Court File and Parties

Ontario Court of Justice

Date: February 22, 2018

Court File No.: 339/01

Between:

Lisa Michelle Antoinette Knight Applicant

— And —

Jake Edward Rowntree Respondent

Before: Justice Jane E. Caspers

Heard on: February 8, 2018

Reasons for Judgment released on: February 22, 2018

Counsel:

• Andrea Clarke, counsel for Lisa Michelle Antoinette Knight
• David Cameletti, counsel for Jake Edward Rowntree

CASPERS, J.:

1. INTRODUCTION

[1] Before me are two motions to change. At their core, the issues before the court are primarily monetary in nature focussing on retroactive and prospective child support.

[2] Lisa Knight ("Ms. Knight") and Jake Rowntree ("Mr. Rowntree") entered into Minutes of Settlement on November 22, 2001, the salient terms of which are as follows: The parties agreed to share joint custody of their then two-year-old daughter, Taylor, born […], 1999 ("Taylor"). The primary residence of Taylor was to remain with Ms. Knight. Mr. Rowntree had access every Saturday from 12 noon to Sunday at 12 noon and other liberal and generous access as might be arranged between the parties. Arrears of child support were fixed at $300.00, to be discharged at the rate of $50.00 per month. Ongoing child support was ordered payable in the amount of $389.00 per month commencing December 1, 2001 commensurate with a confirmed income for Mr. Rowntree of $45,248.00.

[3] Taylor is now 18 years of age. As she matured, she maintained contact with both parents, finished school, learned to drive, assumed a part-time job at Tim Horton's and on February 23, 2017 relocated from the residence of Ms. Knight to the home of Mr. Rowntree. It was this residential change by Taylor which prompted Mr. Rowntree to bring his motion to change dated May 3, 2017.

Global Positions of the Parties

[4] Mr. Rowntree seeks formal acknowledgement by way of court order that Taylor's primary residence is now with him; that his child support payable pursuant to the order of November 22, 2001 in the amount of $389.00 per month should terminate effective March 1, 2017; that Ms. Knight should pay child support to him in accordance with the Child Support Guidelines ("Guidelines") from March 1, 2017 on the basis that he has been Taylor's primary caregiver; and further that she repay any overpayment of child support paid to her since March 1, 2017.

[5] In her response to motion to change, Ms. Knight requests shared custody of Taylor and access in accordance with Taylor's wishes. She asks the court to order ongoing child support in the amount of $592.00 per month based on an income of $64,000.00 annually attributable to Mr. Rowntree and a proportionate contribution towards any post-secondary section 7 expenses which may be incurred by Taylor in the future. In addition, she seeks a retroactive adjustment of child support in the amount of $21,377.00 and retroactive section 7 expenses in the amount of $22,224.11, for a total retroactive claim of $43,601.11. Her claim is predicated on the fact that (1) the $389.00 per month child support ordered on November 22, 2001, although it has been consistently paid, has never been adjusted and (2) that historically, Mr. Rowntree has never made any contribution towards Taylor's section 7 expenses, all of which have been discharged solely by Ms. Knight.

2. CUSTODY AND ACCESS

[6] Taylor is currently 18 years of age, not in school and residing with an uncle, Richie Knight. Given the circumstances and the fact that Taylor has not been resident with either Ms. Knight or Mr. Rowntree since mid-January 2018, I find that the issues of custody and access need not be addressed. Taylor appears to have ongoing, meaningful involvement with both parents, and I expect this to continue under the umbrella of the prevailing joint custody court order and in accordance with her wishes.

3. CHILD SUPPORT

A. PROSPECTIVE CHILD SUPPORT AND SECTION 7 EXPENSES

Position of the Parties

[7] Ms. Knight seeks ongoing child support and a contribution to section 7 post-secondary expenses. It is Ms. Knight's position that Taylor will attend an as yet unidentified post-secondary educational institution in September 2018. She submits that Taylor will be resident with her when attending for her post-secondary education.

[8] Mr. Rowntree adopts the view that Taylor is no longer a dependent and as such is not entitled to ongoing child support. He states that she was never been academically inclined and that it is unlikely that she will pursue post-secondary education.

Issues

[9] The issues are these:

(a) Is Ms. Knight entitled to ongoing child support for Taylor?

(b) What are the post-secondary expenses attributable to Taylor? Is Ms. Knight entitled to a proportionate share of ongoing post-secondary section 7 expenses for Taylor? If so, what is the proportionate share for which each parent should be responsible?

The Law

[10] In Meyer v. Content, 2014 ONSC 6001, at paragraph 32, Justice Chappel collated the considerations from the case law about the factors to determine if a child is entitled to support as follows (refined from her decision in Menegaldo v. Menegaldo, 2012 ONSC 2915):

The case-law has clarified that in order to establish that a child is unable to withdraw from parental charge due to enrolment in ongoing educational studies, the court must be satisfied that the child's educational plan is reasonable taking into account the child's abilities, the plans and expectations of the parents in regard to the child's post-secondary education, and the needs and means of the child and the parents. As the Saskatchewan Court of Appeal stated in Geran v. Geran, 2011 SKCA 55, at para. 15, the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is "unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child." The courts have outlined a number of factors which should be considered in answering this question.

[11] The decision of Farden v. Farden (1993), 48 RFL (3d) 60 B.C. sets out those factors as follows:

(a) Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.

(b) Whether or not the child has applied for or is eligible for student loans or other financial assistance.

(c) The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do.

(d) The ability of the child to contribute to his own support through part-time employment.

(e) The age of the child.

(f) The child's past academic performance, whether the child is demonstrating success in the chosen course of studies.

(g) What plans the parents made for the education of their children, particularly where those plans were made during cohabitation.

(h) At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom the support is sought.

[12] The courts have held that it is not necessary to address all the factors set out above to prove that the child remains entitled to support (Darlington v. Darlington, (1997), 32 R.F.L. (4th) 406 (B.C.C.A.); Wesemann v. Wesemann (1999), 49 R.F.L. (4th) 435 (B.C.S.C.) at para. 11).

Analysis

[13] Currently Taylor is not residing with either parent but is seemingly living independently. She is 18 years of age, not attending school and is working part-time at Tim Horton's. The case law is clear that the onus is on the party seeking to prove that the child is entitled to support on an ongoing basis. [Rebenchuk v. Rebenchuk, 2007 MBCA 22]. I find that Ms. Knight has not met that onus.

[14] Ms. Knight has stated in her pleadings that Taylor will be attending a post-secondary educational institution in September 2018 and that she will be residing with Ms. Knight as she pursues her studies. None of the information which the court would require to assess the issue of ongoing child support and section 7 expenses has been alluded to either in the materials filed by Ms. Knight or in her submissions. There have been no specifics provided with respect to when and where Taylor intends to go to school, what courses she might pursue, when she would begin, whether she will be in residence or reside at home, what the overall costs might be or what contribution Taylor might make by way of bursaries, scholarships or student loans. There is no unqualified evidence before the court to support Ms. Knight's assertion.

[15] For the foregoing reasons, I decline to make any order for ongoing support, and I make no order with respect to ongoing section 7 post-secondary expenses.

[16] It may be of some solace to Ms. Knight to know that the law is clear that support can be reinstated for an adult child after a hiatus in entitlement. See: F. (R.L.) v. F. (S.) (1996), 26 R.F.L. (4th) 392 (Ontario General Division); MacLennan v. MacLennan, 2003 NSCA 9 (Nova Scotia C.A.). Therefore, should Taylor pursue post-secondary studies, this issue might be revisited depending on the circumstances.

B. RETROACTIVE CHILD SUPPORT

Position of the Parties

[17] Ms. Knight seeks a retroactive adjustment of child support to 2003 based on Mr. Rowntree's steady increase in income during the last 15 years. Until this proceeding began, Ms. Knight submits that she has never had an opportunity to review any of Mr. Rowntree's tax assessments. She further submits that she never asked for them because she thought it would be better to work out their differences without going to court, there was little communication between the parties, and she believed that Mr. Rowntree was facing financial hardship.

[18] Mr. Rowntree submits that Ms. Knight has not requested any financial information from him. The original order does not provide for same. Accordingly, he argues that he has not displayed any blameworthy or deceitful conduct in keeping with the principles outlined in the extant case law and has met his obligations faithfully. A retroactive payment at this point he submits would be inequitable and would not benefit the child.

[19] Mr. Rowntree has made regular payments in the amount of $389.00 per month to the Director of the Family Responsibility Office (FRO) since the date of the order. He continued these payments throughout the period from March, 2017 to December, 2017 when Taylor was resident with him as Ms. Knight refused to consent to a termination of his ongoing child support obligation. Appropriately, rather than simply terminating his child support he brought the motion to change and awaited a judicial determination on the issue of child support obligations. During the 10 months that Taylor lived with her father, Ms. Knight made no payments towards child support. Mr. Rowntree now seeks a return of his overpayment and a retroactive child support from Ms. Knight.

[20] Mr. Rowntree advises that he sees his children every weekend, works 6 days a week and is paying child support for another child in a court ordered amount of $440.00 per month although no evidence of that was produced. He opposes any retroactive adjustment of child support. However, if the court were to consider that there ought to be a retroactive adjustment, he submits that the adjustment should be limited to three years.

Issues

[21] The issues are these:

(a) Is a retroactive adjustment of child support warranted?

(b) If the answer to (a) is yes, to what date ought retroactivity to be ordered?

The Law

[22] Cases decided under the Family Law Act, R.S.O. 1990, c. F.3 hold that the court has jurisdiction to vary child support orders retroactively after a child ceases to be a dependent. [See: Surighina v. Surighin, 2017 ONCJ 384, [2017] O.J. No. 3022; Smith v. McQuinn, 2016 ONSC 7997, [2016] O.J. No. 6600; Meyer v. Content, 2014 ONSC 6001, [2014] O.J. No. 4992; Catena v. Catena, 2015 ONSC 3186, 61 R.F.L. (7th) 463].

[23] To date, where a retroactive variation is sought when the child is no longer entitled to support, as I have determined to be the case in this instance, the courts have seen fit to entertain the request in motion to change proceedings where there is an existing order and an established support obligation under the Family Law Act. [Smith v. McQuinn, supra].

[24] As D.B.S. 2006 SCC 37, [2006] 2 S.C.R. 231, explains, it is a basic principle of child support and the Guidelines that the amount of support is essentially determined by the income of the payor parent. If an order imposes a child support obligation that does not correspond to the payor parent's income, the order is not consistent with that principle. It is for that reason that D.B.S. permits retroactive orders in appropriate circumstances.

[25] Where a payor seeks a retroactive decrease in support, the D.B.S. factors – such as considering the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support – remain relevant. Conversely the same guidelines apply when a recipient seeks a retroactive increase in child support by virtue of the payor's undisclosed increase in annual income. As noted in D.B.S., while child support payments should provide parents with the benefit of predictability, and a degree of certainty in managing their affairs, it does not absolve the payor parent – or the recipient parent – of the responsibility of continually ensuring that the children are receiving an appropriate amount of support.

Analysis

[26] The current case law provides that it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given. [See D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 CarswellAlta 976].

[27] In this case the court finds that there has been an unreasonable delay in seeking support that militates against an award all the way back to the year 2003. The court is not satisfied that Ms. Knight has demonstrated that she raised this issue with Mr. Rowntree in a meaningful way before the commencement of the motion to change in May, 2017. She has never brought a motion to change. She was, it would seem, quite content to receive her ongoing child support of $389.00 per month, even when she was not entitled to it, rather than "rock the boat". When Mr. Rowntree asked her in the spring of 2017 to agree to a termination, she certainly could have raised the issue of retroactive child support and section 7 expenses at that point. She did not.

[28] Therefore, in accordance with the D.B.S. principles, the court is prepared to make an order retroactive to the start of 2014.

[29] Mr. Knight's reported income for 2014 was $67,907.00. The table amount for one child is $620.00 per month. This amount is reduced by the $389.00 per month paid by Mr. Rowntree [$620.00 - $389.00 = $231.00 x 12 = $2,772.00]. The balance owing for arrears in 2014, therefore, is $2,772.00.

[30] Mr. Knight's reported income for 2015 was $61,396. The table amount for one child is $559.00 per month. This amount is reduced by the $389.00 per month paid by Mr. Rowntree [$559.00 - $389.00 = $170.00 x 12 = $2,040.00]. The balance owing for arrears in 2015, therefore, is $2,040.00.

[31] Mr. Knight's reported income for 2016 was $64,162.00. The table amount for one child is $586.00 per month. This amount is reduced by the $389.00 per month paid by Mr. Rowntree [$586.00 - $389.00 = $197.00 x 12 = $2,364.00]. The balance owing for arrears in 2016, therefore, is $2,364.00.

[32] Mr. Knight's projected income for 2017 is $56,448.00. The table amount for one child is $512.00 per month. This amount is reduced by the $389.00 per month paid by Mr. Rowntree [$512.00 - $389.00 = $123.00 x 2 = $246.00]. As Taylor relocated to live with her father in February 2017, the balance owing for arrears in 2017, therefore, is $246.00.

[33] The total arrears owing by Mr. Rowntree to Ms. Knight for the years 2014 to 2017 equals $7,422.00.

[34] It is acknowledged that Mr. Rowntree overpaid his child support for the months of March to December 2017 in the amount of $389.00 per month for a total overpayment of $3,890.00. He is entitled to be reimbursed. This amount will be deducted from any arrears ultimately found to be owing to Ms. Knight.

[35] Ms. Knight made no child support payments while Taylor resided with Mr. Rowntree from March to December 2017. She projected her 2017 income to be $48,495.00. The table amount for one child under the Guidelines up to November 22, 2017 was $437.00 per month. The amount owing by Ms. Knight to Mr. Rowntree for the 9-month period from March to November, 2017 is $3,933.00 [437 x 9 = $3,933.00]. Under the Guidelines effective November 22, 2017, the month of December 2017 would attract a child support obligation of $448.00. The total child support arrears owing to Mr. Rowntree by Ms. Knight for the period March to December 2017 is $4,381.00 [$3,933.00 + $448.00 = $4,381.00]. Any arrears owing by Mr. Rowntree to Ms. Knight will be adjusted accordingly.

C. RETROACTIVE SECTION 7 EXPENSES

Position of the Parties

[36] Ms. Knight submits that, in the past, she has asked Mr. Rowntree to assist with Taylor's section 7 expenses and extracurricular activity costs and that he has generally declined. He has made no contribution to child care costs, orthodontic costs, costs associated with Taylor's extracurricular activities or costs associated with her attendance at the Crestwicke Christian Academy ("Crestwicke"). Occasionally he helped with baseball and sometimes took Taylor to practices but never made any contributions financially. A comprehensive list of the section 7 and extracurricular activity expenses claimed by Ms. Knight are set out in a letter, filed, and dated September 29, 2017 from Mr. Cameletti to Ms. Clarke as follows:

• Orthodontic charges – $5,375.00 (2013 to 2015)
• Massage and physiotherapy charges – $440.00 (2016)
• Knee brace – $90.39 (2016)
• Naturopath – counselling $200.00 (2017)
• Medical expenses – from Dr. Trainor in the amount of $110.00, a travel advice charge of $35.00 totalling $145.00
• Prescriptions – $675.27 (2016) and $309.63 (2017)
• Cell phone charges – $125.09, $372.53 and $342.36 (2017)
• Cost of extracurricular activities at the West End Recreation Centre – totaling $791.79 (2002 to 2008)
• Tee ball – $115.00 (2005)
• Kickboxing – $79.92 (2005)
• Dance lessons – $572.00 (2005 to 2009)
• Book club – $360.00 (2003 to 2005)
• Miscellaneous school expenses – $130.75
• Piano lessons – $313.81 (2005)
• High School fees – $416.57 (2013 to 2017)
• Parkview Church Donations – $400.00 (2016/2017)
• Holiday to Punta Cana on WestJet – $2,172.00 (for 2 in 2014)
• Holiday to Barbados - $542.00 – airline ticket (2008)
• Child care expense – $14,980.00 (2006 to 2012)
• Counselling – Tracy Kennedy $100.00 (2017)

[37] Mr. Rowntree takes the position that he was never approached about a contribution to the section 7 expenses, was never provided with receipts and that some of the costs are not legitimately section 7 expenses.

Issues

[38] The issues to be decided by the court are as follows:

(a) Are the expenses Ms. Knight is seeking contribution for by Mr. Rowntree section 7 expenses as defined by the Guidelines?

(b) If the answer to (a) above is yes, are the expenses which come within clauses (d) and (f) of subsection 7(1) extraordinary expenses? If yes, are they necessary in relation to Taylor's best interests and reasonable in relation to the parties' means?

(c) If the extraordinary expenses are necessary and reasonable, is there any reason to deviate from the guiding principle that such expenses should be shared by each party in proportion to their incomes? If yes, what share if any should Mr. Rowntree pay?

(d) If any of the expenses is found to be a special expense in accordance with clauses (a)(b)(c) and (e) of subsection 7(1), is it necessary in relation to Taylor's best interests and reasonable in relation to the parties' means? If yes, is there any reason to deviate from the guiding principle that such expenses should be shared by each party in proportion to their incomes? If yes, what share if any should Mr. Rowntree pay?

The Law

[39] Section 7 of the Guidelines, but for an amendment made in May, 2006, exists as it did in 2002. The relevant section as currently recorded states 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.

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. O. Reg. 102/06, s. 1.

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. O. Reg. 391/97, s. 7 (2).

[40] In an order for child support, the court may provide an amount to cover all or any portion of the expenses listed in clauses (a) to (f) of subsection 7(1) of the Guidelines taking into consideration 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 and those of the child and to the spending pattern of the parents during cohabitation.

[41] The list of special and extraordinary expenses under clauses (a) to (f) of subsection 7(1) of the Guidelines is exhaustive; if a claim does not fall within any of the listed categories, it must be dismissed: [Kilrea v. Kilrea, [1998] O.J. No. 3677 (Gen. Div), para. 13; and Park v. Thompson, [2005] O.J. No. 1695, (Ont. C.A.)].

[42] Those expenses enumerated under clauses (a), (b), (c) and (e) of subsection 7(1) of the Guidelines are special expenses and do not have to meet the test of extraordinary.

[43] If the expenses fall under clauses (d) or (f) of subsection 7(1) the Guidelines, the trial judge determines whether the expenses are "extraordinary" within the meaning of the Guidelines.

[44] 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.)].

[45] In Titova v. Titov, 2012 ONCA 864, the Ontario Court of Appeal provided the framework for determining whether a recipient of child support will receive contribution towards a section 7 special or extraordinary expense. 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 section 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 expense comes within subsection 7(1) (d) or (f), the trial judge determines whether the expenses are "extraordinary".

[46] The court must also take into account whether the child should contribute towards the payment of the expenses and any subsidies, benefits or income tax deductions or credits relating to the expense and enjoyed by the support recipient before fixing contribution by the payor.

[47] An order for contribution to special and extraordinary expenses under section 7 of the Guidelines is discretionary as to both entitlement and amount. The court has the discretion to apportion the section 7 expense in a different manner than pro-rata to incomes, depending on the circumstances of the case. [See: Salvadori v. Salvadori, 2010 ONCJ 462, [2010] O.J. No. 4425 (OCJ)].

[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, [2012] B.C.J. 593 (SCJ)].

Analysis

(a) Child Care Expenses

[49] Child care is an enumerated s. 7 special expense. Ms. Knight was employed during the period that the child care costs were incurred between 2006 and 2012. Her ability to earn an income increased the financial resources available to pay for the needs of Taylor. Increased financial resources is thus in the best interests of the child. In order to facilitate such employment, suitable child care services must be provided.

[50] Ms. Knight paid the daycare expenses as they became due. Mr. Rowntree had the means to pay his proportionate share of reasonable child care expenses. Reasonable child care expenses are assessed in the context of prevailing market conditions, the needs of the children and the incomes of the parents.

[51] Ms. Knight seeks a retroactive adjustment of child care expenses to 2006. No receipts have been provided. At Exhibit "D" to her affidavit is found a handwritten statement, undated and unsigned, indicating total expenses for child care in the amount of $14,980 for the period 2006 to 2012.

[52] Ms. Knight's calculation shows Mr. Rowntree's proportionate share during the period in question to be $8,939.40. While the child care costs constitute a legitimate expense, the manner in which that expense has been presented does not meet the requirement of fairness. The statement provided simply indicates a year and associated cost: 2006 – $2,560; 2007 – $4,000; 2008 – $4,000; 2009 – $4,000; 2010 – Nil; 2011 – $320 and 2012 – $100. There are no receipts provided by the daycare provider. There is no breakdown as to times and dates when child care was provided. The onus is on Ms. Knight to make that information available notwithstanding that her income tax returns filed indicate that she has taken child care expense deductions in the recorded amount in each of the taxation years from 2006-2012. While that may be sufficient for taxes purposes (no attachments for the expense were provided) it is not sufficient to satisfy Ms. Knight's obligation with respect to disclosure given the amount that she now seeks to recover.

[53] Mr. Rowntree ought to make some form of contribution to these costs but given the dearth of documentation provided, I propose to exercise my discretion and to fix his contribution at $4,500.00.

(b), (c) Health Related Expenses

[54] There exists no claim for medical or dental insurance premiums attributable to Taylor under section 7(1)(b).

[55] Ms. Knight has incurred orthodontic expenses for Taylor, the total amount of which is $5,375. Mr. Rowntree acknowledges this cost and has agreed to pay his proportionate share which is fixed at $2,902.50.

[56] A retroactive contribution has been requested for the following medical expenses. The amounts represent the total expense as set out in the correspondence from Mr. Cameletti to Ms. Clarke dated September 29, 2017. Massage and physiotherapy charges – $440.00 [$264] (2016); Knee brace – $90.39 [$54.24] (2016); Naturopath – counselling $200.00 [$108] (2017); Medical expenses – Dr. Trainor in the amount of $110.00 and a travel advice charge of $35.00 – $135 [$80.40]; Prescriptions – $675.27 [$405.16] in 2016 and $309.63 [$167.20] in 2017; Counselling – $100 [$54] (2017).

[57] The proportionate contribution of Mr. Rowntree to these expenses is $1,133.00. I am satisfied that the expenses are necessary and in Taylor's best interests.

(d) Extraordinary Expenses for Primary/Secondary School

[58] Taylor attended Crestwicke Christian Academy ("Crestwicke"). Ms. Knight paid all expenses for that schooling in full. Mr. Rowntree takes the position that he did not agree with Taylor attending a private school and that his consent to attendance at Crestwicke was never requested or given.

[59] In support of Ms. Knight's position, I was provided with several cases addressing the issue of private schooling and its attendant expenses. In L.H.M.K. v. B.P.K., 2012 BCSC 435, [2012] B.C.J. No 593, a decision of Brown, J. of the British Columbia Supreme Court, the court considered the following factors to determine whether or not to allow private school fees as extraordinary expenses: (a) the parties' history of private schooling; (b) the children's history of private pre-schooling; (c) the ability of the non-custodial parent to pay the expense. Brown, J. after weighing all the considerations found that the children's best interests were served by permitting them to complete their high school education at the private school. That case can be distinguished from the case before me on three important grounds; (1) the parents in L.H.M.K. initially agreed to the children attending private school as both felt that private school instruction would benefit them. Here Mr. Rowntree opposed Taylor's private school education (2) there was a longstanding tradition of the children attending private school which is not evident in this case; and (3) as the boys were thriving in their school there was a risk that the loss of "academic continuity, relationship with fellow students and teachers could be detrimental to the Boys' academic and social development." Taylor has completed her schooling. Her "academic continuity" is not in jeopardy.

[60] Similarly, in the case of Winseck v. Winseck, [2008] O.J. No. 1247, Aston, J. found that the payor had acquiesced in the expenses prior to separation. As such, it would be disingenuous of a parent to withdraw financial support once a co-operative decision had been made and the child was enrolled and was thriving. Justice Aston noted that this was an expense that the parents had funded for many years (par.31). This is not the case here.

[61] In the case of Delichte v. Rogers, 2013 MBCA 106, [2013] M.J. No. 404, a decision of the Manitoba Court of Appeal, Steele, J.A. noted that both parents affirmed the importance of a private Catholic school and expressed reservations about the public school system.

With regard to private schooling, the British Columbia Court of Appeal, for example, was satisfied that the trial judge, [2000] B.C.J. No. 1443, correctly considered private schooling to be necessary where both parties affirmed the importance of private Catholic school for their daughters and had serious reservations about public school. This agreement was determined to be "strong evidence to support a finding of necessity in relation to the children's best interests" (McDonald v. McDonald, 2001 BCCA 702 at para. 27, 161 B.C.A.C. 310). In other cases, the court has been stricter about proving necessity, in particular with regard to tuition for private school. For example, in Steele v. Koppanyi, 2002 MBCA 60, 163 Man.R. (2d) 268, Helper J.A. determined that "[t]here is no evidence to support a finding that [the child's] best interests necessitate his attending a private school" (at para. 46), despite the fact that the child had attended private school for several years.

[62] Mr. Rowntree never agreed to Taylor attending Crestwicke. What is conceded is that both parents wanted Taylor to be raised in the Christian faith. Are we to automatically assume from this declaration that Taylor ought to be enrolled in an expensive, Christian, private school or is the assertion merely a statement encompassing a feeling and collection of ideas that represent convictions? Mr. Rowntree's mere assertion that he wished to have Taylor raised in the Christian faith does not constitute the "strong evidence" required to support a finding that the engagement with Crestwicke was necessary.

[63] The only reference to Taylor's attendance at Crestwicke appears at paragraph 23 of Ms. Knight's August 31, 2017 affidavit wherein she states:

"Taylor attended at Crestwicke Christian Academy. I paid for all the expenses as well. Attached hereto and marked as Exhibit "E" are copies of the receipts."

[64] Attached to the affidavit are two receipts totaling $9,625 for the academic years 2005-06 and 2007-08 plus four additional receipts totaling $511.26. There are no global particulars as to when she attended or why it was necessary that she attend.

[65] On the evidence, I am not satisfied that Taylor's particular educational needs warranted an expenditure for a private school. There was no evidence that the public school education Taylor would otherwise have received was in any way deficient. Nor am I satisfied that the private school was necessary to satisfy Taylor's social needs at the time. Public school education sufficient to satisfy Taylor's educational and social needs was available at no extra cost. [See: para. 13, Webb v. Pearce 2013 ONSC 2473]. I therefore decline to order any reimbursement of costs associated with Taylor's attendance at Crestwicke.

(f) Extracurricular Activity Expense

[66] Legislatively the court must first determine if an extracurricular activity is an extraordinary expense, then whether the expense is reasonable and necessary. Ms. Knight has submitted a request for a contribution towards those items listed at paragraph 35 including cell phone charges, non-specified activities from the West End Recreation Centre (2002 to 2008), tee ball, kickboxing, dance lessons, book club, piano lessons, church donations and holidays to Punta Cana and Barbados.

Process to Follow

[67] The first step for the court to consider is whether the cost of the extracurricular activities is more than Ms. Knight can be reasonably expected to afford, considering her income and the table amount of child support she receives. The income of Mr. Rowntree at this stage is not relevant.

[68] The court must then inquire if the expenses are necessary in relation to Taylor's best interests and reasonable in relation to the means of the parents and Taylor and the spending pattern of the family before separation.

[69] If Ms. Knight can afford the expenses then in order for there to be a proportional sharing of the expense, the court must inquire if the expense is extraordinary having regard to:

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.

[70] If the expense can be considered extraordinary then we are guided by the principal of proportionality.

[71] It is possible that extracurricular activities which by themselves are not extraordinary, can cumulatively become extraordinary, if reasonable and necessary. However, in this case, a review of the evidence indicates that for the period 2003 to 2009 being the period for which most of the extracurricular activities are claimed, Ms. Knight's income was as follows: No income recorded for 2002-2005, $31,593 (2006), $36,251 (2007), $34,652 (2008) 50,085 (2009). In addition, Ms. Knight was receiving ongoing child support of $389.00 per month.

[72] I find that Ms. Knight was able to afford the nominal expenses for Taylor's extracurricular activities. I have no evidence before me that at the time the expenses were incurred, Taylor exhibited any special needs or particular talents. The costs were reasonable. I therefore decline to make any order for the proportionate sharing of the extracurricular costs for Taylor as requested by Ms. Knight.

[73] Expenses for usual or ordinary extracurricular activities for a particular family are normally 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, supra; Kase v. Bazinet, [2011] ONCJ 718]. Furthermore, in Olaveson v. Olaveson, 2007 CarswellOnt 3975 (Sup. Ct.), the court found the cost of community programs should not be considered extraordinary and that the Guidelines are intended to cover the usual common costs of raising children, which would include the ordinary expenses for extracurricular activities. [Followed in Watt v. Watt, 2011 ONSC 1279]. Cell phone, music lessons and club fees were disallowed in Park v. Thompson, [2005] O.J. No. 1695, (Ont. C.A.).

[74] I have no particulars about the holidays taken to Barbados and Punta Cana whether they were celebratory in nature or not in which case they might be allowed. [Gagne v. Gagne 2011 ONCA 188]. Therefore, I find that the trips to the Barbados and Punta Cana do not meet the section 7 criteria.

4. SUMMARY

[75] For the reason set out herein, I find that the arrears owing by Mr. Rowntree to Ms. Knight for the years 2014-2017 total $15,957.50 [$7,422.00 on account of child support and $8,535.50 for section 7 expenses (child care $4,500.00 + orthodontic costs $2,902.50 + medical expenses $1,133.00)]. From that sum is to be deducted $3,890.00 representing the overpayment of child support by Mr. Rowntree to Ms. Knight and the further sum of $4,381.00 representing the adjustment for child support which ought to have been paid by Ms. Knight during the period March to December 2017. The arrears owing by Mr. Rowntree to Ms. Knight are fixed at $7,686.50. [$15,957.50 - ($3,890.00 + $4,381.00) = $7,686.50].

5. ORDER

[76] The court makes the following final order:

1. The final order of November 22, 2001 is varied at paragraph 4 such that all child support payable by Jake Edward Rowntree to Lisa Michelle Antoinette Knight for Taylor, born […], 1999 shall terminate effective March 1, 2017.

2. Arrears of child support and section 7 expenses owing by Jake Edward Rowntree to Lisa Michelle Antoinette Knight for Taylor, born […], 1999 are fixed in the amount of $7,686.50 payable on or before May 30, 2018.

3. The motions brought by Lisa Michelle Antoinette Knight and Jake Edward Rowntree to vary the Order of November 22, 2001 with respect to custody of and access to Taylor, born […], 1999 are dismissed.

4. If the parties cannot agree on the issue of costs, either party may submit a cost outline of no more than two (2) pages in length, double spaced within 14 days from the date of this order. Any response may be filed within 10 days thereafter.

Released: February 22, 2018

Signed: Justice Jane Caspers