Court File and Parties

Court File No.: Guelph D-18-17 Date: 2018-03-01 Ontario Court of Justice

Between:

Malcolm Pryor Applicant

— And —

Joyce Christine Pryor Respondent

Before: Justice B.C. Oldham

Heard on: January 22, 2018

Reasons for Judgment released on: March 1, 2018

Counsel

Mr. M. Ruhl — counsel for the Applicant

Ms. A. Clarke — counsel for the Respondent

Judgment

OLDHAM J.:

Procedural History

[1] The Applicant father, Malcolm Pryor (the "Father") brought an urgent motion returnable on May 3, 2017 seeking interim access to his son, Julian Wellington Pryor born on […], 2009 ("Julian"). That motion was adjourned on May 30, 2017 to a hearing scheduled for June 28, 2017. On June 16, 2017, the Respondent mother, Joyce Christine Pryor (the "Mother") brought a motion returnable on June 28, 2017 seeking custody, child support, a contribution from the Father of $805 per month toward section 7 expenses, life insurance, the completion of a Parenting Capacity Assessment and counselling for the Father.

[2] Both of these motions were dealt with in part by Justice Brophy on June 28th, 2017. Specifically, Justice Brophy made the following Temporary Order on June 28, 2017 (the "Brophy Order"):

1. The Respondent shall have residential care of the child, Julian Wellington Pryor, born on […], 2009.

2. The Respondent shall have the right to make all decisions with respect to health and educational related services for the child, provided that the Respondent shall provide consents so that the Applicant can obtain information and consult with those various service providers. Further, the Respondent shall keep the Applicant informed at all times about the nature of those services and the schedules related to same and will provide copies to the Applicant of all reports generated by any of the service providers.

3. The Respondent shall have supervised visits with the said child at the Supervised Access Centre in Guelph weekly for three hours commencing the week of July 1, 2017 for four months. Thereafter he will have access to the child every Saturday for seven hours, save and except when the child is at camp or any similar facility, with supervised access exchanges to take place at the Supervised Access Centre. All of the above is subject to the protocols of the Supervised Access Centre. The parties will comply with those protocols including the intake protocols, which shall take place within five days of today's date. Any costs for the services at the Supervised Access Centre shall be paid by the Applicant.

4. The parties may agree upon such further and other access as they choose, including alternative supervisors.

5. The parties shall use Our Family Wizard for communication purposes, save and except that they may decide through counsel to discontinue use of same.

6. The Applicant shall pay child support to the Respondent for the child Julian Wellington Pryor, born […] 2009, in the amount of $816.00 per month commencing July 1, 2017 based upon the Child Support Guidelines and the income of the Applicant that is noted to be $91,885.00 per year.

7. The Applicant shall pay 61% of all section 7 expenses that are incurred with respect to the child commencing July 1, 2007 upon the provision of copies of receipts for same.

8. The balance of the motion is adjourned to August 9, 2017 to be spoken to.

[3] The Brophy Order was not appealed and on August 9, 2017 the matter was scheduled for a settlement conference to be held on October 25, 2017. On October 25, 2017, the balance of the Mother's motion identified as paragraphs 4 (requesting that the Applicant obtain a policy of life insurance sufficient to secure the child support), 5 (requesting that the child support obligations constitute a first lien and charge against the Applicant's estate), 6 (a Parenting Capacity Assessment) and 7 (that the Applicant attend counselling) was adjourned to November 6, 2017 to set a date for hearing.

[4] On November 6, 2017, Justice Caspers confirmed that only the issues relating to the appointment of the OCL and section 7 expenses were scheduled for hearing on January 22, 2018.

[5] By motion dated January 15, 2018, the Father brought a motion returnable on January 22, 2018 requesting the involvement of the OCL, as contemplated by Justice Caspers' November 6, 2017 endorsement. The Father's motion also sought to commence unsupervised access in accordance with paragraph 3 of the Brophy Order.

[6] At the commencement of the hearing on January 22, 2018, the Mother confirmed her agreement to an Order requesting the appointment of the OCL and that order was made on consent on January 22, 2018.

[7] Accordingly, the only two issues that were addressed before me on January 22, 2018 were section 7 expenses and the commencement of unsupervised access by the Father.

Background Facts

[8] The parties met in 2005 and were married on July 29th, 2006. Both were teachers at the Centre Dufferin District High School. They adopted Julian shortly after his birth.

[9] The parties separated on December 1st of 2014.

[10] Julian continued to live with the Mother in the matrimonial home following the separation. The Father claims that access was a regular source of strife and that the Mother was very restrictive in terms of Julian's access with his Father. The parties signed a Partial Separation Agreement on December 4, 2015 (the "Agreement") which resolved all of the equalization issues on a final basis and addressed the parenting and spousal support issues on an interim basis. Specifically, the parties agreed on an interim, without prejudice basis that they would mutually respect each other, have joint custody of Julian and the Father would pay the Mother $484 per month in child support. The parties agreed to retain an independent third party counselor to assist in devising a parenting plan for Julian.

[11] The Father retired from teaching in 2015 and while the parties attempted to negotiate a parenting plan and access schedule with the assistance of Annette Katchaluba of By Peaceful Waters, the intended parenting plan was never finalized and there continued to be a significant level of conflict.

[12] The Father was charged with uttering threats on January 26th, 2017. He was released on bail on January 28th, 2017. The charges were ultimately dealt with by way of a guilty plea and an absolute discharge. However, from the time that the charges were laid until the Brophy Order, the Father did not have any access with Julian.

[13] Although the Brophy Order required that the parties complete the intake process at the Supervised Access Center within five days of the Order, it took some time to complete and supervised access did not commence until October 1st, 2017. Since October 1, 2017 (just short of four months as of the date of this motion), the Father exercised supervised access on alternate Sunday afternoons from 1:00 pm until 3:00 p.m.

The Issues

Section 7 Expenses

[14] There is no question that the child has learning disabilities and special needs. This is acknowledged in the Father's sworn Affidavit in Support of Custody and Access. The parents do not agree, however, on the extent of these needs and the services required. This is the crux of the issue in respect of section 7 expenses.

a. Outstanding Section 7 Expenses

[15] While the Brophy Order confirms that section 7 expenses are to be payable as of July 1st of 2017, the parties had not broken out the expenses claimed or the amounts paid as of that date. Rather, the Mother's Affidavit sworn on December 22, 2017, includes a summary of all of the section 7 expenses from the date of separation to December 22nd, 2017. The total of the expenses claimed by the Mother in Exhibit "A" to her affidavit is $22,651.44 and is broken down as follows:

• Guelph Community Christian School ("GCCS") Tuition: $7,415.00
• Tutoring/Reading: $1,642.00
• Child Care Expenses: $2,218.65
• Occupational Therapy: $2,455.00
• Speech Therapy Services: $2,699.34
• Summer Camp/Outdoor School: $3,326.06
• Summer Camp Activities for 2016: $1,003.83
• Sports Activities for 2017: $1,411.56
• Medical Other: $480.00

[16] The Father's Reply Affidavit sworn on January 14, 2018 confirms his agreement to pay the following expenses:

• GCCS Tuition: $7,415.00
• Tutoring Expenses Prior to Enrollment in GCCS: $1,190.00
• Occupational Therapy Expenses: $2,445.00
• Speech Therapy: $2,699.34
• Summer Camp Activities for 2016: $1,003.83
• Sports Activities for Swimming, Baseball, Scouts and Hockey for 2017: $704.55
• Medical Expenses: $250.00

[17] Accordingly, the total expenses acknowledged as reasonable section 7 expenses by the Father are $15,707.72. His proportionate share based on the 61% set out in the Brophy Order is $9,581.71.

[18] The Father also claims that he has paid a total of $4,200.83 reducing the amount owing to $5,380.88.

[19] The Mother acknowledges receipt of $4,200.83, but disputes that these amounts were paid for section 7 expenses. She claims that they were paid in respect of debts which were owing pursuant to the terms of the Agreement.

[20] The Father produced bank records to confirm the payments and the dates paid, but has not provided any evidence to trace the payments to the section 7 expenses or to rebut the Mother's claim that these amounts were paid pursuant to the Agreement and not toward any specific section 7 expense.

[21] As a result of the Father's concessions, the only retroactive section 7 expenses that remain in question are as follows:

• Tutoring Expenses: $452.00
• Child Care Expenses: $2,218.65
• 2017 Summer Camp Expenses: $3,326.06
• Sports and Activities: $707.01
• "Other" Medical Expenses: $230.00

[22] The total being $6,943.72, which if accepted, would result in a payment owing from the Father in the amount of $4,235.67 based on his 61% share.

[23] It is the Mother's position that an Order should be made confirming that the Father owes the $9,581.71 that he has acknowledged and that the balance of her section 7 claims (ie., the difference of $6,943.72) and the Father's claim that he paid $4,200.83 can be addressed at trial.

[24] The Father's position is that he is only prepared to agree to pay for section 7 expenses (some of which pre-date the Brophy Order) and some of which he claims are concessions to resolve this issue, if he is given a credit of $4,200.83, being the amount he claims he paid toward section 7 expenses.

[25] The Father's position in respect of the outstanding section 7 expenses is not set out in an offer to settle, but rather in his affidavit sworn on January 14, 2018. His affidavit does not specify which section 7 expenses he considers to be 'concessions', but simply states that "[he] is agreeable to pay [and he lists the various expenses]". He notes that the expenses were incurred without consultation and in some cases confirms that while he is prepared to pay the outstanding invoices, he does not agree that a particular expense is a reasonable ongoing section 7 expense.

[26] The Father's counsel suggested that if I am unable to determine that the $4,200.83 paid by the Father should be offset against the outstanding section 7 expenses, that I should not make any Order and should refer the matter to trial. The Mother's counsel acknowledged the section 7 expenses claimed in this motion are complete and that there are no other section 7 expenses to be claimed. As indicated above, it is her position that the Father should pay the $9,581.71 he acknowledges is outstanding and leave only the issue of the balance of the expenses and his claim for a credit to a trial.

[27] To the extent that the parties have made full submissions and have put forward their evidence in respect of the section 7 expenses, I see no reason why this issue should not be dealt with on a final basis at this stage.

[28] Accordingly, I would make the following order in respect of the outstanding section 7 expenses:

a. The total amount of section 7 expenses claimed by the Mother from the date of separation to December 22, 2017, is fixed at $22,651.44.

b. The Father accepts the reasonableness of the claims made by the Mother with the exception of $6,943.72 which includes the following expenses:

• Tutoring Expenses: $452.00
• Child Care Expenses: $2,218.65
• 2017 Summer Camp Expenses: $3,326.06
• Sports and Activities: $707.01
• Other Medical Expenses: $230.00

The determination of whether these expenses are reasonable section 7 expenses will be deferred to trial.

c. The Father's prorate share of the acknowledged section 7 expenses is $9,581.71 which shall be paid as follows:

i. $5,380.88 within 30 days of this Order; and

ii. $4,200.83 following a trial and upon the determination of whether the Father is entitled to a credit in the same amount for payments made to the Mother.

b. What are Reasonable Ongoing Section 7 Expenses?

[29] The secondary issue in respect of the section 7 expenses, is a determination as to what expenses are reasonable on an ongoing basis.

[30] In her original motion returnable on June 28, 2017, the Mother sought a monthly payment of $805 for the Father's share of section 7 expenses. The Brophy Order did not specify a monthly amount, but rather stated that "the Applicant shall pay 61% of all section 7 expenses that are incurred with respect to the child commencing July 1, 2017 upon the provision of receipts for same."

[31] It is the Mother's position that the Brophy Order granted her with "… the right to make all decisions with respect to health and educational related services for the child …" and in so doing obligated the Father to pay a prorate share of any expenses for services for the child that the Mother deems are necessary. In her Affidavit, the Mother sought a monthly payment of $1,200 toward section 7 expenses. In her submission, counsel for the Mother sought to have the monthly contribution fixed at $680, plus the school tuition. The Father's share of the school tuition on a monthly basis is approximately $377.

[32] The Father's position is that the Mother has retained services beyond what is necessary and that unless they can be proven as reasonable and necessary he should not have to pay a prorate share. It is his position that the Mother is excessive in the services retained and that the parties cannot reasonably afford all of the services being proposed by the Mother.

[33] In support of the Mother's position, she has produced letters and assessments which speak to Julian's delays and special needs. Specifically, Julian has been engaged with a number of professionals who have assessed and provided services to Julian since the separation which include:

1. Susan Dafoe-Abbey – Family Therapist
2. Paola Azzuolo – Occupational Therapist
3. Dr. Promnitz – Pediatrician
4. Kate Bilyea – Speech Therapist
5. Laura Patat – Speech Pathologist
6. Dr. Joan Jory – Dietician
7. Dr. Stemerdink – Family Doctor
8. Dr. Heather Caruso – Homeopathic Doctor
9. Dr. Davy – Pediatrician
10. Dr. Marie-Eve Dubois – Clinical and Health Psychologist
11. Jessica Palmer – Psychologist

[34] Based on the assessments received, it is the Mother's position that Julian needs the following services:

a. Weekly speech therapy b. Weekly occupational therapy c. Bi-weekly tutoring d. After school care (for respite and socialization) e. Therapy for sleep disorders f. Extra-curricular activities (swimming, scouts, baseball, hockey and skiing) g. Summer camps

[35] It is the Father's position while Julian has special needs, they can be meet with fewer services than suggested by the Mother. In addition to the tuition for GCCS, the Father is prepared to support monthly occupational therapy (in addition to the 10 publically funded sessions per year), a summer camp with a maximum annual cost of $1,000 and extra-curricular activities with a cumulative annual cost of $1,000. He estimates that his monthly contribution would be about $200.

[36] It is the Father's position that Julian should not need tutoring as both he and the Mother are school teachers and should be able to provide Julian with any assistance that may be necessary. The Father submits Julian does not need after school programs for socialization if he is engaged in school, summer camps and extra-curricular activities. The Mother is not working and accordingly, the programming is not required so that she can work, nor, in his submission does she require respite given that Julian is in school on a full time basis.

[37] Both parties agree that a court order is necessarily to clarify the monthly expenses so that they both have certainty in terms of what will be paid on an ongoing basis.

Unsupervised Access

[38] The Brophy Order addressed the issue of interim access. Specifically, he ordered that the Father was to have access at the Supervised Access Centre for four months, followed by unsupervised access of seven hours every other Saturday with the access exchanges to be supervised by the Access Centre. Additional access and alternate supervision could be agreed to between the parties.

[39] It is the Father's position that, by his motion, he is simply seeking to enforce the Brophy Order. By the Mother's response, it is clear that she is not prepared to commence unsupervised access as contemplated and accordingly the Father is requesting that the Court set a commencement date. The Father is also asking that the supervisor for the exchanges be a mutual friend rather than the Access Centre as it is his understanding that the Centre cannot accommodate the exchanges at both the commencement and the end of the access visit.

[40] The Mother has not specifically opposed the proposed alternate supervisor for the exchanges, but has opposed the change to unsupervised access. It is the Mother's position that the Father should not have any expansion in his access unless and until he has had an opportunity to speak with each of the service providers to better understand Julian's needs; which is the position that was taken in the motion before Justice Brophy. Counsel suggests that the issue should be reconsidered because Justice Brophy did not have the benefit of the assessment by Dr. Davey which confirms a diagnosis of ADHD.

[41] The Mother also produces notes from the Supervised Access Centre which she claims suggest that the father is incapable of having an unsupervised access visit. The notes relate to the visits on October 15, 29 and November 1, 2017. The Mother points to references of inappropriate comments being made in front of Julian and an incident where Julian tried to climb a fence to retrieve a ball and the access worker had to intervene, as evidence of the Father's inability to move on to unsupervised access.

[42] The Mother claims that the Father's behaviour is erratic and that he suffers from mental health issues, including depression. There is no evidence before me to suggest that these are new issues that were not argued before Justice Brophy.

Law and Analysis

Ongoing Section 7 Expenses

[43] Special or extraordinary expenses are addressed in section 7 of the Federal Child Support Guidelines (the "Guidelines") as follows:

7 (1) In a child support order the court may, on either spouse's request, 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 spouses and those of the child and to the family's spending pattern prior to the separation:

(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 and 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 of "extraordinary expenses"

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the 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 paragraph (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 spouse requesting the amount, including the amount that the 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 or children,

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

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

[44] An order for contribution to special and extraordinary expenses under section 7 of the Guidelines is discretionary as to both entitlement and amount. The framework to assess entitlement and amount was addressed by the Court of Appeal in Titova v. Titov, 2012 ONCA 864 which established the following analysis:

1. Does the expense fall within the listed special or extraordinary expenses?
2. Is the expense necessary in relation to the child's best interests?
3. Is the expense 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?
4. Are there any subsidies, benefits or income tax deductions or credits relating to the expense to be taken into account?

[45] 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.

[46] To determine reasonable and necessary:

1. look at the combined incomes of the parties
2. the fact that two households must be maintained
3. the extent of the expense in relation to their combined income
4. the debt of the parties
5. any prospect for a decline or increase in the parties' means in the near future
6. whether the non-custodial parent was consulted about the expenses before they were incurred

(See: Piwek v. Jagiello, 2011 ABCA 303 and Correia v. Correia, 2002 MBQB 236.)

[47] The court may consider the parties' capital assets, income distribution, debts, third-party resources, access costs, support obligations, receipt of support and any other relevant factor. (See: Delichte v. Rogers, 2013 MBCA 106.)

[48] Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. (See: Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (SCJ); L.H.M.K. v. B.P.K., 2012 BCSC 435.)

[49] While the Brophy Order did confirm that the Mother has the right to make all decisions with respect to health and educational related services for the child, that does not necessarily mean that the Father has to pay a prorate share of all services chosen by the Mother. The court must still assess whether the expenses are necessary and reasonable.

[50] With respect to extra-curricular activities, a custodial parent does not have carte blanche to enroll a child in any number of extra-curricular activities and then look to the non-custodial parent to share all of the costs. (See: Forrester v. Forrester and Zimmerman v. Doe.)

[51] In addition to the tuition fees for GCCS, the Father has indicated that he is prepared to continue to pay for the following expenses on an ongoing basis:

• occupational therapy sessions once per month
• sports and extra-curricular activities (to a maximum cost of $1,000 per annum)
• summer camps (to a maximum of $1,000 per annum)
• reasonable medical and dental expenses not covered by OHIP or benefit providers

[52] The disputed expenses, therefore, include speech therapy, occupational therapy (frequency only), tutoring, after school care, therapy for sleep disorders, summer camps (number of camps) and extra-curricular activities (number of activities).

[53] With the exception of after school care and summer camps (which is not "child care incurred as a result of the custodial parent's employment, illness, disability or education or training for employment"), the expenses claimed by the Mother fall within the categories of expenses listed in section 7(1)(a) – (g).

[54] The fact that Julian is enrolled in a private school is significant in this case. Not only is it a considerable expense, it appears that Julian is doing very well in that environment both on an educational and social level.

[55] The Father has retired and is earning $91,885 (which includes his pension and employment income) and paying monthly child support of $816. The Mother indicates that she has been on disability since 2014 and that her benefits will end in January 2018. It is not clear when she will be returning to work.

[56] In terms of assets, the parties attached a copy of their Agreement which included a Net Family Property ("NFP") Statement confirming that the Father has a NFP of $288,897 (which includes a Family Law Value ("FLV") of his pension in the amount of $375,908, less taxes) and the Mother has an NFP of $167,508 (which includes her FLV of her pension at $202,919, less taxes). There were significant credit card and other debts at the time of separation. The Agreement provides that the Father owes the Mother $60,692 by way of an equalization payment. The Mother's affidavit references $40,000 which is being held in trust and suggests that this amount should be paid to the Mother on account of child care expenses. While I have no jurisdiction to deal with property issues, the information is instructive in terms of the assets that the parties may have available to them to support the child and pay for section 7 expenses.

[57] Neither party has prepared an updated financial statement for the purposes of this motion. Accordingly, a full analysis of their means cannot be assessed. It seems clear, however, that both parties' income has decreased since the separation.

[58] Based on the information provided, the parties do not appear to have the significant assets. They each have a pension, but no other savings. The Father is renting an apartment and the mother has a mortgage on her home. For the reasons set out above, the money held in trust cannot be accessed at this point and accordingly, for the purposes of this motion, it appears that the ability to pay for services is somewhat limited.

(i) After School Child Care

[59] While there may be some argument that the after school program is necessary for socialization, I am not satisfied that it is required in this case given the various other activities that Julian is engaged in.

(ii) Speech Therapy

[60] With respect to the speech therapy, there is evidence that Julian has been engaged in speech therapy for several years. Receipts were provided for services up to the end of October 2017 (which include $1,300 in 2016 and $1,399.34 in 2017). The Father has agreed to pay his share of these costs, but does not believe that ongoing speech therapy is required. There was a gap in services from early 2017 until October 2017 when they commenced with a new therapist. The Father's position is that while speech therapy may have been necessary when Julian was attending a French language school, he does not need ongoing speech therapy; particularly in light of the specialized programing that is available through GCCS.

[61] The Mother refers to the Psychological Assessment Report completed by Dr. Marie-Eve Dubois on February 28, 2017 (as amended on March 3 and March 6, 2017) to support her position that ongoing speech therapy at a rate of 15 – 20 sessions per year is required. The Report provided to the Court is missing pages 16 and 17 which may include the recommendations for speech therapy; however, the recommendation is not clear based on the information submitted to the Court. The assessment was completed in French and relates to a time when Julian was transitioning to homeschooling and ultimately a new school placement.

[62] The most recent assessment is the letter from Rosemarie Freigang (with whom the parents consulted in 2012-2013 at the recommendation of their then speech pathologist). This letter is dated December 1, 2017 and in it she confirms that GCCS is "open to providing specialized programs for students with learning disabilities. Classroom teachers and resource staff typically work together to provide appropriate accommodations and modifications for students". She notes that at the time of her observation, Julian was receiving 120 minutes of EA time and was participating in a phonics group three times per week. While she noted that it was too early in the school year to expect significant academic gains, it appeared to her that "Julian's readiness to learn and motivation to attempt academic activities has improved significantly since attending GCCS". There is no specific recommendation for ongoing speech therapy.

[63] Ms Dafoe-Abbey in her letter dated September 19, 2017 also confirmed that while Julian has a language disorder, the special education program at GCCS "has the resources to assist him with his writing and reading difficulties".

[64] Given these resources, it is not clear that there is a need for ongoing speech therapy at the rate proposed by the Mother (which would cost approximately $260 per month). However, when considered in light of parties' past practices, it does appear that they both supported some speech therapy and accordingly, I am satisfied that speech therapy once monthly is a reasonable and necessary expense.

(iii) Occupational Therapy

[65] The Father has agreed to pay for 1 occupational therapy session per month. This is in addition to the 10 publically funded sessions available per year. The Mother refers to the letter from the Occupational Therapist, Paolo Azzuolo dated November 29, 2017 to support her position that weekly sessions are required. The letter states that "Ideally, such intervention to establish new and more functional patterns of behaviors should occur on a weekly basis, however, at present, monthly visits are being scheduled." [Emphasis added].

[66] The Father's proposal almost doubles the services currently provided and is reasonable in the circumstances. I am not satisfied that weekly occupational therapy is reasonable and necessary in this case. Even if ideal, it is not reasonable in light of the other expenses and the means of the parties at this time.

(iv) Sleep Therapy

[67] While there is a reference to sleep disorders and/or difficulties with sleep in some of the assessments, there is no evidence before the Court as to the costs of any therapy to assess reasonableness in light of the means of the parties. Moreover, there is no specific referral or recommendation in respect of sleep therapy that may be of assistance to Julian to assess whether it is in his best interest. There is, however, significant reference to the increased anxiety that Julian experiences as a result of the high level of conflict in this case. It may well be that his sleep patterns would improve if the parents could improve and lessen the conflict.

[68] Without further evidence of the need for sleep therapy, I am not satisfied that this is a reasonable and necessary expense.

(v) Tutoring

[69] With respect to tutoring, there is no current information to suggest that tutoring is necessary or that Julian is falling behind in school. In fact, both parents have indicated that he has transitioned well. Given the lower student teacher ratio and the specialized programing available at GCCS, I am not satisfied that tutoring is a reasonable and necessary expense. As noted by the Father, both parents are teachers and accordingly, have the ability to assist without incurring additional costs, if necessary.

(vi) Summer Camps

[70] The total costs for summer camps/activities in 2016 was $1,003.83. In 2017 those costs increased to $4,737.62. It is not entirely clear why the significant increase although the invoices appear to include a lot of camps some of which occurred in the early 2017 when I understand that the Mother was home schooling Julian. Now that Julian is in school on a full time basis, mid-school year camps would not likely be an option.

[71] Given that the summer camps do not qualify as section 7 expenses, the Father's proposal of paying for some summer camps but fixing a cap of $1,000 per year seems imminently reasonable.

(vii) Extra-curricular Activities

[72] Not all extra-curricular activities are 'extraordinary'. 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.); Park v. Thompson; Kase v. Bazinet, 2011 ONCJ 718.)

[73] Extraordinary is defined in the Guidelines and requires a determination as to whether the cost of the extracurricular activities is more than the recipient can be reasonably expected to afford, taking into account his or her income and the table amount of child support he or she receives. The payor's situation is irrelevant in this first stage. The recipient's budget should be examined. Counsel for the Mother did not provide any details of the Mother's budget other than to suggest that she is on disability and cannot pay for all of these expenses on her own.

[74] If the Mother cannot afford the expenses, then it is necessary to ask if the expenses are necessary in relation to the child's best interests and reasonable in relation to the means of the spouses and the child and the spending pattern of the family before separation.

[75] If the expenses can be reasonably covered the court must ask if the expense is extraordinary considering:

1. The amount of the expense in relation to the recipient's income, including child support.
2. The nature and the number of the programs.
3. Any special needs and talents of the children.
4. The overall cost of the programs and activities.
5. Any other similar factor the court considers relevant.

[76] None of the identified sports (swimming, scouts, hockey, baseball or skiing) in and of themselves appear to be 'extraordinary'. However, it is possible that extracurricular activities that by themselves are not extraordinary, can cumulatively become extraordinary, if reasonable and necessary.

[77] The Father agreed that it was important for Julian to participate in some extra-curricular activities. His objection, however, was with respect to the number of activities. The Father proposes a cap of $1,000 per annum. The 2017 sports activities totalled $1,411.56. This amount does not seem unreasonable and accordingly a cap of $1,500 per annum will be set.

[78] In terms of the specific activity, the Father acknowledged that the level of communication between the parties is such that they will not likely be able to agree upon Julian's activities. Accordingly, he is suggesting and prepared to pay a prorate share of the $1,000 for extracurricular activities which can then be applied to the sports the Mother chooses. This seems like a reasonable approach.

[79] As indicated above, counsel for the parties have urged me to identify the expenses that qualify as section 7 expenses and to set a monthly payment on an ongoing basis so that the parties have certainty in terms of the section 7 expenses, at least on a temporary basis. Accordingly, based on the determination of the reasonableness and necessity of the above expenses, I would make the following Order:

[80] The Father shall pay the Mother the following for section 7 expenses:

1. a prorate share of 61% as set out in the Brophy Order for the annual tuition at GCCS;
2. $291.78 per month which is the Father's annualized prorate share for the following section 7 expenses:
   • (a) $1,000 towards summer camps;
   • (b) $1,500 towards extra-curricular activities;
   • (c) $140 per month for Occupational Therapy sessions; and
   • (d) $130 per month for Speech Therapy.
3. Any other section 7 expenses must be agreed to by the Father in advance, or must be subject to a further court order.

Unsupervised Access

[81] With respect to the issue of access, I agree with the Father that the issue was dealt with in the Brophy Order. The suggestion by the Mother's counsel that I impose an obligation on the Father to contact all of the counsellors and therapists involved with Julian before access progresses, is an attempt to re-litigate the issues before Justice Brophy. The recent diagnosis by Dr. Davy is not a material change which would require a reassessment of this issue.

[82] Moreover, the notes from the Supervised Access Centre do not raise sufficient concerns to suggest that ongoing supervised access is necessary. With respect to the inappropriate communications in front of Julian, I note that the notes from November 1, 2017 indicated that "Verbal Warnings (in written format) issued to both RP and VP related to inappropriate conversation sent by mail to both parties by mail; by fax to their respective legal counsel." Copies of the communication to the parties and counsel was not included in the materials, but the notation seems to suggest that both parties were warned about this issue.

[83] Finally, I note that the Father's access prior to the charges in January of 2017 was unsupervised. There is no evidence before me to suggest that the Father was unable to supervise and adequately protect his son during this period of time.

[84] Supervised access is never intended to be a permanent or ongoing arrangement and in this case, there is no evidence before me to support the position that it is necessary or in Julian's best interests. The Brophy Order set out a four month period for supervised access which has now been surpassed. Weekly, unsupervised access on Saturdays should commence immediately.

[85] Given that the Supervised Access Centre may not be able to accommodate the supervision of the exchanges, it seems appropriate that the Order specify alternatives so that the access can occur. The Mother has not raised any specific objection to Mona Cowan and accordingly, she will be named as an alternative.

Orders

[86] For the reasons given, the following orders will be made:

1. The arrears in section 7 expenses claimed by the Mother from the date of separation to December 22, 2017, is fixed at $22,651.44.

2. The Father accepts the reasonableness of the claims made by the Mother with the exception of $6,943.72 which includes the following expenses:

   • Tutoring Expenses: $452.00
   • Child Care Expenses: $2,218.65
   • 2017 Summer Camp Expenses: $3,326.06
   • Sports and Activities: $707.01
   • Other Medical Expenses: $230.00

   The determination of whether these expenses are reasonable section 7 expenses will be deferred to trial.

3. The Father's prorate share of the acknowledged section 7 expenses is $9,581.71 which shall be paid as follows:

   • a. $5,380.88 within 30 days of this Order; and
   • b. $4,200.83 following a trial and upon the determination of whether the Father is entitled to a credit in the same amount for payments made to the Mother.

4. On a temporary basis, the Father shall pay the Mother the following for section 7 expenses:

   • a. a prorate share of 61% as set out in the Brophy Order for the annual tuition at GCCS;
   • b. $291.78 per month which is the Father's annualized prorate share for the following section 7 expenses:
     • i. $1,000 per year towards summer camps;
     • ii. $1,500 per year towards extra-curricular activities;
     • iii. $140 per month for Occupational Therapy sessions; and
     • iv. $130 per month for Speech Therapy.

5. With the exception of the above, the Father will not be responsible for any section 7 expenses unless specifically agreed to between the parties in advance or in accordance with a further court order.

6. Effective March 10, 2018, the Father shall have unsupervised access with his son for seven hours commencing at 9 a.m. and ending at 4 p.m. The access exchanges are to be supervised by the Supervised Access Center and if they are unavailable or unable to accommodate, the exchanges shall be supervised by Mona Cowan, or another mutually agreed upon third party.

7. Given that there is divided success in that both parties had to bring motions to enforce the terms of the Brophy Order, there will be no order as to costs.

Released: March 1, 2018

Signed: Justice B.C. Oldham