Court File and Parties

Ontario Court of Justice

Date: April 25, 2017

Court File No.: Toronto DFO 14 11557

Between:

Mardi Lynne Hall Applicant

— And —

Wayne Robert Riddock Respondent

Before: Justice E. B. Murray

Heard on: April 7, 2017

Reasons for Judgment released on: April 25, 2017

Counsel:

• Anthony Macri, counsel for the applicant
• Wayne R. Riddock, on his own behalf

MURRAY, E. B. J.:

[1] Introduction

This is my decision on a motion by the Applicant mother Mardi Hall requesting a change in the child support provisions of the parties' separation agreement.

Background

[2] The Parties and Their Employment

Mardi Hall and Wayne Riddock are the parents of two children, Cal., born August 14, 2001, and Car., born December 20, 2003. Wayne is employed as a firefighter; Mardi owns an insurance brokerage.

[3] Separation and Agreement

The parties separated in June 2006. They entered into a separation agreement on September 30, 2011.

The Separation Agreement

[4] Terms of the Agreement

The agreement dealt with all issues between the parties. It provided that the parties have joint custody of the children, that they reside primarily with Mardi, and that they spend substantial time with Wayne. With respect to child support, the agreement provided as follows:

1. Wayne will pay to Mardi as child support for Cal. and Car.:

(a) the amount of $850.00, commencing October 1, 2011 and on the first day of each month thereafter;

(b) Wayne shall not be required to contribute to the children's special or extraordinary expenses as set out in the applicable special or extraordinary expenses sections below.

2. The parties have made special provisions which benefit the children, specifically, the transfer of Wayne's interest in the matrimonial home to Mardi for an agreed upon amount as a compromise for lower than Child Support Guidelines Table child support reflecting the intention of the Marriage Contract and the waiver of any claim he may have to spousal support. Given these special provisions, the application of the Guidelines would result in an amount of child support that is inappropriate. The parties' present child support arrangements, while less than the Table amount, are reasonable and meet the objectives of the Guidelines.

3. Mardi shall continue to pay 100 percent of the children's special or extraordinary expenses which are set out below:

(a) After school daycare;

(b) Oxford Learning Centre;

(c) Sports;

(d) Summer camp;

(e) Medical expenses not covered by Wayne's extended health insurance.

4. The parties acknowledge and agree that Mardi has always paid and will continue to pay 100 percent of the children's special or extraordinary expenses. The parties specifically acknowledge and agree that Mardi forgives any arrears of such special or extraordinary expenses that could be deemed to be owing by Wayne either past or present.

5. Mardi will only contribute to a child's additional special or extraordinary expenses if she has consented to the expenses in advance, in writing. Neither party will unreasonably withhold consent. If the parties cannot agree, they will use the section of this Agreement entitled "Dispute Resolution" to resolve this issue.

6. Mardi may request a change in child support if there is a material change in circumstances of either parent or of a child. Upon written request, either party is to provide disclosure of the financial documents required in s. 21(1) of the Guidelines or information about the children's special expenses.

7. The parties will review child support arrangements annually. Wayne will continue to pay the amount provided for in the agreement until an amending agreement or court order.

[5] Financial Circumstances at Time of Agreement

At the time the agreement was signed, Mardi's annual income was $270,340 and Wayne's annual income was $81,000. Special expenses were estimated to be $6,880. The agreement noted that in prior years Mardi had paid special expenses ranging from $5,000 to $33,000 annually.

This Action

[6] Mardi's Motion

In late 2015 Mardi began this action, requesting that Wayne pay the full table amount of child support and his proportionate share of the children's special expenses for hockey, which she said totaled approximately $16,000 annually. Mardi also asked that Wayne pay table support and special expenses retroactively, commencing January 2014.

[7] Material Changes Claimed

Mardi said there had been two material changes since the date of the agreement:

• A decrease in her annual income;
• An increase in the children's extraordinary expenses, primarily because of the increased costs associated with competitive hockey.

[8] Parties' Incomes

The parties' incomes for the relevant years are:

Year	Mardi	Wayne
2014	$186,327	$102,882
2015	$133,008	$92,340
2016	$139,783	$94,957

[9] Agreed Adjustments to Table Support

The parties agreed on June 14, 2016 that Wayne would begin paying full table support in an amount of $1,322 monthly, based on his 2015 income of $92,340. They also agreed on September 22, 2016 that Wayne would pay a lump sum of $5,324, which represents an increase in table support based on his annual income for the period August 2015 to June 2016.

[10] Outstanding Issue

The issue which remains is what contribution, if any, Wayne should make to the children's special or extraordinary expenses. The case management judge directed that the parties submit fresh affidavits and financial statements for this issue to be determined. These were considered by me at the hearing held on April 7, 2017.

The Parties' Positions

[11] Mardi's Position

Mardi claims s. 7 expenses of $20,504.78 with respect to the 2016 year, and asks that Wayne pay her an amount representing 50% of those expenses or $874.62 monthly. She says that she expects 2017 expenses to be the same as in 2016, and asks that he pay her $874.62 on an ongoing basis. Mardi also makes a retroactive claim with respect to 2014-2015 expenses. She asks that Wayne pay her 50% of the s. 7 expenses for those years, which totaled $19,966.81. She suggests that he pay this amount over three years at a rate of $554.63 monthly.

[12] Breakdown of 2016 Expenses

The 2016 expenses claimed fall primarily into three categories:

• Dental: $2,302.50, the uninsured portion of the cost of Car.'s orthodontic treatment.
• Extra-curricular: $5,390, cost for Car. at Camp Manitou.
• Extra-curricular: $12,500, approximate cost for children's hockey. This includes the costs for team registration fees, equipment and clothing, hockey camps and special hockey events, and for out of town tournaments, including Mardi's costs for her own transportation and accommodation.

[13] 2014-2015 Expenses

The 2014-2015 s. 7 expenses consist primarily of hockey and school trip costs.

[14] Wayne's Primary Position

Wayne submits that he should not be obligated to pay any special expenses because the separation agreement provides that Mardi would pay 100% of these expenses.

[15] Wayne's Alternative Positions

Alternatively, Wayne says that he should not be obligated to pay towards special expenses for three reasons:

1. He did not agree to pay those expenses in advance, in writing, as required by the agreement.

2. The cost of these expenses is met by the increase in the table amount of support which he is paying.

3. The expenses are unreasonable, given each party's circumstances. If the court makes the order sought by Mardi, then he would pay $1,428 monthly ($874.62 plus $554.63), in addition to the table amount of $1,322 monthly, a total of $2,750 monthly. His net pay is $3,873 monthly; this would leave him only $1,123 monthly to meet his living expenses.

The Law—Special or Extraordinary Expenses

[16] Section 7 Expenses as Part of Child Support Scheme

In Ostapchuk v. Ostapchuk, the Ontario Court of Appeal made clear that provisions for special expenses are an integral part of the child support scheme of the Guidelines:

"Section 7 expenses are merely special or extraordinary expenses that are determined to be additional costs of raising a child that are not incorporated in the table amounts. This is the reason they are characterized as special or extraordinary - they are outside of the ordinary expenses contemplated by the figures calculated in the table. However, they are still part of child support."

[17] Section 7 of the Child Support Guidelines

Section 7 provides as follows with respect to special or extraordinary expenses:

7. (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.

Definition, "extraordinary expenses"

(1.1) For the purposes of clauses (1)(d) and (f), "extraordinary expenses" means:

• (a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

• (b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

  • (i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

  • (ii) the nature and number of the educational programs and extracurricular activities,

  • (iii) any special needs and talents of the child,

  • (iv) the overall cost of the programs and activities, and

  • (v) any other similar factors that the court considers relevant.

Sharing of expense

(2) 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.

Subsidies, tax deductions, etc.

(3) 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.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

[18] Principles from Caselaw

In Clancy v. Hansman, 2013 ONCJ 622, Justice Sherr set out principles from the caselaw with respect to consideration of claims under s. 7:

• (a) 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 of the child support guidelines and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson.

• (b) The list of special and extraordinary expenses under clauses 7(1)(a) to (f) is exhaustive. If a claim does not fall within any of the listed categories, then it must be dismissed. See: Kilrea v. Kilrea, 1998 CarswellOnt 3652 (Ont. Gen. Div.).

• (c) Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support. See Smith v. Smith, [1997] O.J. No. 4833 (Ont. Gen. Div.), paragraphs 14 and 16; Park v. Thompson; Kase v. Bazinet, [2011] ONCJ 718.

• (d) Unlike section 3 of the guidelines, which presumptively provides for the table amount of child support, an order for section 7 expenses involves the exercise of judicial discretion. When exercising its discretion, the court should also consider the objectives of the guidelines, including clause 1(a), which reads as follows:

  "1(a) to establish a fair standard for children that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation"

The Law - Motion to Change Order for Special or Extraordinary Expenses

[19] Material Change in Circumstances

The Family Law Act provides that a court may change a child support order if there has been a material change in circumstances within the meaning of the Guidelines since the last order. If a domestic contract has been filed with the court, the court may change the support provisions of that agreement, including provisions for special or extraordinary expenses, if a material change is proven.

[20] Compliance with Guidelines

As is the case on a de novo application for support, on a motion to change the court must make an order that is in compliance with the Guidelines, unless it finds that there are special provisions in the agreement that would benefit the child and that the application of the Guidelines would be inequitable given those special provisions.

The Law - Retroactive Claims for Changes in Special or Extraordinary Expenses

[21] Discretion to Award Retroactive Support

A court has the discretion to make a retroactive award for child support, which includes discretion to award a retroactive order for special expenses. The Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37 provided guidance as to the principles which should guide a court in considering a request for a retroactive increase in support.

[22] D.B.S. Principles

In D.B.S. the Court held that children have a right to support from their parents and parents have an obligation to support them, independent of any statutory scheme. The Court stated that in dealing with requests for a retroactive increase in support provided for in a court order or agreement, that the court must balance the benefit of predictability and certainty flowing from that order or agreement against the responsibility of the payor parent to insure that proper child support was being paid for the child. To the extent that support obligations as defined by the Guidelines were not being met, then the balance tips towards a retroactive award.

[23] Four Factors for Retroactive Awards

The Court set out four factors to be considered in cases requesting a retroactive increase in support:

• Reason for the delay in requesting an increase;
• Blameworthy behavior by the payor;
• Effect on the child of inadequate support payments;
• Hardship to the payor spouse of a retroactive award.

[24] Application to Section 7 Expenses

A request for such a retroactive increase in special or extraordinary expenses was not discussed in D.B.S. v. R.S.G., but courts have held that the D.B.S. principles apply to such cases with appropriate modifications. In Semancik v. Saunders, 2011 BCCA 264, the B.C. Court of Appeal upheld a trial decision ordering a parent to pay retroactive amounts for dental care and post-secondary educational costs, and observed as follows:

"….accepting that the principles applicable to retroactive awards of child support and s. 7 expenses are the same, in my opinion the factual difference between these two types of parental contribution to child support is worth mentioning. In the case of child support, the payor parent's income is determinative. That parent knows what his or her income is and can determine the amount of the child support obligation from the Guidelines. In the case of s. 7 expenses, it is the recipient parent who knows the details of the expenses. If that parent does not communicate that information to the payor parent, the payor parent cannot fulfill his or her legal obligation to contribute."

[25] Differences in Analysis for Section 7 Expenses

There are further differences in the factors relevant to a court's analysis on a motion to change payment of s. 7 expenses versus a claim for a change in the table amount of support. Unlike the determination of table amounts of support, the decision to award special expenses is discretionary and dependent on a number of factors, such as the parties' former family lifestyle, their current financial circumstances, and the needs and talents of the children. What a payor parent should be paying for s. 7 in order to fulfill his obligations is not as clear as it is when only table support is in question.

The Facts

[26] Pattern of Decision-Making and Communication

It is useful for the consideration of this motion to review the parties' decision-making and communication, before and after separation, about the children's extra-curricular activities and sports. The following pattern emerges from their separation agreement, their affidavits, and the emails they exchange:

1. During the marriage, it was Mardi who made decisions about these issues. Since she paid 100% of the costs, her consent was essential. At the same time, Wayne was aware and approved of the children's activities.

2. This pattern continued after the 2006 separation.

3. This pattern continued and was reaffirmed in the September 2011 separation agreement.

4. Sometime in 2012, Mardi asked Wayne to contribute financially to these expenses. He refused, saying that Mardi was obligated to continue to pay under the agreement, and that he couldn't afford the expenses.

5. Mardi continued to pay 100% of these expenses, primarily for hockey, and in fact increased her spending. Wayne continued to be aware of and approve of the activities she funded.

6. Wayne says that in late 2012 he and Mardi agreed orally that, rather than making a financial contribution to the children's hockey costs, he would shoulder the lion's share of transportation of the children to and from practices and games. Mardi does not recall making this agreement, but says that the only agreement that "counts" is the written separation agreement. In any event, both agree that Wayne provided a disproportionate share of transportation for the children's hockey, and stopped doing so in late 2014.

7. Mardi continued to make the decisions about the children's sports and extracurricular activities. There is no evidence that she has asked Wayne to consent to those activities, although she has continued to ask him to pay for them. Wayne continued to be aware of and, until recently, approve of those activities. Wayne has been active in attending hockey practices and games on his time with the children.

8. Mardi interprets the parenting provisions of the separation agreement to mean that:

   a. she has the sole authority to make decisions about what activities the children should undertake and what Wayne should pay towards that expense, and

   b. If Wayne disagrees, it is up to him to use a mediation/arbitration process.

[27] Mardi's Approach to Financial Decisions

Emails filed by Wayne offer instances of how this approach by Mardi applies to financial decisions. For example, in 2016, Wayne questioned the extent of the orthodontic work Mardi planned for Car. and the cost of that treatment. Mardi replied that Wayne had no right to get information from the orthodontist, but must go through her, that she had sole decision-making power as to this expense, and that if he disagreed, he must start a med/arb process.

Analysis

[28] Material Changes in Circumstances

Since the date of the agreement in 2011, Mardi's income has decreased substantially and the s. 7 expenses claimed for the children have increased substantially. These are changes material to the issue of support, including support in the form of s. 7 expenses.

Wayne Should Contribute to S. 7 Expenses

[29] Rejection of Wayne's Arguments

Mardi asks that Wayne pay for special expenses in 2016 and on an ongoing basis. Her claim includes expenses for hockey, school trips, summer camps, and orthodontics for Car.

I deal first with Wayne's submissions that this claim should be rejected in its entirety.

1. Agreement provision regarding Mardi paying 100% of expenses

I do not accept Wayne's argument that this claim is blocked by the provisions of the agreement that Mardi pay 100% of the children's s. 7 expenses. Wayne's belief that Mardi agreed to pay such expenses forever might be understandable if the provision that "Mardi has always paid and will continue to pay 100% of the children's special or extraordinary expenses" is read in isolation. It must, however, be read in the context of the agreement as a whole, and in particular in conjunction with the following provisions:

• "Child support" includes table support and special or extraordinary expenses (5.1)
• A party may seek a change in child support if there is a material change, which may include a material change in either party's financial position and a change in special or extraordinary expenses (5.8 & 5.9)
• The parties will review child support arrangements annually, if either party requests in writing (5.12)

2. Written consent requirement

I do not accept Wayne's argument that this claim should be rejected because he did not agree in writing to any section 7 expense. Mardi's lawyer conceded in argument that the provisions of the agreement that she would not be obligated to pay a s. 7 expense unless she had consented in writing to that expense should also apply to Wayne's potential obligation to contribute, but of course subject to the proviso that consent should not be unreasonably withheld. Counsel submits that Wayne was unreasonable in refusing to contribute to any expense; I agree, for reasons set out further below.

3. Increase in table support

I do not accept Wayne's argument that the increase in the table amount of support which he is paying obviates the need for him to pay s. 7 expenses, because it will provide Mardi with an amount that is roughly equal to what his proportionate contribution to those expenses would be. The Ontario Court of Appeal rejected an argument similar to this in Ostapchuk v. Ostapchuk, supra, in dealing with a trial decision which included the table amount of support paid in the payee's income (and deducted it from the payor's income) for the purpose of calculating the contribution required to s. 7 expenses:

"Given that s. 7 expenses are added to the base amount of child support provided for by the table to determine the total amount of child support payable, it does not follow that the base amount should be separated from the s. 7 expenses. Nor does it follow that the amount of child support payable according to the table should form part of the income of the custodial parent for the purpose of completing the child support determination under s. 7. The inclusion of this income would be particularly problematic given that s. 7 expenses are those that go beyond the ordinary expenses contemplated by the table and therefore should not be indicative of the ability of the recipient of child support to contribute to extraordinary expenses."

4. Contribution to some expenses

I do not accept Wayne's argument that he should not be required to contribute to any type of special expense. Given the benefits to the children of participating in hockey and his substantial income, it is not tenable to say that it is unreasonable to require him to make any contribution to otherwise allowable s. 7 expenses for the children.

[30] Amount of Contribution

The question is, what amount should he contribute to such expenses?

Wayne Should Pay a Proportionate Share

[31] Proportionate Share Based on Income

Mardi's claims that Wayne should pay 50% of s. 7 expenses, rather than a share which is proportionate to income. That would currently be 40% of expenses.

It is a "guiding principle" of the Guidelines that such payments be in proportion to income. A court may deviate from that principle, but only in appropriate circumstances. For example, in Ravazi-Brahimi v. Ershad, 2007 ONCJ 407, in determining the amount to be contributed to an adult child's post-secondary expenses, the court found that a mother with income of $15,000 annually and no significant resources was unable to make any contribution. The court ordered that the father (who earned $48,000 annually and had significant resources) and the adult daughter pay these expenses.

[32] Mardi's Arguments for 50% Contribution

Mardi says that the court should order Wayne to pay 50% of these expenses, rather than a proportionate contribution, for two reasons:

• She has to support 3 children (Car., Cal. and G., a child from her second marriage), while he has an obligation to support only Car. and Cal.;
• He did not disclose his wife Paula's income, which should be included in an assessment of his "resources".

[33] Rejection of Mardi's Arguments

I do not agree with Mardi's arguments:

• The fact that a parent may go on to have another child after a separation is not unusual. It does not in itself provide sufficient reason to depart from the principle set out in s. 7(2) of the Guidelines. It also ignores the fact that Mardi receives substantial support of $5,700 monthly for her third child (this amount is not included in her statement of income) and 75% of that child's s. 7 expenses.

• Wayne's spouse's income is not relevant to the assessment of his income or his resources.

[34] Proportionate Share Ordered

Wayne will be required to contribute his proportionate share, 40%, of any s. 7 expenses ordered for 2016 and 2017.

[35] Consideration of Specific Expenses

I turn to the consideration of specific s. 7 expenses claimed.

Car.'s Orthodontic Treatment

[36] Orthodontic Expense

The evidence with respect to Car.'s orthodontic treatment satisfies me that this is a necessary and reasonable expense. Wayne will be required to contribute to the uninsured portion of this expense, which totals $2,302.50, in an amount of $921.00. This is not a recurring expense.

Expenses That Are Not Allowable or "Extraordinary"

[37] Non-Allowable Expenses

Some expenses claimed will not be allowed because they do not fall within the closed categories of allowable s. 7 expenses or because, although they are expenses for extracurricular activities, they are not "extraordinary". Claims by Mardi for expenses for birthday presents or for Mardi's costs to accompany the children on out of town trips (these costs are contained in bills for the children's tournament expenses), are not allowable s. 7 expenses.

[38] Ordinary Extracurricular Expenses

Given Mardi's income and the table amount of support received, the cost of the children's occasional participation in soccer or jujitsu or for school trips are not "extraordinary". They are expenses that can be covered by Mardi from her own income and the table amount paid.

Extra-Curricular Activities and Sports

[39] Extraordinary Nature of Competitive Hockey and Camp

I accept that the costs for competitive or elite hockey and for Car.'s attendance at Camp Manitou are "extraordinary", in that they are costs which Mardi cannot reasonably cover, given her income and the table amount of support received from Wayne.

[40] Necessity and Reasonableness of Hockey Costs

Are these costs necessary and reasonable? I will deal first with the costs of hockey.

Necessary?

[41] Benefits of Hockey Participation

This is not a case in which either child has a special talent for hockey that should be developed. However, these children have participated in hockey for years, and in competitive or elite hockey for at least four years. They play on class "A" teams. They enjoy the activity. Hockey is healthy exercise. It plays an important part in the children's social development. Wayne agrees that it is beneficial for the children to be involved in hockey at some level.

[42] Finding of Necessity

I am satisfied that participation in elite hockey is "necessary" for the children in the sense that it is in their best interests.

Reasonable?

[43] Reasonableness of $12,500 Annual Expense

Is the $12,500 annual expense for hockey "reasonable" in relation to the parties' means and their pattern of spending prior to separation?

[44] Wayne's Agreement to Elite Hockey

Did Wayne agree to elite hockey? Mardi argues that even though Wayne never agreed in writing to contribute towards the children's hockey expense, that he has always been an enthusiastic supporter of their participation in the sport, and that it follows that he should help pay for it.

[45] Prior Agreement and Continuation of Expenses

Although the Guidelines do not require that an activity be agreed upon by parents before a parent is required to contribute, a court may sometimes be asked to conclude that an expense for an activity is "reasonable" because the parent has agreed that the children should participate. In some cases a court will disallow a request for an s. 7 order if the expense was incurred without a parent's prior agreement, particularly if the expense did not represent a continuation of an expenses incurred while the family was intact.

[46] Wayne's Support for Hockey

I find that Wayne consistently supported the children's participation in hockey at all levels, even though he repeatedly cautioned that he would not contribute financially, and that Mardi kept him apprised of the cost of the activity.

[47] Pattern of Spending

Pattern of spending. With respect to this family's pattern of spending, Mardi's lawyer argues that this family has always supported the children being involved in sports, including hockey. That is true, but in this case, this factor has limited weight because the pattern of spending was not the result of a joint decision by the parents. The evidence indicates that the decision about what activities should be undertaken and funded was Mardi's decision, both during the marriage and for many years after the separation. The pattern appears to continue.

[48] Parties' Financial Means

I do not find that a payment of special expenses of over $20,000 annually is reasonable for these parties. Mardi earns a significant income, but, according to her financial statement, she spends $200,000 more each year than she earns. She has a negative net worth of $350,000.

[49] Wayne's Financial Circumstances

Wayne earned $94,957 last year, and spent about the same amount. Payment of an additional $1,428 monthly, as requested by Mardi for s. 7 expenses, would leave him little money for his own living expenses. Wayne has a net worth of $120,000, which reflects some investments and the equity he has in a home he owns with his spouse.

[50] Reasonable Contribution to Hockey

Although it is reasonable for Wayne to contribute some amount to the children's hockey expenses, it is not reasonable to require him to contribute the amount claimed by Mardi. Mardi will either have to reduce spending on the children's hockey or look to other resources to make up the shortfall between what Wayne can provide and what she spends.

[51] Tax Credits for Children's Fitness

Consideration of Mardi's claim for hockey expenses should take into consideration any applicable tax credits for which she is eligible. Up until 2017, she was entitled to claim and did claim amounts for children's fitness tax credits, in a maximum amount of $1,000 per child per year up to 2016, and $500 per year per child for 2017. I am unable to calculate based on the material before me the exact benefit to Mardi of such claims, but I do take this factor into account in setting a budget for the children's sports and extracurricular activities to which Wayne will be required to contribute.

[52] Reasonable Budget for Sports and Extracurricular Activities

In my view, the reasonable amount for Wayne to contribute to the children's s. 7 expenses for hockey, or any extracurricular or sports activity, is $3,000 annually, or $250 monthly. This represents 40% of a global amount of $7,500 annually, a reasonable amount to spend on the children's sports and extracurricular activities given each party's circumstances.

[53] Order for Ongoing Contribution

Wayne shall pay this amount to Mardi commencing January 1, 2016, and continuing as long as both children are enrolled in secondary school and are engaged in hockey or other sports or extracurricular activities with a cost of a minimum of $7,500 annually. Wayne's prior approval of these activities shall not be required. Mardi shall be required to forward to Wayne an accounting of such expenses every 6 months (by June 30th and December 31st of each year), with supporting invoices and/or receipts.

[54] Additional Payment for Orthodontics

For the year 2016, Wayne shall also pay an additional $938, representing 40% of the uninsured cost of Car.'s orthodontic treatment.

[55] Further Section 7 Expenses

In addition, Wayne shall pay 40% of the cost of any further s. 7 expenses for the children agreed to by him in advance and in writing, with consent not to be unreasonably withheld.

[56] Camp Manitou

Camp Manitou. Mardi also claims expenses of $5,390 for Camp Manitou this past summer for Car., in addition to a cost of $1,000 for hockey camp. Camp Manitou or a camp of similar cost was not an expense incurred in the 2 prior summers. There is no evidence that Wayne was asked to approve Car.'s attendance at this camp. I am not persuaded that this expense was reasonable or necessary.

Retroactive Claim

[57] Retroactive Expenses for 2014 and 2015

Based on receipts filed, Mardi claims a contribution towards s. 7 expenses for 2015 which total $9,494, and for 2014 which total $8,927 (excluding class trips). I reduce these totals to $7,500 for each year, for the same reasons I reduced the total expenses for 2016 to which Wayne was required to contribute. If Wayne is ordered to pay a proportionate share of these expenses, he would pay $3,075 for 2015 (41%) and $2,700 for 2014 (36%).

[58] Application of D.B.S. Principles

Applying the D.B.S. principles to this claim, I find as follows.

[59] Reason for Delay in Claim

Reason for the delay in claim. Mardi has advanced an acceptable reason for the delay. She attempted to negotiate and then mediate the issue with Wayne. A parent's efforts to resolve such issues out of court are not to be punished. This factor does not weigh against a retroactive claim for a period of 24 months.

[60] Blameworthy Behavior - General Principle

Blameworthy behavior by the payor. A failure to pay s. 7 expenses in my view is not the same as a failure to contribute the table amount. The payor's obligation to make such payments is not as clear as the obligation to pay the table amount. Payments of s. 7 expenses are discretionary; determination of the appropriate amount depends on several factors.

[61] Blameworthy Behavior - Wayne's Position

If Wayne's position had been that he was willing to pay towards some s. 7 expenses, but in a lesser amount, I would find that he did not engage in blameworthy behavior. However, Wayne's position that he had no obligation to make such payments, given his income and the other factors noted above, was unreasonable. This factor weighs in favour of some retroactive payment.

[62] Modification for Transportation Services

That factor is modified by the fact that for 2014, Wayne provided most of the children's transportation to hockey practices and games, an onerous task. That factor leads me to reduce the award that I would make otherwise related to 2014 expenses by one-half.

[63] Effect on Child of Non-Payment

Effect on child of non-payment. There is no evidence that Car. and Cal. were denied any activity because Wayne did not contribute.

[64] Hardship to Payor of Retroactive Payment

Hardship to the payor of a retroactive payment. Wayne will be able to pay the retroactive award I propose to make from savings and investments. That award, plus the arrears in s. 7 expenses created by the order I have made above with respect to 2016 and 2017, requires about $11,000 to be paid in full.

[65] Retroactive Award

Taking these factors into account, I order that Wayne pay $4,425 towards s. 7 expenses for the years 2014 and 2015.

Costs

[66] Costs Submissions

If costs are sought by either party, written submissions no longer than 10 pages, plus any offers to settle, shall be served and filed by May 26, 2017. Mardi's lawyer and Wayne shall attend before me on May 31, 2017 at 10 a.m. to respond to any queries I may have with respect to their submissions.

Released: April 25, 2017

Signed: Justice E. B. Murray