ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 203/09
DATE: 2013/03/21

BETWEEN:

KIMBERLEE ELIZABETH MARCHANT

Lisa Triano, for the Applicant

Applicant

• and -

PAUL HENDRIKS

Virginia L. Workman, for the Respondent

Respondent

HEARD: February 28, 2013

The Honourable Madam Justice W.L. MacPherson

1This is a Motion to Change the order of Justice Taliano dated January 13, 2010.

Background

2The parties were married on November 21, 1997, having separated on February 3, 2007. A divorce was granted on December 17, 2010.

3There are three children of the marriage: Travis, born September 24, 1998; Rachel, born November 19, 1999; and Riley, born July 17, 2001.

4An Application was commenced in 2009 and had proceeded to trial but, during the course of the hearing, the parties were able to reach Minutes of Settlement which were incorporated into the court order of Justice Taliano dated January 13, 2010. The relevant terms included the following:

1. The claim for Divorce was severed from the corollary issues and was to proceed on an uncontested basis by way of Affidavit evidence.

2. The parties were to have joint custody of the children, with their primary residence to be with the Applicant (Mother).

3. The Respondent (Father) was to have access to the children in accordance with his current work schedule which afforded him access as follows:

a) On Day shift – after school until 6:30 p.m.

b) On Afternoon shift – before school or such other times as the parties may agree upon.

c) On Night shift – before school and after school until 6:30 p.m. or such other times as the parties may agree upon.

d) When off Friday, Saturday and Sunday (generally occurring once per month), overnight access to the children as agreed upon between the parties subject to the activities of the children.

e) When off Monday, Tuesday and Wednesday (generally occurring once per month) overnight access to the children from after school for at least two or three days and on the third day, if the parties agree. This access was to be flexible so as to allow the Applicant to minister to the needs and activities of the children.

f) When off Thursday (generally occurring once per month) overnight access to the children from after school.

5There were additional provisions for the parties to have one week of vacation time each summer and for the school holidays to be shared.

6The court order also dealt with child support and extraordinary expenses and provided as follows:

9. Based on the Respondent’s 2009 income of $103,307, the Respondent was to pay child support for the three children in the amount of $1,500 per month. This represented 80% of the table amount of support payable under the Child Support Guidelines.

10. Both parties were required to contribute toward special and extraordinary expenses of the children pursuant to s. 7 of the Child Support Guidelines. Based on the Respondent’s income of $103,307 and the Applicant’s income of $30,000, the Respondent was required to pay 75% of these expenses with the Applicant to pay 25% of same.

11. The parties were to consult with one another prior to enrolling or committing the children to any extraordinary or extracurricular activities. The children were not to be enrolled in such activities without the consent of both parties, which consent was not to unreasonably withhold their consent.

12. The usual material change in circumstance clause was included.

13. The child support was to be adjusted annually, with both parties to provide copies of their tax return for the previous year by May 15. The new amount was to be 80% of the Child Support Guidelines, to commence on June 1, with the first adjustment to be in 2011.

7In June 2011, the Respondent increased the child support to $1,850 per month, being 80% of the child support payable under the Child Support Guidelines based on his 2010 income of $134,866. This was in fact slightly higher than the proper amount payable as he did not deduct his union dues, nor had he done so under the January 2010 order.

8In June 2012, the Respondent increased the child support to $2,447 per month, being 80% of the child support payable under the Child Support Guidelines based on his 2011 income of $181,116. Once again, he did not deduct the union dues.

9In December 2012 and January 2013, the Respondent reduced the child support payment to $630 and then he further reduced the payment to $432 per month in February 2013. These amounts represented 80% of the child support payable, based on reductions in his employment earnings.

Preliminary Issues

10Before turning to the substantive issues, I wish to address several preliminary procedural issues that have been raised by counsel in their submissions on the Motion.

11The Applicant’s counsel submits that the January 2010 order was an interim order and as such there is no need for a material change in circumstances before that order can be varied. She relies on the wording in the order that refers to the “Applicant’s current work schedule” implying that as it was likely to change, or as changes were expected, this was only an interim arrangement.

12She also relies on the fact that as the issues of custody/access and child support were identified as corollary issues and the Divorce was not granted until December 17, 2010, the order of January 13, 2010 was an interim order only.

13This position ignores several important facts. In accordance with the practice in Niagara, the granting of a Divorce is seldom included in a final order that deals with corollary issues, but rather is obtained separately upon filing of the necessary affidavit and other supporting documentation. The January 13, 2010 order states clearly that it was a Final Order. I would also note that both parties were represented by experienced family law counsel and I have no doubt that they were well advised that these matters were being dealt with on a final basis. Finally, the Applicant commenced a Motion to Change a Final Order. That was the correct procedure to vary a final order.

14On these facts, I have no difficulty in finding that the order of January 13, 2010 was a final order.

15Both counsel raised additional claims in the Affidavit material filed and in their submissions, which were not set out in the pleadings. Although the issue of access is central to this Motion, neither party has sought to amend the access provisions of the January 13, 2010 order. In the Respondent’s affidavit, he does indicate an intention to seek shared residence of the children, but that issue is not properly before me.

16I would note that the parties’ counsel have chosen to have the Motion dealt with by way of Affidavit evidence. Based on the significant contradictions in the Affidavits filed, a change in the parenting regime could not possibly be determined on the evidence filed.

17In the material filed for the hearing, the Respondent also sought a variation in the child support payable as of December 1, 2012 based on recent changes to his employment earnings. However, that issue is also not properly before me on this Motion.

The Issues

18The issues to be determined on the Motion are:

1. Has there been a material change in circumstances?

2. Should there be a change in the child support payable by the Respondent?

3. Should the Respondent be required to contribute toward any of the children’s s. 7 expenses?

Position of the Parties

19The Applicant commenced the Motion to Change on October 5, 2011. She claims full table child support retroactive to January 1, 2010 which would result in arrears being owed of $24,932. She also claims payment on account of various s. 7 expenses commencing January 1, 2010 to and including February 2013 in the amount of $8,849.

20The Respondent is opposed to any adjustment to the child support other than in accordance with the order namely that based on his income, the proper child support to be paid is limited to 80% of the Child Support Guidelines. He is also opposed to payment of any s. 7 expenses (save and except an orthodontist expense) on the basis that he was not consulted and did not consent before any of these expenses were incurred.

The Law

21As set out in s. 17 (4) of the Divorce Act R.S.C., 1985 c. 3 (2nd Supp.):

Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation made in respect of that order.

1. Has there been a material change in circumstances?

22The Applicant submits that the material change that has taken place relates to access. Although it was contemplated that the Respondent would have extensive access with the children, since March 2010 he began to see the children less and less due to his work schedule. It was submitted that he did not see the children at all when he worked afternoons and for three months in 2011, he did not have the children for any overnight visits. The Applicant acknowledged that after the Motion to Change was commenced in the fall 2011, the Respondent did increase the overnight access, but that there were still many overnight visits that did not take place because the children did not want to go or had other plans. She also noted that the Respondent did not exercise his full one-week summer access nor any additional holiday access.

23The Respondent denies that he purposely reduced the access visits or his time with the children, but states that he has attempted to exercise access in accordance with the terms of the order. He was adamant that any reduction in his time with the children has been due to the efforts of the Applicant to limit the access by demanding the early return of the children, insisting that they return to her home for bus pick up or engaging the children in activities during his parenting time. He submitted that he did take holiday access with the children, and that this was for close to one week, and only as permitted by the Applicant.

24The Applicant prepared detailed calculations commencing in January 2011 as to the access exercised by the Respondent to confirm the reduced time that the children spent with their father. The Respondent produced lengthy text messages (January 5, 2012 to August 12, 2012; February 4, 2013 to February 10, 2013) between the parents and some involving children, to confirm the numerous times that his requests for access have been denied. The Applicant submits that the texts show that the requests were usually made at the last minute and most were responded to, but that the requests could not always be accommodated because the children were not available, were involved in an activity, were sleeping over at a friend’s, or they did not want to come over to the father’s home.

25Having reviewed the documentation provided, it is simply not possible to determine who has been the cause of the reduction in the time that the children have been spending with their father. In all likelihood, there is probably some truth to both parties’ statements, namely that in the beginning, the Respondent did not fully exercise the access available to him; the Applicant and the children developed a routine of school and activities that did not incorporate the access schedule; later when the Respondent sought to adhere to the access provided to him as a claim for full table Child Support had been made, the routine had been set and was not adjusted each and every time that access was requested.

26In the end, for whatever reason, there really is no dispute that the Respondent has been spending much less time with the children than had been contemplated by the order.

27It is clear that there is a presumption that the Child Support Guidelines will be applied, and if they are not, there must be a reason given to support any deviation from their application. It is also evident that the basis for the Respondent paying only 80% of the Child Support Guideline amount was the amount of time that the children were expected to be with their father, and the expected reduction in the costs to the mother in caring for the children. This is evident from the endorsement of Justice Taliano which read:

Judgment to issue in accordance with Minutes of Settlement filed. The Divorce claim is severed from the corollary relief claims and shall proceed as an uncontested divorce. Although the Child Support is slightly below the Guidelines the amount agreed to has been negotiated by the parties, reflects the extent to which the children reside with their father and is approved by the Court.

28On the Motion material filed, what I am left with is the fact that the father is not exercising the amount of access clearly contemplated by the order of January 13, 2010. There is no clear way to determine whether it was due to the father’s failure to exercise the rights granted to him or whether it was due to the mother’s manipulation of the children and the schedule so that the access did not occur, or some combination of both of these factors.

29On the evidence presented, I am satisfied that there has been a material change in the circumstances of the children that would justify a variation of the child support order.

2. Should there be a change in the child support payable by the Respondent?

30The Applicant seeks to have the child support adjusted retroactive to January 1, 2010 on the basis that the Respondent misrepresented his 2009 income. The court order referred to an income of $103,307. The Respondent’s 2009 income tax return and notice of assessment revealed that his Line 150 income was $111,188. The additional income sources were an RRSP of $2,726 and Profit Sharing of $5,093. Both of these amounts were shown in the Respondent’s Financial Statement filed in the Trial Record for the prior proceedings. These assets were included in the property calculation and were disclosed at the time of the original order being made, and as such there is no basis to make any adjustment to the court order as of January 2010.

31Under the order, the next adjustment was to have taken place in June 2011. The Respondent did adjust the support to $1,850 per month.

32The Respondent’s income for 2010 was $134,866 less union dues of $5,101, or $129,765 for purposes of child support. Under the Child Support Guidelines in effect at that time, the child support payable for three children was $2,279 per month, with 80% of that amount being $1,823 per month.

33As no notification had been provided by the Applicant that she would be seeking a change to the order, $1,823 per month was the correct amount of support to be paid from June 1, 2011 to and including October 1, 2011. However, I would not make any adjustment to the child support that was paid, as any “overpayment” was minimal being $135 ($27 x 5 months).

34Once the Motion to Change had been brought on October 5, 2011, and based on my finding that there had been a material change in circumstances arising from the increased amount of time that the children were spending in the Applicant’s care, and as that clearly was the basis upon which a reduced amount of child support had been ordered, then commencing on November 1, 2011 the child support should be adjusted to reflect the full amount payable under the Guidelines, namely $2,279 per month.

35The next adjustment would have been in June 2012. The Respondent’s income for 2011 was $181,116 less union dues of $6,837, or $174,279 for purposes of child support. The Child Support Guidelines in effect as of January 2012, required child support for three children in the amount of $2,961 commencing June 1, 2012 and that is the amount of child support that should have been paid.

36Under the order, the next adjustment would occur as of the annual review effective June 1, 2013.

37The Respondent sought an earlier adjustment of December 1, 2012 on the basis that the Niagara Falls tunnel project would be coming to an end resulting in reduced hours. While his income for 2012 was estimated to be $172,462, the Respondent projected that his 2013 income would be less than $100,000.

38It is not clear on the evidence before me whether this is a permanent change or simply a temporary reduction in income. As previously indicated and from a procedural point of view, there was no Motion before the court by the Respondent to vary the support based on this change and until such a Motion is brought, the next adjustment date would be in June 2013, in accordance with the annual review provided for under Justice Taliano’s order.

3. What, if any, amount should be paid with regard to s. 7 expenses?

39There are two aspects to this issue that must be considered. The first relates to the wording of the court order and whether the Applicant must first obtain the consent of the Respondent before incurring any s. 7 expenses for the children. The second aspect relates to whether or not the expenses are properly s. 7 expenses.

40On the first issue, the Respondent submits that his consent was required before any extraordinary expenses were to be incurred and, absent his consent, he is not obligated to contribute toward any of those expenses.

41The Applicant takes the position that he was asked to consent (albeit not in writing) and he refused to pay any additional amounts for the children. As such, his consent was unreasonably withheld and she should be entitled to be reimbursed for all submitted s. 7 expenses.

42Although the clause dealing with consent to extraordinary expenses does immediately follow the clause dealing with table amount of child support to be paid, it certainly does appear that some aspect of the consent was in relation to the father’s access and the impact of the children being enrolled in additional extracurricular activities on the father’s time with the children. This was evident from the wording of the clause itself:

Either party shall consult the other prior to enrolling or committing the children to any extraordinary or extracurricular activities. The children shall not be enrolled without the consent of both parties. Both parties shall not unreasonably withhold their consent.

43It is also evident from the references in the access schedule to “subject to the activities of the children” and the overnight access being flexible so as to “allow the Applicant to minister to the needs and activities of the children”.

44So while the prior consent had a monetary aspect to it, there was also a component related to the impact of an activity on the child’s availability to spend time with the father.

45I do not interpret the clause as contained in the order to mean that if the Respondent’s consent was not requested he would have no obligation to contribute to that expense. If that was the intention, then a clause such as was found in C.J.T. v G.A.T. 2012 ABQB 193, [2012] A.J. No. 333 (ABQB) would be required namely, “If either party incurs any non-emergency section 7 expense without prior consent of the other, then the party incurring same is responsible 100% for the cost.”

46Rather, I interpret the clause in Justice Taliano’s order to mean that there was to be consultation between the parties about the activities and in advance of the children being enrolled in same. There is contradictory evidence as to whether the Respondent’s consent was requested, but even if it was not requested, that would not automatically absolve the Respondent from any obligation to contribute toward the expense. It was still open to the Applicant to request that the court determine whether the expense was a proper, reasonable and necessary s. 7 expense to which the Respondent should contribute.

47Turning to the second aspect of this issue, it must be determined whether the expenses claimed are proper s. 7 expenses.

48The Respondent agrees that the orthodontist expense of $5,700 for Rachel is a proper s. 7 expense. There may be some coverage for this through the Respondent’s benefits plan. The Applicant shall provide all of the necessary documentation from the orthodontist (not just the receipt provided in the Motion material) so that the Respondent can submit the claim to his benefits provider and any portion that is not covered shall be shared on a pro rata basis. The expense was incurred in 2012 and based on the Applicant’s income of $172,462 and the Respondent’s income of $62,216, the Respondent shall be responsible for 73% of the remaining expenses and the Applicant shall be responsible for 27% of the expense, with a credit for the $1,620 that she has paid.

49The Applicant claims additional child support from the Respondent in the amount of $3,362.37 toward various activities (dance, piano, skating, soccer) that the children were enrolled in from 2011 to 2013. The cost of these activities totaled $4,546.45.

50The Applicant also claims from the Respondent the pro rata share of the cost of tutoring incurred from November 2010 to May 2011 in the amount of $1,240 and the costs for high school registration and school uniform in the amount of $413.33.

51It is clear from the Child Support Guidelines, that not every expense for extracurricular activities is an extraordinary expense that should be paid in addition to the table child support. It is expected that some portion of the child support would cover some activities for the children – the consideration is at what point the amount of the expense takes it beyond ordinary to extraordinary. It is also evident from s. 7 (1.1) that the larger the amount of the monthly support payment, the less likely that the children’s expenses will be “extraordinary” requiring a payment over and above the basic child support.

52I have determined that the full table amount of child support should have been paid as of November 1, 2011. Based on the level of child support to be paid ($2,279 per month effective November 1, 2011 and $2,961 per month effective June 1, 2012), I find that the only expense claimed by the Applicant that would be extraordinary would be the tutoring expense for Travis. While the Applicant did not initially provide proper receipts for this expense, this was subsequently provided which confirmed the cost, the dates and the type of tutoring that was provided from November 2010 to May 2011. Based on the income levels of the parties in 2010 when the expense was first incurred, the Applicant would be responsible for 26% and the Respondent would be responsible for 74% or the sum of $917.60.

53The largest part of the remaining expenses related to dance classes for Rachel and Riley. While the Applicant submitted that Rachel had been enrolled in dance for several years while the parties were still together, in the order of January 2010 there was no requirement for the Respondent to contribute toward this expense as an extraordinary expense, even though the child support was 80% of the Guideline amount. With the requirement that full table child support is now to be paid, there can be no question that the dance classes would not fall into the “extraordinary” category.

Summary

1. The order of Justice Taliano dated January 13, 2010 shall be varied as follows:

a) Commencing November 1, 2011, the Respondent shall pay child support for three children in the amount of $2,279 based on an income of $129,765 ($134,866 less union dues of $5,101);

b) Commencing June 1, 2012, the Respondent shall pay child support for three children in the amount of $2,961 per month based on an income of $174,279 ($181,116 less union dues of $6,837).

2. The Respondent shall pay $917.60 to the Applicant as his contribution toward the tutoring expense for Travis.

3. The Respondent shall not be required to contribute toward any other s. 7 expenses from January 2010 to and including April 2013.

4. The Applicant shall provide all necessary documentation regarding the orthodontist expense for Rachel to the Respondent, who shall forthwith submit the claim to his benefits plan. Any portion of this expense that is not covered by the plan shall be shared on a pro rata basis, such that the Applicant pays 27% and the Respondent pays 73%, with the Applicant to receive credit for any payments she has made toward this account.

5. SDO to issue.

54If the issue of costs cannot be resolved, I direct that the party seeking costs to deliver written submissions to my office within 15 days of the release of these reasons, with responding submissions to be delivered to my office within 15 days thereafter. The written submissions are not to exceed three typewritten, double-spaced pages, excluding the Bill of Costs and Costs Outline.

MacPherson J.