CITATIO N : Mangialardi v. Mangialardi, 2012 ONSC 5219

NEWMARKET COURT FILE NO.: FC-03-15709-01
DATE: 2012-09-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Donna Marie Mangialardi, Applicant

AND:

Vito Mangialardi, Respondent

BEFORE: McGee J.

COUNSEL: Both parties – self represented

HEARD: September 12, 2012

endorsement

BACKGROUND

[ 1 ] This is the Applicant mother’s Rule 15 Motion to Change the agreement for support between the parties dated June 16, 2005. The agreement is set out in a Separation Agreement which resolved all issues arising from the parties’ February 9, 2001 separation. The Separation Agreement was filed as a Domestic Contract with the court in October of 2005. Support is being enforced through the Family Responsibility Office. There is no Support Deduction Order.

[ 2 ] The Separation Agreement states that the father will pay table support of $1,865 for three children: Andrew born December 12, 1991, Emily born July 30, 1993 and Natalie born May 8, 1997; based on income of $118,874.71. An additional monthly amount of $60.23 [1] is the father’s agreed proportionate share of Natalie’s dance and drama classes; for a total monthly payment of $1,925.23. This amount has never been in arrears.

[ 3 ] Both parents are professional persons with T4 income. They are joint custodial parents. The mother is a dental hygienist who until this year maintained a consistent pattern of annual earnings in the range of $70,000. The father is a manager who has seen his income rise from $118,874 at the time of separation to a high of $157,740.

[ 4 ] The parents appear on this motion without counsel and look to the court to recalculate their various claims. Extensive mediation efforts have failed. Because the efforts to settle to date have been so unusually extensive [2] the case conference justice on June 15, 2012 agreed to place this matter for a half day motion that would be fully determinative of the issues. At the July 18, 2012 long motions scheduling court the parties agreed that this motion would be heard as a trial of the issue on affidavit evidence alone.

[ 5 ] The mother seeks a retrospective increase in table support from January 1, 2006 to present; as well as the payment of special expenses incurred since June of 2005.

[ 6 ] The latter is not an easy matter to determine. Since September of 2008 the mother has been filing Statements of Arrears with the Family Responsibility Office for full recovery of all manner of special expenses; and the Family Responsibility Office has been collecting them as claimed.

[ 7 ] $15,628.60 has been collected to date, in addition to the monthly payment of $1,925.23.

[ 8 ] The father rightly objects to these additional amounts being collected. Some of the expenses were never contemplated in the Separation Agreement, some require the father’s consent – which was never obtained, some expenses were not even known to the father; and some are not special expenses at all (such as the mother’s massage therapy). Almost all of the claims are without deduction for available benefits coverage, Income Tax credits or limited to the father’s proportionate share.

[ 9 ] The father responds to this Motion to Change and also makes his claim for a retrospective adjustment to table child support and the payment of the mother’s proportion of special expenses that he has incurred since November 23, 2007.

[ 10 ] It is agreed, and the court concurs that the test of a material change in circumstances since the Agreement of June 2005 has been met.

[ 11 ] Neither party is opposed to the proportionate shares of qualifying section 7 expenses being reset at 30% payable by the mother and 70% by the father.

THE LAW

[ 12 ] Section 3 of the Federal Child Support Guidelines sets out the presumptive rule applicable to table child support:

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order 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 spouse against whom the order is sought; and

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

Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is:

( a ) the amount determined by applying these Guidelines as if the child were under the age of majority; or

( b ) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[ 13 ] Section 7 of the Guidelines deals with the payment of special or extraordinary expenses. Sections 3 and 4 of the Guidelines state that in addition to the table or appropriate amount of support, the court may order a further amount under section 7. This section refers to "special or extraordinary expenses," colloquially referred to as "add-ons." The definition of “extraordinary expenses” is set out in subparagraph 7(1) of the Guidelines:

7. (1) In a child support order the court may, on either spouse’s request, 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 spouses and those of the child and to the family’s spending pattern prior to the separation:

( 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 and 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 of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1) ( d ) and ( f ), the term “extraordinary expenses” means:

( a ) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the 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 paragraph ( 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 spouse requesting the amount, including the amount that the 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 or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor 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 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.

[ 14 ] Absent objection to the activity itself, a parent may always incur an expense at his or her own cost. To recover the other parent’s proportionate share by court order, the fact of having incurred the expense is insufficient. There must be an evidentiary basis to find that the parties agreed to the expense and/or the expense was an “extraordinary expense” in accordance with section 7 of the Guidelines.

[ 15 ] The definition of an “extraordinary expense” has had a lengthy history and treatment in law. The current, well established test looks to whether the proposed expense is reasonable and necessary within the overall context of the parent’s individual and collective means. Stated otherwise, the court must assess whether an expense is objectively sensible for this particular separated family, and in doing so, the court is not limited to considering historic patterns of spending.

[ 16 ] In Watt v. Watt , 2011 CarswellOnt 1500 (Ont. S.C.J.) , Mackinnon J., considered what constitutes "reasonable and necessary" for parties who have a middle-class income but limited means and significant debt. At issue was whether competitive dance and hockey expenses qualified as special or extraordinary expenses within section 7 of the Guidelines. The applicant mother submitted that the extracurricular expenses were reasonable in relation to the parents’ combined incomes. The respondent submitted that the requested expenses were not affordable, given the financial circumstances and other obligations of both parents.

[ 17 ] Justice Mackinnon found that it was not reasonable for parents who are incurring debt and who have no savings for their children's post-secondary education expenses to spend the amount of money that the applicant proposed on extraordinary expenses over and above the essential ones that were agreed to. She did not find the activities "necessary." She stated,

I accept that participation in these activities enhances the children's self confidence and organizational skills. I cannot find that this exceeds or could not be accomplished by their participation in the same activities at a recreational or community level. Necessity as used in s. 7 sets quite a high standard to be applied where parents do not agree on the issue.

ANALYSIS

Table Support from January 1, 2006 to Present

[ 18 ] Both parties agree that the table amount of support is to be updated in accordance with the father’s income, and that the table amount for three children is payable to the mother until August 31, 2010. The father has provided a copy of his T4 annually. Neither party was aware of the ability to contemporaneously update table support through a Form 15D Consent.

[ 19 ] It is not disputed that from September 1, 2010 forward Andrew lived in residence while attending university; and that he has since been residing with his father during the summer while not in residence. The mother shall pay table support for Andrew during the summer months when he resides with his father.

[ 20 ] The father has not addressed section 3(2) of the Guidelines as to whether a payment of table support is appropriate for Andrew from September 1, 2010 to April 30, 2011, and from September 1, 2011 to April 30, 2012 while Andrew was in residence.

[ 21 ] It is disputed with whom Emily has been primarily resident since September 2010. Emily was in her last year of high school from September 1, 2010 to September 2011, when she then left for the University of London. The mother states that Emily has been resident with her throughout. The father states that Emily stayed in equal measure with both parents from September 2010 forward.

[ 22 ] For the period of September 2010 to September 2011 the father makes no claim per section 9 of the Guidelines. The failure to do so is fatal to his claim for that period. Additional time with the father – even if meeting a threshold of shared residency is not a sufficient basis to vary table support absent evidence of the father having increased costs of care for that period.

[ 23 ] The mother has not addressed section 3(2) of the Guidelines as to whether a payment of table support is appropriate for Emily from September 1, 2011 to April 30, 2012 while she was in residence.

[ 24 ] It is also disputed with whom Emily is primarily resident during the summer months when she is home. Emily ran her own business over the summer of 2012. It is not contested that she did so primarily from her mother’s residence, using her mother’s vehicle. Emily’s earnings will be a deduction to the father’s proportionate share of university expenses claimed by the mother. [3] I am satisfied that for the purposes of table support the father ought to pay support for the summer months when Natalie is home from university.

[ 25 ] It is agreed that Natalie resides primarily with the mother. It is agreed that Natalie ceased dance classes two years ago.

[ 26 ] In April of 2008 Natalie was diagnosed with Type 1 Diabetes. In March of 2010 she was identified as having a dysthmia disorder encompassing anxiety, body image issues and a possible eating disorder. The mother states that she has had to reduce her working hours in 2012 to accommodate Natalie’s medical appointments. Her income since separation has been consistently in the range of $70,000 per annum.

[ 27 ] The father finds such a statement incredulous. He acknowledges that Natalie has significant health challenges, but that she is successfully maintaining an otherwise normal teenage life, playing sports and enjoying full attendance at school. He states there is absolutely no reason why the mother would suddenly need to reduce her working hours in 2012.

[ 28 ] The mother’s income is only relevant to her table support of Andrew, and the proportionate sharing of special expenses. The parties are agreed on the latter. With respect to the former, the court does not accept that the mother’s voluntary reduction in working hours relieves her of an obligation to support Andrew in accordance with her ability to earn annual income in the range of $70,000. There is a finding per Section 19 of the Guidelines that the mother’s income for support purposes continues at the assessed 2011 amount of $66,963.

[ 29 ] I therefore make the following findings with respect to the payment of table child support:

Andrew: There shall be an order for table child support payable by the mother for four months in each of 2011 and 2012 (May 1 – August 30) when he is not in residence based on her 2011 income of $66,963. The father’s payment of child support for Andrew shall terminate as of August 20, 2010.

Emily: The father’s payment of table support for Emily shall continue to August 30, 2011. Thereafter – as with the situation for Andrew above - the father shall pay table support to the mother only for the four months that Emily is home from residence.

Natalie: The father shall continue to pay table support for Natalie.

[ 30 ] The amount payable to December 31, 2011 is thus:

Year Income Table Annual Arrears [4]

2006 [5] $129,943 $2,282 $27,384 $5,004

2007 $140,572 $2,441 $29,292 $6,912

2008 $139,654 $2,428 $29,136 $6,756

2009 $157,740 $2,696 $32,352 $9,972

2010 $156,435 $2,677/$2,067 [6] $29,684 $7,304

2011 $153,858 $2,037/$1,283 [7] $21,428 952

AM $66,963 $ 602 [8] ($ 2,408) (2,408)

Total to December 31, 2011 $34,492

[ 31 ] Order to go fixing the father’s arrears of table support at $34,492 as of December 31, 2011.

[ 32 ] Commencing January 1, 2012 the father shall pay table support of $1,346 on income of $153,858 calculated as follows:

a. Table support for one child (Emily) for eight months. ($1,292 x 8 = $10,336),

b. Table support for two children (Emily and Natalie) for four months ($2,056 x 4 = $8,224),

c. Less the mother’s payment for one child (Andrew) for four months. ($602 x 4 = $2,409).

[ 33 ] Total is $16,152 / 12 = $1,346.

[ 34 ] Father indicates that Andrew will be completing his education in April of 2013 and intends to work thereafter. Commencing January 1, 2013, the father shall pay child support of $1,547 on income of $153,858 calculated as follows:

a. Table support for one child (Emily) for eight months ($1,292 x 8 = $10,336),

b. Table support for two children (Emily and Natalie) for four months ($2,056 x 4 = $8,224),

c. Total of $18,560 / 12 = $1,547.

[ 35 ] The amounts payable for the period of January 1, 2012 forward are based on the father’s 2011 income of $153,858 and are subject to material change upon determination of his actual income for the respective years. Each party must provide to the other his or her 2012 and 2013 Income Tax Return and Notice of Assessment upon filing/receipt.

Mother’s Section 7 Claims General

[ 36 ] The June 2005 Separation Agreement states that the father will pay 65% of the following expenses within five days of the mother providing proof of the expense. Receipts were to be exchanged on the last day of each month.

1. (a) One competitive dance class per year (paid by post dated cheques at the time of signing),

(b) One drama class per year for Natalie,

(c) Rep Hockey for Andrew,

(d) Rep Hockey for Emily,

(e) Tutor,

(f) Babysitting,

(g) Uninsured orthodontics.

2. Paragraph 5.8 and 5.9 clearly state that the father must consent to the expense in advance.

Mother’s Section 7 Claims exclusive of Post Secondary Education Expenses and Health, Medical or Dental Expenses

[ 37 ] The mother’s June 2010 Motion to Change seeks payment of $3,974 in outstanding section 7 expenses. Her August 28, 2012 affidavit seeks payment of $9,133.92 as set out in her Exhibit 2.

[ 38 ] The mother did not address in her deposed materials or her submissions whether an expense was extraordinary as defined by section 7(1) of the Guidelines . This critical omission was brought to her attention at the conclusion of her submission. An opportunity to remedy the omission was provided in the course of reply submissions heard some four hours later in the day. [9]

[ 39 ] Nonetheless, the mother offered no basis to qualify the expenses sought as extraordinary. Some expenses were clearly not extraordinary – such as a graduation dress and a bed. Others expenses lacked a sufficient evidentiary basis to support a finding that they were reasonable and necessary, and within the means of the family: such as a laptop, driver’s education and car insurance.

[ 40 ] The more expensive items incurred (School of Fine Art, and personal trips) were incurred during a period when (according to the mother) Andrew’s university costs were not being met. They appear to be beyond what a court would consider to be reasonable and necessary.

[ 41 ] There was duplication. Some expenses appeared to overlap with amounts claimed in other exhibits, such as the trip to France (Ex. 4). Natalie’s 2011 camp costs are requested in Exhibit 2, and yet have already been claimed (in different amounts) and paid through the FRO per her October 14, 2011 Statement of Arrears.

[ 42 ] No order is made with respect to the amounts claimed at Exhibit 2.

[ 43 ] Exhibit 4 sets out the costs of a trip to France over the summer of 2010. The mother led no evidence that this trip was necessary. I am satisfied that this expense is not reasonable in the context of the family’s means. In any event, the father made a significant voluntary contribution to the trip in a stated amount known to the mother before the expense was incurred. There will be no order with respect to Exhibit 4.

[ 44 ] Exhibit 8 sets out additional costs for Natalie’s dance classes in the amount of $3,616, $1,440 of which she has already submitted and received payment for through the FRO. There is no evidence of the father’s consent to these expenses. There will be no order with respect to Exhibit 8.

Mother’s Section 7 Claims for Post Secondary Education Expenses

[ 45 ] Each parent has been paying directly to the university or the child certain of their tuition and residence expenses. The mother now seeks an order for $4,890.40 as the father’s share of moneys that she has paid towards Andrew’s living expenses. The father states that the mother is holding back payment of Andrew’s tuition from last year. Given the poor communication between the parents, the funding of the children’s post secondary education has become an unduly difficult issue, the stress of which is largely born by Andrew and Emily.

[ 46 ] Regrettably, the court is not able to determine this issue on the material filed.

[ 47 ] The mother wholly misapprehends the legal basis and necessary evidence to obtain an order for contribution to a child’s post secondary education. Rather than provide the court with the usual post secondary budget; she seeks only a contribution to her own expenses, exclusive of her proportionate share of expenses paid by the father, or a determination of the child’s required contribution. [10]

[ 48 ] The mother was also given an opportunity to remedy this deficiency when the matter returned late in the day. She failed to do so.

[ 49 ] No order is made with respect to post secondary expenses.

[ 50 ] The parents appear to agree that they will proportionally supplement in the ratios of 70/30 the children’s educational expenses which exceed their (the adult children’s) ability to meet through earnings and OSAP. The court encourages them to resolve this issue upon service of a post secondary education budget, and evidence of a child’s income. Leave is granted for a case conference to be scheduled on this issue alone should resolution be outstanding.

Mother’s Section 7 Claims regarding Health, Medical or Dental Expenses

[ 51 ] For reasons outside of the scope of this motion, [11] the mother began filing Statements of Arrears with the FRO in 2008 without first sending the invoices to the father. To date she has been able to collect $15,628.60. Many of the amounts are claimed on a 100% recovery basis, with no deduction for insurance coverage, tax deductions, [12] or the mother’s own 35% share.

[ 52 ] The father requires the original invoices for insurance coverage and may now be beyond the necessary time periods in which to submit many of the eligible expenses.

[ 53 ] A copy of the Statements of Arrears were filed with the court as an exhibit to this Motion. Discovered within a Statement sworn January 3, 2012 was a benefits cheque dated January 7, payable to the father for $1,472.04. The cheque was mailed to the father at 38 McGee Cr. – the mother’s home address. The mother had never given it to the father. The cheque was then copied and the original given to the father on the hearing date, September 12, 2012.

[ 54 ] At the same time, the mother had filed the expense of $1,566 (December 29, 2011 removal of Natalie’s wisdom teeth) for which the $1,472.04 was the eligible insurance coverage with the FRO. She was paid in full through the FRO. [13]

[ 55 ] Statement of Arrears filed with the FRO are assumed to be correct on their face. Absent objection by the payor, or clear mathematical error, the FRO will act on a Statement of Arrears without further inquiry.

[ 56 ] A careful review of the invoices submitted by the mother to FRO within sworn Statements of Arrears show that the majority are for Natalie’s medication and diabetic management needs (claimed at 100%). The balances are for two camps that Natalie attended (claimed at 65%), Natalie’s dance classes (additional amounts to what father has already contributed) and for the mother’s massage, naturopath and prescriptions costs (claimed at 100%).

[ 57 ] The mother’s expenses are not section 7 expenses.

[ 58 ] The mother now seeks an order that she receive a “Supplemental Child Support” payment in the range of $500 per month based on these expenses, and that she be given full control of submitting benefits claims to the father’s insurer. She proposes that she will reconcile the actual amount incurred with the monthly payment the father owes her at the end of every year and then submit the “underpayments” to the FRO. She states that she will reimburse the father for overpayments.

[ 59 ] For reasons that are now patently obvious, the court rejects this proposal.

[ 60 ] What remains are two questions: how to deal with the $15,628.60 collected to date, and ongoing proportionate sharing of the children’s ongoing health, medical and dental needs.

Money Collected to date

[ 61 ] Order to go as follows. Exhibit A is to be released to the father forthwith. He is to make two copies: one to be filed with the court within seven days, and the other to be provided to the mother. He is to maintain all original receipts.

[ 62 ] The father is to attempt to recover as many eligible expenses as possible. On or before December 14, 2012 he is to prepare a 14B motion to my attention, served on the mother with the following materials:

a. a statement showing what amounts that he has paid through the FRO for special expenses that have been reimbursed by his insurer,

b. a calculation of the after tax cost of any uninsured (and/or no longer eligible for insurance) health, medical and dental expenses for a child,

c. a calculation of 30% of the above, and any expenses submitted by the father to have not been section 7 expenses, with written submissions as to the credit that he should be given for the monies garnished to date for section 7 expenses.

[ 63 ] The mother may make written response to the above calculations within 30 days of service, to be filed with the court.

[ 64 ] There shall be a further decision released as to the credit the father shall receive for moneys collected by the FRO via the Statements of Arrears.

Ongoing Sec 7 Expenses

[ 65 ] The father proposes that he take carriage of all health, medical and dental expenses. This is an attractive solution. He would thus have the original invoices to submit to his insurer. Any uninsured costs would be included in his Tax Return. 30% of the after tax cost of the uninsured expenses would be paid by the mother.

[ 66 ] The challenge would be to ensure his availability to purchase necessary supplies and cover expenses on a timely basis. He acknowledges that he has not always been able to do so.

[ 67 ] Order to go that commencing September 15, 2012 that the father will be directly responsible for the cost of all health, medical and dental expenses for the children, so long as a child is enrolled in fulltime education. On a semi-annual basis the father will invoice the mother for 30% of the after tax, uninsured expenses.

[ 68 ] The father shall pay for all expenses in person, or by providing the mother with a credit card in his name, for which she has signing authority. The card shall have a limit of $1,000. If the father has a drug benefit card which provides for coverage at purchase, the mother must use it. Should the mother place any personal expenses on the credit card or the benefits card, the father may cancel the credit card and the matter will return to court.

Father’s Section 7 Claims as set out in his Response to Motion to Change

[ 69 ] The father acknowledges that his list of expenses was largely a reaction to the mother’s claims, and intended to demonstrate that he also incurred activity expenses for the children.

[ 70 ] As per the analysis of the mother’s claims, many of the claims were not sufficiently evidenced for a finding that they are “extraordinary expenses.” There is no evidence of the mother’s consent.

[ 71 ] There is no order for the payment of special expenses claimed by the father.

COSTS

[ 72 ] Should a party seek his or her costs of this Motion, he or she shall serve a Costs Submissions of no more than three pages in length exclusive of a Bill of Costs, and Offers to Settle by November 1st. The other party shall respond within 14 days.

OTHER

[ 73 ] On consent there shall be an order severing the divorce from the corollary issues.

ORDER

[ 74 ] I will set out the terms of my order:

1. The father’s arrears of table support are fixed at $34,492 as of December 31, 2011.

2. Commencing January 1, 2012, monthly table child support payable by the father shall be varied to the amount of $1,346 [being table support for one child on income of $153,858 for eight months, amortized with table support for two children for four months; less the mother’s table support payment for one child on income of $66,963].

3. Commencing January 1, 2013, the father shall pay monthly child support of $1,547 [being table support for one child on income of $153,858 for eight months amortized with table support for two children for four months].

4. The payment of any monies by the FRO on a Statement of Arrears filed by the mother is hereby stayed.

5. There shall be a credit to the arrears at paragraph 1 to be determined as follows:

a. Exhibit A is to be released to the father. He is to make two copies of Exhibit A: one to be refilled with the court within seven days, and the other to be provided to the mother. He is to maintain all original receipts within Exhibit A.

b. The mother will immediately provide the father with any original receipts for eligible expenses under his benefits coverage, not available within Exhibit A.

c. The father is to immediately file for reimbursement of all expenses which remain eligible for coverage.

d. On or before December 14, 2012 he is to prepare a 14B motion to my attention, served on the mother with the following materials:

(i) a statement showing what amounts that he has paid through the FRO for special expenses, and a statement showing what has been reimbursed by his insurer,

(ii) a calculation of 30% of the after tax cost of any uninsured (and/or no longer eligible for insurance) health, medical and dental expenses for a child,

(iii) a calculation of any expenses submitted by the father to have not been section 7 expenses which were collected by the FRO,

(iv) written submissions not to exceed three pages as to the total credit that he should be given for the monies garnished to date for section 7 expenses via the mother’s Statements of Arrears.

e. The mother may make a written response to the above calculations by January 15, 2013, to be filed with the court as a response to the 14B motion.

6. Commencing October 1, 2012 the father will be responsible for the cost of all health, medical and dental expenses for the children, so long as a child is enrolled in fulltime education.

7. The father shall pay for all health, medical and dental expenses in person, or by providing the mother with a credit card in his name, for which she has signing authority. The card shall have a limit of $1,000.

8. If the father has a drug benefit card which provides for coverage at purchase, he shall provide the mother with a supplemental card so that either parent may use it at point of purchase.

9. Should the mother place any personal expenses on the credit card or the benefits card, the father may cancel the credit card.

10. On a semi-annual basis the father will invoice the mother for 30% of the after tax, uninsured expenses. He shall provide the mother will a copy of all the receipts for expenses, eligible coverage statements and the after tax calculation. The mother shall pay her 30% share within seven days.

11. Neither parent shall incur a special expense for a child’s activity cost, for which he or she seeks contribution from the other without the other’s written consent.

12. Education costs are to be determined only after the parent seeking contribution has served a post secondary education budget, with a calculation for the adult child’s contribution (and evidence of income) and the proportionate, after tax shares of the parents. A case conference may be scheduled on this issue, either before a Justice or a Dispute Resolution Officer.

13. Should a party seek his or her costs of this Motion, he or she shall serve a Costs Submissions of no more than three pages in length exclusive of a Bill of Costs, and Offers to Settle by November 1st. The other party shall respond within 14 days.

14. On consent there shall be an order severing the divorce from the corollary issues. Either party is free to proceed with a motion for divorce.

Justice H. McGee

Date Released: September 18, 2012

[1] Based on 65% payable by the father and 35% by the mother.

[2] Five attendances with a DRO, five attendances in closed mediation.

[3] If indeed the mother prepares a claim in the necessary manner, see paragraphs 45-50.

[4] After deducting actual amount paid from revised amounts payable. Note that the amount of $60.23 ceased being payable as of January 1, 2010. Credit from January 1, 2006 to December 31, 2009 is $1,865 per month ($22,380 annual) and thereafter is $1,925.23 ($23,103 annual rounded).

[5] The 2005 Separation Agreement used the father’s 2004 assessed Line 150 income. Rather than continuing the practice of using the prior year calendar year income, I have used the actual income for each year being reviewed as required by statute.

[6] 3 children for 8 months, 2 children for 4 months.

[7] 2 children for 8 months, 1 child from 4 months.

[8] 4 months mother pays table support to father.

[9] The court heard another matter in the interim.

[10] For example, it was acknowledged by the mother that Emily operates her own business in the summers.

[11] She states and the father denies having held back reimbursement cheques from his insurer.

[12] The mother’s Tax Returns were not before me, but have been served on the father who states that the mother deducted the health related claims in each of the applicable tax years.

[13] How did this happen? It was not explained to the court, but the mother’s factum makes mention of the father having provided blank, signed insurance claims forms to the mother during mediation sessions during the summer of 2011.