Court File and Parties

Ontario Court of Justice

Date: October 12, 2018

Court File No.: Kitchener 32/10

Between:

Allison Lee Skinner Applicant

— And —

Bradley Dwayne Rideout Respondent

Before: Justice B.C. Oldham

Heard on: August 21, 2018

Reasons for Judgment released on: October 12, 2018

Counsel:

• Ms. Towlson, counsel for the applicant (Allison Lee Skinner)
• Mr. Noll, counsel for the respondent (Bradley Dwayne Rideout)

Judgment

OLDHAM J.:

Introduction

[1] The Applicant Mother (the "Mother") commenced a Motion to Change the child support owing pursuant to the Order of Justice Hardman dated September 28, 2012 (the "Hardman Order"). The MTC was commenced on August 18th, 2017 and also sought to fix arrears in the amount of $12,608.06 based on an adjustment dating back to January 1, 2015. This amount had increased to $16,474.14 as of August 31, 2018.

[2] No claim was made in the MTC in respect of outstanding section 7 expenses. As an Exhibit to her updating affidavit sworn on July 20, 2018, the Mother filed materials to support her request that the Respondent Father (the "Father") pay a proportionate amount towards the children's estimated orthodontic costs as a section 7 expense under paragraph 12 of Justice Caspers' Order January 14, 2011 (the "Caspers Order"). The Mother was not seeking a variation of the Caspers Order.

[3] The MTC on the issue of quantum of child support arrears was adjourned to a hearing before me. At the commencement of the hearing, the parties confirmed that they had reached an agreement in respect of the amount of the ongoing monthly child support; the proportionate sharing of section 7 expenses; and that the Father would pay $350 per month towards any arrears that may be owing. With respect to the quantum of arrears, I was asked to consider the following issues:

1. Can the Mother claim arrears owing back to January 1, 2015? If not then what is the appropriate retroactive date for adjustment of child support?

2. Should the arrears be calculated based on the actual income, or the income from the previous year?

Background Facts

[4] The parties were married on October 7, 1997 and separated on October 7, 2007. There are two children of their marriage; namely Austin Maurice Rideout, born on November 15, 2000 and Maia Lee Rideout, born on February 19, 2003. The parties finalized the terms of their separation by order of Justice Caspers, dated January 14th, 2011. With respect to child support, the Caspers Order provided the following:

10. Commencing February 1st, 2011 and monthly thereafter, the Respondent, Bradley Rideout shall pay to the Applicant, Allison Rideout for the support of the children, namely, Austin Maurice Rideout, born on November 15, 2000 and Maia Lee Rideout born on February 19, 2003 the sum of $400. This amount is less than the guidelines amount and takes into account the considerable amount of time the Respondent has the children in his care. Parties agree that the Respondent, Bradley Rideout's current income is estimated to be $28,769 and grossed up, $33,659 for child support purposes and his source of income is WSIB.

11. The Respondent, Bradley Rideout's 2010 income was $43,659 and a retroactive increase in child support is appropriate, therefore, in addition to any arrears owing by the Respondent, Bradley Rideout to the Applicant, Allison Rideout, the Respondent also owes to the Applicant additional arrears for the period February 2010 to December 2010 (11 months) in the amount of $2,530. These arrears shall be paid at a rate of $100 per month commencing February 1st, 2011 until paid in full.

12. The Respondent, Bradley Rideout shall contribute his proportionate share towards children's special and or extraordinary expenses. These expenses may include medical and dental expenses depending on the status of the Respondent, Bradley Rideout's coverage which is currently unknown to the Applicant, Allison Rideout. These expenses will include child care expenses if and when the Respondent, Bradley Rideout obtains a job. The parties agree to the proportionate sharing of the expenses (registration) of one summer and one winter activity for each of the children.

13. The parties shall exchange copies of their income tax returns filed with Canada Revenue Agency by June 1st of each year commencing June 1st, 2011 for the 2010 tax year. The parties shall also provide each other with copies of Notice of Assessment or Reassessment received from Canada Revenue Agency forthwith upon receipt.

14. The Respondent, Bradley Rideout shall advise the Applicant, Allison Rideout in writing of any change in income, benefits or employment and provide full written particulars of the change within 14 days of the change occurring.

[5] The parties returned to court in 2012 and obtained a variation to the Caspers Order. This order was made by Justice Hardman on September 28th, 2012. Paragraph 14 of the order of Justice Caspers was amended as follows:

"The Respondent, Bradley Rideout shall also notify the Applicant Allison Rideout in writing of any change to his work schedule. The Respondent, Bradley Rideout acknowledges that his current schedule is two week repeating schedule shown in schedule "A" and that this will be his work schedule for the foreseeable future. The Respondent, Bradley Rideout further acknowledges that when his work schedule changes he will receive a new written schedule/printout from his employer. The Respondent, Bradley Rideout shall forthwith provide to the Applicant, Allison Rideout with a copy of the work schedule received from his employer."

[6] With respect to child support, an order was made by Justice Hardman commencing October 1st, 2012 to increase the amount of child support to $512.47 per month "...based on an estimated annual income of $35,324.09 (employment income $12 per hour x 40 hours x 52 weeks plus WSIB grossed up)".

Position of the Parties

The Mother's Position

[7] It is the Mother's position that she is entitled to a retroactive adjustment to January 1, 2015 on the basis that she sought an increase as soon as she received the Father's 2015 Notice of Assessment. The Assessment was received in June of 2016. It is the Mother's position that she could not have known or brought the request sooner because she did not have the 2015 Notice of Assessment until June 2016.

[8] It is the Mother's position that the Father should pay retroactive child support based on the actual earnings (rather than the prior year's earnings) given that this information is now available to the court.

[9] With respect to the orthodontics, the Mother claims that the orthodontic work is a proper section 7 expense and that the parties should share this expense on a proportionate basis. As noted above, the parties agreed upon a proportionate sharing of any section 7 expenses in advance of this hearing. The proportionate share being 35% for the Mother and 65% for the Father based on an imputed income of $22,446.72 (which is the equivalent of a fulltime position earning $18 per hour for the Mother and an income of $67,607 for the Father.

The Father's Position

[10] It is the Father's position that he should only be obligated to pay child support retroactively to the effective notice date being June 1, 2016.

[11] The Father maintains that he followed the orders and provided income information to the Mother in a timely manner. She did not request any change to the monthly child support until June 2016 and accordingly, the court cannot go beyond the effective notice date.

[12] Moreover, the Father relies on and takes the position that the Mother is bound by her letter dated May 18th, 2017, where she notes "I will agree to your request to have calculated arrears to take effect as of June 2016."

[13] With respect to the amount of income to be applied, it is the Father's position that the court should apply the previous year's income for the purposes of any calculation of arrears. It is his position that by doing so, it provides continuity in terms of child support calculations. He notes that as of today's date, the parties are unable to definitively determine 2018 income and have therefore agreed to use the Father's 2017 income to determine the ongoing child support obligation.

[14] The Father also notes the Caspers Order which requires the production of Notices of Assessment by June 1st of each year for the previous year. There is no specific mechanism within the order for an adjustment retroactively and accordingly it is his position that absent such language the court should apply the previous year's income effective June 1st upon receipt of the updated income information.

[15] With respect to the section 7 expenses, it is the Father's position that the orthodontic work proposed is cosmetic and does not quality as a section 7 expense.

Law and Analysis

Is Mother Entitled to Retroactive Support Beyond the Effective Notice Date

[16] The leading case on the issue of retroactive child support is the Supreme Court of Canada decision in D.B.S. v. S.R.G. 2006 SCC 37 ("D.B.S."). The Court was asked to look at whether courts had the jurisdiction to award retroactive child support and considered the circumstances under which an order should be made. There are several clear principles that come out of this decision that continue to be applied by courts:

1. "Retroactive" awards are not truly retroactive. They do not hold parents to a legal standard that did not exist at the relevant time. The parents who owed support are being ordered to pay what, in hindsight, should have been paid before.

2. The ultimate goal must be to ensure that the children benefit from the support they are owed at the time when it is owed. Any incentives for the payor parent to be deficient in meeting their obligations should be eliminated.

3. The obligation of child support arises automatically upon birth and is the right of the child.

4. The right to support survives the breakdown of the child's parents' marriage.

5. Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together.

6. Specific amounts of child support owed will vary based upon the income of the payor parent.

7. A payor parent's increase in income will increase his or her share of the child support burden to an amount of child support owed.

8. Under the general guidelines regime when a payor parent does not increase the amount of his or her support when his or her income increases, it is the child who loses: the child is the one who is entitled to the greater quantum of support in absolute terms.

9. A payor parent who does not increase his or her child support payments to correspond with his or her income will not have fulfilled his or her obligations to his/her children.

(See: also D.B.S. paras 2, 4, 37, 38, 45 and 54.)

[17] In coming to these principles, the Supreme Court acknowledged the need for certainty which arises out of court orders, separation agreements or conduct by the parties (which must be balanced against the need for flexibility). It is this need for balance and fairness which requires that a court conduct the fourfold analysis before making any determination for retroactive support. The fourfold analysis as laid out by Justice Bastarache indicates that in determining whether to award retroactive child support, the court should consider the following factors:

1. The reasonableness of the delay in seeking support;

2. The conduct of the payor;

3. The circumstances of the child;

4. The hardship occasioned by a retroactive award.

(see D.B.S. para. 101, 106, 110 and 114).

[18] It will not always be appropriate for a retroactive award to be ordered (see: D.B.S. para 95) and each case must be determined based on 'its particular factual matrix' (see D.B.S. at para 99).

[19] In respect of situations where the court is considering whether to order retroactive support where there has already been a court order for child support, the Supreme Court made the following comments at paragraphs 65 and 66:

"In my view, a court awarding a certain amount of child support must be considered presumptively valid. This presumption is necessary not only to maintain the certainty promised by a court order, but also to maintain respect for the legal system itself. It is inappropriate for a court, just as it is inappropriate for a parent, to assume that a previously ordered award is invalid.

The presumption that a court order is valid, however, is not absolute. As noted above, the applicable legislation recognizes that a previously ordered award may merit being altered. This power will be triggered by a material change in circumstances."

[20] Once a determination has been made that there is a material change and that a retroactive award should be made, the court has held that the presumptive date should be the effective notice date. The effective notice is defined in D.B.S. at para 121 as follows:

"By 'effective notice', I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be renegotiated. Thus, effective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached. Once that has occurred, the parent can no longer assume that the status quo is fair and his/her interests in certainty becomes less compelling."

[21] At para 123, the Court identifies that there are also times when the effective notice date may be followed by a prolonged period of inactivity which could lead the payor parent to believe that reasonable interest in certainty has in fact returned. For that reason, the court suggested that "…in general I believe that some rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support retroactive to a date more than three years before formal notice was given to the payor parent."

[22] There are also circumstances where retroactive support should start as of the date that the increased support should have been paid. As noted by the Court in D.B.S. at paras 124 and 125:

"124 The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances – including an increase in income that one would expect to alter the amount of child support payable – is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.

[23] In this particular case, there is no evidence of blameworthy conduct. The Mother produced a copy of a Statement of Arrears prepared by the Family Responsibility Office which confirms that the Father regularly and consistently paid his support. The Father produced letters from himself to the Mother for each year from 2013 to the present in which he confirmed his increases in pay, any changes in schedule or employment and provided copies of his Notices of Assessment.

[24] The Mother does not dispute that this information was provided to her, nor does she provide any evidence that the issue of an increase in child support was raised prior to June 2016.

[25] The evidence in respect of the communication between the parties from June 2016 onward is as follows:

1. The Mother wrote to the Father on June 10th, 2016 indicating that "I have received copies of your 201[6] Notice of Assessment and Income tax return just recently (mine are included). This year, I have noticed a significant difference in your annual income over the income that was originally used to calculate child support in the original court order. The online Child Support calculator estimates the amount to be almost $800 per month. Would you agree in my filing the necessary paperwork to have the courts increase the monthly amount of child support based on your income increases over the past few years?"

2. The Father responded by letter dated July 5, 2016 confirming his agreement to increase child support based upon his income, but suggesting mediation. He did not agree on the proportionate share of the children's activities and these issues were also addressed in his responding letter.

3. The Mother writes back on July 12, 2016 seeking confirmation that the Father will increase child support 'based on his 2015 annual employed income of $40,233.89 + WSIB income received of $12,623.37 = $53,577.26".

4. The Father responds by letter dated July 26, 2016 confirming any change must be finalized by court order so that it can be enforced through FRO. He also notifies the Mother that his employment and salary recently changed. He notes "I have been hired as an Environmental Services Supervisor at Emmanuel Village Residence in Kitchener. I am salaried at $45,000 per year. My projected income will be: Employment: $45,000 + WSIB $12,623.37 = $57,623.37".

5. The Mother then prepares and signs a Consent to MTC and sends it by letter dated September 7, 2016. The attachment is included in the Father's materials and the Consent notes arrears of $8,785.98 as of September 7, 2016. The materials filed do not confirm the calculation of the arrears, nor does it clarify the adjustment date used by the Mother in this calculation.

6. The Father responds on September 18, 2016 indicating that he cannot sign the Consent. The Father suggests that the child support amount should reflect his current income and notes the notice of new employment included in his letter of July 26, 2016 which he states was returned as unclaimed. He calculates arrears owing from June, 2016 to be $1,314.58.

7. The Father writes on October 28, 2016 advising the Mother of another change to his income and employer. Specifically that "Emmanuel Village was bought out by Revera and my title has changed to Director of Environmental Service at Briarfield Gardens, 1250 Weber Street East, Kitchener. I receive an increase in pay to $23.54 per hour for a 37.5 hour work week (salaried at $45,900 per year). He attaches a pay stub.

8. The next letter is from the Mother dated May 18, 2017 indicating that she will agree to his request to have 'calculated arrears to take effect as of June 2016.' She calculates his annual income based on a $45,900 salary plus WSIB to be $64,882.51 after gross up.

9. The Father writes on May 30, 2017 and it becomes clear that the parties are applying a different gross up calculation. The Father uses 17% based on his calculation of the amounts set out in the Caspers Order. The Mother uses the supportmate calculator which applies at 50% gross up.

10. Ms. Towlson then writes to the Father by letter dated June 14, 2017 enclosing a copy of a Consent MTC which includes an arrears calculation back to January 1, 2015 in the amount of $11,763 owing to June 30, 2017.

11. The Father writes to confirm his position that he is prepared to agree to a retroactive adjustment, but only to June 2016 when the Mother made her first request.

[26] Although not included in her materials, the Mother acknowledges that she received a letter dated May 1, 2015 from the Father. This letter was read into court record as follows:

"I am writing to advise you of a change to my employment and salary in accordance with our agreement. I have transferred to Chartwell Westmount Retirement Residence in Kitchener as a Maintenance Manager. I am salaried with a 37.5 hour work week and a starting salary of $20 per hour."

[27] The Father claims that he attached a current pay stub. The Mother claims that she only received a 2013 paystub at this time. Either way, the contents of the letter clearly indicate that the Father has a new job and that he will be earning $20 per hour based on a salaried 37.5 hour work week. The annualized calculation of this income is $39,000 per year. His actual income in 2015 based on his T1General Tax Return was $40,233.89 (employment income) and $12,623 (WSIB). His Notice of Assessment confirmed a Line 150 income of $53,576. The Mother never asked for any clarification or a current 2015 paystub when she received the May 1, 2015 letter.

[28] The Father's income in 2014 was $37,987.39 (employment income) and $12,440 (WSIB income) with a Line 150 income of $50,427. This Notice of Assessment was provided and referenced in a letter to the Mother dated June 21, 2015.

[29] The Hardman Order specifically noted that child support was based upon "$35,324.09 (employment income) $12.00 per hour x 40 hours x 52 weeks) plus WSIB grossed up. Accordingly, it was clear from the May 1, 2015 letter that the Father's income had increased significantly from $12.00 per hour to $20.00 per hour. The Mother acknowledges that no request for an increase in child support was made at this time. It was her position that her first opportunity to ask for an increase was in June 2016 when she received the Notice of Assessment confirming the annual income.

[30] The Mother's first letter of June 10, 2016 seeks an adjustment "over the past few years" and her final letter of May 18, 2017 before Ms. Towlson becomes involved notes that she will "agree to your request and have calculated arrears take effect as of June 2016." I do not agree with the submission by the Father's counsel that the Mother is bound by a June 2016 commencement date based upon her letter of May 18, 2017. Similarly, I do not agree with the submission by the Mother's counsel that her letter of June 10, 2016 provides effective notice of a commencement date of January 1, 2015. Even if the letter clarified the retroactive date, effective notice is when the issue is first raised, not the retroactive date requested in the first notice.

[31] There is no question that retroactive support is owing. The Father's income increased significantly from the $12.00 per hour applied in the Hardman Order. There is no evidence of specific hardship which would be occasioned on the Father as a result of a retroactive award, nor is there any evidence of circumstances around how such an award, or the lack of increased child support at the time, impacted the child.

[32] It is clear that the 'effective date' was June 2016. The effective date is the date upon which the retroactive adjustment should be made, unless there is a significant delay between the effective notice date and the formal notice date, or unless there is blameworthy conduct.

[33] In this case, the delay between the effective date and the Mother bringing the matter to court is not significant and can be easily explained. The Mother continued to try to negotiate with the Father throughout and at no time would he have been left with the impression that the current order was still valid. The Father does not dispute this and acknowledges that an adjustment back to June 1, 2016 is appropriate.

[34] The Mother's position that the court should go back beyond the 'effective notice date', to January 1, 2015 is based upon her position that her client could not have sought an adjustment earlier because she did not know the Father's 2015 income until June 2016. This argument cannot hold because the Father did provide the details of his 2015 income in May 2015. Moreover, the increase in 2014 is also significant (i.e. a total of $50,427.94 before any gross up as compared to the $35,324.09 (which includes employment income and WSIB with a gross up). The Mother's failure, or decision, not to pursue an increase in these years, allowed the Father to assume that the current order was valid; particularly given that he was in complete compliance with the order including payments and his notice obligations.

[35] The situation may have been different if there was evidence that the Mother had asked for income information and it was refused, or if the Mother had even suggested to the Father when she received his letter indicating that his income had increased to $20 per hour and that she may be pursuing an increase in child support depending upon confirmation of his 2015 income at year's end. None of that occurred. The Father acted as he should. As noted by the Supreme Court in D.B.S, while child support is a right of the child, there is a balancing that must occur when addressing issues of retroactive support. It is the responsibility of both parents to ensure that the payor parent fulfills his/her actual obligations, tailored to the circumstances at the relevant time.

[36] It is also relevant that these parties are no strangers to litigation and Motions to Change. The Mother sought and obtained a variation in 2012 and accordingly, should have at least put the Father on notice if she felt that an adjustment was appropriate.

Should the Court Apply the Actual Income or the Previous Year's Income

[37] While there is some logic to the Respondent Father's position that retroactive child support should be based upon a previous year's income, the Court of Appeal in Vanos v. Vanos 2010 ONCA 876, is very clear on this issue. Specifically the Court of Appeal provides as follows:

[13] In our view, where the amount of child support that should have been paid in a prior year is under consideration, the payor's actual income for that year is the amount that should be used to calculate support for the prior period, so long as the payor's actual income for the prior period is known.

[14] When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid.

[15] Our conclusion in this regard is rooted in common sense – but also in s.2(3) of the Child Support Guidelines, SOR/97-175, which states, "[w]here, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used."

[16] Further, we agree with the following comments of Baltman J. in Desjardins v. Bart, (2006) 33701 (Ont. S.C.) at para. 17:

Although the normal practice, based on convenience, is to address child support going forward based on the previous year's income, once the court is intervening and looking backwards at a particular period, it makes sense to adjust child support retroactively for the relevant period, which in this case is 2004.

[38] Accordingly, the income for the retroactive child support should be based on the actual income in 2016 and 2017. The parties do not dispute the calculations provided in the Mother's materials although it is noted that there were some minor discrepancies. The main difference in the calculation of arrears is in the income to be applied (ie., whether the year prior or the current year). The parties agree that the appropriate gross up to be applied is that determined by the supportmate calculation. Accordingly, based upon the calculations provided at paragraph 16 of the Affidavit of Ms. Skinner sworn on July 20, 2018, the Father owes the following:

• The Respondent's 2016 income consisted of $44,635 in employment income and $12,821 in tax free WSIB which is grossed up. The income for child support purposes is $62,973. The amount of guideline support payable for two children is $935 per month. The difference therefore between the amount paid and the child support guidelines is $422.53 which is to be multiplied by 7 months for a total of $2,957.71.

• The Respondent's disclosed income for 2017 consisted of $49,151 in employment income and $13,160 in tax free WSIB which is grossed up for a total income for child support purposes of $67,858. The child support amount owing in respect of that income is $1,034 per month leaving a difference owing of $521.53 per month for a total of $6,258.36.

• For 2018 the parties agreed to utilize the 2017 income and have reached Minutes of Settlement which address the issue of ongoing child support commencing March 1st, 2018 and accordingly there are only and additional two months owing for 2018 for a total of $1,043.06.

[39] Accordingly the total outstanding amount of arrears owing from June 1st, 2016 to February 28th, 2018 is $10,259.13.

[40] The parties have agreed that the Father will repay these arrears at a rate of $350 per month which should commence on October 1, 2018.

Section 7 Expenses

[41] It is noteworthy that the Mother's MTC does not specifically seek an order from the Father to contribute a proportionate share of the estimated orthodontic work for the children. Notwithstanding, both parties asked the court to provide direction as to whether the Father must contribute a proportionate share towards this expense.

[42] An order for contribution to special and extraordinary expenses under section 7 of the Child Support Guidelines, O Regulations 391/97 (the "Guidelines") is discretionary as to both entitlement and amount.

[43] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. (See: Park v. Thompson, [2005] O.J. No. 1695, (Ont. C.A.).)

[44] Section 7 of the Guidelines provides as follows:

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. O. Reg. 391/97, s. 7 (1) ; O. Reg. 446/01, s. 2.

[45] The Court of Appeal in Titova v. Titov 2012 ONCA 864 paragraph 23, set out a framework for assessing section 7 expenses.

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

[46] Subsection 7 (3) of the Guidelines states that in determining the amount of an expense referred to in subsection 7 (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.

[47] The difficulty with the Mother's claim in respect of the orthodontic work is that the information relied upon to support this claim is dated and incomplete.

[48] The Mother's affidavit does not attach the quotes provided to the Father in 2017 for the cost of this work. Accordingly, the court has no information upon which to assess the total cost and the corresponding reasonableness of the costs in accordance with the means of these parties. The Mother acknowledges through submissions by counsel that the quotes are over a year old and will likely need to be reassessed in any event.

[49] The Father takes the position that the orthodontic work is cosmetic and not necessary. His position is based primarily on the basis that the estimates provided and the application for coverage through non-insured health benefits for First Nations and Inuit Health Branch ("N.I.H.B.") was denied. N.I.H.B. declines coverage on the basis that the "criteria of severity and functional limitation established by the N.I.H.B. program was not met".

[50] A copy of the orthodontic policy from N.I.H.B. was provided and noted that the clinical criteria required that the condition be a combination of marked skeletal and dental discrepancies such as but not limited to:

1. Cross bite associated with significant and clear functional shift,

2. Severe over bite with evident soft tissue injury (˃ 2/3 overlap with impinging of palate),

3. Severe over bite (≥ 5 mm),

4. Severe over jet, positive (≥ 7 mm) or negative (≤ - 4 mm).

[51] The fact that the work is not covered by N.I.H.B. does not automatically disqualify the expense as a section 7 expense. Section 7(1) specifically includes "orthodontic treatment" as a health related expense contemplated by section 7. However, the court must assess whether the work is necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation". I do not have sufficient information to assess the necessity or the reasonableness of the expense.

[52] The Mother has not provided any information from the Orthodontist to describe the treatment recommended, or confirm the necessity of it. I have only the letter from the Mother to "Michelle" dated January 13, 2017 providing further information in response to the denial of her claim for coverage.

[53] Similarly, the Father acknowledged that he did not contact the Orthodontist to confirm the basis of the recommendation for the orthodontic work.

[54] The Father's benefits have changed and it was not clear whether the Father now has benefits that may cover all or a portion of these expenses.

[55] While orthodontic treatments are included as a specific special expense under section 7, I cannot make an order that the Father pay this particular expense without additional information.

Order

[56] For reasons set out above, the arrears in child support owing by the Father to the Mother is fixed at $10,259.13.

[57] Based on my decision, it would appear that this is a case where an order for costs may not be appropriate. However, if there are relevant offers to settle or other factors that should be taken into consideration, this issue may be addressed on the return of this matter on October 15, 2018.

Released: October 12, 2018

Signed: Justice B.C. Oldham