Court File and Parties

Court File No.: Brampton 323/10 Date: 2012-03-05 Ontario Court of Justice

Between: Andrew Stephen Weatherbee, Applicant — and — Sophie Anne Wojtyczka, Respondent

Before: Justice J.C. Baldock

Heard on: February 22, 2012

Ruling on Motion released on: March 5, 2012

Counsel:

• Jacqueline B.G. King for the applicant
• Hugh M. Evans for the respondent

Decision

BALDOCK, J.:

[1] This is the applicant's motion to vary the terms of the temporary order made August 3, 2011 by terminating his obligation to contribute to the day care cost incurred by the respondent for the parties' child Kaya Sophie Marie Wojtyczka-Weatherbee, born November 17, 2009.

[2] The issues of child support and contribution to extra expenses were argued fully on July 27, 2011 and a written decision released August 3, 2011. That order provided for the applicant to contribute approximately one third or $350.00 per month towards the cost of daycare. The respondent and her parents are paying the balance.

[3] Both parties have elected to pursue higher education. The respondent is attending Teachers College with the expectation that she will graduate this spring. If, however, she is unable to find employment she may take a further year of specialized training.

[4] The applicant is working on a PhD in physics. He is paid a very modest sum as a teaching assistant and is otherwise funded through the Ontario Student Assistance Programme (OSAP) as is the respondent.

[5] He states that he is finding the obligation to pay the daycare is too onerous and he simply cannot do this and support himself.

[6] Much of the submissions of counsel related to the tax implications of the daycare expense. It appears that the respondent deducted her own (one third) portion of the expense for tax purposes. No tax benefit was claimed by the applicant. The respondent did not seem to be aware of the maximum amount she could deduct, or of the net cost to her after such a deduction.

[7] The applicant is of course only required to pay his share of the net cost. That figure has not been determined. It would be helpful if the applicant had made some enquiries in this regard. She should also get some advice on whether she can file an amended tax return for 2011 and claim the full amount and if so, how much of a tax benefit she would receive. The applicant's obligation thereafter would be limited to one third of that net amount. Thus far she has received a benefit by claiming her portion, but that benefit should be available to the applicant as well.

[8] As to the applicant's grounds for a variation of the temporary order, I find that there has been no significant change in the circumstances of either party. They are both doing what they were proposing to do when the order was made. I realize that this creates a heavy burden for both parties but it is one which must be fairly shared. The decision to pursue a higher level of education is a commendable one, provided that the qualification leads to the student's goal of remunerative and meaningful employment. The respondent mother's plan has a relatively short time line and there is a reasonable prospect of employment either this year or next. The applicant's plan is less finite. He has several years to complete his degree, which may qualify him for various opportunities but it is not job specific and the expectations are somewhat uncertain.

[9] I do not fault the applicant for pursuing his goals, but I do find the timing to be unfortunate. In considering the needs of the child, it might have been preferable to delay his return to school until the respondent had completed her training, hers having the shorter timeline. Thus one parent would have been employed while the other was in school which would have allowed for an unbroken income stream. Having chosen to do otherwise, the parents have to share the burden of providing for the child's care equally.

[10] I find no grounds to change the substance of the previous order. However, it is incumbent upon the respondent to minimize the overall cost of the daycare by claiming as much as she is entitled to. This option is not available to the applicant unless he is paying the daycare provider directly and obtains receipts.

[11] Accordingly the respondent shall make enquiries of Canada Revenue Agency, a qualified tax specialist, or such other person as may be able to advise her, to ascertain the maximum tax benefit available to her. Alternatively a "Support Mate" calculation can be provided to show the net cost. If appropriate, the respondent shall re-file her 2011 income tax return claiming the increased amount. The applicant shall pay one third of the net cost. The applicant shall be given credit for all payments already made and the appropriate adjustment made to ensure enforcement by the Family Responsibility Office in the correct amount. The applicant's motion is otherwise dismissed.

[12] Counsel may make brief (two pages maximum) written submissions with respect to the issue of costs.

Released: March 5, 2012

Justice J.C. Baldock