Court File and Parties
Court File No.: Brampton 1508/11 Date: 2012-08-22 Ontario Court of Justice
Between: Jeanette Khan, Applicant
— And —
Omar Khan, Respondent
Before: Justice J.C. Baldock
Heard on: August 13, 2012
Reasons for Judgment released on: August 22, 2012
Jeanette Khan ...................................................................................................... on her own behalf
Omar Khan .......................................................................................................... on his own behalf
Judgment
BALDOCK, J.:
[1] The respondent father brought a motion to change in which he sought enforcement of the access provisions contained in the parties' separation agreement dated August 4, 2011 and an adjustment (retroactively and going forward) with respect to payments made towards s.7 expenses. The applicant mother responded and sought a variation of the custody/access provisions to grant her sole custody, and for the respondent to pay child support in accordance with the Guidelines as well as s.7 expenses as set out in their agreement, adjusted to reflect the respondent's income.
[2] The parties resolved all custody/access issues by way of mediation. They were not able to agree on the financial issues.
[3] The parties are the parents of two children, Cody West Khan, born October 11, 2001, and Kiley Rose Khan, born August 15, 2004.
[4] They entered into a separation agreement ("the agreement") on August 4, 2011, which provided that the respondent pay $797.00 per month as child support on the 15th day of each month. At the time, his income was stated to be $118,300.00 for which the Guideline amount is $1,640.00. The applicant's income was $55,000.00 and, although not clearly stated in the agreement, I assume the support agreed to was a set off as a reflection of the joint custody and time sharing. However, the schedule set out in the agreement, i.e. Tuesdays, Thursdays and alternate weekends from Friday to Sunday; half of Christmas and three weeks in the summer, does not in my view amount to over 40 percent or otherwise justify support in an amount less than the Guidelines.
[5] The agreement also provided that the respondent pay $257.00 per month as his proportionate share of the $600.00 per month daycare expense.
[6] Again, there is no rationale set out in the agreement for the less than 50 percent payment by the respondent, even if additional income is attributed to the applicant as discussed below.
[7] The amount for daycare was a variation of an earlier agreement which was based on a total monthly cost of $800.00 per month.
[8] The respondent alleges that subsequent to the signing of the agreement, he found out that the applicant's daycare costs had not in fact been $800.00, as set out in the earlier agreement. He believed he had overpaid by $86.61 per month for 11 months, for a total of $916.00, which he arbitrarily deducted in two instalments from the child support payments for November and December, 2011.
[9] He argues that the applicant was under an obligation to disclose the actual amount she had been paying for daycare.
[10] While there is an obligation to make full and complete disclosure, I note that both parties received independent legal advice before signing the agreement.
[11] Furthermore, the agreement contained no requirement for the applicant to prove the expense. It appears that, rather than keep adjusting for what may have been a fluctuating expense, they simply agreed to a set amount to be reviewed annually.
[12] The respondent could certainly have requested receipts or other proof of the cost. The agreement was not retroactive, and therefore did not address daycare costs prior to August, 2011.
[13] In the circumstances, I decline to make any change to the respondent's contribution to daycare costs which may have been made before August, 2011.
[14] Overall, I find that the child support provisions in the agreement are drafted in a manner which heavily favours the respondent.
[15] For example, paragraph 4.13 provides that the respondent is entitled to claim the child tax benefit and other child related payments for six months of the year, which would normally all be paid to the person having primary care of the children.
[16] In addition, the agreement refers to a payment for future spousal support in an unspecified amount. It provides that for the calculation of s. 7 expenses, an additional $9,012.00 is to be added to the applicant's income for the next seven years.
[17] Even this, however, does not serve to reduce the respondent's contribution to less than 50 percent. The agreement does not specify that this amount be attributed to the applicant in order to calculate a set off for child support, although, having regard to the Guidelines, it appears that this may have been what was done, as the set off amount would otherwise have been $823.00 per month.
[18] The respondent also seeks a contribution by the applicant to the cost of day camp. In his view he should at most pay only 42 percent. The applicant, who has been unemployed, was unable to pay the cost for the children and asked the respondent to help. He charged the cost on his credit card. The total cost for the camp was $2,457.00. The respondent seeks reimbursement of $1,405.40 as the applicant's 58 percent share.
[19] This raises the issue of what the correct proportionate share of each party should be.
[20] The applicant's income for January to June 2012 was $9,077.00 from Employment Insurance. She has now obtained employment and her income is $28.50 per hour for a 40 hour week, or approximately $29,640.00 for six months, July to December.
[21] Her total 2012 income is therefore estimated at $38,717.00, to which should be added the sum of $9,012.00, for a total of $47,729.00.
[22] The respondent's income is $118,300.00. The ratio for all s.7 expenses for 2012 should therefore be 71 percent.
[23] Assuming the applicant continues her current employment, her contribution for 2013 will be based on $59,280.00 income, plus $9,012.00 for a total of $68,292.00 or 37 percent (respondent's share 63 percent).
[24] The applicant in her response to the motion to change has asked that the respondent pay Guideline child support. There is no evidence before me to justify any other order.
[25] Accordingly, I make the following order:
Order
The respondent shall pay for the support of two children the sum of $1,640.00 per month, effective January 1, 2012, based on an income of $118,300.00 per year.
The respondent shall pay 71 percent of all s.7 expenses incurred by the applicant for the children, including daycare and summer camp, effective January 1, 2012.
The applicant shall provide the respondent with copies of all invoices or receipts for such expenses for January 1, 2012 to date.
The parties shall reconcile the payments required and those paid for the period January 1, 2012 to date and shall file such reconciliation signed and dated by both of them, with the Family Responsibility Office within 30 days. The Family Responsibility Office shall then make such adjustments as are necessary.
For clarity, the reconciliation shall consist of a statement of the actual cost of daycare (and any other expense incurred), the amount payable by the respondent (i.e. his 71 percent share) and the amount actually paid.
For s.7 expenses incurred from and after today's date, the applicant shall provide the respondent with proof of the expense as and when it is incurred, whereupon the respondent shall, within 15 days, reimburse her his 71 percent share. That shall decrease to 63 percent as of January 1, 2013.
The respondent shall forthwith reimburse the applicant the sum of $916.00 which he deducted from the November and December 2011 child support.
[26] Neither party being represented by counsel, there shall be no order as to costs.
[27] A support deduction order shall issue.
Released: August 22, 2012
Justice J.C. Baldock