Court File and Parties

Date: 2016-12-06

Court File No.: D43532/08

Ontario Court of Justice

Between:

Anne Black-Johnson Acting in Person Applicant

- and -

Greig Robert Black Respondent

Counsel: Glen Schwartz, for the Respondent

Heard: December 2, 2016

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The parties have both brought motions to change the child support terms contained in the order of this court (the existing order) dated May 10, 2011, relating to their children (the children), who are now 17 years old (the son) and 14 years old (the daughter). The existing order requires the father to pay the applicant (the mother) child support of $1,612 each month (the guidelines table support) plus $150 each month for the children's special and extraordinary expenses (section 7 expenses) pursuant to section 7 of the Child Support Guidelines (the guidelines).

[2] The father alleges that the son has lived with him since the fall 2014. He claims that he has overpaid support to the mother. He also claims that the mother has failed to pay her share of the daughter's orthodontic expenses. He asks that the mother pay him the sum of $43,302. He submits that since the parties have comparable incomes, no ongoing guidelines table support should be paid. He proposes that he pay for the son's section 7 expenses and that the mother pay for the daughter's section 7 expenses. The father suggests that the payment of section 7 expenses be reviewed when the son starts attending university in September 2017.

[3] The mother asks to dismiss the father's motion to change. She states that the son has always lived with her. She seeks a retroactive increase in child support, including an order that the father pay his proportionate share of section 7 expenses retroactive to January 1, 2012. She seeks $26,919 for all retroactive support adjustments. Lastly, she asks that the father pay ongoing guidelines table support for the children based on his current income.

[4] The parties filed extensive affidavit material. Both testified and were cross-examined.

[5] The significant issues for this court to determine are:

a) Where has the son been living since September 2014?

b) If the son has been living with the father at any time since September 2014, how should the parties' support obligations be adjusted?

c) Should either party be required to pay retroactive support to the other, and if so, how much?

d) What expenses claimed by the parties are eligible section 7 expenses?

e) In assessing the parties' support obligations, should income be imputed to the mother, and if so, how much?

f) If monies are owing by one party to the other after this analysis, how should they be paid?

Part Two – Background Facts

[6] The parties are both 49 years old.

[7] The parties were married in 1998 and separated at the start of 2004. They have not reconciled.

[8] The parties are both elementary school principals.

[9] The mother has lived with her current partner (Andrew) for 11 years. They reside together in Markham, Ontario with two children from their relationship. C. is 10 years old and R. is 8 years old.

[10] The mother has been on a leave of absence from the Toronto District School Board since April 2016.

[11] The father lives in Toronto and works in York Region.

[12] The parties entered into a separation agreement dated May 26, 2004 that resolved all issues between them at that time.

[13] The parties agreed to joint custody of the children. The children primarily lived with the mother and spent significant parenting time with the father. The father agreed to pay guidelines table support to the mother of $1,219 each month. A mechanism was agreed to for payment of section 7 expenses.

[14] The mother filed the agreement with the court pursuant to section 35 of the Family Law Act (the Act) and brought a motion to change it in 2008. On December 5, 2008, the court ordered, on consent, that the father increase his guidelines table support to $1,522 each month, starting on January 1, 2009, based on his income of $109,700.

[15] The mother brought another motion to change in 2010. On May 10, 2011, the court made the existing order on consent. This order includes terms stating:

a) The father pay the mother $4,000 for all retroactive claims for support.

b) The father pay guidelines table support of $1,612 each month, based on an annual income of $117,219.

c) On an ongoing basis, the father pay the mother $150 each month for section 7 expenses. The parties, to obtain cost certainty and avoid future litigation, agree to keep this number fixed, even if:

1. More section 7 expenses are incurred;
2. Less section 7 expenses are incurred;
3. Their incomes change.

d) The only change to the section 7 expenses will be if a child incurs orthodontic costs, in which case the cost, not covered by a medical plan, will be split pro-rata to their gross incomes in the previous tax year, and when a child begins post-secondary school, at which point, if the parties cannot agree, the proportional section 7 expenses will be reevaluated.

e) The parties shall continue to exchange income tax returns and notices of assessment by June 30th each year.

f) Child support shall be based on the father's annual income for the previous tax year. If any adjustment needs to be made, the parties shall readjust the table amount within 30 days of the father notifying the mother as to what his prior year's income was.

g) Both parties are to notify the Family Responsibility office by March 31st each year what the support adjustment will be.

[16] On August 1, 2015, the mother emailed the father asking him to update the Family Responsibility Office about the changes in his income since the existing order. She wanted him to increase his guidelines table support based on his increases in income since the existing order was made.

[17] The father responded with an email to the mother on August 4, 2015. He disputed owing any support arrears and said that not only had he paid all the orthodontic costs of the daughter, but for the past year the son had been living with him for the "overwhelming majority of time".

[18] The parties subsequently retained counsel and attempted to resolve the matter.

[19] The father issued his Motion to Change on January 19, 2016. The mother filed her Response to Motion to Change on June 16, 2016.

[20] This hearing was originally scheduled for trial on August 12, 2016. It was adjourned on consent. The mother had missed her filing timelines and the father required additional time to respond to her materials.

[21] The father has paid the support set out in the existing order, including the December 1, 2016 payments.

Part Three – Guidelines Table Support Adjustments Agreed To

[22] Paragraphs 6 and 7 of the existing order required annual adjustments to the father's guidelines table support based on changes to his income. The parties were to notify the Family Responsibility Office about these adjustments. This was not done.

[23] The father conceded at the hearing that his guidelines table support should be adjusted from January 1, 2012 until November 2014, being the time he claims the son came to live with him.

[24] The father's income in 2012 was $122,991. The guidelines table support should have been $1,697 each month. He paid $1,612 each month. The support adjustment for 2012 is $1,020 (the differential of $85 each month x 12 months).

[25] The father's income in 2013 was $122,492. He paid $1,612 each month. The guidelines table support should have been $1,691 each month. The support adjustment for 2013 is $948 (the differential of $79 each month x 12 months).

[26] The father's income in 2014 was $122,996. The guidelines table support should have been $1,697 each month. He paid $1,612 each month. The support adjustment until November 2014 is $850 (the differential of $85 each month x 10 months).

[27] The father's income in 2015 and on an ongoing basis is $123,026.

[28] The agreed total credit for the mother for adjustments to guidelines table support for the period January 1, 2012 to November 2014 is $2,818 ($1,020 + 948 + 850).

Part Four – Where Has the Son Lived Since the Fall of 2014?

[29] The father claims that the son has lived with him since November 2014. The mother claims that the son has always lived with her and has only visited with the father. She characterized the father's claim as a "money grab".

[30] The court preferred the father's evidence to the mother's. The father produced a detailed daily calendar of when the son stayed overnight with him after August 2014. He also produced his water bills showing a significant increase in water consumption after September 2014.

[31] The mother provided bald statements that the father was lying and the son primarily lived with her. She provided little in the way of challenge to the father's calendar. She specifically claimed that 4 or 5 of the dates claimed as overnights by the father (over 2 years) were wrong. The mother conceded the father's evidence that the son spent 22 out of 31 days with him in October 2016 and 23 out of 28 days with him in November 2016, yet continued to maintain that the son was living primarily with her.

[32] The son has attended school in Toronto since September 2014. It makes sense that he would want to live in Toronto during the school week, not in Markham.

[33] The court finds that the son primarily lived with the father during the 2014-2015 school year, but also spent significant time with the mother – enough that it constituted a shared parenting arrangement under section 9 of the guidelines.

[34] This finding is supported by a letter dated September 10, 2015, sent by the father's counsel to the mother's counsel. In this letter, counsel writes:

According to the schedule of times attached, the son resides with Mr. Black approximately 57% of the time and has since August 2014.

[35] To support his claim that the son spent over 60% of his time with him, the father started his calculation from November 2014. The court finds that it is fairer to base its calculation of parenting time on the entirety of the 2014-2015 school year (including the summer of 2015) and not just calculate the portion of the year that works to the father's advantage. Further, even the father's calculation from November 2014 just barely has the son with him over 60% of the time. While the court preferred the father's evidence, the father fairly conceded that a few dates listed in his calendar might have been inaccurate. The mother established a few inaccuracies about the father's records in her evidence. It would only take a couple of incorrect dates to have the time from November 2014 through August 2015 go under the 60% threshold. The court finds that this was the case.

[36] The analysis is different starting in September 2015. At this point, the son spent increased time with the father.

[37] Based on the father's calculations, the son spent 72% of overnights with him from September 2015 until August 2016. Even if the court accepted that the son was not with the father on the few dates that the mother challenged, the evidence establishes that the son resided with the father.

[38] The father led evidence that since September 2016, the son has spent 73% of overnights with him. This evidence was not meaningfully challenged by the mother.

[39] The court finds that the shared parenting arrangement ended at the end of August 2015. The son has lived with the father since then.

Part Five – Retroactive Support

5.1 Positions and Evidence of the Parties

5.1.1 The Father

[40] The father asked that his guidelines table support obligation be terminated from the date the son came to live with him and that he be reimbursed for his overpayments in support.

[41] The father also claimed that the mother has not paid her proportionate share of the daughter's orthodontic expenses as required by the existing order. He paid these expenses from April 2013 until August 2016. He received partial reimbursement from his insurer and $1,500 from the mother. He claims that the mother owes him $3,042 for her share of these expenses, as well as 50% of his health insurance premiums.

[42] The father also asked that the mother pay 50% of a variety of section 7 expenses he has incurred since 2013. The total amount of these expenses was $2,746. There was no evidence that the father had sought reimbursement for these expenses prior to his motion to change.

[43] The father submits that in conducting its support analysis the court should treat the parties as having equal incomes. He believes that the mother has acted unreasonably in taking a leave of absence from her employment and income should be imputed to her at the level she was earning in 2015.

[44] The father's position is that no guidelines table support should be paid by either party as this is a split custody case as defined in section 8 of the guidelines and the parties have equal incomes. He proposed that he pay the son's section 7 expenses and that the mother pay the daughter's section 7 expenses.

[45] The father submitted calculations that the mother owed him $43,302 if all his claims were granted.

[46] The father acknowledged that he did not take steps to pursue his claims until the mother asked him for increased support in August 2015. He testified that he did not want to go through the ordeal of another court case.

[47] The father asked that the mother's claim for retroactive section 7 expenses be dismissed. He submitted that the existing order contemplated increased section 7 expenses and expressly provided for no further adjustments. He claimed that the mother would arrange activities for the children without his input or consent. He said that the mother did not seek reimbursement for most of the section 7 expenses claimed until she filed her Response to Motion to Change. Lastly, he disputed whether many of the expenses were proper section 7 expenses as defined by that section.

5.1.2 The Mother's Position and Evidence

[48] The mother asked that the father's motion to change be dismissed.

[49] The mother said that she did not pay her share of the daughter's orthodontic expenses as she felt that the work was done prematurely. She also said that the father never sought reimbursement from her for his other section 7 claims.

[50] The mother made a substantial claim for retroactive section 7 expenses, calculated from January 1, 2012. The total of these expenses was $53,838. She asked that the father pay 50% of these expenses. These included expenses for child care, hockey and tutoring for the daughter, voice lessons and music theatre for the son and school trips and camp for both children.

[51] The mother submitted that she had to incur child care expenses for the daughter when she went to back to work in 2012 and this constituted a material change in circumstances that warrants changing the terms of the existing order.

[52] The mother deposed that she would, on occasion, ask the father to contribute to some of these section 7 expenses, but he always refused, saying that is what his $150 payment each month was for.

[53] The mother conceded that she did not take any steps to have the father's share of section 7 expenses increased until the lawyers became involved in September 2015. She did not want to have to go through the stress of another court case.

[54] There were considerable difficulties with the mother's retroactive section 7 claims including:

a) The mother struggled in providing relevant details about her child care claim. She provided a typed unsigned letter from her child care provider that was struck as being inadmissible. She did not understand how the amount claimed was calculated. She did not know how the total amount of the cost was allocated between her children. It is likely that most of the child care had to be incurred due to the needs of the mother's two younger children. There was no evidence about how Andrew and the mother shared in the payment of the expenses. The mother did not claim the expenses on her income tax returns and was unsure if Andrew had done this.

b) The evidence indicated that the mother would unilaterally program the children without prior consultation with the father, despite the joint custody agreement. This was an issue on the prior motion to change and one of the reasons why the section 7 expenses were capped at that time.

c) Some of the expenses claimed by the mother were unreasonable or unnecessary. One example was the mother paying $3,855 to have the son attend camp, for only two weeks, in July 2014.

d) Some of the expenses claimed were not proper section 7 expenses. There were claims for ordinary extracurricular activities, (as opposed to extraordinary extracurricular activities) and clothing.

[55] The mother testified that it was necessary for her to take a leave of absence in April 2016 due to the special needs of her child, C. She said that she received her full pay until the end of October 2016. She is attempting to negotiate a return to work 3 days each week. She said that if she cannot do this, she will need to go back to work in January 2017. She said that she would supply teach 3 days each week and possibly tutor.

[56] The mother testified that she would be permitted to return to her job as a school principal in January 2017 (or even in September 2017), but she is not prepared to do that on a full-time basis.

[57] The mother's income in 2014 was $122,493. Her income in 2015 was $127,070.

5.2 Legal Considerations

[58] The motions to change support are governed by subsection 37 (2.1) of the Family Law Act which reads as follows:

Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

[59] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.

2. The conduct of the payor parent.

3. The circumstances of the child.

4. The hardship that the retroactive award may entail.

[60] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.

[61] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S. par. 97).

[62] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).

[63] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121).

[64] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. (D.B.S. par.123).

[65] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. (D.B.S., par. 95).

[66] A court order is presumptively valid when assessing conduct. However, the larger the difference between the order and what should be paid, the less reasonable it becomes to rely upon it. (D.B.S., par. 65).

[67] A reasonably held belief that the payor is meeting their obligations is a good indicator that there is no blameworthy conduct. (D.B.S., par. 108).

[68] Courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable guideline tables is not required — nor is it recommended. There are two ways that the federal regime allows courts to affect the quantum of retroactive awards (D.B.S., par. 128). The first involves exercising the discretion that the guidelines allow. Courts may exercise their discretion with respect to quantum in a variety of other circumstances under the guidelines. See: ss. 3(2), 7, 9 and 10 of the guidelines (D.B.S., par. 129). The second is by altering the time period that the retroactive award captures. While the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case (D.B.S., par. 130).

[69] The retroactive support analysis in D.B.S. equally applies to claims for retroactive section 7 expenses. See: Smith v. Selig, 2008 NSCA 54, 56 R.F.L. (6th) 8 (NSCA); Hetherington v. Tapping, 2007 BCSC 209; Surerus-Mills v. Mills [2006] O.J. No. 3839 (SCJ).

5.3 Analysis

[70] There have been changes in circumstances that dictate changing the existing order. The primary change is that the son began primarily living with the father in September 2014.

[71] The parties are sophisticated litigants. They had been in court in 2008 and from 2010 to 2011. They understood the process if they wished to change the existing order. They both made the choice not to do this until they engaged in negotiations in September 2015.

[72] The court considered that the parties made some requests for contributions for section 7 expenses when they were incurred. However, neither followed up on these requests after the other refused them.

[73] There has been no blameworthy conduct by the father. The existing order specifically anticipated any increases or decreases in section 7 expenses and capped them at $150 each month. The existing order states the purpose for this provision: to obtain cost certainty and avoid further litigation. The parties agreed to this provision. Context is important. This had been their second round of litigation and they were willing to make compromises to prevent further litigation.

[74] The mother should have paid her proportionate share of the daughter's orthodontic expenses. This was an expense contemplated in the existing order. She should have also adjusted child support starting in September 2015 (at the very least) when the shared parenting arrangement had clearly ended. Her contention that the son continued to live with her was unreasonable.

[75] The circumstances of the children were not disadvantaged. Both parents are generous with their children.

[76] Any hardship created by a retroactive order can be addressed through a periodic payment order.

[77] The court considered the flaws in the mother's retroactive support claims set out in paragraph 54 above.

[78] Balancing all of these considerations, the court will only make its order retroactive to September 1, 2015. This is when the parties first sought changes to the existing order.

[79] The court considered adjusting the support calculation starting in September 2014, when the son began primarily living with the father in a shared parenting arrangement, but felt that it would not be fair to do so for the following reasons:

a) The father did not seek an adjustment to child support for almost one year after the change in the son's living arrangements. He only sought this when the mother asked him for increased support.

b) The son's living arrangements were in a state of flux at this time and it was not unreasonable for the mother to rely upon the court order.

c) The mother paid a disproportionate share of the children's eligible section 7 expenses from January 1, 2012 until August 31, 2015. Her share of these expenses were not covered by the father's payments of $150 each month. The benefit received by the father offsets, to a large extent, any support credit the father would have obtained in a one-year shared parenting analysis regarding the son, conducted pursuant to section 9 of the guidelines.

[80] The mother will be entitled to an additional credit arising from the court using September 1, 2015 as the date to recalculate support. The court only adjusted the guidelines table support of the father until November 2014 in Part Three above (as this was the only adjustment agreed to by the father). It should now be adjusted to the end of August 2015. This is an additional 10 months. The guidelines table support was $1,697 each month for this period, based on the father's income. The father paid $1,612 each month. The differential is $85 each month for a total of $850.

Part Six – The Mother's Income

[81] It is necessary to assess the mother's income since September 1, 2015 for support purposes. Under section 8 of the guidelines, in a split custody situation, the court must calculate the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses. The incomes of the parties are also relevant in calculating payment of section 7 expenses.

6.1 Legal Considerations – Imputation of Income

[82] Section 19 of the guidelines permits the court to impute income to the mother if it finds that she is earning or capable of earning more income than she claims.

[83] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.).

[84] In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:

a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.

b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.

c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.

d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

[85] The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?

3. If not, what income is appropriately imputed?

[86] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.).

[87] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[88] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

[89] When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453 (Ont. Fam. Ct.); Drygala, supra, paragraph 39.

[90] A party's child care responsibilities to other children can be a legitimate reason for a reduction in income (See my comments in J.C.M. v. K.C.M., 2016 ONCJ 475, par. 171). However, the choice to reduce income for this reason must be reasonable. In H.A. v. M.M., 2016 ONCJ 246, I did not reduce child support when the father took paternity leave. This was because his new spouse was earning far less than him and was able to stay at home with the newborn.

[91] The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

6.2 Analysis

[92] The mother's 2015 income was $127,070. She earned this rate of income until the end of October 2016. She should be eligible for employment insurance, which would pay her at the rate of about $23,700 per annum for the last two months of 2016. The mother should earn approximately $109,800 in 2016.

[93] There is no issue that the mother is now intentionally unemployed. She could return to her position as a school principal at her previous salary. The question is whether her choice to be intentionally unemployed is reasonable.

[94] In making this determination, the court cannot ignore the needs of the mother's other children. It must balance their needs with the need of the children before the court to be fairly supported financially by both parents.

[95] The court had sympathy for the mother's challenges with her son C. The mother was able to establish that C. has significant special needs that require considerable attention from her at this time.

[96] In 2015, C. had an educational assessment and was found to have borderline verbal perceptual reasoning. He was also found to be at the 3rd percentile for the General Ability Index – indicative of an intellectual disability. The mother sought special programming at the child's school.

[97] These challenges are compounded by C. having a significant social anxiety disorder. The mother described her struggles with C. He has difficulty separating from her and has often refused to go to school. He will have "meltdowns" and "panic attacks" when he has to meet new people or he encounters new situations. C., the mother said, is always fearful. He constantly worries and has trouble sleeping at nights. He bites his nails until they bleed. She said that he has been having these issues since he was 5 years old.

[98] The mother is proactive in dealing with C.'s needs. He was assessed in April 2016 at the Hospital for Sick Children and a psychiatrist is treating him weekly in a Cognitive Behavioural Therapy program. C. is also attending a therapy program called Worrybusters twice each month. C. is also receiving the assistance of a special education teacher at school. The mother testified that she is working very closely with the school.

[99] Unfortunately, aside from Andrew (who has two other children from a prior relationship) the mother has few family supports. Her parents are deceased. Her sister lives in Ottawa and she does not have a close relationship with her brother.

[100] When the mother received the feedback from the Hospital for Sick Children in April 2016, she asked for accommodation from the school board to work three days each week, so that she could give C. more attention and take him to appointments. She said that her request was refused. The mother was under considerable stress at this time. She said that her doctor prepared a report to the school board suggesting she take a leave of absence.

[101] The mother has been on a leave of absence from work since April 2016.

[102] The mother testified that C. is showing improvement as a result of his therapy and her increased attention to him.

[103] The mother testified that she is still advocating to return to her job as a principal three days each week.

[104] The mother confirmed that her job as a principal would be available to her in January 2017 or September 2017, if she chose to return on a full-time basis.

[105] The mother said that she needs to return to work part-time in January as her income is required to support her family. She said that if she is unable to work as a principal, she will seek part-time work, preferably 3 days each week, as a supply teacher and as a tutor. She said that supply teachers earn about $300 each day.

[106] The mother also said that she has contemplated retiring as a principal. However, she said that if she retired now, her pension would only pay her $33,000 per annum.

[107] The mother said that she will strongly consider returning to work full-time in September 2017. She wants time to consolidate the gains that C. has made before she does this.

[108] The court finds that the mother has a reasonable excuse, at this time, to be intentionally unemployed. The special needs of C. are significant and he is benefitting from the mother's attention. C. also needs a caregiver to take him to his appointments and meet with the professionals. The mother took reasonable steps to work part-time, but was not accommodated by her employer.

[109] The court does not find that the mother reduced her income to avoid her support obligations. Despite her reduction in income, the mother still proposed to split section 7 expenses equally with the father. She clearly believed (albeit wrongly) that she had no child support obligation to the father. Her decision to leave work has placed her family under considerable financial pressure. She deposed that she and Andrew do not earn enough to meet their expenses. The mother's plan to sell her home, instead of returning to work full-time is indicative of her commitment to C.'s needs.

[110] The court considered whether it would have been more reasonable for Andrew to have stayed at home with C. He is a teacher and earns much less than the mother. However, after listening to the mother, it became clear to the court that she is the primary caregiver for C. and the parent more attuned to his needs. The court finds it reasonable that the mother is the parent who stays at home with C.

[111] No additional income will be imputed to the mother for 2016.

[112] The court finds that the mother's plan to return to work on a part-time basis in January 2017 is reasonable - in the short-term. Based on the mother's evidence that she can earn $900 each week working part-time as a supply teacher, the court will impute income to her at the rate of $47,000 per annum starting January 1, 2017. The court took into consideration that the mother may not be able to obtain supply-teaching work three days each week. However, she is capable of earning additional income tutoring to make up for this.

[113] The court finds that it is reasonable to expect the mother to return to work full-time by September 2017 and will impute income to her starting on September 1, 2017 at $127,070 per annum. This will have given the mother over 16 months at home with C.

[114] This transitional imputation of income strikes a balance between the children's need to be fairly financially supported by the mother and C.'s needs.

[115] However, the court recognizes that C.'s special needs may not cooperate with the court's timeline. The mother may seek a review of this child support order for the period starting September 1, 2017 to determine if C.'s special needs at that time reasonably prevent her from returning to work full-time. This review motion should be started no earlier than July 1, 2017. The court would expect to receive up-to-date reports from C.'s medical and service providers if such a motion is brought.

Part Seven – Calculation of Section 7 Expenses

[116] The court finds that with a new support order starting on September 1, 2015, in order to fairly allocate support obligations between the parties, it is necessary to do a fresh calculation of section 7 expenses from that date.

7.1 Father's Section 7 Claims

[117] The father has an eligible section 7 claim for orthodontic expenses he has paid for the daughter since September 1, 2015.

[118] The father has paid $2,400 for the orthodontic expenses since September 1, 2015. His insurer has reimbursed him for 50% of these expenses, leaving a balance of $1,200.

[119] The father also pays an additional $32 each month for his orthodontic plan. This will be beneficial as the daughter has a final phase of work to be done. The father will be credited with $512. This is the amount he has paid from September 1, 2015 until the end of 2016 ($32 each month x 16 months).

[120] The mother reimbursed the father $900 for orthodontic expenses after September 1 2015, but this included reimbursement for pre-September 2015 expenses, when about 75% of the expenses were incurred. The mother will be credited with $225 (25% of her payment).

[121] The other eligible section 7 expenses paid by the father since September 1, 2015 are:

Expense	Date	Amount
Enrolment at son's Arts School	Sept. 7/15	$155
Son's Music Theatre fee	September 29/15	$400
Deposit for son's Chicago school choir trip	October 14, 2015	$200
Payment for son's Chicago school trip	Dec. 16/15	$492.50
Payment for son's Chicago school trip	January 30/16	$492.50
Son's Music Theatre fee	April 10/16	$150
Son's Music Theatre fee	May 10/16	$20
Son's Music Theatre fee	May 24/16	$425
Son's Boston school trip	Oct. 13/16	$200
Total		$2,535.00

[122] The father also made claims for TTC expenses, the cost of a driver's licence and clothing for the son. These are not eligible section 7 expenses as defined in that section.

[123] The total eligible section 7 expenses paid by the father since September 1, 2015 are $4,247 ($1,200 + 512 + $2,535).

7.2 Mother's Section 7 Claims

[124] The father agreed that the following were eligible section 7 expense claims by the mother: class trips, music theory for the son, voice and acting lessons for the son, school programs, registration and equipment for the daughter's hockey (but not hotel costs, if an overnight stay was unnecessary). He did not agree that the following expenses were necessary or reasonable: power skating, tutoring and camp for the daughter.

[125] In addition, the father agreed to pay 50% of the son's trip in the summer of 2016 to Quebec. However, the mother told him that he should not pay this amount until the court made all of its support adjustments.

[126] The eligible section 7 expenses for the son claimed by the mother since September 1, 2015 are:

Expense	Date	Amount
Voice lessons	Sept. 2015 to June 2016	$1,260
Ottawa Chamber choir trip	April 2016	$200
Airfare to Quebec program	July 3, 2016	$817.62
Cost of Quebec program	May 6, 2016	$275
Dancewear	January 7, 2016	$153.68
Acting lessons	2015	$214.70
Total		$2,921.00

[127] The mother also made claims for professional pictures for the son, a crossfit program, public transit and swimming. The court finds that these are not eligible section 7 expenses.

[128] The court finds that the mother's claim for power skating for the daughter is reasonable, necessary and an extraordinary extracurricular expense. The daughter is a highly skilled hockey player playing at Level A. She has had some emotional challenges and hockey is an excellent social and emotional outlet for her. Hockey is important to her development. The cost of this program was proportionate.

[129] The mother made a claim for hotel room costs for two hockey tournaments. This included the mother's costs. 50% of these costs (the daughter's share) will be permitted.

[130] The court also finds that the mother's claim for tutoring expenses for the daughter is reasonable and necessary. The daughter has low math marks, compared to her other subjects. The mother is very attuned to the daughter's educational needs and is best positioned to assess these needs. Tutoring is a sound investment in her future and affordable for the parties.

[131] The mother indicated that the claimed $1,700 tutoring cost covered the period from July 2015 to June 2016. The claim will be granted for the 10-month period after September 1, 2015. Pro-rated, this comes to $1,416.67.

[132] Similarly, the court finds that the mother's claim for speech language therapy for the daughter is reasonable, necessary and affordable.

[133] The mother included a claim for child care for 2016 which she acknowledged has not been incurred for two years. It will not be allowed.

[134] The mother claimed $3,267 for two weeks of camp for the daughter in the summer of 2016. The mother did not consult with the father prior to sending the daughter to this camp. The court agrees with the father that it was not necessary or reasonable for the daughter to attend such an expensive camp. However, it is reasonable and necessary for the child to go to summer camp. It is necessary for her social development. Given the parties' financial situation, the court finds that a cost of $2,000 is reasonable for this expense for two weeks each year.

[135] The court finds that the following are the mother's eligible section 7 expenses for the daughter since September 1, 2015.

Expense	Date	Amount
Hockey registration cost	2016-2017 season	$2,500
Hockey equipment	July 2016	$1,395.46 (2 purchases)
Skates	May 2016	$364.41
Power skating	July 2016	$299.45
Summer Camp	July 2016	$2,000
Tutoring	September 2015 to June 2016	$1,416.67
School Trip – Ottawa	April 2016	$442
Speech Language	April 2016	$825
Hotel for Hockey Tournament	January 2016	$345.87
Hotel for Hockey Tournament	November 2015	$68.93
Total		$9,657.79

[136] The mother will also be credited with $225 on account of the amounts she paid towards the daughter's orthodontic expense, as set out in paragraph 120 above.

[137] The total eligible section 7 expenses paid by the mother from September 1, 2015 are $12,803.79 ($9,657.79 + $225 + $2,921).

7.3 Section 7 Expense Adjustment

[138] Based on their incomes from September 1, 2015 until the end of 2016, the father's proportionate share of section 7 expenses is 51.9%.

[139] The mother shall be credited with $4,698.58 for the section 7 expense adjustment for this period. This is calculated as follows:

Mother's eligible section 7 expenses	$12,803.79
Father's eligible section 7 expenses	4,247.00
Total section 7 expenses:	$17,050.79
Father's share – 51.9%	$8,849.36
Father paid:	4,247.00
Balance owing to mother:	$4,602.36

7.4 Future Section 7 Expenses

[140] The parties did not identify ongoing section 7 expenses, so no specific monthly payment will be ordered.

[141] For the period from December 1, 2016 until August 31, 2017, the father will be required to pay 72.4% of the children's section 7 expenses. This is his proportionate share of these expenses based on the gross incomes assessed to the parties in these reasons for decision. Starting on September 1, 2017, the mother shall each pay 50.8% of the children's section 7 expenses and the father shall pay 49.2% of these expenses. This represents their proportionate shares based on their incomes assessed to them starting on that date.

[142] The following is a non-exhaustive list of what should be considered eligible section 7 expenses:

a) Hockey registration, power skating, equipment and travel fees for hockey tournaments for the daughter.

b) Arts programs for the son, including coaching and uniforms.

c) Tutoring for the daughter, if deemed necessary by the mother.

d) School trips.

e) Summer camp, not to exceed $2,000 for the daughter.

f) Orthodontic expenses of the daughter and the father's health premiums attributable to the children.

[143] This list does not include the son's post-secondary school expenses. The son plans to attend university in the fall of 2017. It is premature to make an order for payment of his post-secondary expenses. It is unknown if he will go to school close to home or live in residence at a university out-of-town. If the child goes to school out-of-town, the guidelines calculation may no longer be appropriate and will need to be recalculated. The parties will both have an obligation to fairly contribute to these expenses.

[144] There is also an expectation that the son will make reasonable efforts to contribute to his post-secondary costs by working over the summer and applying for any available loans, bursaries or grants. The court was advised that the son is a skilled student. Any scholarships will also have to be taken into consideration.

[145] The parties are encouraged to mediate this issue once the son chooses where he will go to university and the costs are ascertained. If they cannot agree, either party can move to court to review the support obligations.

Part Eight – Guidelines Table Adjustments Since September 1, 2015 and Ongoing Payments

[146] The father's guidelines table support for one child at his income in both 2015 and 2016 is $1,060 each month.

[147] The mother's guidelines table support for one child at her income of $127,070 in 2015 was $1,093 each month.

[148] The father is entitled to a credit of $132 for 2015. This is the differential of the parties' respective guideline table support obligations for 4 months ($33 each month x 4 months), as set out in section 8 of the guidelines.

[149] The mother's income for 2016 is assessed at $109,800. The mother's guidelines table support for one child at this income is $956 each month. The monthly differential with the father's guidelines table support is $104 each month ($1,060 – 956).

[150] The mother is entitled to a credit of $1,248 ($104 x 12 months) for 2016.

[151] The mother's guidelines table support for one child, starting on January 1, 2017, based on her imputed annual income of $47,000, will be $424 each month. The father shall pay the mother the differential of $636 each month until August 31, 2017 ($1,060 – 424). Starting on September 1, 2017, the mother shall pay the father the monthly differential of $33 each month ($1,093 -1060), as her annual income at that time has been imputed at $127,070.

Part Nine – Summary of Adjustments

[152] The father will be credited with the support he has paid since September 1, 2015. He has paid guidelines table support of $1,612 each month plus $150 each month for section 7 expenses, for a total of $1,762 each month. He has paid this amount for 16 months, so his credit totals $28,192.

[153] The father is also entitled to a credit for guidelines table support in 2015 of $132, as calculated in paragraph 148 above.

[154] The father's credits total $28,324.

[155] The mother is entitled to the following credits:

Additional guidelines table support from January 1, 2012 – August 31, 2015 as calculated in paragraphs 28 and 80 above	$3,668
Guidelines table support credit in 2016 as calculated in paragraphs 149 and 150 above	$1,248
Section 7 adjustments from September 1, 2015 as calculated in Part 7.3 above	$4,602.36
Total:	$9,518.36

[156] The amount owed to the father after all these adjustments is $18,805.64 ($28,324 – 9,518.36) which represents the father's overpayment of support to the mother.

Part Ten – Payment of Amounts Owing to Father

[157] The court has considered that the mother is in a difficult financial situation in the short-term due to C.'s special needs. It also has to consider that the father's overpayment of support accumulated because the mother unreasonably refused to acknowledge the reality that the son was living with the father since at least September 2015 and that she had a support obligation to the father.

[158] The court will not require the mother to pay the amounts she owes to the father all at once. For the period of January through August 2017 (8 months), the amount owing to the father shall be reduced by the monthly support payments that he would have otherwise paid to the mother ($636 each month). This will result in a reduction in the amount owing to the father of $5,088 ($636 x 8), leaving a balance owing to him of $13,717.64.

[159] The mother may pay the balance of the amount owing to the father over a period of two years starting on September 1, 2017. This comes to $571.57 each month.

Part Eleven – Final Order

[160] A final order changing the existing order shall go on the following terms:

a) The existing order shall be replaced by this order.

b) The mother owes the father $18,805.64 for overpayment of support as calculated in these reasons for decision.

c) The father shall pay the mother child support of $636 each month, starting on January 1, 2017, being the differential in their guidelines table support obligations, based on their incomes assessed in this decision. However, none of this money shall actually be paid to the mother, as the amount instead will be credited to the amount owed by the mother to the father.

d) The mother shall pay the father child support of $33 each month, starting on September 1, 2017, being the differential in their guidelines table obligations, based on their incomes assessed in this decision.

e) The mother shall pay the balance of support owed to the father at the rate of $571.57 each month, starting on September 1, 2017.

f) From December 1, 2016 until August 31, 2017, the father shall be required to pay 72.4% of the children's section 7 expenses and the mother shall pay 27.6% of these expenses.

g) Starting on September 1, 2017, the mother shall each pay 50.8% of the children's section 7 expenses and the father shall pay 49.2% of these expenses.

h) The following is a non-exhaustive list of what should be considered eligible section 7 expenses:

1. Hockey registration, power skating, equipment and travel fees for hockey tournaments for the daughter.
2. Arts programs for the son, including coaching and uniforms.
3. Tutoring for the daughter, if deemed necessary by the mother.
4. School trips.
5. Summer camp, not to exceed $2,000 for the daughter.
6. Orthodontic expenses of the daughter and the father's health premiums for the children.

i) The parties shall provide the other with section 7 receipts within 30 days of the expense being incurred. The other parent shall provide reimbursement of the expense within 14 days.

j) The mother may seek a review of this child support order for the period starting from September 1, 2017, for the purpose of determining if C.'s special needs at that time prevent her from returning to work full-time. This review motion should be started no earlier than July 1, 2017. The court would expect to receive up-to-date reports from C.'s medical and service providers if such a motion is brought.

k) If the parties are unable to negotiate changes to support once the son chooses what university he will attend in September 2017, either may move to the court to review their ongoing support obligations. This motion should be started no earlier than July 1, 2017.

l) The parties are to exchange their complete income tax returns and notices of assessment by June 30th each year.

m) A support deduction order shall issue.

[161] If either party finds a mathematical error (only) in these calculations, they may serve and file written submissions by December 19, 2016. The other party will then have until December 30, 2016 to serve and file a written response.

[162] If either party seeks their costs, they shall serve and file their written costs submissions by January 9, 2017. The other party will have until January 23, 2017 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.

[163] It is unfortunate that this order is unlikely to provide finality for the parties. It was apparent to the court how stressful and aggravating this litigation was for them. However, there remain many unknowns in the next couple of years that will affect child support, including the son's university choice, where he will live when he goes to university, C.'s special needs and the employment choices that the mother will need to make as a result of those needs.

[164] The parties are strongly encouraged to mediate these issues before returning to court and to try harder to understand and be more respectful of each other.

Released: December 6, 2016

Justice S.B. Sherr