SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 838/07

DATE: 2013-03-19

Parties

RE: Kari Lee Owens, applicant, moving party

AND: Paul Anthony Owens, respondent, responding party

BEFORE: Mr Justice Ramsay

COUNSEL:
The applicant in person

Mr Paul R. Heath for the respondent

HEARD: 2013-03-19 at St Catharines

ENDORSEMENT

[1] The applicant mother moves to vary the final order of Milanetti J. dated June 14, 2010. Under that order, the respondent father of the three children of the marriage was ordered to pay $677 a month based on an income of $34,700 per year, and his proportionate share of child care expenses, fixed at $346.36 per month, the applicant’s income being $47,898 p.a. at the time.

[2] On August 3, 2011 the applicant brought the present motion based on changed circumstances resulting from child care, orthodontic, dental and tutoring expenses.

[3] The mother’s current income is $42,000 p.a. The father’s income was $48,000 in 2011, as a result of which child support was increased to $976 a month by Scott J. on August 11, 2012. For 2012 his income was $34,500. He is an auto mechanic. He testified that he is working reduced hours due to joint pain. Based on all this, I think that in principle the parties should share s.7 expenses 60/40.

[4] On May 18, 2011 the mother got an estimate for braces for the oldest child - $5,300 consisting of a $1,300 deposit and $200 per month for 20 months. The mother paid the $1,300 deposit and the father has made no contribution toward that amount. His insurer paid half of a number of the monthly $200 payments, but not all. The father should pay $520 as his share of the deposit and $340 as his remaining share of the monthly payments.

[5] On April 1, 2011 a tutor for the oldest child was retained. The mother has paid on average about $150 a month for tutoring since August of 2011. The father’s share would be $60 a month.

[6] I do not find the evidence about dental payments to be cogent enough to allow me to say what was paid, what was covered by insurance and what was not. I think that the future dental needs of the children can be provided for by a term that makes reference to the insurance that is now available to the father.

[7] Both the daughter, now 14 and the first son, now 12, have special needs. The daughter has a longstanding learning disability as well as other psychiatric issues involving anxiety and depression. The son has similar issues involving anxiety, depression and anger management.

[8] The daughter is home schooled by a tutor provided by the school board. A nanny watches the children while the mother works. As a result of the children’s special needs and the mother’s work schedule, this is the most practical option. After school day care would be impractical. Neither of the older children is an apt caregiver for the youngest child, who is only five years old. It is expensive, but if not for the nanny, the mother would probably not be able to work. The net benefit of the arrangement is an additional $20,000 a year for this family. The father’s suggestion that the two older children should watch the youngest child is, to my mind, callous and unrealistic in the circumstances.

[9] The Region provides about $5,500 a year to the mother as a day care subsidy. She uses this money to pay the nanny. According to the T4, the nanny earns about $24,000 a year. After the subsidy the nanny costs the mother about $19,000 a year. In the order of Milanetti J., which was made pursuant to minutes of settlement, the parties agreed to discount this amount by 5% to account for the fact that the nanny performs some housework in addition to child care. At the time of Milanetti J.’s order, the expense for the nanny was only about $10,000 a year after subsidy. Today a proportionate share of the child care expense would require the father to pay some $700 a month for that item alone.

[10] I do not blame the mother for providing this care for her daughter. Hiring the nanny and the tutor were reasonable decisions. I accept that the child has benefitted from the tutor. Hiring the nanny has allowed the mother to bring in more money. I simply think that the father cannot afford it. As a result, I think s.7 requires me to award much less. The unfortunate fact is that the family’s resources are limited and hard choices have to be made. It is a fact of life in this case that the hard choices, like the hard work, fall to the mother.

[11] The order of Milanetti J., as varied by the temporary order of Scott J. dated August 11,2012 is further varied to provide as follows:

a. The respondent shall pay child support for the three children at a rate of $676 a month based on an annual income of $34,500 commencing April 1, 2013;

b. The respondent shall pay s.7 expenses for child care and tutoring at $350 a month commencing April 1, 2013;

c. The respondent shall pay for future dental and orthodontic work the greater of

i. 50% of the expense incurred or

ii. the amount available to him through insurance;

d. The respondent shall pay $840 to the applicant forthwith for past orthodontic expenses.

e. A support deduction order will issue.

f. There will be no order as to costs.

J.A. Ramsay J.

Date: 2013-03-19