CITATION: Thwaite v. Pertuz-Casado, 2019 ONCJ 153
DATE: March 25, 2019
COURT FILE NO. D20920/18
ONTARIO COURT OF JUSTICE
B E T W E E N:
ALEXANDRA THWAITE
Acting in Person
APPLICANT
- and -
ALEXANDER PERTUZ-CASADO
Acting in Person
RESPONDENT
HEARD: MARCH 22, 2019
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
[1] This trial was about the child support arrangements for the parties’ 8-year-old son (the child).
[2] The applicant (the mother) seeks child support from the respondent (the father), based on an imputed annual income to him of $81,000. She also asks for an order that the father pay 50% of the child’s special and extraordinary expenses (section 7 expenses), pursuant to section 7 of the Child Support Guidelines (the guidelines).
[3] The mother initially sought retroactive child support but withdrew that claim on January 29, 2019. She now only seeks support starting on July 1, 2018 (after the date of her application). This is prospective and not retroactive support. See: MacKinnon v. MacKinnon 2005 13191 (ON CA), 75 O.R. (3d) 175 (C.A.), at para. 22.
[4] At trial, the father agreed to pay guidelines table support based on the annual income of $81,000 sought by the mother.[^1] He also agreed to pay 50% of the child’s camp and soccer expenses. He opposed paying towards any of the child’s childcare expenses. He asked that this support arrangement begin on January 1, 2019, without any further adjustment for 2018.
[5] The parties filed affidavits and financial statements as part of their direct evidence and also gave oral evidence at trial. The court commends both parties. Their material was well organized. They presented their cases very well and directly answered questions to the best of their abilities.
[6] The remaining issues for the court to determine are:
a) What amount should the father contribute to the child’s section 7 expenses?
b) When should the child support begin?
c) How should support arrears, if any, be paid?
Part Two – Background facts
[7] The mother is 48 years old. The father is 43 years old.
[8] The parties lived together from February, 2010 until May, 2013.
[9] The child has always lived with the mother.
[10] The father has another child who lives in Columbia. She is 20 years old and attends university.
[11] The father married 3 years ago. He lives with his wife and their one-year-old child. His wife shares custody of her 14-year-old child with that child’s father.
[12] The mother deposed that after their separation in 2013, the father paid her child support in accordance with the guidelines. The father paid 50% of the cost of childcare, camp and activities for the child. This continued for four years and then the father stopped paying his share of childcare expenses.
[13] The mother issued this application on June 15, 2018 for custody and child support.
[14] The parties subsequently attended mediation and were able to resolve many issues.
[15] On October 10, 2018, the court endorsed the final parenting plan that had been agreed to by the parties in mediation. It also made a temporary without prejudice order, on consent, that the father pay child support to the mother of $500 each month, starting on November 1, 2018. A financial disclosure order was also made.
[16] On January 29, 2019, further financial disclosure orders were made and this trial was scheduled.
Part Three – Incomes of the parties
[17] The mother is employed in the disability insurance field. She earned $72,000 in 2018 and expects to earn $74,160 in 2019.
[18] The father has a degree in journalism, but no longer practises in this field. He also has a Vehicle Financing Licence. He has worked as an employee for the last several years arranging for the financing of vehicles. He earned $81,030 in 2017. In October, 2018 he left his job to start his own business in the same field. He testified that he is establishing this business and hopes to soon receive a government licence that will permit him to expand it. He says that at this point, his company is only permitted to work as a subcontractor for other companies. He said that he hopes to increase his income in the future, although he is earning less money at this time than he did as an employee. He agreed to fix his annual income at $81,000 for support purposes.
Part Four – Section 7 expenses
4.1 Areas of agreement and disagreement
[19] The parties agreed at trial that, starting in 2019, they would each pay 50% of the child’s camp and soccer expenses. In fact, they have already prepaid most of those expenses for 2019.
[20] The mother would also like the father to pay 50% of the child’s camp and soccer expenses incurred for the period from July 1, 2018 until December 31, 2018. The parties agreed that the mother paid $1,457 and the father paid $823 for these expenses during this period. To equalize the expenses, the father would have to pay the mother $317. The father opposes this adjustment.
[21] The mother would like the father to pay 50% of the child’s childcare expenses, starting on September 1, 2018.[^2] The father agreed that these are eligible section 7 expenses. However, he feels that he cannot afford to contribute anything towards them due to his other childcare obligations.
[22] The software analysis attached to this decision shows that the father’s proportionate share of the section 7 childcare expenses were $245 per month for the period from September 1, 2018 until December 31, 2018 and are $183 per month starting in 2019.[^3] This analysis takes into account income tax deductions or credits relating to the childcare expenses, as it is the net amount of the expense and not the gross amount that must be allocated between the parties.
4.2 Legal considerations
[23] 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 14132 (ON CA), 77 O.R. (3d) 601, (Ont. C.A.).
[24] Subsection 7 (1) of the guidelines reads as follows:
Special or extraordinary expenses
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.
[25] The guidelines define “extraordinary” as follows:
7 (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.
[26] Subsection 7 (2) of the guidelines sets out that the guiding principle in determining the payment of a section 7 expense is that the expense is shared by the parties in proportion to their respective incomes. The court has the discretion to deviate from the guiding principle to determine a just child support order.
4.3 Analysis
[27] The court finds that the childcare, camp and soccer expenses are eligible section 7 expenses.
[28] The childcare expense is a before and after school program. It is required to provide care for the child while the mother is at work. The camp serves the same purpose during the summer. These expenses are both reasonable and necessary.
[29] The parties both agree that soccer is very important for the child. He is playing on a Rep Team and also goes to soccer camps in the summer. These expenses exceed what the mother can reasonably cover on her own, taking into account her income and the table amount of support. The court finds that the Rep soccer costs are an eligible extraordinary extracurricular expense as defined by subsection 7 (1.1) of the guidelines.
[30] The court is prepared to endorse the parties’ agreement to equally pay soccer and camp expenses on an ongoing basis starting on January 1, 2019.
[31] The court finds that it is consistent with the parents’ history of equally paying these expenses and their ongoing agreement to equally pay them to order the father to equalize the payment of these expenses for 2018. The father will be required to pay the mother $317 to do this.
[32] The father made a claim for the mother to contribute to a number of other expenses that he paid for the child in 2018. These included expenses for clothing, going to movies, the child’s birthday and some games. These are not eligible expenses under section 7 of the guidelines and will not be allocated between the parties.
[33] This leaves the court with the childcare expenses. The court finds that this is an appropriate case to deviate somewhat from the guiding principle that these expenses be paid proportionally to the parties’ incomes for the following reasons:
a) The father provided proof that he is helping support his 20-year old child in Columbia and has paid her tuition fees. He paid her close to $6,400 in 2018.
b) The father and his wife have their own one-year-old baby to support. They also support her 14-year-old child. The father testified that his wife has her own kitchen design business and earns between $30,000 and $40,000 annually.
c) The father is equally contributing to the soccer and camp expenses.
[34] On the other hand, the childcare expenses are necessary and costly and the mother shouldn’t have to bear the full responsibility for them.
[35] The court finds that a fair balancing of these factors is that the father should pay the mother $120 per month for his share of the childcare expenses.
Part Five - Start date for support and calculation of support owing
[36] The mother asks that the support order begin on July 1, 2018. The father asks that it start on January 1, 2019.
[37] A support claimant is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. See: MacKinnon v. MacKinnon 2005 13191 (ON CA), 75 O.R. (3d) 175 (C.A.), at para. 22. The court sees no reason to deviate from this principle in this case. The mother issued her claim in June, 2018. She was very reasonable in not seeking retroactive support for the period prior to July 1, 2018. She pursued the support claim in a timely manner. The father’s financial circumstances have been taken into consideration by requiring him to only pay $120 per month for the childcare expenses instead of $245 per month in 2018 and $183 per month in 2019.[^4] Any hardship to him arising from arrears created by this order can be ameliorated by permitting him to pay them over a reasonable period of time.
[38] The parties agreed that the father has paid the mother $3,970 for child support since July 1, 2018. He will be credited with that amount.
[39] Accordingly, the father will now owe the mother $3,982 calculated as follows:
2018 - Table amount - $755 x 6 months - $4,530
Equalization of camp and soccer expenses - $317
Contribution to section 7 childcare expense - $120 x 4 months - $480
Total: $5,327
2019 - Table amount - $755 x 3 months $2,265
- Contribution to section 7 expenses - $120 x 3 months 360
Total: $2,625
Total Support Accrued: $7,952
Total Amount Paid: $3,970
[40] The court will permit the father to pay the support arrears over 24 months, at the rate of $165 per month, starting on April 1, 2019.
Part Six – Conclusion
[41] The court makes a final order on the following terms:
a) Starting on April 1, 2019, the father shall pay the mother $875 each month for support. This consists of the guidelines table amount for one child of $755 each month, based on the father’s income assessed at $81,000 annually, and $120 each month, being the father’s contribution to the child’s section 7 childcare expense.
b) The father owes the mother the sum of $3,982 for support from July 1, 2018 to this date, as calculated in this decision. The father may pay these arrears at the rate of $165 each month starting on April 1, 2019.
c) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source, such as HST or income tax returns, or any lottery or prize winnings.
d) A support deduction order shall issue.
e) The parties shall each pay 50% of the child’s soccer and camp expenses.
f) The parties shall exchange their complete income tax returns, notices of assessment and receipts for childcare expenses by June 30th each year.
[42] If either party finds a mathematical error in this decision, or an inputting error in the software calculations attached to this decision, they may serve and file written submissions by April 5, 2019. The other party will then have until April 12, 2019 to serve and file a written response. Any submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse.
[43] If either party seeks their costs, they shall serve and file their written costs submissions by April 19, 2019. The other party will have until April 26, 2019 to respond. The costs submissions shall not exceed 2 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator’s office.
[44] The court thanks the parties for the quality of their presentation and their courteous behaviour at the hearing.
Released: March 25, 2019
____________________________ Justice S.B. Sherr
[^1]: The father’s original position had been to pay support based on an annual income of $40,000.
[^2]: The childcare expenses are approximately $600 each month.
[^3]: The lower amount in 2019 is due to the expense only being incurred for 10 of the 12 months and the mother’s higher income. In the 2018 software analysis, a childcare figure of $600 per month is used, since that was the amount paid by the mother between September 1, 2018 and December 31, 2018. In the 2019 software analysis, a childcare figure of $500 per month is used, since there are two months of the year where the childcare expense of $600 per month is not being incurred - the child being in camps during the summer.
[^4]: These are the amounts proportionate to the parties’ incomes.