COURT FILE NO.: FC-11-1377

DATE: 2012/09/07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARK THOMAS, Applicant

AND

MARIE-FRANCE SIMARD-THOMAS, Respondent

BEFORE: M. Linhares de Sousa J.

COUNSEL:
Mark Thomas, Self-Represented

Julie Audet, for the Respondent

HEARD: August 31, 2012

ENDORSEMENT

[ 1 ] This matter concerns two motions. One brought by the Respondent, Marie-France Simard-Thomas in which she seeks an order retroactively adjusting the Applicant’s, basic child support for the total period beginning March 1, 2010, to the present; an order that the Applicant pay his proportionate share of all of the children’s section 7 expenses incurred by her in the years 2010, 2011, and to date in 2012 and that henceforth these expenses be paid by the Applicant by way of a fixed monthly contribution of $300 per month, based on the children’s estimated yearly section 7 expenses, with an annual review and adjustment for the section 7 expenses; an order, in the alternative, confirming the section 7 expenses to which the Applicant father is obligated to contribute; and finally an order allowing her to claim insurance-covered expenses for her and the children directly from the Applicant’s insurer.

[ 2 ] The second motion is brought by the Applicant, Mark Thomas, in which he seeks an order with respect to the parties’ parenting arrangement which is currently governed by the parties’ Separation Agreement, entered into by them when they separated in March of 2010. Mr. Thomas has also responded to the motion brought by Ms. Simard-Thomas. He has presented his own evidence concerning the issue of retroactive support, for both the basic child support and his proportionate contribution to the children’s section 7 expenses. Mr. Thomas also contests Ms. Simard-Thomas’ request for an order to have him pay for the children’s section 7 expenses by way of a fixed monthly amount with an annual review.

[ 3 ] Happily, in the course of the motion, the parties were able to agree on the wording of an order that resolves the parenting issues raised in Mr. Thomas’ motion. The parties’ agreement on the parenting issues will therefore be incorporated into this endorsement and will form part of this order on the support issue.

[ 4 ] The child support in question in this matter is for the two children of the marriage, Anne Thomas (DOB Feb 12, 1996), now 16 years old and Maxwell Thomas (DOB June 6, 1998), now 14 years of age. The parties’ Separation Agreement of March, 2010, provided that the parties would share custody of the two children without stipulating any access arrangements. No spousal support was to be paid and Mr. Thomas was to pay full basic child support based on his “approximate income of $58,000” per year. The child support was to commence being paid May 1, 2010, when Mr. Thomas moved to his own residence. The Separation Agreement also stipulated that the parties were to share the children’s section 7 expenses proportionally. No proportions were stipulated in the agreement nor was there an identification of the children’s section 7 expenses.

[ 5 ] What has brought this matter to court appears to be the following areas of disagreement. The parties have not been able to agree on how frequently Mr. Thomas has care of the children and whether that will affect the basic child support payable by Mr. Thomas, both retroactively and ongoing. Mr. Thomas has also raised an issue with respect to Ms. Simard-Thomas’ income for the purpose of proportional sharing of the children’s section 7 expenses. Mr. Thomas also takes the position that the cost of one of the extracurricular activities in which his son Maxwell is involved, his jiu-jitsu lessons, exceeds what the parties can afford. There was also a difficulty in accounting for what section 7 expenses had been paid by the respective parties.

[ 6 ] For the purposes of adjudicating the two motions before me, and after examining the evidence and hearing the submissions of the parties the following facts are found or agreed to by the parties:

(1) There is no question on the evidence that the children, for the most part, have continued to maintain their primary residence with their mother and to spend the majority of their time in their mother’s care. Ms. Simard-Thomas has also paid for the majority of the children’s expenses. Consequently, for the period in question Mr. Thomas should continue to pay full basic child support for the two children in accordance with the Child Support Guidelines , and based on his declared annual income.

(2) For purposes of determining retroactive child support payable by Mr. Thomas, the effective date shall be May 1, 2010, as provided by the parties’ Separation Agreement. Ms. Simard-Thomas has claimed retroactive support to March, 2010, based on her allegation that it was understood that Mr. Thomas, prior to his leaving the matrimonial home in May of 2010, was to continue sharing the matrimonial home expenses, which Ms. Simard-Thomas claims he did not. Mr. Thomas submitted that he did continue to share the matrimonial home expenses by way of deposits into the parties’ joint account until he left the home. In my view, the evidence falls short of being able to determine this issue with any certainty or fairness to either party. Consequently, support will be retroactive to May 1, 2010.

(3) For purposes of determining the proportion of sharing of the children’s section 7 expenses, the parties agree that the relative proportionate sharing shall be 70% attributed to Mr. Thomas and 30% attributed to Ms. Simard-Thomas. Mr. Thomas alleges that Ms. Simard-Thomas’ income is higher than she claims but did not provide any evidence to support his allegation. Ms. Simard-Thomas, for her part submits that given her declared income her proportional sharing of the children’s section 7 expenses should be less than 30% but, rather than incur the cost of litigating the point, she will accept a 30% attribution to herself.

(4) With respect to whether the cost of jiu-jitsu should be part of the children’s section 7 expenses to be shared by the parties, the evidence showed that Maxwell had been involved in this sport for a period of two years prior to the separation, although not necessarily with his father’s blessing. In 2010 the parties spent approximately $1,300 on this sport for Maxwell and in 2011 approximately $1,500. In relation to the parties’ joint earnings and in comparison with what was spent by the parties for the child Anne for her extracurricular expenses, I cannot find this amount unreasonable nor beyond the parties’ financial means. Furthermore, it was a sport that the child has been involved in for some time, pre-dating the separation. There is no reason why the child should be denied the opportunity to continue with this activity which he evidently enjoys. Maxwell’s jiu-jitsu lessons will continue to form part of the children’s section 7 expenses to be shared proportionately by the parties on a 70%-30% basis, as discussed earlier. All of the listed section 7 expenses claimed by Ms. Simard-Thomas are reasonable.

(5) Given the fact that the parties have not been able to agree on the most basic of calculations with respect to child support amounts owing and on the question of section 7 expenses, I am persuaded by the wisdom and equity of fixing a monthly amount payable for the children’s section 7 expenses with an annual review and accounting for the expenditure and payment of these expenses. I also find it unfair to Ms. Simard-Thomas, given the fact that she paid for most of the children’s section 7 expenses to have had to wait so long to resolve expenditures which she made on behalf of the children almost two years ago. The annual review will also take account of any changes in the children’s activities, particularly in view of the fact that one of the children is nearing the commencement of her post-secondary education.

BASIC CHILD SUPPORT OWING

[ 7 ] In accordance with the above findings and agreements, I find that Mr. Thomas owes Ms. Simard-Thomas retroactive basic child support dating back to May 1, 2010. This is because his annual income was higher than the income stipulated in the parties’ Separation Agreement in 2010 and his income has increased since 2010. Tab B of Ms. Simard-Thomas’ Factum on this motion is an accurate reflection of the retroactive basic child support owed by Mr. Thomas to Ms. Simard-Thomas, excluding, of course, for the reasons I have stipulated, $1,826 for the months of March and April, 2010. The total amount of retroactive basic child support owed by Mr. Thomas to Ms. Simard-Thomas is found to be $2,756 to August, 2010 .

[ 8 ] Thereafter and commencing September 1, 2012, Mr. Thomas is obligated to pay for the basic child support of the two children of the marriage $959 per month in accordance with the Child Support Guidelines .

[ 9 ] Annually, the parties shall exchange their financial information (income tax returns and notices of assessment) which exchange shall be done by September 1 st of each year commencing with September 1, 2012, at which time the parties shall adjust the child support retroactive to January 1 st of the year, based on the income disclosed for Mr. Thomas in accordance with the Child Support Guidelines . Any amount of child support owing to Ms. Simard-Thomas, as a result of this annual adjustment, is to be paid forthwith. In the event that a credit is owed to Mr. Thomas, as a result of this annual adjustment, then it shall be credited to any monthly child support payable by him until the credit has been accounted for.

PROPORTIONATE CONTRIBUTION TO SECTION 7 EXPENSES OWING

[ 10 ] I have now had an opportunity to examine both parties’ charts of section 7 expenses for the years 2010, 2011 and 2012. While the parties’ evidence varies slightly, for the most part, the parties agree on the section 7 expenses. The difference seems to be due to the following. Mr. Thomas has not included in his figures Maxwell’s jiu-jitsu expense which, of course, based on my ruling will have to be added back in.

[ 11 ] Ms. Simard-Thomas calculated Mr. Thomas’ contribution to expenses covered by his employment health insurance plan by attributing to him 80% (amount covered by the plan) then 70% of the difference). This method is rather convoluted. However, from what I can understand from the evidence, this method has been employed by counsel for Ms. Simard-Thomas because of the fact that Mr. Thomas did not submit to Ms. Simard-Thomas, in a timely fashion, all of reimbursements from his employment health plan for medical expense claims paid by Ms. Simard-Thomas.

[ 12 ] Ms. Simard-Thomas recognizes and agrees with Mr. Thomas that he has now submitted these insurance claims reimbursements. She acknowledges that on April 4, 2012, she received $1,664.56 and on May 14, 2012 she received $708.08 both of which are to be credited to Mr. Thomas under her method of calculation. Ms. Simard-Thomas also recognizes and agrees with Mr. Thomas that he made four extra payments of $102.82 ($411.28) of his own volition following the parties’ attempt at mediation which should also be credited to Mr. Thomas.

[ 13 ] With respect to the contribution to section 7 expenses owed by Mr. Thomas for the years 2010, 2011 and 2012, I find the following. With some variation which I will deal with below, the figures found in tab A of Ms. Simard-Thomas’ Factum are accurate and reflect what is owing by Mr. Thomas to Ms. Simard-Thomas for those expenses for the years in question.

[ 14 ] For the year 2010, I find that Mr. Thomas owes Ms. Simard-Thomas $3,985.64 as his proportionate share of the children’s section 7 expenses.

[ 15 ] For the year 2011, I find that Mr. Thomas owes Ms. Simard-Thomas $3,028.23 as his proportionate share of the children’s section 7 expenses. The reason this differs from the total claimed by Ms. Simard-Thomas in her tab A calculations ($3,143.07) is because Mr. Thomas paid for a licence, swimming NLS and swimming BRONZE for Anne and an expense for hockey for Maxwell not included in her calculations. I have deducted Ms. Simard-Thomas’ 30% share of these expenses ($114.84) from the amount owing.

[ 16 ] For the year 2012, to date I find that Mr. Thomas owes Ms. Simard-Thomas $1,718.82 as his proportionate share of the children’s section 7 expenses.

[ 17 ] The total amount of the children’s section 7 expenses, owed by Mr. Thomas for the years 2010, 2011 and 2012 to August, 2012, is $8,732.69 . From this amount for the same period Mr. Thomas is to be credited with $2,783.92, leaving a balance $5,948.77 owed by Mr. Thomas to Ms. Simard-Thomas as his proportionate share of the children’s section 7 expenses to August, 2012.

[ 18 ] For the reasons given above, commencing September 1, 2012, in addition to Mr. Thomas paying his Child Support Guideline amount of basic child support as found earlier, he shall also pay the amount of $275 per month to cover his proportionate share of the children’s annual section 7 expenses. This amount is arrived at by finding on average, as is shown by the evidence and if one deducts the orthodontic expenses for Maxwell that are coming to an end, that the total annual amount of the children’s section 7 expenses for the last two years has been in the range of $3,300.

[ 19 ] On an annual basis, September 1 st of each year, the parties shall carry out a review and monetary adjustment for these expenses as provided for earlier.

[ 20 ] From here on in Ms. Simard-Thomas shall be entitled to claim insurance-covered expenses for her and the children directly from Mr. Thomas’ insurer, Manulife if the plan permits such claims. Mr. Thomas will provide the insurer with any consent which is required on his part in order to permit this to happen.

TOTAL AMOUNT OF SUPPORT ARREARS OWING BY MR. THOMAS TO MS. SIMARD-THOMAS

[ 21 ] The total amount of child support arrears owing by Mr. Thomas to Ms. Simard-Thomas I find to be $8,704.77 ($2,756 + $5,948.77). Mr. Thomas shall have two weeks to pay this overdue amount, failing which interest at the regular court rate shall be added to the amount outstanding and payable.

[ 22 ] Based on the agreement of the parties and it is so ordered, Ms. Simard-Thomas shall from the date of the separation be eligible to claim, for income tax purposes, the dependent’s equivalency status and the child tax credit for the children.

[ 23 ] The last issue to be dealt with is costs. Unless the parties cannot otherwise settle this issue, Ms. Simard-Thomas shall have two weeks from the date of this endorsement to serve and file her written submissions on costs including any offers to settle. Mr. Thomas shall have two weeks from that date to serve and file his written submissions on costs including any offers to settle. Ms. Simard-Thomas shall then have one week from that date to serve and file a reply if she so wishes.

M. Linhares de Sousa J.

Released: September 7, 2012

ONTARIO SUPERIOR COURT OF JUSTICE RE: MARK THOMAS, Applicant AND MARIE-FRANCE SIMARD-THOMAS, Respondent, BEFORE: M. Linhares de Sousa J. COUNSEL: Mark Thomas, Self-Represented Julie Audet, for the Respondent ENDORSEMENT M. Linhares de Sousa J.

Released: September 7, 2012