SUPERIOR COURT OF JUSTICE - ONTARIO
CITATIO N : Slater v. Slater, 2012 ONSC 3034
NEWMARKET COURT FILE NO.: FC-15131-01
DATE: 2012-08-14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gregory Kent Slater, Applicant
AND:
Laurie Slater, Respondent
BEFORE: McGee J.
COUNSEL: Both parties, self-represented
HEARD: May 22, 23, 24, 25, and 28, 2012
Judgment
Introduction
[ 1 ] This trial determines competing claims to vary table child support and the funding of section 7 expenses for the parties’ 16 year old son.
[ 2 ] The father seeks to retroactively reduce the quantum of table child support from 2005 to present; and to recapture significant expenses such as a portion of over $31,000 spent on a Bar Mitzvah. The mother seeks to retroactively increase table support and capture section 7 contributions that ought to have been payable by the father through a finding that his income as a dentist could have been $300,000 per annum rather than his actual income, or that agreed to in 2003: $125,000.
[ 3 ] The parties entered into comprehensive Minutes of Settlement on October 27, 2003 (“the Minutes”). The Final Order was not i ued until 2009. After the Minutes were executed and before the Final Order was i ued, each party brought various motions to vary the terms of the Minutes. Although none of the motions were properly framed under Rule 15 of the Family Law Rules, the matter has proceeded as a motion to change a Final Order .
[ 4 ] Certain of the claims, such as custody and acce were resolved in November of 2011; leaving the outstanding i ue of table child support and the proportionate sharing of special expenses for this trial heard in May of 2012.
[ 5 ] The parties have had the benefit of senior counsel throughout their decade long conflict, but for the period prior to and during trial when each was self represented. Each party was courteous, well spoken and respectful of the court proce .
[ 6 ] Nonethele , there were many frustrating moments. Each party appeared to organize his or her claim around the personal distre it occasioned, rather than the applicable legal criteria. Rules of evidence were more often breached than observed. Much of the evidence the parties chose to present was irrelevant, or unconnected to the legal i ues to be determined. It is clear to the court that over time this conflict has become chronic, intensively personal, and appreciably disproportionate.
[ 7 ] I will start with a brief history.
1992 to 2003
[ 8 ] 20 year old Laurie Vincent began working in the dental office of Dr. Greg Slater in 1992. Three years later she married her 38 year old employer. Their March 22, 1995 marriage was a first for her, and a second for him. Just over a year later they were the proud parents of their only child, Corben Jacob Slater, born June 4, 1996.
[ 9 ] The marriage more or le held for the next few years. It came to a final end on March 8, 2002. Laurie and Greg promised themselves and each other that they would parent cooperatively and would do no harm to their five year old son. Neither had any other children. They were each fully engaged in Corben’s care and strongly attached to their active and charming young son.
[ 10 ] This Application was i ued October 24, 2002. 13 court attendances later the matter was set for a ten day trial on the October 2003 sittings. Although the parties had senior counsel throughout, no i ue was resolved but for an early order for divorce effective September 6, 2003.
[ 11 ] On October 16, 2003 a final attempt at settlement was guided by an experienced family court justice. The parties and their respective counsel took the next period to engage in further discu ions and consider potential terms of settlement. On October 27, 2003 Minutes of Settlement dated October 24 were signed and filed with the court.
October 2003 Minutes of Settlement
[ 12 ] The Minutes provided that Laurie would have custody of Corben. Laurie had final decision making regarding Corbin’s education, health care and extra-curricular activities.
[ 13 ] Greg, a dentist by profe ion, had final decision making with respect to Corbin’s dental care, his religion, religious education, and one extra-curricular activity on Wednesdays. [1] Neither party was responsible for contributing to Corbin’s extra-curricular expenses incurred by the other party unle his or her consent was obtained in writing, prior to the expenses being incurred. [2]
[ 14 ] It was agreed that Corben would be raised in the tradition of Reform Judaism, that he would continue in Hebrew School and that he would have a Bar Mitzvah.
[ 15 ] Within a detailed and lengthy Parenting Plan incorporated into the Minutes, the parties set out their agreement for Corben’s regular schedule between their homes as well as that regarding his holiday, vacation and special days. The parents agreed to be flexible, and to encourage respect and affection between Corben and the other parent. Each was to have full rights to information concerning Corben, and the right to attend Corbin’s activities. His residence could not be changed without parental agreement or further court order.
[ 16 ] Of special note to this proceeding, the parties amended the Minutes in hand-writing to provide that:
The husband’s choice of summer vacation time shall have no effect on his obligation to pay full Guidelines child support in accordance with paragraph 31 of these Minutes.
[ 17 ] Paragraph 31 stated that Greg would pay to Laurie table child support of $940 per month based on imputed income of $125,000 per year commencing November 1, 2003. As will be later referenced, the parties entered into the Minutes not on the basis of Greg actually earning $125,000 per annum, but on the anticipation that he would work towards and achieve that income over the following year.
[ 18 ] The parties further agreed that special expenses were to be shared at the rate of 69% for Greg and 31% by Laurie (her stated income at that time being $55,000). The pro rata sharing of any of Corbin’s expenses was to be determined once any subsidies, Income Tax deductions or credits relating to the expense were first deducted. The expenses agreed to were Hebrew School until he was 13 and summer camp [3] until age 14. [4] Both parties were to provide annual proof of income. [5]
[ 19 ] Either party could seek a variation of child support if there was a material change in circumstances. Greg paid Laurie a lump sum of spousal support and thereafter each party wholly released the other from any spousal support obligation, deeming the other to be self sufficient, irrespective of future changes in their financial circumstances. There was no equalization payment.
[ 20 ] On October 27, 2003 Justice Goodman endorsed that the parties had executed Minutes of Settlement and that each had the benefit of independent legal advice. She made a Final Order in accordance with a draft order to be approved by both sides as to form and content. If the parties were unable to formalize the terms of the order, Justice Goodman was to be spoken to.
[ 21 ] The Minutes provide that Dr. Slater was to have the order i ued and entered. He never did so.
2004 to 2012
[ 22 ] A little le than five months after signing the Minutes, Laurie brought a motion to move Corben’s primary residence. She was in a new relationship and hoped relocation would accommodate a restructured family life. In accordance with the dispute resolution clause within the Minutes the matter was transferred to Arbitration.
[ 23 ] In May of 2005, Greg motioned for a change to the joint custody, the parenting plan, to reduce his child support and section 7 contributions, and for the appointment of the Children’s Lawyer.
[ 24 ] There were a series of court attendances and no resolution. In September of 2006, Greg stopped paying table support.
[ 25 ] Despite both parties having experienced counsel, the various motions brought by the parties were never properly framed as Rule 15 Motions to Change a Final Order. Neither did Greg’s counsel take out the Final Order. As a result there was no Support Deduction Order being enforced by the Family Responsibility Office.
[ 26 ] Instead, the litigation expanded to a series of seven motions and conferences. Without a lengthy review of the court file [6] , one might have easily formed the view that all the i ues were being litigated de nova.
[ 27 ] Laurie’s counsel ultimately recognized that the 2003 Minutes had never been i ued and entered and she sought to do so on June 9, 2009, so that a Support Deduction Order would engage enforcement procedures by the Family Responsibility Office.
[ 28 ] Meanwhile, from March to May of 2009 Greg was undergoing a very painful treatment for Hepatitis C that he had been putting off for many years. [7] He did not have counsel. His request for an adjournment of the June 9, 2009 motion was refused. However, the motion was not reached that day, and the matter was put over to August 5, 2009.
[ 29 ] On August 5, 2009 Greg again asked for an adjournment which was vigorously contested by Laurie’s counsel. Justice Gilmore granted the adjournment to October 14, 2009 but with specific terms for:
-production of disclosure [8] by both parties,
-an interim finding of income to Greg of $276,000 resulting in table support of $2,186 and
-costs thrown away of $5,000.
Justice Gilmore made her finding of income on the industry standards for dental income as provided by Laurie’s counsel. Greg had not provided a Financial Statement or any evidence of his income. The endorsement clearly states that the amount was based on very limited information and was without prejudice to either party arguing a higher or lower amount of income.
[ 30 ] On October 14, 2009 Greg had counsel and the court was provided with a current Financial Statement and recent Income Tax Returns. He again asked for an adjournment, which request was denied. His Tax Returns for 2006, 2007 and 2008 showed Line 150 income of $24,687, $64,660 and $43,560 respectively.
[ 31 ] With ranges found for applicable add-backs that paralleled deposed expenses within Greg’s Financial Statement, income for support purposes was found on a temporary basis to be $90,000 per annum. Support was varied to $798 per month effective June 1, 2009 based on income of $90,000.
[ 32 ] Despite a not insignificant reduction in his table support obligation, Greg continued to pay no child support until the FRO enforcement proceedings the following June of 2010 resulted in a licence suspension. He remains without a driver’s licence as he is unable to retire the child support arrears that have accumulated since September of 2006.
[ 33 ] In his testimony during trial, Greg alternated between being apologetic for not appreciating the importance of complying with court orders, - to being resentful that he was required to pay child support in the face of Laurie’s lifestyle, which he views as much superior to his own. He believes that Corbin is being deprived of financial support in his home as a result of his obligation to pay child support to Laurie.
[ 34 ] Over the next four court attendances all i ues before the court, inclusive of Greg’s motion to vary custody and acce were organized for trial.
[ 35 ] In a consent incorporated into a Final Order dated November 8, 2011, and with the a istance of the Children’s Lawyer appointed in 2010, the parties confirmed that Laurie would continue to have custody of Corbin, that both would be entitled to information, that neither would discu financial matters with him, and various other matters. Within the consent were terms of scheduling very similar to that of the 2003 Minutes except that Corbin would spend all of March Break with his mother.
[ 36 ] On the eve of the matter being called for trial in October of 2011 Greg sought an adjournment to permit the filing of an expert’s report on his income. Justice Kaufman permitted the adjournment on specific terms: the payment of $11,090 in costs [9] and a timetable to a pre-emptory trial in May of 2012.
[ 37 ] Within the timetabled events were the delivery of Laurie’s disclosure to the valuator and her retention of an expert to critique Greg’s expert. Subsequently Laurie chose not to retain an expert and did not meet the timelines for her disclosure resulting in Greg’s valuator not having an opportunity to a e her 2011 income.
[ 38 ] By the time of trial in May of 2012, 16 year old Corben had become estranged from his father. He has had no contact with his father since January of 2012.
I ues at Trial:
Variation of Table Child Support
[ 39 ] There is a two step proce to vary a Final Order. Although neither party has properly framed the relief sought as a Rule 15 Motion to Change, the court is not relieved of the obligation to first make a finding as to a material change in circumstances, and then to determine the effect of that change.
[ 40 ] If a party fails to meet the threshold requirement of demonstrating a material change in circumstances, the inquiry can go no further: Litman v. Sherman (2008), 2008 ONCA 485 , 52 R.F.L. (6th) 239 (O. C.A.). The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation.
[ 41 ] The test for a material change of circumstances is set out by the Supreme Court of Canada in Miglin v. Miglin , 2003 SCC 24 , 2003 SCC 24 , [2003] 1 S.C.R. 303. I n the context of determining whether spousal support should be awarded, the court states at paragraph 18:
“The parties ’ intentions , as reflected by the agreement, are the backdrop against which the court must consider whether the situation of the parties at the time of the application makes it no longer appropriate to accord the agreement conclusive weight. We note that it is unlikely that the court will be persuaded to disregard the agreement in its entirety but for a significant change in the parties ’ circumstances from what could reasonably be anticipated at the time of negotiation. Although the change need not be “radically unforeseen,” and the applicant need not demonstrate a causal connection to the marriage, the applicant must neverthele clearly show that, in light of the new circumstances , the terms of the agreement no longer reflect the parties ’ intentions at the time of execution and the objectives of the Act. Accordingly, it will be nece ary to show that these new circumstances were not reasonably anticipated by the parties , and have led to a situation that cannot be condoned.”
[ 42 ] The party seeking to vary a support obligation carries the onus of demonstrating a material change in circumstances not reasonably anticipated, at the time of signing the Minutes.
Laurie’s Claim
[ 43 ] Laurie seeks an order that Greg’s income be imputed to $300,000 per annum, being the income normative of dentistry in Canada. Alternatively, she seeks an award of child support based on income in the range of an “average” dentist being $125,000 to $150,000.
[ 44 ] It is agreed that Greg has never earned $125,000 per annum, the income upon which table support was set in the 2003 Minutes. Greg testified at trial that in 2003 it was his hope that he could earn such monies with the stre of the litigation now at an end.
[ 45 ] The original Application i ued in October of 2002 stated Greg’s income as: 2000: $94,500, 2001: $67,223, 2002: $75,000 (anticipated).
[ 46 ] The report of Mr. Hames more fully detailed below, shows that Greg’s average income in the years of 2005 to 2011 was $64,000.
[ 47 ] Laurie’s submi ions neither addre ed, nor recognized the need for a prerequisite finding of material change. Rather, she moved directly to her view of how Greg ought to be operating his practice and her view of how Section 19(1) (a) of the Federal Child Support Guidelines ought to operate in support of her claim .
[ 48 ] In support of her position at trial, Laurie called a noted expert in the field of dental income statistics, Dr. Housefather. At no time did Laurie give notice of an intention to call opinion evidence, or did she serve an expert’s report as required by the Rules. As a result, Dr. Housefather’s evidence at trial was limited to general statements of fact.
[ 49 ] Laurie also relied on her own experience as a dental office consultant. Simply stated, she does not accept that her former spouse has any limitations on his ability to earn income. She is an enthusiastic proponent of all dentists having the ability to achieve maximum income in exce of $300,000.
[ 50 ] A finding of material change requires an event which can be objectively observed. It cannot be a failed expectation subjective to the moving party. Laurie’s claim that Greg should be imputed with income of $300,000 per annum - or even income of “an average dentist” - must fail. At no time since the parties met has Greg ever earned more than $94,500 (Line 150) per annum, or reached his anticipated income of $125,000.
[ 51 ] Neither has there been a material change giving rise to circumstances in which Greg can earn “average” dental income, or income in the range of $300,000.
[ 52 ] I find that Greg’s failure to meet his anticipated income results from factors that have been consistent since separation.
[ 53 ] He suffered from Hepatitis C through to the end of 2009. He has declared bankruptcy twice. He has a poor client base and aged equipment. He has never taken a ignment. [10] He does not do certain dental procedures, believing himself not suitable to the tasks. He cites financial hardship as a basis for being unable to attend continuing education programs which might inform him as to new dental procedures. He does not follow the ODA fee guide.
[ 54 ] These factors have been consistent throughout. I can make no finding of a material change which would allow Laurie’s claim to proceed.
Greg’s Claim
[ 55 ] Greg seeks a Final Order varying the 2003 Minutes of Settlement from May 2005 to present. He claims that there have been multiple material changes in his circumstances since 2003 that require a reduction in child support. He states the relevant changes as follows:
a. Corben resided with him for an average of 47% of the time from 2005-2011.
b. His health has deteriorated.
c. He has had to concentrate on the ongoing litigation and the respondent’s ongoing agenda of non-cooperation and hostility.
d. He has struggled as an undischarged bankrupt for nine years.
e. Income from dentistry has declined with the economy.
f. His income has reduced as a result of extra time spent with Corbin to addre his (Corbin’s) challenges.
Corben resided with him for an average of 47% of the time from 2005-2011.
[ 56 ] Extensive evidence was led as to whether Corben’s residential schedule changed post 2003. In this regard, where the evidence of the parties conflicted, I preferred Laurie’s evidence.
[ 57 ] Greg’s calendar calculations supporting his figures rely heavily in counting partial days as whole days, and including summer camp days as his own, measured against those of the mother. Moreover, the parties specifically agreed that no change to the summer acce schedule would constitute a change in circumstances regarding his payment of table support.
[ 58 ] The court does not accept that Corben’s residential schedule significantly shifted between the years of 2005-2011. Indeed, but for March Break the current schedule (although not in abeyance given the recent estrangement) mirrors than agreed to in 2003.
[ 59 ] Even if Greg was able to establish an increase in time with Corben, no section 9 claim was attempted. I have no evidence that Greg’s costs of caring for Corben increased as a result of additional time (if any) spent with his son.
[ 60 ] I find that there has been no significant change in Corben’s schedule in the years following the 2003 Minutes, or even the revised schedule incorporated into the Final Order of November 2011.
His health has deteriorated.
[ 61 ] Although both parties were aware in 2003 that Greg was positive for Hepatitis C; neither appears to have put his or her mind to the effect of that condition on his ability to practice dentistry. He never disclosed his virus to his profe ional college. He deposes that he took his own precautions and limited some of the work that he performed.
[ 62 ] Greg called one of his physicians, Dr. Wong who testified on a broad range of matters. He spoke to the proce of kidney dysfunction caused by Hepatitis C, and the need to treat Greg’s condition by 2009.
[ 63 ] From March to May of 2009 Greg undertook Interferon treatment. The treatment was painful and exhausting. It is not disputed that Greg’s illne prior to treatment was having a negative effect on his health and that the Interferon treatment in 2009 significantly reduced his income for a lengthy period thereafter. A portion of his 2009 income derived from disability benefits. Happily, the treatment was succe ful and the Hepatitis C virus was reduced to undetectable levels by the end of 2009.
[ 64 ] I would give effect to this ground – the deterioration of Greg’s health - as a material change in circumstances not reasonably anticipated at the time of signing the Minutes.
He has had to concentrate on the ongoing litigation and the respondent’s ongoing agenda of non-cooperation and hostility.
[ 65 ] Greg testified at trial that at the time of signing the Minutes, he had hoped to increase his earnings in the following year with the stre of the marriage breakdown and subsequent litigation at an end. He states that when litigation resumed and in his view intensified, his ability to earn income was severely jeopardized by the time, stre and costs of the ongoing conflict.
[ 66 ] His views hold some attraction. It is rare that courts see this prolonged a course of litigation. [11] The negative effects of long term conflict cannot be overstated.
[ 67 ] At the same time, much of the post 2005 litigation was initiated by Greg, or in response to his decision to withhold child support. The strong impre ion given to the court was that Greg chose the non-payment of child support as a means to expre his extensive dismay over his post separation circumstances.
[ 68 ] Greg testified for a full day in direct, and a second in cro -examination. He was often tearful during his testimony and had to be frequently refocused. His testimony centered on the parenting schedule since separation, his deteriorating health and wellne , his relationship with Corben, and how Laurie’s manner or lack of communication since separation has caused him distre .
[ 69 ] Much of what he deposed was repeated during opening and closing submi ions. His views are extensive and emotional. He appears puzzled by the legal expectations placed upon him by the Minutes and believes that he has done his best to meet them within changing circumstances. Although he can acknowledge in principle that child support is the right of the child, he is preoccupied by a view that Laurie’s conduct and superior financial circumstances ought to relieve him of that obligation.
[ 70 ] No course of parental conduct can deprive a child of child support. This ground is rejected.
He has struggled as an undischarged bankrupt for nine years.
[ 71 ] At the time of signing the Minutes, Greg was an undischarged bankrupt with monthly payments of $1,200 to his trustee. It was anticipated that he would be discharged the following year. Neither Greg nor Laurie anticipated that Greg would not be discharged for a lengthy period, and that he would then file bankruptcy a second time in May of 2006 to retire CRA arrears. He was not discharged from the second filing until November of 2009.
[ 72 ] Greg testified to the cumulative and negative effects of not having credit available to him for the past 14 years as a result of the first and second bankruptcy. He has been unable to replace aging equipment from the 1970s, [12] which limits his attractivene for new staff; he cannot take time away to train for new procedures or to fund any busine activities beyond his available cash flow. His evidence in this regard was not contradicted. To this day, he has no capital or savings.
[ 73 ] I do give effect to this ground as a material change in circumstances that was not reasonably anticipated at the time of signing the Minutes.
Income from dentistry has declined with the economy.
[ 74 ] Greg offered no probative evidence on this point. In anticipation of this argument at trial Laurie questioned Dr. Housefather, who was able to provide statistical information on dental salaries and dental fee schedules. His evidence demonstrates that dental incomes have on average increased over the past decade in a consistent, year over year basis.
[ 75 ] This ground for material change is rejected.
His income has reduced as a result of extra time spent with Corbin to addre his (Corbin’s) challenges.
[ 76 ] Corbin has had some significant challenges, none of which are leavened by the decade long conflict between his parents. I received evidence on those challenges, but find that they are irrelevant to the i ues in this proceeding. Respecting Corbin’s right to privacy, his concerns will not be set out within these reasons.
[ 77 ] Neither do I find that Greg’s ability to earn income was affected by any additional time spent with Corben.
[ 78 ] This ground for material change is rejected.
Finding of Material Change and Variation
[ 79 ] I find that the second period of bankruptcy from May of 2006 to November of 2009, which overlapped with a period of significantly diminished health, does constitute a material change in circumstances that could not reasonably have been anticipated by the parties at the time of signing the Minutes.
[ 80 ] I also find that to leave the Final Order of 2003 and Temporary Order of 2009 unvaried would result in a situation that cannot be condoned as contemplated in Miglin , supra.
[ 81 ] The prior order for table child support shall be varied effective May 1, 2006 in accordance with Greg’s commensurate income.
Greg’s Income
[ 82 ] Greg retained Mr. Hames to provide an analysis of both his and Laurie’s income for support purposes. Mr. Hames delivered a report and was accepted as an expert at trial. I accept Mr. Hames evidence, including his treatment of add-backs, gro -ups and monies paid in advance of treatment, in its entirety. That evidence can be summarized as follows:
Calendar Year
2005
2006
2007
2008
2009
2010
2011
Profe ional Income
$79,905
$24,687
$64,665
$43,561
$17,375
$58,938
$64,122
Interest and Other Iv. Income
2
Line 150 Income
$79,905
$24,687
$64,665
$43,561
$17,377
$58,938
$64,122
Adjustments
Dental Practice Earnings
$39,622
Dental Practice Earnings Adjustment [13]
$2,451
$12,126
$1,645
$7,030
Dental Practice Earnings Adjustment - Gro ed up [14]
$3,064
$15,158
$2,056
$8,788
Amortization Expense - Not gro ed up
$3,556
$3,587
$3,910
$3,856
$3,508
$3,859
$4,736
Discretionary Expenses of Dr. Slater
2,874
4,300
2,911
2,863
1,538
987
5,123
Gro -up of Discretionary Expenses
958
1,433
970
954
513
329
1,708
1,708
Gro -up of Discretionary Expenses
5,990
Disability Insurance
(5,990)
(5,990)
(5,990)
(5,990)
(4,993)
(5,990)
(5,990)
Disability Insurance Income
13,265
829
$1,398
$42,952
$4,252
$1,683
$26,457
$829
$12,607
12,607
Total Adjusted Income
$ 81,303
$ 67,639
$ 69,529.75
$ 45,244
$ 46,866
$ 60,178
$78,487
7,848.68
Rounded
$81,000
$68,000
$70,000
$45,000
$47,000
$60,000
$78,000
$79,000
Average: $64,000
[ 83 ] Order to go that :
- The August 5, 2009 Final Order of Justice Gilmore based on the October 2003 Minutes of Settlement, and the Temporary Order of October 19, 2009 are varied to provide that the applicant father shall pay final table child support of:
a. $629 per month from May 1, 2006 to December 31, 2006 based on annual income of $68,000.
b. $647 per month from January 1, 2007 to December 31, 2007 based on annual income of $70,000.
c. $425 per month from January 1, 2008 to December 31, 2009 based on annual income of $46,000. [15]
d. $557 per month from January 1, 2010 to December 31, 2010 based on annual income of $60,000.
e. $704 per month from January 1, 2011 to December 31, 2011 based on annual income of $78,000.
f. $724 per month from January 1, 2012 forward based on annual income of $80,000.
Claims for Special Expenses
[ 84 ] The 2003 Minutes provide that the parties will pay for Corben’s religious schooling until he is 13, summer camp until he is 14 (then to be reviewed), medical and dental expenses. The parties were to exchange annual income disclosure per paragraph 35 of the Minutes in order to determine the proportionate sharing of these expenses as incurred.
[ 85 ] The parties did not make any such disclosure until subsequent court proce es required them to do so.
[ 86 ] Not included in the Final Order, but within paragraphs 6 and 8 of the “Custody of the Child” section of the 2003 Minutes are terms that either parent may enrol Corben in extra-curricular activities, but cannot look to the other for contribution to the costs for such activities unle consent is received in advance in writing. The terms in the Minutes govern as a domestic contract per section 54 of the Family Law Act.
[ 87 ] Neither party sought an order to vary paragraphs 6 and 8 of the 2003 Minutes of Settlement.
[ 88 ] At the same time, each party seeks orders for the payment of various expenses incurred since separation, none of which had been agreed in writing in advance.
[ 89 ] In his written opening statement, Greg sought $4,654.18 in contribution from Laurie for her proportionate share of special expenses from 2005 to the end of 2011. Those expenses were primary for religious school, Corben’s medication, day care & camp. In closing submi ions, Laurie also acknowledged that she owed to Greg her proportionate shares of $2,627 (2009) and $1,259 (2010) for religious school.
[ 90 ] However, those and camp expenses are subject to considerable subsidies and tax credits for which Greg provided no evidence. I accept Laurie’s evidence that there may not have been any costs actually occurred beyond those to which she had contributed or is prepared to contribute.
[ 91 ] Greg also seeks an amount from $6,000 to $10,000 to offset his $31,000 in costs for Corben’s 2009 Bar Mitzvah, which was paid for with a loan from his then partner. Much of that loan remains outstanding.
[ 92 ] Greg acknowledges that the Bar Mitzvah costs were wildly disproportionate to his income. In 2009 his taxable income was $17,377. Mr. Hames’ a e ment of income for support purposes for that same year was $47,000. Nonethele , Greg defends his decision to spend $31,000 on the basis that “Corben deserved it,” and “he wanted to give him a day that he would not forget.”
[ 93 ] The 2003 Minutes evidence the parties’ agreement that Corben should have a Bar Mitzvah, but are silent on the scope or costs for the event. It is agreed that it was Laurie’s initial intention to contribute to the event, but that she later refused when she formed the belief that she was being excluded – which Greg adamantly denies.
[ 94 ] There was never any written agreement between the parties regarding the budget, guest list, organization or funding.
[ 95 ] The court is left with very little basis upon which to consider an award of section 7 expenses payable by Laurie for the Bar Mitzvah. The court was given no evidence as to what a reasonable budget for a Bar Mitzvah would have been for parents with incomes of $47,000 (Greg) and $106,000 (Laurie – see below) and for a child for whom no post secondary education savings had been acquired.
[ 96 ] A Bar Mitzvah is a significant event, and one that the parties had agreed to provide for their son in 2003. Some amount ought to be contributed by Laurie based on her income.
Laurie’s Income
[ 97 ] Laurie’s income is relevant with respect to Greg’s claim for proportionate sharing of section 7 expenses. A summary of her income is as follows.
[ 98 ] Laurie is 40 years of age. She has a high school education and began her career as a dental office a istant. She has evolved her skills within the field of dental office management. In 2008 she purchased an American Dental Office management franchise and launched her current busine as a self styled personal dental trainer, and executive dental coach.
[ 99 ] In promotional materials filed with the court she is described in terms of “yours in excellence,” and “an energetic and powerful presenter.” Her named position within the franchise is “CEO of Fortune Management.” Testimonials in her promotional material compare her to Anthony Robbins and claim that “In a multifaceted dental career that has spanned over two decades, Laurie Slater has achieved extraordinary, consistent and measurable succe in the mysterious area of ‘Comprehensive Case Acceptance.’
[ 100 ] Greg retained Jonathan Hames in early October 2011 to provide income valuations for both he and Laurie from 2005 to present. Laurie did not retain an expert to critique the report and it was filed on consent. Laurie vigorously cro -examined Mr. Hames’ a e ment of both her and Greg’s income. The court is well satisfied with the methodology and diligence employed by Mr. Hames in reaching his opinion as to the parties’ respective incomes.
[ 101 ] Laurie did not provide income disclosure in the manner required by Justice Kaufman’s November 2011 Order to allow Mr. Hames to calculate her 2011 income. Mr. Hames calculated Laurie’s income from 2005 to 2010 as follows:
Calendar Year
2005
2006
2007
2008
2009
2010
Employment Income
50,288
45,083
8,725
Busine Income
58,963
74,810
78,785
Other Income
13,500
Interest and Other Iv. Income
82
Line 150 Income
$50,288
$45,083
$81,269
$74,810
$78,785
$63,080
Adjustments
Adjustments to Busine Income
19,700
11,980
Adjustments to Royalty Expense
46,211
Amortization Expense
6,082
5,656
5,260
Discretionary Expenses of Ms. Slater
160
11,124
960
1,389
4,363
Gro -up of Discretionary Expenses
62
4,326
373
540
1,697
222
15,450
53,626
27,285
23,300
Total Adjusted Income
$50,288
$45,305
$96,719
$128,437
$106,071
$86,379
Rounded
$50,000
$45,000
$97,000
$128,000
$106,000
$86,000
[ 102 ] I find that Laurie’s proportionate share of section 7 costs in 2009 was 70% (based on Greg’s income of $47,000 and Laurie’s of $106,000).
[ 103 ] In satisfaction of the acknowledged school expenses, and a range of reasonable expenses for the Bar Mitzvah, I exercise my discretion and order that Laurie shall pay to Greg $8,500 in full satisfaction of his section 7 claims to date.
[ 104 ] Laurie’s claims for section 7 contributions are as follows:
a. From 2008 to 2011 Laurie deposes that she paid $200-$300 a month in medication for Corben. She does not provide the after tax cost of the medication, although she does attach receipts at Volume 4 of her materials. Greg deposed that he chose not to cover these amounts because “he knew that she would” and he would otherwise not have had enough money to send Corben to camp.
b. Prior to 2008, Laurie sought contribution to school transportation expenses for Corben. Those expenses are rejected by the court as they were occasioned by the mother’s move; there was no written consent and no evidence of actual after tax cost.
c. Laurie also seeks current and future expenses for therapy for Corben and tutoring. At the time of trial, there was no evidence as to the proce or costs of those benefits. Due to the breakdown in the relationship between father and son, Greg was unaware of the basis for those expenses, although he supported them in principle.
[ 105 ] The parties made other minor claims against the other for proportionate costs, but most were historical, not entirely evidenced, and not discounted for after tax/subsidy cost. The amount of the claims often varied.
[ 106 ] Laurie shall receive some contribution for the costs of Corbin’s unfunded camp, daycare, medication and therapy costs incurred to date, which I set at the rounded after tax amount of $3,500.
[ 107 ] As Laurie chose not to participate in a timely manner to calculate her 2011 income, I do not have the relevant value to fix ongoing sharing of expenses. Using Greg’s 2011 income of $78,000 and Laurie’s 2010 income of $86,000, I will set the proportionate sharing at equal rates, subject to readjustment.
[ 108 ] Order to go as follows:
As of May 30, 2012 Laurie shall pay to Greg the amount of $5,000 in section 7 expenses. Said amount shall be in full satisfaction of all section 7 expenses claimed to date by Greg (inclusive of Bar Mitzvah expenses) and those claimed to date by Laurie.
From June 1, 2012 forward the parties shall pay in equal shares any section 7 expenses, including unfunded post secondary expenses, therapy for Corben, and tutoring, to which they have agreed in advance, in writing. Either party may apply to the court for a reallocation of such expenses based on income within the relevant year.
Should either party unreasonably refuse to contribute to a section 7 expense, the other may bring a Form 15 Motion to Change to determine the question.
Costs
[ 109 ] Applicant to file his submi ion for costs within 20 days of release of this decision, respondent 20 days thereafter. Applicant has ten days for reply. Submi ions limited to three pages, exclusive of Offers to Settle and Bills of Costs.
Justice H. McGee
Date Released: August 14, 2012
[1] Until September 1, 2005 at which time the one extracurricular activity was to occur on a Saturday or Sunday when Corben was in his care.
[2] As stated later in these reasons, this term is found within paragraphs 6 and 8 of the Minutes of Settlement, within the “Custody of the Child” section. The terms are not brought forward into the Final Order of August 5, 2009, but do stand alone as a domestic contract per section 54 of the Family Law Act.
[3] The gro annual amount prior to proportional sharing being capped at $1,400 based on eight weeks of camp until the summer of 2005.
[4] After which it was to be reviewed on or before April 1, 2006.
[5] Neither party ever did provide annual disclosure except in accordance with subsequent court orders.
[6] Which now numbered four banker’s boxes.
[7] Hepatitis C is a condition that could have prevented him from practicing as a dentist. He admits that he was required to report his condition to the Dental College. He states that he did not report the condition out of a fear of losing his livelihood, and ability to pay child support. Instead, he took self help precautions such as double gloving.
[8] Neither party had complied with the term of the Minutes of Settlement that required ongoing exchange of Income Tax Returns.
[9] Inclusive of the prior orders of $5,000 and $750 in costs.
[10] Direct payment from an insurer, as an alternative to patient payment, with the patient then being reimbursed.
[11] 2002-2012, with only a short respite from October 2003 to May 2004.
[12] He deposes that he has not been able to make the transition to digital equipment.
[13] Dr. Slater has the atypical practice of taking advance payment in full for certain procedures which will require multiple attendances. Not all patients complete their procedure. When a patient does not complete treatment he retains the prepayment. These amounts have been added back into his income.
[14] Same.
[15] Blends calendar years of 2008 ($45,000) and 2009($47,000) to table of $425 on $46,000.