Court File and Parties

Court File No.: 73/12 Date: 2013-06-21

Ontario Court of Justice

Re: John David Terry v. Marisalina Moyo

Before: O'Connell J.

Counsel:

• C. Haber, for the Applicant
• K. Smithen, for the Respondent

Heard: February 15, 2013 and March 21, 2013

Endorsement

Introduction

[1] Ms Marisalina Moyo, the respondent, brought a motion for an order that the applicant, Mr. John D. Terry, contribute to her nanny expenses, retroactive to August of 2011, an order that Mr. Terry pay the cost of a financial expert, to be retained by her to conduct an evaluation of his income, and an order that Mr. Terry pay child support arrears of $4,833.00.

[2] Mr. Terry, the applicant, brought a cross-motion for questioning, that the questioning take place in Oakville, and that both parties should each bear their own costs for questioning.

[3] After Mr. Terry served his motion for questioning, Ms Moyo consented to an order that both parties be questioned. However, the issues that remained were who should bear the cost of the questioning, the place of questioning and the scope of questioning.

[4] The motions were heard before me on February 15, 2013 and March 21, 2013. Ms Smithen originally brought her motion for contribution to section 7 nanny expenses on August 16, 2012, returnable on August 22, 2012, however, that claim for relief was adjourned because there were a number of pressing custody and access issues that were also brought in the motions before me on August 22, 2012. I delivered my reasons and temporary order on the custody and access issues on December 3, 2012. Dates were then subsequently set to argue the remaining issues before me.

[5] On March 28, 2013, subject to further written reasons, I ordered that the questioning shall take place in Oakville, that each party bear their own cost for the questioning, and that the scope of the questioning shall not be limited, subject to the usual proviso that the questions be relevant to the issues at stake in these proceedings. These are my written reasons on all issues.

Position of the Parties

[6] Ms Moyo seeks contribution to the cost of a nanny expense retroactive to August of 2011. Ms Moyo pays $1,600.00 per month for the nanny. Ms Moyo is a registered nurse who is working part-time and seeking full-time employment as a nurse. She is 'on call' on an irregular basis and hopes to eventually secure full-time employment as a nurse.

[7] Ms Moyo submits that as a result of her irregular working hours, involving evening and overnight shifts, she can not avail herself of a traditional day-care, which generally does not operate after 6:00 p.m. Ms Moyo's evening shifts usually end at 11:00 p.m. and her overnight shifts are throughout the night until the next morning. She submits that given Mr. Terry's income, (approximately $798,000.00 per annum) and the reasonable expense for the nanny, he should be contributing to this cost.

[8] Regarding the questioning, Ms Moyo submits that she cannot afford the additional expense for her lawyer travelling to Oakville to conduct the questioning, nor can she afford the cost of questioning and submits that the questioning should take place in Toronto, where her lawyer practices, and that Mr Terry should pay for the full cost for both parties.

[9] Regarding the second financial expert, Ms Moyo submits that she does not have the funds to pay for her own expert to review the income evaluation prepared by Mr Terry's expert regarding his income and given the complicated nature of Mr. Terry's finances, she will require contribution towards this disbursement from Mr. Terry.

[10] Mr. Terry submits that it would be "absolutely unreasonable" to make any order requiring him to contribute to Ms Moyo's nanny expense. He submits that Ms Moyo has not provided adequate particulars proving the expense, and that the expense is unnecessary and not justified given the number of hours that she works each month. He further submits that if Ms Moyo does need child care when she is working an evening or night shift, then she can drop the child off before she leaves for work at his adult daughter's residence (a child of a previous relationship), who is willing and able to care for the child.

Background

[11] The parties met on or about 2010 through an internet dating website. Ms Moyo was living in Winnipeg, Manitoba and employed as a registered nurse specializing in geriatrics. Mr. Terry lives in Ontario and is employed by Process and Steams Specialties and is also the beneficiary of the Terry Family Trust which either directly or indirectly owns a large number of corporations which Mr. Terry actively manages.

[12] Ms Moyo moved to Ontario and the parties began residing together on or about September of 2010. The parties' relationship was brief and they separated when Ms Moyo was pregnant with Gabriel, the child who is the subject of these proceedings. Gabriel was born on May 11, 2011. Gabriel is now two years old and has resided primarily with his mother since the parties separated. Ms Moyo and Gabriel reside in Burlington, Ontario and Mr. Terry resides in Oakville, Ontario.

[13] Mr. Terry states that his income for child support purposes is $798,000.00 (according to his most recent sworn financial statement), although Ms Moyo disputes this. Ms Moyo earned approximately $18,000.00 as a part-time nurse in Ontario in 2011, and is currently seeking full-time employment. In August of 2011, Ms Moyo had obtained employment at Waterford Long Term Care Nursing home and between August of 2011 to June of 2012, she had earned $31, 857. 81, according to her most recent sworn Financial Statement dated June 10, 2012. After losing her employment at Waterford and finding further part-time employment, her income at the time of the motion was significantly less, but it is not disputed that she could earn at a minimum $35,000.00 once her employment stabilizes, if not more.

[14] Mr. Terry pays child support to Ms Moyo in the amount of $6,108.00 per month. This amount is in accordance with the Child Support Guidelines for one child, based on Mr. Terry's stated income.

[15] Mr. Terry commenced these proceedings in July of 2011, seeking custody of Gabriel and a non-removal order. Although Ms Moyo is a Canadian citizen and has resided in Canada since 2001, her country of origin is Zimbabwe, and Mr. Terry believed that she may flee the jurisdiction with Gabriel.

[16] On December 3, 2012, I ordered, on a temporary basis, that Ms Moyo have temporary sole custody of Gabriel and that Mr. Terry have specified day access in a week one week two rotation. The parties agreed to refer the custody and access issues to the Office of the Children's Lawyer for a section 112 investigation and social work report, which is still pending.

Ms Moyo's Employment History Since Coming to Ontario

[17] Since moving to Ontario and after Gabriel's birth and a period of maternity leave, Ms Moyo has attempted to gain part-time and full-time employment as a registered nurse in her field of geriatric nursing. Prior to coming to Ontario, she was employed full-time as a geriatric nurse in Manitoba.

[18] After Gabriel was born, Ms Moyo found employment at the Waterford Long Term Care Residence ("The Waterford"). She was hired as a part-time nurse on August 26, 2011. In her affidavit materials, Ms Moyo detailed copies of her earning statements between October 23, 2011 – July 1, 2012 from the Waterford confirming her income from that employer. As a part-time nurse, she earned $37.13 per hour in regular pay and worked day, evening, night and weekend shifts, which is not disputed. By May of 2012, she was working full-time hours at Waterford although the full-time hours she received were for a temporary maternity leave posting.

[19] On Ms Moyo's statement of earnings produced, she worked 29.75 hours over a two week period, sometimes more. On June 24, 2012, Ms Moyo fell and injured herself at work. She had a neck, head and back injury and wore a neck brace for 3 months and was not working for the month of July 1, 2012.

[20] On July 20, 2012 Ms Moyo received notice from the Waterford advising that they have tried to give her modified work duties which was not accepted and as a result, she was terminated.

[21] Ms Moyo began looking for other employment opportunities and continued to rely on her nanny to care for Gabriel while looking for employment. In August 2012, she was interviewed at the Village of Tansley Woods ("Tansley Woods"), a residential geriatric facility in Burlington. She was offered a position to work night shifts including eight shifts every two weeks at the same rate she was earning at Waterford, effective September 26, 2012. However, she then received notice that another candidate was hired, according to the letter from Tansley Woods filed in her evidence.

[22] Ms Moyo began looking for work, again, and continued to rely on the nanny to care for Gabriel while she attended interviews. On November 28, 2012, she was offered a position as a registered nurse with the Rehab Department at Joseph Brant Memorial Hospital. The Rehab Department at this hospital is geriatric-based care. Her date of hire was Monday, December 10, 2012. This offer of employment is contingent on a number of requirements, including a probationary period of 525 hours during which time her performance will be discussed. Ms Moyo appeared to have met all of requirements at the time the motion was argued, however, she had not completed 525 hours of work.

[23] Ms Moyo was told by the hospital that she was initially employed on a relief basis as a nurse and her work will involve a variety of shifts that could occur during days, evenings, overnights and/or on weekends, most at last minute notice. She will need to be available for any shift to be able to establish myself at the hospital. She hopes by doing this that she will eventually obtain permanent, full-time employment. Her first shifts at the hospital commenced on January 14, 2013. For the week of January 14 – 20, 2013 she had four shifts of twelve hours each. Two of them are day shifts and the other two are night shifts. Night shifts are from 7:30 p.m. to 7:30 a.m.

[24] Ms Moyo provided significant supporting documentation including copies of earning statements, time cards, and correspondence from employers setting out the hours and nature of her work as a nurse. She submits that as a result of this unpredictable job schedule, she will continue to require the assistance of Gabriel's nanny Marilla Charles, who lives with Gabriel and her, to provide me with child care on weekends, overnight and in the evenings while Ms Moyo is working. Ms Charles provided a sworn affidavit confirming her job description and that she earns in total $1,600.00 per month.

The Law and Analysis

Section 7 Expenses

[25] 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:

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 $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.

[26] An order for contribution to special and extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and amount: Julien Payne and Marilyn Payne, Child Support Guidelines in Canada, 2009, Irwin Law (Toronto), p. 227, 231. Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (SCJ); L.H.M.K. v. B.P.K., 2012 BCSC 435, [2012] B.C.J. 593 (SCJ); Titova v. Titov, 2012 ONCA 864.

[27] In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party's income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation." If the expenses fall under s. 7(1) (d) or (f) of the Guidelines, the trial judge determines whether the expenses are "extraordinary". Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

[28] 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.).

[29] Section 7 also requires that the expense be 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. See Correia v. Correia, [2002] M.J. No. 248, 2002 MBQB 172, 29 R.F.L. (5th) 28. In that case, Justice Allen set out a number of factors to be taken into account in determining the reasonableness of a s. 7 expense:

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.

[30] In my view, having regard to all of the factors above, the mother's claim for a nanny is a reasonable and necessary expense, taking into account the nature of her employment, Gabriel's best interests, and the parties' respective incomes. She has also provided sufficient evidence regarding the cost.

[31] Ms Moyo has worked part-time as a nurse for the past two years. She has attempted to find full-time work. She has provided extensive documentary evidence that demonstrates that she has been hired on an "on-call" basis by each employer with the objective of working towards a full-time permanent position. As she is a geriatric nurse, she has been hired in that field by all employers. She was hired as a part-time nurse by the Waterford, then with the Tansley Woods facility, and more recently, with Joseph Brant Hospital. The evidence is uncontradicted that her hours of work are unpredictable and she is often called at the last minute. Further, it is not disputed that she works days, evenings and night shifts.

[32] Mr. Terry's calculation, through his counsel, that Ms Moyo only works, on average, 13.9 hours each month is not a fair way to assess Ms Moyo's average monthly work hours over the past 20 months. As a result of the injury that Ms Moyo sustained at the Waterford, Ms Moyo was not able to work for the month of July as a result of the injury and then received her notice of termination from Waterford on August 4, 2012. She actively sought employment after that time and secured the position at Joseph Brant. Without this disruption, Ms Moyo's average monthly part-time income after she returned to work was significantly higher and indicates that her goal is to eventually obtain a full-time position at the hospital. Given the unpredictable and overnight part-time hours that she is working, having a nanny assist in child care while she is away is the only way that she can achieve this goal.

[33] Further, the work that the nanny has done has actually assisted both parents. This has helped Ms Moyo return to work and rebuild her nursing career. It is not possible or very difficult to work overnight and evening shifts without a live-in caregiver. As Mr. Terry has deposed in his own affidavit material, he has had to travel extensively for work related purposes and having a nanny at home with Gabriel at night and providing him stability and routine has assisted him as well. It is not disputed that Gabriel has a positive and warm attachment to the nanny who has provided him with consistency and routine when both parties are away as a result of their work.

[34] Mr. Terry's proposal that his daughter provide her nannies to assist when Ms Moyo is working evening and overnight shifts is an obvious admission that he knows a nanny is necessary. However, to suggest that Ms Moyo remove Gabriel from his home and bed-time routine and drive him over to another person's home where he either sleeps the night or is picked up by Ms Moyo at 11:30 p.m. after her evening shift is contrary to his best interests. There is no reason why Gabriel does not deserve the care and attention of a nanny in his own home, where he can wake up in his own bed, just as Mr. Terry's grandchildren have the benefit of doing. I also point out that Mr. Terry's adult daughter has five children (including triplets) all under the age of six. In my view, Mr. Terry's daughter and nanny (1.5 nannies for five children, not including Gabriel) have their hands full already.

[35] More importantly, however, to propose taking Gabriel out of his own home in the middle of the night, sometimes at the last minute, given the 'on call' nature of Ms Moyo's work is contrary to his best interests. Gabriel has a routine with his mother and nanny that has been in place for two years. The evidence is uncontradicted that the pattern of child-care that Gabriel has experienced has been consistent, loving and stable.

[36] I further respectfully disagree with Mr. Terry's submission that Ms Moyo has not proven the expense and that the claim should be dismissed for lack of evidence. It is not disputed that Ms Moyo pays the nanny cash. The nanny has sworn an affidavit in these proceedings frankly admitting that she does not have legal status as of yet in Canada. In her affidavit, she deposed the hours that she works for Ms Moyo and how much she is paid. Ms Moyo also provided sworn affidavit evidence regarding this. Ms Moyo cannot claim the child care expense on her tax return because of the payment arrangement between the nanny and Ms Moyo. She has also provided copies of receipts.

[37] It is not disputed that the nanny is not related to Ms Moyo, nor is she a personal friend of Ms Moyo. She is a professional nanny who is receiving payment directly from Ms Moyo until she regularizes her immigration status, based on the sworn affidavits filed. The nanny's affidavit is very detailed and provides full particulars. Ms Moyo has provided the best evidence of the actual cost of the nanny, which is not an unreasonable cost in the circumstances. These are not speculative costs, but real costs actually incurred, contrary to the case by law relied upon counsel for Mr. Terry.

[38] Further, the actual monthly expense, at $1,600.00 per month is not exorbitant, as in some of the cases provided by Mr. Terry's counsel and Mr. Terry is clearly capable of contributing to this expense, given his stated income of $798,000.00.

[39] Ms Moyo has spent in excess of $30,000.00 in nanny expenses without any contribution from Mr. Terry over the past two years. Ms Moyo originally brought her motion for a temporary order seeking contribution to the nanny expense on August 22, 2012. For the reasons outlined earlier, her motion was repeatedly adjourned to hear other issues raised in the parties' motions before me. The full argument on the issue of the section 7 expenses did not occur until February 15th and March 22, 2013.

[40] Given Mr. Terry's stated income of $798,000.00 (according to his most recent sworn financial statement in these proceedings), and even with Ms Moyo's income imputed at a minimum $35,000.00 while she builds up her hours at the hospital, Mr. Terry's contribution to the nanny expense is 96%, or $1,536.00 per month.

[41] I agree with Ms Haber that any retroactive claims prior to the commencement of the motion are triable issues and should be dealt with at trial. However, the mother's claim in her motion dated August 16, 2012 is not for retroactive support, but rather prospective. She has been seeking contribution on a temporary basis since August of 2012, as her motion materials set out, but the motion was repeatedly adjourned. Ordinarily, once entitlement and ability to pay are established, the support is payable at a minimum, from the date on which the motion or application is served, as to do otherwise will only provide parties with an incentive to delay. See MacKinnon v. MacKinnon, 75 O.R. (3d) 175, 199 O.A.C. 353, 256 D.L.R. (4th) 385, 13 R.F.L. (6th) 221, [2005] O.J. No. 1552, 2005 CarswellOnt 1536 (Ont. C.A.).

[42] Any retroactive claims prior to the commencement of the motion (and application) should be dealt with at trial, as should the retroactive claim of $4,800.00 in child support arrears.

Questioning

[43] Rule 20 governs questioning. In this case, both parties ultimately consented to questioning given the complicated financial issues and custody and access issues. I will also point out that parties have the automatic right to question on a financial statement under subrule 13 (13) without the need to first obtain leave. See McLean v. Hawkey, 2012 ONSC 1437.

[44] Although I have already ruled on this issue, my reasons for ordering that the questioning should take place in Oakville and that both parties bear their own legal costs of the questioning are as follows. First, the proceedings are in Halton Region, both parties and one counsel live in Oakville/Burlington and only one counsel (Ms Moyo's counsel) lives in Toronto. Oakville was a half-way point between both counsel's offices. It is not unduly onerous for counsel to drive from Toronto to Oakville (approximately 30 minutes from Toronto) and it is convenient to both parties. Secondly, regarding the cost of the questioning, it is generally always the practice in litigation that each party is responsible for the cost of questioning the other part, subject to adjustment or costs at the conclusion of the proceeding. Finally, questioning should not be limited, so long as the questions are relevant to the issues on the proceedings.

Respondent's Request for Disbursement Costs for Her Financial Expert

[45] In Stuart v. Stuart, [2001] O.J. No. 5172 (Ont. S.C.) at paragraph [8], Justice Rogers summarized the principles that a court should consider in determining whether to award interim costs for disbursements as follows:

1. The ordering of interim disbursements is discretionary: Airst v. Airst, [1995] O.J. No. 3005 (Ont. Gen. Div.); Hill v. Hill, (1988), 63 O.R. (2d) 618 (Ont. H.C.) and Lossing v. Dmuchowski, [2000] O.J. No. 837 (Ont. S.C.J.).

2. A claimant must demonstrate that absent the advance of funds for interim disbursements, the claimant cannot present or analyse settlement offers or pursue entitlement: Hill v. Hill, (1988), 63 O.R. (2d) 618 (Ont. H.C.) and Airst v. Airst, [1995] O.J. No. 3005 (Ont. Gen. Div.).

3. It must be shown that the particular expenses are necessary: Lossing v. Dmuchowski, [2000] O.J. No. 837 (Ont. S.C.J.).

4. Is the claim being advanced meritorious? Lynch v. Lynch, (1999), 1 R.F.L. (5th) 309 (Ont. S.C.J.) and Randle v. Randle, 1999 ABQB 954, (1999), 3 R.F.L. (5th) 139 (Alta. Q.B.).

5. The exercise of discretion should be limited to exceptional cases: Organ v. Barnett, (1992), 11 O.R. (3d) 210 (Ont. Gen. Div.).

6. Interim costs in matrimonial cases may be granted to level the playing field: Randle v. Randle, 1999 ABQB 954, (1999), 3 R.F.L. (5th) 139 (Alta. Q.B.).

7. Monies might be advanced against an equalization payment: Zagdanski v. Zagdanski, 2001 Carswell Ont. 2517 (Ont. S.C.J.).

[46] In order for Ms Moyo to effectively question Mr. Terry on his financial statements and to review the income evaluation prepared by Mr. Terry's financial expert, she will need to retain her own expert. Given the very complicated nature of Mr. Terry's finances, an expert is necessary, and in the absence of sufficient funds to hire an expert, Ms Moyo will not be able to purse entitlement or analyze settlement offers.

[47] In my view, Ms Moyo should receive $10,000.00 forthwith to retain an expert to review and critique Mr. Terry's income evaluation and to assist her counsel in questioning. This amount is subject to adjustment at the conclusion of the proceedings and may be set off against any arrears owing.

Order

[48] I make the following temporary order:

1. Commencing August 1, 2012, Mr. Terry shall contribute $1,536.00 per month towards the child care expense of the child's nanny, in accordance with section 7 of the Child Support Guidelines.

2. The arrears fixed as a result of this order are $16,896.00. These shall be paid forthwith and no later than Friday, June 28, 2013.

3. Mr. Terry shall advance the sum of $10,000.00 forthwith as an interim disbursement so that Ms Moyo can retain a financial expert to review and analyze Mr. Terry's income. This amount shall be paid forthwith, and no later than Friday, June 28, 2013. This interim disbursement is subject to adjustment at the conclusion of the proceedings and may be set off against any arrears owing.

4. This order is without prejudice to any further claims for retroactive support.

5. A support deduction order shall issue.

[49] It appears that Ms Moyo was largely the successful party on this motion, (subject to any offers to settle that I have not seen). Ms Moyo shall submit her costs submissions and bill of costs no later than 10 days from today. The submissions shall be limited to three pages, not including any offers to settle or the bill of costs attached. Ms Haber shall provide her response in 10 days, again limited to three pages, not including any offers to settle or bill of costs attached. As indicated to counsel previously, I will release both costs awards (for this motion and my ruling regarding the December 3 custody and access motion) together after I receive these submissions.

"Sheilagh O'Connell"

Justice Sheilagh O'Connell

Date: June 21, 2013