Court File and Parties

Court: Ontario Court of Justice

Date: June 19, 2019

Court File No.: Halton 188/18

Between:

Stacey Rodobolski Applicant

— AND —

Kristofer Rodobolski Respondent

Before: Justice Susan Sullivan

Heard on: December 28, 2018; February 27, 2019; and June 19, 2019

Reasons for Judgment released on: June 19, 2019

Representation:

• Stacey Rodobolski on her own behalf
• No appearance by or on behalf of Kristofer Rodobolski, even though served with notice

SULLIVAN, S. J.:

Part 1 – Overview

[1] This is the court's ruling following an uncontested trial heard on December 28, 2018; February 27, 2019; and June 19, 2019.

[2] The applicant is Stacey Rodobolski ("the applicant"/"Ms. Rodobolski"/"the mother").

[3] The respondent is Kristofer Rodobolski ("the respondent"/"Mr. Rodobolski"/"the father").

[4] The parties married on October 14, 2000.

[5] The parties separated in August, 2003.

[6] The subject child is Ashley Emma Rodobolski born […], 2001 ("Ashley").

[7] The order the applicant is requesting is as follows:

• The respondent shall pay Guideline child support to the applicant for Ashley, retroactive to May 1, 2015;
• The applicant and the respondent shall contribute to Ashley's section 7 expenses proportionate to their incomes; and
• Costs.

Part 2 – History of Proceeding

[8] The Application was issued May 31, 2018 and originally returnable July 11, 2018.

[9] On June 1, 2018, special service of the Application; the applicant's Financial Statement; the Applicant's Form 35.1 affidavit; and the respondent's MIP notice was carried out by leaving a copy of these documents with Mr. Rodobolski.

[10] The respondent served the applicant with an Answer dated August 24, 2018; a Financial Statement sworn August 26, 2018; and a Form 35.1 dated August 26, 2018. The respondent did not file these documents in the continuing record and they are not loose in the court file. However, the applicant attached them to her February 20, 2019 affidavit.

[11] The respondent attended court on July 11, 2018; August 27, 2018; and September 21, 2018. On these three dates, the applicant consented to an extension of time for the respondent to serve and file his responding materials. The last extension required documents to be filed by October 5, 2018.

[12] The respondent brought a 14B motion dated September 27, 2018, without notice, in which he requested an order that he be permitted to 'proceed without all financial documents'. On September 28, 2018 Justice Starr dismissed this motion; she indicated that the issues were not urgent and that the test to proceed without notice was not met. Justice Starr directed the respondent to address this issue with the applicant at the upcoming first appearance.

[13] The respondent was again present at the October 5, 2018 court attendance. On this date, he was assisted by Duty Counsel, Mr. Diaz.

[14] The October 5, 2018 endorsement notes, "4th appearance on the Application. Resp. advised once again by D/C regarding 14B etc. Otherwise adjourned to U/H."

[15] The October 5, 2018 endorsement also notes that the uncontested hearing was scheduled for December 28, 2018 at 11:00 a.m.

[16] On December 14, 2018, the respondent was personally served with the applicant's affidavit for uncontested trial.

[17] The respondent did not attend court on December 28, 2018.

[18] On December 28, 2018, the respondent was noted in default.

[19] On December 28, 2018, the matter was adjourned to February 27, 2019 for a continuation of the uncontested hearing.

[20] Further evidence was requested by the court, and the uncontested hearing continued on June 19, 2019.

Part 3 – Issues

[21] The court has to determine the following issues:

(1) Does the respondent have an obligation to pay to the applicant Guideline child support for Ashley?

(2) What is the respondent's income for child support purposes?

(3) When should the payment of prospective child support commence and in what amount?

(4) Should retroactive child support be paid, and if so, for what period of time and in what amount?

(5) What expenses claimed by the applicant qualify as section 7 expenses? What should each parent pay towards section 7 expenses?

(6) Should costs be ordered and if so, in what amount?

Issue 1 – Obligation to Pay Child Support

[22] The relevant provisions of the Family Law Act, R.S.O. 1990, c. F.3, as amended (the "FLA") read:

Definitions

29 "dependant" means a person to whom another has an obligation to provide support under this Part

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

Purposes of order for support of child

(7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines.

[23] There is no dispute that the respondent is Ashley's biological father.

[24] Ashley is a full-time grade twelve student with plans to attend university in the fall of 2019.

[25] In the respondent's Form 35.1 affidavit, which the applicant provided, he notes that Ashley lives with both parents. This is contrary to the applicant's written evidence. The court received oral evidence on this issue. The applicant advised that Ashley resides with her full-time. She confirmed that she has done so for the period for which prospective and retroactive child support is being sought. The applicant further explained that Ashley spends weekend time with her father, which decreased in frequency upon her entering high school. The applicant estimated that since Ashley started high school, she usually spends one weekend per month with the respondent; on the odd occasion, she spends two weekends with him per month.

[26] Based on the foregoing, I find that Ashley continues to be a dependant who is entitled to support, and the respondent has an obligation to pay child support to the applicant for Ashley.

Issue 2 - Respondent's Income

[27] In his financial statement, the respondent states:

• He is employed by Gillam Group;
• In 2017, his gross income was $137,561.41; and
• In 2018, his gross income will be $139,999.86.

[28] Attached to his financial statement is a copy of a pay stub from Safeway Services Canada Inc. for the period ending December 31, 2017 which indicates that his total earnings for the year is $137,561,41.

[29] Also attached to his financial statement is a pay stub from Gillam Group Inc. which indicates that his gross bi-weekly income is $5,384.61 (which, when multiplied by 26, equals the amount the father states in his financial statement to be his income for 2018).

[30] The court has not been provided with specific evidence as to the respondent's income in prior years, by either the applicant or the respondent.

[31] The respondent's obligation to provide financial disclosure is outlined in Rule 13 of the Family Law Rules, O. Reg. 114/99 ("the Rules") and section 22 of the Child Support Guidelines, O. Reg. 391/97 ("the Guidelines").

[32] Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548 (Ont. S.C.); Woofenden v. Woofenden, 2018 ONSC 4583 (Ont. S.C.).

[33] Section 19 of the Guidelines grants the court authority to impute income to a child support payor where the court considers it appropriate. Circumstances that would give rise to an imputation of income include when a support payor has failed to provide income information when under a legal obligation to do so. See: s. 19(f) of the Guidelines.

[34] Section 2(3) of the Guidelines states:

Most current information

(3) Where, for the purposes of the child support guidelines, any amount is determined on the basis of specified information, the most current information must be used.

[35] The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.).

[36] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663 (Ont. S.C.); Charron v. Carriere, 2016 ONSC 4719 (Ont. S.C.).

[37] The applicant requests that the court impute an annual income to the respondent for 2015 and 2016.

[38] I am prepared to draw an adverse inference and impute an income to the respondent for the following reasons:

• The respondent received notice that the applicant was seeking retroactive child support to 2015;
• The respondent knew that he had an obligation to provide disclosure for 2015 and 2016; he brought a 14B motion (which was dismissed) to deal with disclosure for this time period;
• The respondent received guidance as to how to address the issue of financial disclosure from Justice Starr in her September 28, 2018 endorsement and from Duty Counsel on October 5, 2018. It does not seem that he heeded the direction provided;
• The respondent did not provide disclosure for 2015 and 2016; and
• The respondent has not participated in this proceeding, despite being given three extensions to file his materials and knowing of the December 28, 2018 date for an uncontested trial.

[39] The applicant requests that the amount of annual income imputed to the respondent for 2015 and 2016 be $137,561.41. This is the amount he earned in 2017.

[40] The applicant has established an evidentiary basis to suggest that this is the correct amount to apply.

[41] The most current information provided with respect to the respondent's income in 2015 and 2016, is what he made in 2017. It is reasonable to conclude that in 2015 and 2016 the respondent made at least the amount he did in 2017.

[42] The respondent has not defended the income position taken by the applicant.

[43] Based on the foregoing, I find that the respondent's income to be as follows:

• 2015, 2016, 2017 – $137,561.41
• 2018 – $139,999.86

Issue 3 – Prospective Child Support

[44] Any support claimed after an application is issued is prospective support, not retroactive support. Ordinarily, once entitlement to support has been established, an applicant who has provided notice of a support claim and who has proceeded reasonably to a disposition of the claim, is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. To do otherwise would only provide parties with an incentive to delay the final hearing. See: Mackinnon v. Mackinnon, [2005], 13 R.F.L. (6th) 221 (Ont. C.A.).

[45] I find that the applicant has proceeded reasonably to a disposition of her claim, and she is presumptively entitled to prospective support as of June 1, 2018.

[46] The table amount of child support to be paid by a payor having a gross income of $139,999.86 is $1,225.20 per month.

Issue 4 – Retroactive Child Support

[47] The court's authority to make retroactive support orders is contained in section 34 (1) (f) of the FLA.

[48] The Supreme Court in S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.) outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the Supreme Court of Canada raised:

(1) Whether the recipient has provided a reasonable excuse for her delay in applying for support.

(2) The conduct of the payor parent.

(3) The circumstances of the child.

(4) The hardship on the payor as a result of the retroactive order.

[49] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.

[50] Retroactive awards are not exceptional. They can always be avoided by proper payment. See: S. (D.B.) v. G. (S.R.), supra, at para. 97.

[51] The court should not hesitate to find a reasonable excuse for delay in the following circumstances: where the recipient spouse harbored justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; where the recipient lacked the financial or emotional means to bring an application; or where the recipient was given inadequate legal advice. See: S. (D.B.) v. G. (S.R.), supra, at para. 101.

[52] Child support is the right of the child and cannot be waived by the recipient parent: therefore delay does not eliminate the payor parent's obligation; it is merely a factor for the court to consider in exercising its discretion to make a retroactive order. See: S. (D.B.) v. G. (S.R.), supra, at para. 104.

[53] The court should take an expansive view of what constitutes blameworthy behaviour. Blameworthy behaviour is anything that privileges the payor's own interests over the child's right to an appropriate amount of support. See: S. (D.B.) v. G. (S.R.), supra, at para. 106.

[54] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility. See: S. (D.B.) v. G. (S.R.), supra, at para. 5.

[55] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair. See: S. (D.B.) v. G. (S.R.), supra, at para. 121.

[56] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. See: S. (D.B.) v. G. (S.R.), supra, at para. 123.

[57] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. See: S. (D.B.) v. G. (S.R.), supra, at para. 96.

[58] Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. See: S. (D.B.) v. G. (S.R.), supra, at para. 96.

[59] The principles set out in S. (D.B.), also apply to retroactive claims for section 7 expenses. See: Smith v. Selig 2008 NSCA 54, 2008, 56 R.F.L. (6th) 8 (N.S.C.A.); Hetherington v. Tapping, 2007 BCSC 209 (B.C. S.C.) [In Chambers]; Surerus-Mills v. Mills, [2006] O.J. No. 3839 (Ont. S.C.J.).

Delay

[60] The mother provides only a partially acceptable explanation for her delay in seeking child support.

[61] The applicant's evidence is that prior to commencing her application, the last time she raised the issue of child support with the respondent was in the summer of 2013. Her evidence is that the respondent refused to speak with her in person and later called to yell at her.

[62] The respondent further explains that she did not commence a court proceeding earlier than she did because, "...I believed it would result in serious issues for Kris and his tax situation, and I had no desire to have Ashley's father possibly charged with tax evasion and sent to jail. I recently learned he would not get charged and face jail time for his situation and proceeded with this order."

[63] The applicant further notes, as a reason of delay, that the respondent had made it difficult to reach him, repeatedly changing his cell number, and moving over eight times in the past twelve years. The applicant goes on to advise that she has never denied the respondent access to Ashley and that he has been able to have her at his house overnight, for family outings, and vacations. The applicant also states that the respondent purchased a cell phone for Ashley so he did not need to contact her to arrange for visits.

[64] It was inappropriate for the respondent to have yelled at the applicant when she raised the issue of support in 2013. I appreciate this may have left the applicant concerned that the respondent would treat her negatively if she were to pursue the issue of support in court. However, there is no evidence to indicate that the respondent would have reacted vindictively to an application to the detriment of the family. The applicant makes no reference in her two affidavits sworn for this uncontested trial that there were any incidents of domestic violence or threats thereof. There is no information provided as to any other type of behaviour by the respondent that would suggest there would likely be an unacceptable, inappropriate response on his part to an application. I have reviewed the applicant's Form 35.1 affidavit. While the question asked therein at paragraph 8 is in relation to assessing a person's ability to act as a parent, the answer thereto is somewhat helpful in addressing this issue. In response to the question of whether there is any violence or abuse the court should consider, the applicant responded "none".

[65] The court has been provided with no evidence that the recipient lacked the financial or emotional means to bring an application or that she was given was given inadequate legal advice.

[66] It is understandable, to a point, that the applicant did not commence an application earlier than she did because she did not want to risk the respondent being criminally charged and potentially jailed. However, she should have taken steps, earlier that it seems she did, to determine whether her beliefs were accurate. Her focus ought to have been on ensuring that, as soon as practicable, Ashley received the financial support from the respondent she was entitled to.

[67] Last, I do not accept as a valid reason for delay the applicant's assertion that she had difficulties in locating the respondent. The evidence suggests that Ashley has had ongoing contact with the respondent and that she (Ashley) knows the respondent's whereabouts and phone number. The applicant could have obtained information regarding the respondent's contact information, if she needed to, from Ashley.

Conduct of the Payor

[68] I find that the respondent has engaged in blameworthy conduct.

[69] The unchallenged evidence is that the respondent has not paid any Guideline table child support for Ashley.

[70] The respondent knew or ought to have known that he had an obligation to financially support Ashley on a regular, ongoing basis, in accordance with his level of income and the Guideline table. By not paying anything, except for some section 7 expenses early on, the respondent shirked his responsibilities. He preferred his own interests to those of Ashley. The applicant had to shoulder an unfair burden of supporting Ashley.

[71] The respondent's financial statement indicates that he pays:

• $833 per month for the education of his step-daughter, Nicole;
• $200 per month for entertainment;
• $541 per month for gifts; and
• $666 per month for vacations.

[72] To pay these expenses in these amounts, and not pay child support for Ashley furthers my finding that the respondent has engaged in blameworthy conduct.

Ashley's Circumstances

[73] The court did not receive evidence about Ashley's circumstances during the time period for which retroactive support is being sought. However, it is a reasonable inference that she has been economically disadvantaged as a result of not receiving child support from the respondent.

[74] The applicant is of modest means.

[75] Ashley is still living at the applicant's home.

[76] Ashley is a good student, working part-time and using her earnings to contribute to her needs; she has bought clothes with her own money, and a computer.

[77] I have little doubt that if a retroactive award is made, that she will benefit from it.

Hardship for the Payor

[78] The respondent did not participate in this proceeding. As a result, I did not hear submissions regarding any hardship that would be experienced by the respondent if an order for retroactive support was made.

[79] I have considered the following:

• In addition to an obligation to support Ashley, the respondent has another child and a step-child to whom he also has an obligation to support;
• The respondent's income is considerably high;
• The respondent's disclosed debts are minimal and the monthly payments made towards these debts are insignificant;
• The respondent pays significant amounts monthly for the education for his step-daughter, for entertainment, for gifts, and for vacations. These payments can reasonably be decreased if necessary to meet his obligation to pay retroactive child support; and
• In her affidavit for uncontested trial, the applicant suggests that the respondent be given time to pay retroactive child support (the applicant suggests that the respondent be given two years to pay three years of retroactive support).

Amount of Retroactive Child Support to Be Paid

[80] Having considered and balanced all of the above, I find that this is an appropriate case to award some retroactive child support.

[81] Both the applicant (through her delay) and the respondent (through his blameworthy conduct) failed to safeguard Ashley's right to child support and to ensure that Ashley was, at all times, supported at the level she was entitled to be. However, I find that the applicant's explanation for the delay is somewhat acceptable and the blameworthy conduct of the respondent is inexcusable. As a result, I conclude that what is fair and just in the circumstances, taking into consideration the benefit that Ashley will derive from a retroactive award, is to apportion the consequences of the retroactive support in a manner that requires the respondent to pay retroactive child support for a two year period, to May 31, 2018.

[82] I have decided to award a fixed amount on account of retroactive child support. I have determined that the fixed sum payable shall be $28,398.06. I arrive at this amount on the basis of the following considerations and calculations:

• June 1, 2016 – November 30, 2017 – the amount of monthly child support to be paid (based on 2011 child support table) by a payor having a gross income of $137,561.41 is $1,170.38 per month. 18 months X $1,170.38 = $21,066.84
• December, 2017 – the amount of child support to be paid (based on 2017 child support table) by a payor having a gross income of $137,561.41 is $1,205.22 per month. 1 month = $1,205.22
• January 1, 2018 – May 31, 2018 – the amount of child support to be paid (based on 2017 child support table) by a payor having a gross income of $139,999.86 is $1,225.20 per month. 5 months X $1,225.20 = $6,126.00

Issue 5 – Section 7 Expenses

Claimed Expenses

[83] The applicant asks for an order requiring the respondent to pay his proportionate share of the following expenses:

(a) Glasses – $395.24 (a receipt from Hakim Optical dated April 14, 2018 was provided);

(b) Contacts – $176.00 (a receipt from Oakville Optometry dated July 16, 2018 was provided);

(c) Prescription – $28.70 (a receipt from CIMS pharmacy dated July 17, 2018 was provided);

(d) School Fees (a receipt from Halton District School Board dated September 3, 2018 was provided):

(i) Student Engagement Fee – $30.00

(ii) Yearbook Fee – $40.00

(iii) Gown Rental – $45.00

(e) Trip to Ontario College of Art & Design – $8.00 (a receipt dated April 11, 2018 was provided);

(f) Ontario Universities' Application Centre (OUAC) fees – $250.00 (a receipt dated November 5, 2018 was provided);

(g) Back to school expenses for September, 2018 – (school supplies; clothes; boots) – $357.13 (a variety of receipts were provided);

(h) Semi-Formal School Fee – $45.00 (a receipt dated November 14, 2018 was provided);

(i) Prom dress – $280.00 (a receipt dated February 16, 2019 was provided) minus the portion which Ashley paid for herself; and

(j) Computer – $1,450.00 (a receipt dated August 24, 2018 was provided) minus the portion Ashley paid for herself which was $500.00.

[84] 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, 77 O.R. (3d) 601 (Ont. C.A.).

[85] In awarding section 7 expenses, the 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 expenses fall under clauses 7(1) (d) or (f) of the guidelines, the trial judge determines whether the expenses are "extraordinary". Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits. See: Titova v. Titov, 2012 ONCA 864 (Ont. C.A.).

[86] The relevant provisions of the Guidelines read 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, 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.

[87] The Guidelines define "extraordinary" as follows:

(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.

[88] For the same reason I have awarded retroactive Guideline table support, it is appropriate to award retroactive section 7 expenses.

[89] I find that the claimed expenses for Ashley's glasses; contact lenses; and July 17, 2018 prescription are section 7 expenses. There is no issue that these expenses are necessary in relation to Ashley's best interests and reasonable and within the parents' financial means. Therefore, the respondent should pay his proportionate share.

[90] Ashley's university application fees is an expense which properly falls under section 7 and to which the respondent ought to contribute his proportionate share. See: Metcalfe v. Metcalfe, 2015 ONSC 1002 (ONSC).

[91] Ashley's back to school supplies (note book, binders, pencil case, etc.), clothing, and prom dress are not section 7 expenses. See: Kase v. Bazinet, 2011 ONCJ 718 (Ont. C.J.).

[92] Ashley's school fees (student engagement fee; yearbook fee; gown rental; semi-formal school fee and trip to Ontario College of Art & Design) are ordinary school fees and do not meet the definition of being extraordinary expenses. The respondent's contribution to these expenses is subsumed in the Guideline table child support to be paid. See: Jones-Whyte v. Whyte, 2014 ONCJ 357 (Ont. C.J.).

[93] While computers are generally considered a section 7 expense for post-secondary education, it is not so definitively the case when computers are purchased for high school. The court has not been provided with evidence that Ashley requires a computer for a particular reason or a specific course in high school. The evidence is that in August, 2018 Ashley decided to buy a computer, in anticipation of attendance at university in September, 2019, as her old one was not working well. The applicant contributed $500.00 to the cost. Absent information on the need for the computer in high school, I cannot conclude that it is was a reasonable and necessary as an educational expense. See: Kase v. Basinet, supra, and T. (D.K.) v. T. (R.A.), 2015 ABQB 670. Based on the foregoing, I find that the total amount of section 7 expenses for which the respondent must pay his proportionate share is $849.94.

Applicant's Income

[94] The applicant is self-employed and operates a business named "As You Wish Cleaning Service".

[95] Having reviewed the totality of the financial disclosure she has provided, it appears that the applicant earns less than she would if she was employed full time, at minimum wage.

[96] The applicant has provided no justification for her employment choices. I find that she has chosen to earn less than she is capable of earning. I further find that, based on the evidence, she is capable of working full time (i.e. forty hours a week) and earing minimum wage (i.e. $14.00 an hour).

[97] Section 19(1) (a) of the Guidelines state:

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[98] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children.

[99] I find that it is appropriate to impute an income to the applicant in the amount of $29,120.00 which represents full time work at minimum wage.

Proportionate Share of Section 7 Expenses

[100] Given the applicant's imputed income of $29,120.00 and the respondent's income of $139,999.86, the applicant shall pay 17% and the respondent shall pay 83% of Ashley's section 7 expenses. With respect to the specific section 7 expenses claimed at this time which total $849.94, the applicant shall pay $144.49 and the respondent shall pay $705.45.

Issue 6 – Costs

[101] The Court of Appeal in Serra v. Serra, 2009 ONCA 395 (Ont. C.A.), and M. (C.A.) v. M. (D.), [2003] O.J. No. 3707 (Ont. C.A.), explained the purposes of modern costs rules are to partially indemnify the successful litigants for the cost of litigation, to encourage settlement, and discourage and sanction inappropriate behaviour by litigants.

[102] Rule 24 applies to uncontested trials. See: Gaffney v. Hyatt, 2015 ONSC 1856 (Ont. S.C.); Benson v. Crawford, 2012 CarswellOnt 13373 (Ont. S.C.)

[103] Rule 24 states:

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

DIVIDED SUCCESS

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.

ABSENT OR UNPREPARED PARTY

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

BAD FAITH

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

DECIDING COSTS

(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

(b) expressly reserve the decision on costs for determination at a later stage in the case.

SAME

(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.

SETTING COSTS AMOUNTS

(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party's behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

SUPPORTING MATERIALS

(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court.

[104] The applicant seeks costs for:

• missed income for the days she attended court;
• legal fees; and
• disbursements

[105] The applicant states in her affidavit for uncontested trial that as of the time of swearing this document (December 13, 2018) she was unable to work five days because of these proceedings, and could have earned approximately $500.00 I take this to mean she could have earned $100.00 per day.

[106] The applicant has provided a Bill of Costs completed by Sana Khokhar, a lawyer who was called to the Bar in 2017. It indicates that she provided the applicant with 11 hours of service at $225.00 an hour. Her bill, including photocopies and printing and HST, is $2,808.33

[107] The applicant has also filed two invoices from Halton Process Serving which indicate that their services cost a total of, including HST, $328.83.

[108] In reaching my decision regarding costs, I have considered the following.

[109] The applicant was significantly, but not wholly successful.

[110] The applicant has behaved reasonably. For example:

• She agreed to three extensions of time for the respondent to file his responding materials;
• She served the respondent with her affidavit for uncontested trial;
• She suggested to the respondent that they attend mediation in an effort to resolve this matter. She went as far as to make an appointment with the Mediation Center at the court house, which the respondent cancelled at the last minute; and
• She proceeded reasonably to a disposition of the claim.

[111] The respondent behaved unreasonably. For example:

• He was not properly prepared to deal with this matter at the four 'first appearances' that occurred. The applicant should have only had to attend one 'first appearance'. On the days she attended unproductive court attendances, the applicant missed the opportunity to work;
• The issues in this matter are not complicated. They could have been resolved in mediation or via some other means of negotiation. The respondent should have actively engaged in settlement opportunities with the applicant and finalized this matter early on;
• He did not provide all of the financial disclosure he was required to produce, however it is noted, and taken into consideration, that the respondent did provide some financial disclosure which was of assistance in determining some portions of this matter; and
• He did not participate in this matter.

[112] There are no written Offers to Settle.

[113] Ms. Khokhar's Bill of Costs is reasonable in terms of hours and rates and proportionate.

[114] The disbursement fees incurred were necessary and reasonable in the circumstances.

[115] After considering the above factors, I find costs in the amount of $2,500.00 (inclusive of disbursements and HST) is an appropriate amount for the respondent to pay the applicant. This award will accomplish the purposes of modern cost rules, as stated in Serra v. Serra, supra.

Part 4 – Final Order

[116] For the foregoing reasons, a final order shall be issued as follows.

[117] Commencing June 1, 2018 and on the first day of each month thereafter, the respondent, Kristofer Rodobolski shall pay to the applicant, Stacey Rodobolski child support for the child Ashley Emma Rodobolski (born […], 2001) in the amount of $1,225.20 per month. This is Guideline table amount for one child based on the respondent's 2018 gross income of $139,999.86.

[118] Retroactive child support shall be fixed at $28,398.06. This award covers the respondent's support obligation up to May 31, 2018. Commencing August 1, 2019 and on the first day of each month thereafter, the respondent shall pay $1,775.00 towards the amount of retroactive child support owed, until the amount owing is paid in full.

[119] The respondent shall pay his proportionate share of section 7 expenses for Ashley's glasses (April 14, 2018 receipt); contacts (July 16, 2018 receipt); prescription (July 17, 2018 receipt); and OUAC fees (November 5, 2018 receipt) in the amount of $705.45.

[120] Commencing from the date of this order, the applicant shall pay 17% of Ashley's section 7 expenses and the respondent shall pay 83% of these expenses. If the parties cannot agree on what is a proper section 7 expense, this shall be determined by way of a motion to change.

[121] Annual financial disclosure shall be provided in accordance with section 24.1 of the Guidelines.

[122] The respondent shall pay costs to the applicant in the amount of $2,500.00 inclusive of disbursements and HST. The Family Responsibility Office shall enforce this cost order as child support.

[123] SDO to issue.

[124] Court Services is requested to prepare, issue and enter this order.

Released: June 19, 2019

Signed: Justice Susan Sullivan