ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-FL-1092
DATE: 2012/02/27
BETWEEN:
SHELINA AMLANI Applicant – and – ZULFAR AMIRALI MOLEDINA Respondent
Julius Dawn, for the Applicant
Sean A. Jones , for the Respondent
HEARD: December 1, 2009; May 25-31, June 1-3, September 13-15, 2010
decision to settle terms of a final order
M. Linhares de Sousa J.
[ 1 ] After my Reasons for Judgment, dated March 3, 2011, and my Addendum to Reasons for Judgment, dated April 5, 2011 counsel were able to agree on all of the paragraphs of a final order with the exception of one. The paragraph in dispute, as identified by both counsel in their written submissions, is paragraph 8 of their respective draft orders. Paragraph 8 deals with my order for child support.
[ 2 ] My Reasons for Judgment in this case clearly found that the Respondent, Dr. Moledina, had met the 40 percent threshold under s. 9 of the Federal Child Support Guidelines . My Reasons for Judgment also stipulated that both parents were to share equally all of the expenses relating to the children according to the standard of living which the children had enjoyed during the cohabitation and consistent with the parents’ very substantial means. In addition, Dr. Moledina was to pay to Dr. Amlani an additional $500 per month as a contribution to the children’s housing costs.
[ 3 ] My Reasons for Judgment further identified what the children’s expenses were at the time of the trial based on the financial and other evidence presented by both parties at the trial. Based on that evidence, the expenses were quantified and identified according to the following four categories: 1) school fees, books, tuition etc.; 2) section 7 special expenses; 3) section 7 extraordinary expenses; and 4) child expenses based on the evidence presented by Dr. Amlani relating to her child related expenses as presented in her financial statements filed at the trial.
[ 4 ] It is this fourth category which is in dispute and which has prevented counsel from settling the terms of the final order. The differences in the two draft paragraphs are as follows:
A. Dr. Amlani’s draft paragraph 8:
Based on the Respondent father having met the 40 percent threshold under section 9 of the Federal Child Support Guidelines and other considerations as detailed in the Reasons for Judgment dated March 3, 2011, and the Addendum to Reasons for Judgment Released [April 5, 2011,] the Respondent father is to pay the Applicant mother the total sum of $5,149.62, per month inclusive of a $500.00 per month contribution to the children’s housing costs, as child support. The monthly child support is attributed, as follows:
(i) Base Child Support $2,421.00
($1,921 plus $500 housing)
(ii) S. 7 Extraordinary Expenses $ 370.50
(iii) S. 7 Special Expenses $ 360.38
(iv) School fees, books, tuition, etc. $1,997.74
TOTAL $5,149.62
and
B. Dr. Moledina’s draft paragraph 8:
Based on the Respondent father having met the 40 percent threshold under section 9 of the Federal Child Support Guidelines and other considerations as detailed in the Reasons for Judgment dated March 3, 2011, and the Addendum to Reasons for Judgment Released [April 5, 2011,] the Respondent father is to pay the Applicant mother the total sum of $5,149.62, per month inclusive of a $500.00 per month contribution to the children’s housing costs as child support. The monthly expenses toward which the Respondent/Father is to contribute are:
(a) School fees, books, tuition, etc. $3,995
(b) Section 7 extraordinary expenses $741 being:
(i) violin $300
(ii) piano lessons and RCM exam $350
(iii) skiing lessons $68
(iv) summer soccer $23
(c) Section 7 special expenses $720.75 being:
(i) Richard Harman counselling $300
(ii) summer camps $218
(iii) orthotics $74
(iv) optometrist $35
(v) Dr. Leonoff $93.75
(d) Medicine and drugs $75
(e) Entertainment/recreation $310
(f) Gifts/allowance $413
(g) Meals outside home $430
(h) Clothing $489
(i) Personal and hygiene products $390
(j) School project supplies $256
(k) Technology/electronic/sports equipment $765
(l) Dry cleaning/alterations $28
(m) Athletic Center/membership $151
(n) Health food products $320
(o) Charities $216
Total: $9,299.23 to be shared equally ($4,649.61 each) by the Applicant mother and Respondent father.
[ 5 ] After reading the written submissions of both counsel as to which version of paragraph 8 ought to be accepted by the Court to finalise the order, I come to the following conclusion. In the normal case involving two reasonable parents the need for flexibility would have been obvious. That has not been the case in this high conflict litigation. While the Court at any given time deals with certain fixed amounts for child expenses based on the evidence before it, as I did in my Reasons for Judgment, it is a given that those amounts will change over time as the children themselves change and grow. The parties in this case have not been able to deal with those changes without getting their lawyers involved and bringing the matter back to Court.
[ 6 ] I have examined the two drafts of paragraph 8 from the point of view of which one will result in less potential conflict. Both drafts, in my opinion, accurately and fairly reflect my Reasons for Judgment and my Addendum to Reasons for Judgment, if viewed by reasonable litigants, but neither is completely satisfactory for the circumstances of this case, in view of the parties’ inability to work together in the interests of their children when it comes to money matters.
[ 7 ] Dr. Moledina’s draft would likely have the parties quibbling over miniscule sums of money relating to the children’s expenses until the children are financially independent. It is unfair to Dr. Amlani to require her to account to Dr. Moledina on a regular and frequent basis for every amount she spends on the children. Furthermore, it is unworkable in this case confirmed by the impasse at which the parties now find themselves.
[ 8 ] Dr. Amlani’s draft identifies the other expenses as “base child support” which they are not. They are, rather, Dr. Moledina’s contribution to child expenses pursuant to s. 9 of the Federal Child Support Guidelines , which have not been otherwise identified in my Reasons for Judgment and my Addendum to Reasons for Judgment in the other three categories of expenses.
[ 9 ] Paragraph 8 of the order shall be finalized in the following way:
- (a)Based on the Respondent father having met the 40 percent threshold under section 9 of the Federal Child Support Guidelines and other considerations as detailed in the Reasons for Judgment dated March 3, 2011, and the Addendum to Reasons for Judgment Released [April 5, 2011,] the Respondent father is to pay the Applicant mother the total sum of $5,149.62 per month inclusive of a $500.00 per month contribution to the children’s housing costs, as child support. The monthly child support is attributed, as follows:
(i) Children’s expenses $ 2,421.00 ($1,921.00 plus $500 housing)
(ii) S. 7 Extraordinary Expenses $ 370.50
(iii) S. 7 Special Expenses $ 360.38
(iv) School fees, books, tuition, etc. $ 1,997.74
TOTAL $ 5,149.62
(b) Except as provided for in paragraph 9 relating to the category (iv) expenses, namely, school fees, books, tuition, etc., the children’s expenses quantified in this paragraph which form the basis for the child support payable by the Respondent father are fixed and enforceable until either one of the following occurs, the parties agree to alter the amount in writing or further order of the court upon a motion to change the child support amount.
(c) The child support payments are payable as provided in paragraph 123 of my Reasons for Judgment. Any outstanding child support payments owed by the Respondent father under this order are to be paid forthwith.
(d) Before a motion to change child support, based on a material change in the children’s expenses, can be brought by the Respondent father, all outstanding child support payments under this order must be paid.
(e) Before a motion to change child support, based on a material change in the children’s expenses, can be brought by the Applicant mother, she shall provide the Respondent father with documentary proof of her child expenses for the 12 months preceding her motion to change.
[ 10 ] Counsel for Dr. Amlani has raised two other issues on which the parties are not in agreement, namely the question of security for child support and payments into the children’s RESP account.
[ 11 ] With respect to the question of security for child support, Dr. Amlani requests that the order incorporate paragraph 18 of the parties’ Minutes of Settlement. Pursuant to that paragraph, Dr. Moledina agreed to maintain his existing Transamerican Life policy in the amount of $350,000 as security for child support and Dr. Amlani agreed to maintain her existing London Life policy in the amount of $300,000 for security of child support.
[ 12 ] Dr. Moledina takes the position that the inclusion of such a provision for security of child support is discretionary and that no evidence was led or arguments made regarding an appropriate quantum of life insurance to secure child support. He seeks to have in the order that the parties maintain an equal amount of life insurance for the security of child support.
[ 13 ] Based on the parties relatively equal earning power and their equal sharing of their children’s expenses, requiring Dr. Moledina to maintain a life insurance policy in a greater amount than that of Dr. Amlani is not justified on the facts of this case. Consequently, it is ordered that paragraph 18 of the parties’ Minutes of Settlement, as found in Tab 3 of the Applicant/Mother’s submissions, shall be incorporated into this order with the amendment that the amount of life policy for both parties shall be $300,000.00.
[ 14 ] With respect to the second issue, the payments into the children’s RESP account, I decline to deal with this issue. It will be left to the parties to make such payments on a voluntary basis.
M. Linhares de Sousa J.
Released: February 27, 2012
COURT FILE NO.: 07-FL-1092
DATE: 2012/02/27
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SHELINA AMLANI Applicant – and – ZULFAR AMIRALI MOLEDINA Respondent decision to settle terms of a final order M. Linhares de Sousa J.
Released: February 27, 2012