SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-09-352328
DATE: 2012/02/23

RE: Reesa Yunger v. Charles Zolty

BEFORE: Justice Herman

COUNSEL:
Rodica David , for the Applicant
Jaret Moldaver , for the Respondent

DATE HEARD: February 22, 2012

E N D O R S E M E N T

[ 1 ] The applicant mother seeks: (i) an 80% contribution to special expenses; (ii) direct payment until the Family Responsibility Office (FRO) enforces payment; and (iii) costs of preparing cost submissions.

Special expenses

[ 2 ] In my decision, dated October 11, 2011, I determined that the father and mother would share s. 7 expenses on the basis of an 80%/20% split. I did not determine what expenses qualify as s. 7 expenses.

[ 3 ] The mother now seeks $4,189.48, which represents 80% of various expenses less contributions already made by the father. She also seeks $500 a month on an ongoing basis for future special expenses, to the date of trial.

[ 4 ] The father does not dispute the requested contribution to dental costs. He does, however, question the requested contributions to gymnastics, skating, school lunches, swimming classes and day camp. The father says he cannot afford the expenses and, in view of his financial situation, they are not reasonable, within the meaning of s. 7 of the Child Support Guidelines .

[ 5 ] The father’s calculation of his net disposable income takes into account the payment of 100% of the school fees and therapy. However, those costs are paid by the grandfather, not by the father. The father says that, even without deducting the payment of school and therapy from his income, he is still left with just over $1,000 a month after paying rent.

[ 6 ] With respect to the claim for summer camp costs, the father says he already paid half of the amount pursuant to an agreement with the mother. Counsel for the mother argues that there was no court order at the time and the mother had no choice but to agree to the 50/50 split. I do not propose to revisit the parties’ agreement on an interim motion. I decline, therefore, to order further payment for last year’s summer camp.

[ 7 ] The mother also seeks a contribution to the daughter’s school lunch program. The children’s lunch costs would ordinarily be covered within base child support. I therefore decline to order a contribution.

[ 8 ] That leaves gymnastics, skating, swimming and future day camp. Tikva has been enrolled in gymnastics since September 2010. The annual cost for this in 2011/2012 was $377.

[ 9 ] Gavriel started skating lessons in September 2011. The mother has paid $853.13 for these lessons.

[ 10 ] Both children have been enrolled in swimming lessons since August 2010. The total cost to date is $2,150. The cost from September 2011 to February 2012 totals $1,200.

[ 11 ] The cost for both children to attend day camp for 8 weeks is $2,542.72.

[ 12 ] In the battle between the two families and who should pay what, the parties have lost sight of what is in the best interests of their children. They have incurred legal fees on this motion which would have been much better spent on the children. The father does not really question that the children should continue in these extracurricular activities. Rather, the real argument between the parents is about whose family should have to pay for such expenses and in what proportion.

[ 13 ] In my opinion, the children’s attendances at gymnastics, skating, swimming and day camp are reasonable, even on the father’s own income of $96,439, and would have formed part of this family’s spending patterns prior to separation and after separation up to August 2010.

[ 14 ] The issue of the father’s income is a live one and will be determined at trial. This motion involves the payment of special expenses pending trial. I am satisfied that pending trial, the father has the resources to contribute 80% of the costs of these programs, it is reasonable for the children to continue to participate in these programs in the circumstances and it would be contrary to their best interests to discontinue their participation.

[ 15 ] The father shall therefore pay 80% of the costs set out in paragraph 23 of the mother’s affidavit, dated February 8, 2012, with the exception of day camp (for which the parties had a 50/50 agreement) and school lunches (which are covered by table child support).

[ 16 ] It is not in anyone’s interest that the parties return to court on the issue of s. 7 expenses pending trial. It is therefore ordered that the father pay 80% of any dental or other medical expenses incurred on an ongoing basis. I estimate ongoing extracurricular and day camp costs at about $5,000 annually. The father’s contribution to these would be $4,000 or approximately $330 a month. The father shall therefore contribute $330 a month to these expenses. This order is subject to variation, retroactively or prospectively, at trial.

Direct payment

[ 17 ] The father agrees to pay the mother directly until FRO enforces payment subject to two conditions: (i) the mother acknowledges receipt of payments; and (ii) the mother does not cash post-dated cheques until the due dates.

[ 18 ] In my opinion, these are reasonable conditions. It is therefore ordered that direct payment be made until FRO enforces payment, subject to the above two conditions.

Costs to prepare cost submissions

[ 19 ] The mother seeks the costs of preparing the cost submissions. These cost submissions were provided as a result of my endorsement, dated October 11, 2011, requesting written cost submissions in the event the parties were not able to resolve costs. My cost endorsement was issued on January 13, 2012.

[ 20 ] The mother submits that the costs to prepare cost submissions should not have been incurred. The mother had offered to settle the costs of the motion on the basis of no costs payable by either party. The father did not accept the offer.

[ 21 ] In my cost decision, I determined that success was divided on all the issues except the determination of the father’s income, on which the father was successful. I reserved the costs of the part of the motion related to the determination of the father’s income to the trial judge.

[ 22 ] Given this determination, it is appropriate that the issue of the costs to prepare the cost submissions also be reserved to the trial judge.

Costs of this motion

[ 23 ] In view of the mother’s partial success on this motion, costs are awarded to the mother in the amount of $1,000, inclusive of HST and disbursements.

Herman J.

DATE: February 23, 2012