ms. Mistry was seeking his contribution for ongoing treatments, and the matter was raised during the case management process. In fact, he had already contributed to prior treatments in relation to Yasna’s face and neck. Mr. Mistry cannot now claim his consent was not sought for further face and neck treatments.

[77] With respect to full body treatments for Yasna, they have not yet commenced but were at issue in this trial. Accordingly, Mr. Mistry had notice of Ms. Mistry’s request for contribution for these treatments as well. In his evidence, Mr. Mistry made it very clear that he did not consent to them, as he thought it was too expensive and he wanted some type of medical confirmation that it was an appropriate step to take. Mr. Mistry had every opportunity to consult Yasna’s physicians if he had concerns about the safety or efficacy of the laser hair removal, but he did not do so.

[78] I do not hesitate to find that it is necessary and in Yasna’s best interests to deal with the unfortunate side effect of her adrenal hyperplasia. This is not a purely cosmetic procedure. This is the result of a condition of which Mr. Mistry is well aware. The overall cost is high – the remaining face and neck treatments cost approximately $500.00 and it is anticipated that full body treatments will cost approximately $2,100.00. It will not be an ongoing cost, though, and Mr. Mistry is at liberty to make payment arrangements with the salon as the treatments proceed. Accordingly, I find that the laser hair removal treatment for both Yasna’s face and her body are appropriate s. 7 expenses, for which Mr. Mistry should pay his proportionate share.

viii. School Trip to Mont Tremblant for Yasna (Appendix B: Items 40, 41, 42, 43)

[79] Yasna wishes to attend a school trip to Mont Tremblant this winter in 2019. Ms. Mistry has signed Yasna up for this programme and made two interim payments of $75.00 prior to trial. Since the trial, a further payment of $75.00 was due and presumably paid, as well as the last payment of $373.67.

[80] It is not contested that Ms. Mistry did not seek Mr. Mistry’s consent prior to signing Yasna up for the trip. It is not clear from the evidence whether her claim for this expense was specifically known to Mr. Mistry prior to the trial. According, Ms. Mistry cannot claim for contributions to the first two payments she made.

[81] The last two payments, though, were due and owing after this trial, and accordingly, Mr. Mistry was well aware of Ms. Mistry’s claim for these expenses. He has not paid his share, nor offered any explanation why he does not consent.

[82] Given Yasna’s proficiency in skiing, and her certification as an instructor, it would seem reasonable for Yasna to want to participate in a ski trip in a more challenging locale than Glen Eden. Again, the expense is for a one-time event only. Accordingly, I find that this is an appropriate s. 7 expense and Mr. Mistry should pay his proportionate share of the last two installments.

[83] As such, Mr. Mistry need not contribute to items 40 and 41. He must contribute to items 42 and 43.

ix. Eyeglasses for Yasna (Appendix B: Item 25)

[84] This expense was incurred prior to the Final Order. It is not disputed that Yasna needs eyeglasses from time to time. It is necessary and reasonable. Mr. Mistry shall pay his proportionate share of this expense. Indeed, in the course of the trial, he agreed to pay his share.

Conclusion

[85] It strikes me throughout the course of this trial that the main issue as between these parties is a high level of animosity and a corresponding lack of communication, which has had a direct impact on their children. While I do recognize that communication was restricted due to Mr. Mistry’s bail conditions, both parties did have counsel from time to time who have been conduits for these requests, even when “off the record”. Unfortunately, Ms. Mistry simply forged ahead, with the assistance of her mother, and incurred these expenses without consultation or approval by Mr. Mistry. Mr. Mistry, in turn, stubbornly refused to contribute to very predictable and reasonable expenses related to his children. Going forward, a more feasible system will have to be put in place to deal with future s. 7 expenses, which puts the interests of the children first.

[86] Based on the reasons herein, these final orders are made:

a. Mr. Mistry shall pay to Ms. Mistry forthwith the sum of $1,855.76 for the items identified as items 1, 2, 3, 4, 5, 10, 17 and 18 in Appendix A, being his proportionate share of these proper s. 7 expenses for Yazad;

b. Mr. Mistry shall pay to Ms. Mistry forthwith, the sum of $3,151.58 for the items identified as items 22 to 29, 33 to 35, 37, 38, 42 and 43 in Appendix B, being his proportionate share of these proper s. 7 expenses for Yasna;

c. Laser Hair removal for Yasna’s entire body (Appendix B, item 39) in the sum of $2,109.70 is a proper s. 7 expense, and Mr. Mistry shall pay 75 percent of those expenses, as they are due, and in accordance with the procedure set out below;

d. The parties shall within 30 days confirm with their counsel that they have registered and paid for a yearly subscription to ourfamilywizard.ca (“OFW”); they shall each continue to renew this subscription on a yearly basis until both Yasna and Yazad are no longer children of the marriage; and each party shall bear their own cost of registration;

e. OFW shall facilitate communication between the parties with respect to s. 7 expenses and other child-focused issues only and shall facilitate the ongoing exchange of financial information as required by the Child Support Guidelines;

f. Within 30 days, the parties, through their counsel, will cooperate and amend the bail restrictions of Mr. Mistry to allow the communication set forth herein;

g. When either party wishes to seek the other’s consent for s. 7 expenses, they shall seeks the other’s permission in writing through OFW; supporting documentation showing the nature and the amount of the expense shall accompany this request; the other party has 14 days from the date they receive this supporting documentation to agree or deny the expense; if there is no response in 14 days, this will be deemed a denial; if the matter is time-sensitive and a response is needed sooner, the requesting party must clearly highlight the amended due date for a response and payment; “time sensitive” matters are those that the requesting party could not reasonably know about more than 14 days in advance and is required to be paid in less than 14 days from the date the requesting party learned of the expense;

h. If both parties agree to a s. 7 expense, Ms. Mistry shall pay 25 percent and Mr. Mistry shall pay 75 percent directly to the 3rd party provider within five business days and advise the other party that they have done so, through OFW;

i. Until which time the parties enroll in OFW, they shall communicate with respect to s. 7 expenses through their trial counsel;

j. If the parties both do not agree to the s. 7 expense, the requesting party may, at their own risk, pay the s. 7 expense and may then bring the matter before this court for determination;

k. If the parties are unable to settle the issue of costs as between themselves, the Applicant Ms. Mistry shall serve and file her written costs submissions, limited to 2 pages, single sided, double spaced, exclusive of a Costs Outline and case law, no later than 4:30 p.m. on January 25, 2019; the Respondent Mr. Mistry shall serve and file his responding materials, with the same restrictions as to length and content, no later than 4:30 p.m. on February 8, 2019; any Reply submissions, with the same length and content restrictions, shall be served and filed no later than 4:30 p.m. on February 15, 2019.

Fowler Byrne J.

Released: January 8, 2019

Appendix “A” – Expenses Claimed for Yazad

Item	Date	Item	Total Cost	Father’s share (75%)	Applicable Section
1	July 14, 2016	Port Credit Yacht Club Sailing Regatta	$120.00	$90.00	7(1)(g)
2	September 10, 2016	Streetsville Secondary School Fees, Music Fees, Canada’s Wonderland Music Festival Performance	145.00	108.75	7(1)(e)
3	June 21, 2016	Consultation with Dr. Glenn Morowetz, re maxillofacial jaw surgery	140.00	105.00	7(1)(d)
4	October 30, 2016	Air Cadets – 540 Golden Hawks reg’n fee, Duke of Ed. Fee, Mess dinner fee, CPR Training fees	255.00	191.25	7(1)(g)
5	February 13, 2017	CSIA Level I Instructor Certification (3 day course)	446.35	334.76	7(1)(g)
6	July 4, 2017	Air Cadets Algonquin Canoe Trip	250.00	187.5	7(1)(g)
7	September 7, 2017	Streetsville Secondary School Fees	115.00	86.25	7(1)(e)
8	October 1, 2017	Air Cadets Enrollment Fee	164.00	123.00	7(1)(g)
9	October 26, 2017	CSIA Annual Membership Fee	105.74	79.31	7(1)(g)
10	February 22, 2018	MTO Marine Medical Examination	178.00	133.5	7(1)(f)
11	March 10, 2018	Air Cadets – March Break trip to Wash. and Grad Ring	400.00	300.00	7(1)(g)
12	June 2018	Graduation Photos	221.48	166.11	7(1)(e)
13	June 2018	Grad Breakfast	25.00	18.75	7(1)(e)
14	June 2018	Grad Gown	35.00	26.25	7(1)(e)
15	June 2018	Grad trip to Canada’s Wonderland	45.00	33.75	7(1)(e)
16	June 2018	Graduation Prom	85.00	63.75	7(1)(e)
17	May 30, 2018	Residency Fees for College	515.00	386.25	7(1)(f)
18	September 1, 2018	Residency Fees, con’t	675.00	506.25	7(1)(f)
19	September 15, 2018	Car Insurance (Sept. and Oct. only)	178.00	133.5	7(1)(f)
20	Oct 2018 – Oct. 2019	Car Insurance	1528.00	1146.00	Withdrawn in trial
21	October 11, 2018	CSIA Annual Membership Fee	108.00	81.00	7(1)(g)
Total (75%):				$3,154.93

Appendix “B” – Expenses Claim for Yasna

Item	Date	Item	Total Cost	Father’s share (75%)	Applicable Section
22	July 17, 2016	OELC 2016 – fees	$111.87	$83.90	7(1)(e)
23	May 16, 2016	Conservation Halton Councillor in Training Course	252.00	189.00	7(1)(g)
24	March 23, 2016	Port Credit Secondary School Fees, uniform fee, crest	395.00	296.25	7(1)(e)
25	May 12, 2016	Eyeware – Dr. Preeti (no coverage)	200.00	150.00	7(1)(d)
26	February 13, 2017	CSIA Level I Instructor Certification course (3 day)	446.35	334.76	7(1)(g)
27	July 9, 2017	OELC Program	730.21	547.66	7(1)(e)
28	July 9, 2017	OELC – uniform fee	113.00	84.75	7(1)(e)
29	July 9, 2017	OELC – bus fee	80.00	60.00	7(1)(e)
30	June 26, 2017	Port Credit SS. Fee, uniform fee	305.00	228.75	7(1)(e)
31	October 29, 2017	CSIA Annual Membership Fee	105.74	79.31	7(1)(g)
32	November 26, 2017	Phoenix Leadership Project (for May 2018)	225.85	169.39	7(1)(g)
33	June 25, 2018	OELC Secondary Athletic Program	780.01	585.01	7(1)(e)
34	June 25, 2018	OELC Uniform Fee	113.00	84.75	7(1)(e)
35	June 25, 2018	OELC Bus Fee	80.00	60.00	7(1)(e)
36	June 25, 2018	Port Credit SS Fees, uniform fee	305.00	228.75	7(1)(e)
37	September 13, 2018	221 Degrees Salon – Laser Treatment – first payment (face & neck)	226.00	169.50	7(1)(d)
38	September 13, 2018	221 Degrees Salon – second payment (face & neck)	226.00	169.50	7(1)(d)
39	In coming year	221 Degrees Salon (full body) – 12 sessions	2,109.70	1,582.28	7(1)(d)
40	September 27, 2018	Port Credit SS Montreal School Trip – 1st payment	75.00	56.25	7(1)(e)
41	October 27, 2018	Port Credit SS Montreal School Trip – 2nd payment	75.00	56.25	7(1)(e)
42	November 27, 2018	Port Credit SS Montreal School Trip – 3rd payment	75.00	56.25	7(1)(e)
43	December 19, 2018	Port Credit SS Montreal School Trip – final payment	373.67	280.25	7(1)(e)
44	October 1, 2018	CSIA Annual Membership	108.00	81.00	7(1)(g)
Total (75%):				$5,633.54

COURT FILE NO.: FS-15-84767 DATE: 2019 01 08 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ARMIN MISTRY Applicant - and - NAUZER MISTRY Respondent REASONS FOR JUDGMENT Fowler Byrne J. Released: January 8, 2019