Court File and Parties

Ontario Court of Justice

Date: 2019-12-17

Court File No.: Sudbury D571-13 ext 2

Between:

Robert Hall Applicant

— And —

Lisa Allen Respondent

Before: Justice Heather-Ann Mendes

Heard: October 1, 2019

Written Submissions Received: October 11, 2019 and October 21, 2019

Reasons for Judgment Released: December 17, 2019

Counsel:

• Trent Falldien, for the Applicant
• Jerome Gardner, for the Respondent

Reasons for Judgment

Mendes J.:

Nature of the Case

[1] This motion to change commenced by the applicant father, Robert Hall (hereinafter referred to as "the father") regarding child support; section 7 expenses and spousal support was scheduled for trial for two days on September 30, 2019 and October 1, 2019.

[2] On the first day of trial the parties participated in a settlement conference and they were able to settle the majority of the issues set for trial. The trial proceeded regarding the issue of section 7 expenses for the parties two children retroactive to January 1, 2018 and ongoing, as well as the repayment of arrears of section 7 payable to the respondent mother, Lisa Allen (hereinafter referred to as "the mother").

[3] The issues for the court to determine at trial are:

(1) Should there be a fixed monthly sum of section 7 expenses payable by the applicant father to the respondent mother commencing January 1, 2018; or should the section 7 expenses for the children be payable at the proportionate rate for those expenses which are "reasonably incurred" up to a specified amount retroactive to January 1, 2018.

(2) What should be the repayment rate of arrears of section 7 expenses accrued from January 1, 2018 to present.

Position of the Parties

[4] The father seeks that commencing January 1, 2018, he pay to the mother, section 7 expenses for the children at the proportionate rate of 60% for any special expenses which are reasonably incurred for the parties two children, up to an amount not exceeding $3,811.80 for a calendar year, not including medical or health related expenses.

[5] In the alternative, the father seeks that commencing January 1, 2018, he pay to the mother the monthly sum of $158.83 per child per month, a total of $317.66 per month, for section 7 expenses for the children.

[6] The mother seeks that commencing January 1, 2018, the father pay the sum of $400 per month per child, a total of $800 per month, for section 7 expenses that involve extracurricular activities.

[7] In the alternative, the mother seeks that commencing January 1, 2018, the father pay 60% of the section 7 expenses for extracurricular activities, with the proportionate share for 2019 to be set once the parties' incomes are confirmed.

[8] The mother also seeks that the court provide direction as to what items qualify as section 7 expenses and should be proportionately shared between the parties.

Background

[9] The father and the mother commenced residing together in or about February 2003 and were married on December 8, 2006.

[10] The mother had a child from a previous relationship, namely Spencer William Allen born […], 1999 (hereinafter referred to as "Spencer"), who resided with the parties during their relationship. The parties also had two children from their marriage namely Elaine Allan-Hall born […] 2005 (hereinafter referred to as "Lainey") and Sophia Allen-Hall born […], 2007 (hereinafter referred to as "Sophia").

[11] The parties subsequently separated on April 11, 2013. Upon separation, the parties entered in to a separation agreement dated June 12, 2013 which settled all of the issues arising from the breakdown of their relationship.

[12] A motion to change regarding support was commenced by the father to vary the terms of the separation agreement and this resulted in the final order of Justice Keast dated April 5, 2016, made pursuant to minutes of settlement.

[13] A subsequent motion to change was commenced by the father on or about April 5, 2018, seeking to vary his support obligations for the children, including section 7 expenses, as well as spousal support as his employment contract ended.

[14] The father was in receipt of employment insurance income from on or about December 7, 2017 to on or about July 15, 2018 when he obtained further employment in Saskatchewan.

[15] On January 15, 2019 the parties agreed to an order terminating child support for the child Spencer and varying the father's ongoing child support obligations for the children Lainey and Sophia.

[16] The father is employed in the mining sector and has worked all over the world in this field. During the marriage, the father worked overseas and more recently after separation, he has worked in Saskatchewan and presently in Arizona, USA.

[17] At the time of separation in 2013, the father's gross employment income was $228,097 however in 2016 his income was $261,435; in 2017 his income was $254,356 and in 2018 his income was $93,991. The father also filed his Notices of Assessment for 2014 and 2015 and during those two years his gross annual income was $248,586 and $259,210.

[18] The mother was a student during the marriage as she obtained her PhD in Biomolecular Science. At the time of separation in 2013, the mother worked part-time as an instructor at Cambrian College and her gross employment income was $40,000. In 2016 the mother's income was $64,070, in 2017 her gross employment income was $60,021 and in 2018 her income was $60,589. In some years the mother's line 150 income tax return references a higher income as the mother had to cash in RRSP's to support the children as the father did not pay any child support to her during the period of time that he was in receipt of employment insurance income.

[19] The parties' children have participated in a number of extracurricular activities at an elite level both during the marriage and since separation. The extracurricular activities for the children have included triathlon, competitive swimming, gymnastics, soccer, cross country running, violin, guitar, ukulele, piano, basketball and volleyball. The current extracurricular activities are basketball, volleyball as well as violin.

[20] The level of competition that the children are engaged in is quite exceptional as they compete both provincially and nationally. This results in the children travelling out of town on the weekends for tournaments, competitions and training as well as being invited to participate in exclusive summer camps and games. In fact, Lainey was the only athlete selected from Northern Ontario to participate in the 2018 Summer Games in London. The summer camps that the children attend are coached and run by professional athletes that include members from the coaching staff for Team Canada and The Toronto Raptors.

[21] The children have also had the opportunity to participate in school arranged trips overseas such as a trip to England through band for Spencer and for Lainey a trip to Australia for children that were in the sports schism at school. In order for Lainey to participate in the Australia trip, she agreed to forgo participating in competitive gymnastics so that there were no additional section 7 expenses incurred for the year but rather the total section 7 expenses were in line with the average annual cost for same.

[22] With respect to the children's musical talents, which is presently violin, in addition to competing and training daily with their athletics on a very strict regime that includes training at 6:30 a.m. to 8:00 a.m. before school and then after school from 4:30 p.m. to 6:00 p.m. or 6:00 p.m. to 8:00 a.m., they continue with their music lessons and practice daily, unprompted and unforced by the mother for an hour a day. This schedule for both children is very remarkable and unique for a 12-year-old and 14-year-old.

[23] Historically the children's section 7 expenses have ranged between $20,000 to $30,000 annually, and the children were also attending private school, however, the children's attendance at private school ceased after separation.

[24] At the time of execution of the separation agreement, the parties agreed that the father was to contribute the sum of $1,455 per month towards the children, Spencer, Lainey and Sophia's extracurricular activities whether they be day to day activities or characterized as special or extraordinary in nature.

[25] The order of Justice Keast dated April 5, 2016 varied the father's contribution towards section 7 expenses related to daycare, camps and extracurricular such that the father paid to the mother the sum of $500 per month for the children Lainey and Sophia's extracurricular activities.

[26] The father disputes the amount of money spent towards the children's extracurricular activities. The father suggests that the mother has not proved the expenses for the children's activities nor has she provided a fulsome accounting of same.

[27] The mother has provided the receipts which she has available to her as she did not keep good records regarding the section 7 expenses given that the father has not requested an accounting of the expenses historically.

[28] One of the main points of contention at trial is the cost associated with a tournament weekend for the children's activities. The mother sets out that the closest tournament location for the children is in the Barrie/Newmarket area. All other tournaments are in London, Ottawa, and in and around the Greater Toronto Area.

[29] The mother suggests that a tournament weekend costs about $500 each weekend and that this is a conservative estimate. The tournament would typically require two nights at a hotel which would cost between $150 to $250 a night, gas to and from southern Ontario as well as driving over the course of the weekend at $60 a tank as well as lunch and dinner on Friday, 3 meals on Saturday and depending on how the team does at the tournament 2 to 3 meals on Sunday. Breakfast on average cost about $10.00, lunch is about $12.00 to $15.00 and dinner is about $20.00.

[30] The father suggests that the proposed cost of the hotel for a weekend trip is excessive and there needs to be some accounting for the fact that the mother's partner is the basketball coach for Lainey's basketball team and he should be paying for his own room at the tournaments or at the very least making some sort of contribution to the room he shares with the child. The coaching position the mother's partner has is a volunteer position and he only coaches this team because it is the team Lainey plays on. The father also suggests that he should not be contributing towards meals for the children during these trips as his monthly table amount of child support should cover same.

Law & Analysis

[31] With respect to the issue of Special and Extraordinary Expenses, Section 3 and Section 7 of the Child Support Guidelines, found as a regulation under the Family Law Act states:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

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.

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.

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.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

[32] In reviewing the case law with respect to section 7 expenses, the Court of Appeal set out in Andrews v. Andrews, 45 O.R. (3d) 577 at paragraph 14 that section 7 expenses must be extraordinary; the expense must be necessary in relation to the best interest of the children; and the expense must be reasonable having regard to the means of the parents and their spending patterns for the children during cohabitation.

[33] The children have both, during the relationship and since separation, been involved in a variety of extracurricular activities both athletic and musical and they have excelled at same at an elite level which is extraordinary.

[34] Further, the children practice, train and compete on a daily basis for an hour and a half in the mornings before school and then again in the afternoon/evening from any where between two and a half hours to four hours, unprompted or forced by the mother, as the children clearly have a passion for their activities and enjoy excelling at same. As such, I find that it is in the children's best interests that they should continue to compete and participate in their athletic and musical activities.

[35] I accept that on average the children's activities are as follows:

(1) Camp Ak-O-Mak $ 2,400.00

(2) Camp Olympia $ 1,930.00

(3) Violin $ 1,725.00

(4) Provincial Basketball $ 860.00

(5) Ontario Basketball Summer Development $ 700.00

(6) Chill Volleyball $ 1,450.00

(7) Basketball Tournaments average $500 x 7 Lainey $ 3,500.00

(8) Basketball & Volleyball Tournaments average cost $500 x 6 Sophia $ 3,000.00

Total $15,565.00

[36] While historically the children's section 7 expenses for extracurricular activities have cost between $20,000 to $25,000, I find that moving forward fixing the special and extraordinary expenses for extracurricular activities in the sum of $16,000 annually is reasonable and appropriate given the level at which the children compete.

[37] The father states that his income is 2016 and 2017 was higher than usual because of his overtime hours and bonuses from industrial construction projects he was working on and that his income for those two years is not reflective of his usual income. The Court finds that this is not the case as the father's income in 2014 was $248,586 and 2015 was $259,210, which is directly in line with what he made in 2016 and 2017. Further, the father only worked for 5 ½ months in 2018 and earned annual income of almost $94,000. Had the father worked the full year his gross annual income would have been about $200,000.

[38] The parents combined annual income has always exceeded $200,000. While the father indicates that his income may only be $100,000 in 2019 and on an ongoing basis, this remains to be seen, as the only reason the father's income was less than $100,000 in 2018 is because he only worked for 5½ months of the year.

[39] With respect to the father's position regarding the mother's partner contributing to the hotel room he shares with the child when he attends on the basketball trips as the coach, I do not agree with the father's position. The mother would incur the cost associated with the tournaments for the child with or without her partner coaching and as coaching is a volunteer position for her partner, it allows the mother's partner to travel with the one child, Lainey, while the mother is able to remain with the other child, Sophia and bring Sophia to her activities.

[40] If the mother's partner were not the coach of Lainey's basketball team, he would more than likely still assist with the children attending at their tournaments given that both Lainey and Sophia compete at different sports and in different leagues. If the mother did not have the assistance of her partner to assist with the tournament travel, one of the children would possibly have to forgo participating and competing in their sporting activities. Given that the father lives out of the country, he is not able to assist with the children and their activities nor their tournaments.

[41] I accept the mother's submission that the cost of a tournament for the weekend is $500 and I agree that this is a conservative estimate. I accept that the cost of a hotel for a tournament can be between $150 to $250 per night for a total of $300 to $500 each weekend; I accept that a round trip for gas and driving while at the tournament would be two to three tanks of gas at $60 a tank for an average of $150 a weekend. These two expenses alone bring the cost of a weekend tournament to between $450 to $650 each trip. I accept the father's submission that the table amount of child support he pays for the children would cover the cost of meals for the children during the times of the tournament.

[42] I find that for a family whose combined gross annual income is greater than $160,000, an annual expense of $16,000 for extracurricular activities is reasonable for the parties to contribute towards, especially since the father's income has yet to be determined and has historically been greater than $200,000 annually.

[43] If the father were to pay his 60% share towards the extracurricular expenses fixed in the sum of $16,000, his annual share would be $9,600 which is $800 monthly and $400 per child. Based on the accounting provided by the mother and accepted by the Court above, the $16,000 does not take in to account many of the other expenses that the mother will incur for the children's activities including uniforms, equipment, extra training or gym memberships, instrument repairs, music books and so on.

[44] The communication between the parents is poor and has been poor historically. It is unreasonable to expect that the parties will be able to agree upon the appropriate section 7 expenses to be contributed towards for the children and pay same proportionately. This may result in a delay of the expense being paid and possibly the children missing out on activities and opportunities which is not appropriate. As such, a fixed monthly sum of section 7 expenses will be paid by the father to the mother as has been the case since the parties executed their separation agreement in June 2013.

[45] Further, as the children's activities have changed and evolved over the years and some have been foregone in favour of other extraordinary activities, it is appropriate for the parties to have a fixed sum to be allotted towards section 7 expenses for extracurricular activities, rather than the parents frequently discussing and debating whether or not an expense is a true section 7 expense; if it is in the children's best interests and if it is reasonable in the circumstances.

[46] The father claims that the mother failed to keep him apprised of the activities the children were participating in and if and when the activities were changed. Given the history of the father not being in the same province or even the same country as the mother and the children, it is unrealistic for the father to expect that the mother would regularly check in with him regarding the extracurricular activities. Further, the father was aware that over the years the activities for the children were changed from year to year and he did not express an interest to be consulted. The father simply deferred to the mother and her judgment with respect to enrolling the children in activities both during the relationship as well as since separation.

[47] The mother is prepared to keep track and account for all of the section 7 expenses she incurs for the children and provide a copy of same to the father. This is a reasonable request on the part of the father and should be provided by the mother. Commencing in 2020, the mother will be required to provide the father with an annual accounting of the children's section 7 expenses and provide receipts confirming the expenses paid.

Decision

[48] Based on the above, a final order shall issue as follows:

(1) Commencing January 1, 2018, the applicant, Robert Hall, shall pay to the respondent, Lisa Allen the monthly sum of $400 per child, per month for the children Elaina Allen-Hall born […], 2005 and Sophia-Rose Allen-Hall born […], 2007 for their section 7 expenses related to extracurricular activities with same to be enforced through the Family Responsibility Office.

(2) Commencing January 1, 2020, the arrears of section 7 expenses accumulated from January 1, 2018 to December 31, 2019 shall be repaid by the applicant, Robert Hall to the respondent, Lisa Allen in the minimum monthly sum of $200.00 until repaid in full. The arrears shall be enforced through the Family Responsibility Office.

(3) By January 31st each year commencing in 2020, the respondent, Lisa Allen shall provide to the applicant Robert Hall an annual accounting of the children's section 7 expenses which shall include a chart of same for each child and the corresponding receipts for each item paid for the child.

[49] With respect to the issue of costs, I am prepared to accept written submissions from the parties limited to five pages (exclusive of exhibits) to be filed with the Court by January 31, 2020 for consideration.

Released: December 17, 2019

Signed: Justice Heather-Ann Mendes