COURT FILE NO.: 5956/10
DATE: 2013-05-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GABRIJELA SCHRYVER
Applicant
– and –
BRIAN SCHRYVER
Respondent
David Godard, Counsel for the Applicant
Brian Schryver, Self-Represented
HEARD: November 13, 14, 26 and 27, 2012
REASONS FOR JUDGMENT
FITZPATRICK J.
Application
[1] The applicant commenced this proceeding seeking the following:
a. Child support, including s. 7 expenses for children of special needs;
b. Spousal support;
c. Support arrears (child and spousal);
d. Health benefits;
e. Life insurance, as security for support; and,
f. Dispensing with the respondent’s consent for passports for the children, especially to permit travel for medical treatments.
Case Background
[2] There are two children of this marriage, namely Nicholas Schryver born August 20, 1999 (“Nicholas”) and Alexander Schryver born April 6, 2005 (“Alexander”).
[3] The parties commenced co-habiting at November, 1998, married March 12, 1999 and separated August 15, 2006.
[4] Nicholas was placed in full-time residence at Sunbeam Lodge (a private home for special needs children in Kitchener, Waterloo) at February 22, 2006. Nicholas has remained resident at Sunbeam and will remain there indefinitely.
[5] Alexander currently resides with the Applicant. He is confined to a wheelchair.
[6] There is no dispute between the parties that both children of the marriage have special needs.
[7] The parties entered into a written separation agreement dated August 15, 2006 addressing custody, access, support and division of property (“2006 Separation Agreement”). The terms of the 2006 Separation Agreement provided that the parties would make joint decisions for the children, that the respondent would pay $600.00 monthly child support and 50% contribution to “any additional expenses such as respite services, uninsured health expenses and similar”, there would be no spousal support at that time and the net proceeds of sale from 29 Sandwell Drive, Etobicoke would be paid 25% to the respondent and 75% to the applicant “upon final disbursements statement prepared by lawyer.” No income amount was identified for the applicant or the respondent in relation to the child support provisions in the agreement.
[8] The parties entered into a subsequent written agreement dated January 4, 2008 again addressing remaining/other property division (“2008 Property Agreement”). No payments were required to be made by either party to the other pursuant to the 2008 Property Agreement. This agreement also included a release term whereby the parties agreed “to release the other from any and all current and/or future responsibilities, judgments, court proceedings and similar related to any personal or business transactions.”
[9] The parties were divorced by Divorce Order of Herold J. dated March 25, 2008. There was no other relief other than a divorce provided for in the Divorce Order.
[10] The applicant at March 31, 2009 initiated a Motion to Change Divorce Order of Herold J. dated March 25, 2008 stating that “an error was made as the Divorce Order … does not contain the child support terms.” In her Motion she sought orders for custody of the two children, specified access for the respondent, child support from the respondent commencing May 1, 2009 for two children based on the respondent’s income of $36,000.00 and the Federal Child Support Guidelines (“Guidelines”), life insurance and health benefit designations for the children, and $10,000.00 in support to the applicant based on alleged verbal and emotional abuses by the respondent.
[11] The parties entered into “Partial Minutes of Settlement” forming the basis for the “Partial/Final” Order of Herold J. dated November 10, 2010. This Order provided the applicant with sole custody of the children, with access to information to the respondent respecting the children. The Order also provided the applicant with full authority to make all medical, religious and educational decisions for the children and to travel with the children. The applicant was also permitted by this Order to amend her pleadings to proceed with her remaining claims by way of an Application given that the support issues had not previously been determined on the merits such that an Application seeking such relief in the first instance was appropriate. The Order of Herold J. dated November 10, 2010 did not include the child support provisions of the 2006 Separation Agreement or otherwise address support or any other issues.
[12] The applicant issued her Application herein on December 5, 2011 where she sought orders for child support from the respondent, including s. 7 expenses pursuant to the Guidelines, spousal support, retroactive child and spousal support “to such date as this court deems fit” plus life insurance of $500,000.00 and health benefit designations for the children.
[13] The respondent failed to file an Answer initially resulting in the Final Order of Snowie J. dated January 30, 2012 following an uncontested hearing. That Final Order was set aside at the request of the respondent by the Order of Murray J. dated April 4, 2012.
[14] The respondent filed his Answer dated April 27, 2012 that sought to dismiss the applicant’s Application and set forth his claim for orders seeking the 25% from the net proceeds of sale from 29 Sandwell Drive, Etobicoke owed to the respondent pursuant to the 2006 Separation Agreement, costs of $35,850.24 and access to Nicholas for the respondent’s current spouse, Ellen Rice and their child, Addison Schryver. The respondent’s Claim did not seek any orders respecting support.
Gabrijela Layla Schryver Testimony
[15] The applicant testified that Nicholas became a full time resident at Sunbeam Lodge at February 22, 2006 and there is no expectation he will ever leave.
[16] The applicant testified that Alexander was temporarily resident at Sunbeam Lodge from May, 2008 to January, 2009. Thereafter, Alexander has been resident with the applicant subject to periods when Alexander returns to Sunbeam or Darling Home for Kids for respite care.
[17] The applicant gave testimony as to a typical day caring for Alexander. Except for the time he is at school, the applicant’s testimony was that Alexander needs constant and extensive care, which she provides with the part time assistance of her elderly parents. The applicant testified that Alexander has a reduced immune system with the result that he averages five missed days per month from school when she must provide care for Alexander. The applicant also gave testimony as to the numerous appointments she must attend with Alexander.
[18] The applicant filed as an exhibit the Service Agreement dated May 2, 2006 between the Delisle House Association, Sunbeam Lodge and the parties respecting Nicholas’ placement at Sunbeam Lodge (the “Sunbeam Agreement”). Essentially, Delisle House is the conduit for funding from the Ministry of Community and Social Services to make payment to Sunbeam Lodge at an agreed upon rate for the residential care for Nicholas.
[19] The applicant directed the court to paragraph 1.5(a) of the Sunbeam Agreement that states the parent agrees “to ensure that the child has adequate and appropriate clothing to meet the child’s ongoing needs throughout the placement.” However, paragraph 1.5(b) of the Sunbeam Agreement obligates Sunbeam Lodge to provide adequate clothing for the child if the parent does not do so, which clothing purchases by Sunbeam Lodge are agreed to be reimbursed by the Ministry through Delisle House pursuant to paragraph 1.5(c) of the Sunbeam Agreement.
[20] The applicant provided a letter dated November 20, 2012 from Sunbeam Lodge confirming Nicholas having been placed into residential care at February 22, 2006 and that Alexander was also in residence from June 13, 2008 to January 30, 2009. The letter further states “from the admission of Nicholas into care to the present and during the period Alex was in care Gabriela provided financially for treatments, specialized seating equipment and medical expenses in the amount of $2,412.82. These costs are exclusive to the per diem of Sunbeam Lodge as negotiated with the placement agency on what costs the agency would be responsible for. Therefore the agency looked to the parents to provide for payment of these costs.”
[21] The applicant also filed letters from the Ministry of Community and Social Services dated April 19, 2006, January 30, 2007 and March 26, 2007 confirming receipt of funding of $5,200.00 annually for “special services at home” plus funding of $3,500.00 annually for “enhanced respite for medically fragile and/or technologically dependent children”, both with respect to Alexander.
[22] The applicant testified that she now receives an Assistance for Children with Severe Disabilities (“ACSD”) subsidy for Alexander of $445.00 monthly from the Ministry of Community and Social Services. It would appear this monthly sum is the current monthly equivalent of the $5,200.00 annual Ministry funding for “special services at home”.
[23] The applicant testified respecting the expenses she incurs for clothing and accommodations when Nicholas comes to visit in her home, gasoline for attending visits to Sunbeam Lodge and outings, massage therapy and for necessary equipment in her home (i.e. wrists braces, toys, TV/DVD for room).
[24] Respecting the additional massage therapy for Nicholas, the applicant referenced the letter/report from Kristan Young (R.M.T.). Ms. Young’s report for the period ending January, 2010 notes Nicholas then received massage treatment twice monthly but recommended this be increased to once weekly. In a separate report for the period ended January, 2010, Ms. Young notes Nicholas then was receiving four reflexology treatments monthly and recommended these be increased. By letter dated September 8, 2012, Ms. Young notes that Nicholas now receives massage therapy eight times monthly with two of those treatments funded by the Ministry through Delisle House and the other six funded by the applicant. Each of the reports/letter of Ms. Young is addressed to Sunbeam Lodge in the form of recommendations by her to Sunbeam Lodge seeking increased treatments for Nicholas.
[25] The applicant stated that more recently Nicholas has attended her home for day visits but not overnights. Previously Nicholas would stay some overnights also.
[26] The applicant gave testimony and provided receipts of expenses she incurs for Alexander including fortified foods, clothing, major equipment (i.e. seating/wheelchair/stander), which the applicant states is covered 75% by the Ministry funding she receives.
[27] The applicant testified as to her children’s expenses for each of 2007, 2008, 2009, 2010, 2011, 2012, and projected for 2013. The applicant testified she incurred $9,400.00 in annual expenses for Nicholas and $46,336.00 for Alexander in 2007, $9,300.00 in annual expenses for Nicholas and $15,224.00 for Alexander in 2008, $9,300.00 in annual expenses for Nicholas and $56,852.00 for Alexander in 2009, $3,700.00 in annual expenses for Nicholas and $43,116.00 for Alexander in 2010, $4,072.00 in annual expenses for Nicholas and $27,097.00 for Alexander in 2011 and $3,160.00 in annual expenses for Nicholas and $31,737.00 for Alexander in 2012. The applicant estimated $6,536.00 in annual expenses for Nicholas and $34,377.00 for Alexander for 2013.
[28] The expenses claimed by the applicant respecting Alexander included actual and proposed stem cell medical procedures for Alexander. The applicant’s claimed expenses annually included $32,000.00 for medical procedures for 2007, $40,500.00 for 2009, $25,000.00 for 2010 and $8,333.00 for each of 2011, 2012 and 2013.
[29] The applicant gave testimony as to having investigated and taken Alexander to participate in stem cell therapy outside of Canada (in China and Europe). The applicant acknowledged that this stem cell procedure is not recommended by doctors in Ontario or covered by OHIP.
[30] The applicant testified that both parties attended in Europe for a stem cell procedure for Alexander in 2007. The applicant stated that she attended at China in 2009 and Germany in 2010 for Alexander’s further stem cell treatments. The applicant described the treatments as successful in that Alexander can now speak/respond better and knows his alphabet. The applicant testified that the cost of each stem cell treatment was $20,000 - $25,000 and that he should have one treatment every 3 years. The applicant takes the position that Alexander would benefit from further stem cell treatments and that the parents should share this cost.
[31] The applicant testified that she collected $19,500 towards the cost of the 2009 trip to China through fundraising. I note that this conflicts with the endorsement of Price J. made March 22, 2010 at a Settlement Conference where His Honour writes “Ms. Schryver has incurred great expense, some $40,000.00 according to her material, $29,000.00 of which she raised by an appeal to the public”.
[32] The applicant referenced the 2006 Separation Agreement as the starting point for child support. Paragraph 4 of the agreement obligates the respondent to pay $600.00 monthly child support and 50% contribution to “any additional expenses such as respite services, uninsured health expenses and similar” expenses for the children.
[33] The applicant is seeking arrears of child support from the day of the 2006 Separation Agreement, namely August 15, 2006 and provided a calculation of the arrears she states is owed by the respondent (see trial Exhibit 12). The applicant’s claim for arrears of support is intertwined with her request for an imputed income to the respondent.
[34] The applicant reviewed her work history, which can be summarized as follows:
a. In 2007, she was employed full time as a property manager with Simerra Property Management leaving the respondent at home with the two children. The applicant was “let go” from this employment at approximately June, 2008 due to work absences related to her recovering from surgeries.
b. In 2008, she received employment insurance and related re-training.
c. From June, 2009 to January, 2010 she attended Everest College in the Paralegal Program.
d. From August 3, 2010 to May 10, 2011 she was employed as a researcher/executive assistant at Ontario Air Ambulance. On January 28, 2011, the applicant fell down a flight of stairs at work suffering permanent injury (ligament tears). The applicant was on modified hours to May, 2011 when she was again “let go” on the basis of restructuring.
e. She thereafter received WSIB benefits until January 27, 2012 when benefits were terminated. The applicant filed an appeal/objection at July, 2012, which is ongoing and not yet resolved.
[35] The applicant provided her income tax documentation for 2009, 2010, and 2011. Her line 150 income for 2009 was $34,488.00, for 2010 was $4,380.00 and for 2011 was $25,958.00 consisting of her WSIB benefits.
[36] The applicant is not presently working or earning income. She testified that she cannot work on the basis of her continuing health issues and the requirements of caring for Alexander.
[37] The applicant filed a letter from her physician, Dr. Syed, dated August 24, 2012 confirming the ligament tear and related injuries. Dr. Syed states surgery is a “reasonable” option. Surgery has not been scheduled by the applicant, as she does not have medical benefits currently and is awaiting the outcome of her WSIB appeal to proceed with surgery hoping to have the benefits that will pay for the post-surgery rehabilitation.
[38] The applicant also referenced a Health Professional’s Progress Report filed on her behalf with the WSIB dated February 23, 2012 stating that the applicant’s injury is deteriorating, that she is using an ankle brace with strong medication placing limitations on operation of a motor vehicle, standing, sitting and lifting. The applicant did acknowledge that there is nothing in the report that says she is unable to work absolutely.
[39] The applicant testified that she is not allowed to drive pursuant to her doctor’s advice, cannot take public transportation due to walking issues and can only sit for short periods due to discomfort issues.
[40] The applicant testified that if the surgery occurs and is successful she wants to pursue a career as a paralegal.
[41] The applicant testified that the respondent had 6 months paternity leave from his position as a Property Manager at Simerra Property Management until October, 2007.
[42] The applicant testified that the respondent was a “great dad” and shared responsibilities/expenses respecting the children until he relocated to Collingwood, Ontario at January, 2008.
[43] The applicant asserts that the respondent is intentionally under-employed. The basis for this assertion is that the respondent was earning approximately $44,000 annually when he was employed at Simerra at 2007. Based on her research on the Employment Ontario/Job Futures website (www.ontario.ca/jobfutures) respecting “Property Administrators” province wide, the applicant asserts that the respondent should be able to earn in the range of $57,000 (the average for associate property managers) to $96,000 (the average for insurance, real estate and financial brokerage managers). The website printout provided by the applicant notes that education/training for insurance, real estate and financial brokerage managers is a college diploma or university degree in business administration, accounting, economics or other related field.
[44] The applicant states the respondent wilfully left his job with Simerra to relocate to a small town, Collingwood, Ontario with a lesser paying job.
[45] The applicant did not produce a statement of arrears from the Family Responsibility Office or any other evidence of arrears of support owed by the respondent.
[46] In closing submissions, counsel for the applicant advised that the applicant was not seeking a spousal support order.
Brian Franklin Schryver Testimony
[47] At the commencement of this trial, the respondent confirmed that he would not be pursuing any relief related to access to either Nicholas or Alexander for the respondent’s current spouse, Ellen Rice and their child, Addison Schryver. The respondent advised that he would pursue his access rights and those for his spouse and Addison in a separate proceeding. This left only the financial and related issues to be addressed.
[48] The respondent reviewed and referenced his income and that of the applicant based on Notices of Assessment for each as follows:
Applicant Respondent
2006 $39,625 $20,725
2007 $44,141 $6,875
2008 $18,495 $32,000
2009 $34,488 $42,999
2010 $4,379 $46,750
2011 $25,968 $50,837
[49] Based on the above, the respondent takes the position that both parties had income during the relationship and following. The respondent stated that the applicant in fact had higher income at date of separation and immediately following.
[50] The respondent reviewed his financial circumstances since 2007. He gave testimony that he filed for bankruptcy at October, 2007. His post-bankruptcy income for 2007 was $6,875.
[51] The respondent confirmed that he completed one year of college education and then discontinued his post-secondary education.
[52] In cross-examination, the respondent confirmed that at 2007 both he and the applicant worked for Simerra. The respondent testified that the applicant earned more than he did because she was there longer. The respondent also confirmed that he was terminated from Simerra at October, 2007 “possibly wrongful”, as the result of “miscommunication”/argument with his then supervisor. The respondent did not take any steps to seek compensation arising from his termination.
[53] The respondent relocated to Collingwood, Ontario in or about the beginning of 2008. The respondent’s next job was at February, 2008 at Proguard as a Junior Property Manager. The respondent testified that he was then making $32,000.00 annually in salary at Proguard.
[54] The respondent testified that he did not seek employment in Southern Ontario, as he needed the financial and other support from his family located in Collingwood, Ontario following his termination and bankruptcy.
[55] In cross-examination, the respondent testified that he received pay increases each year from 2008 forward. The respondent explained the increases as being due to his taking on further responsibility and having gained further experience.
[56] The respondent testified that his present income is $50,300.00 and that he did not expect any further increase in 2012. The respondent stated that he may receive a rate of inflation increase in 2013.
[57] The respondent referenced the letter of Dr. Syed dated August 24, 2012 having a suggestion of surgery at August, 2011. The respondent questioned why the surgery was not done and if this is the cause of the applicant not being able to work presently.
[58] The respondent testified he has paid support totalling $23,297.39 confirmed by a F.R.O. statement dated July 24, 2012.
[59] The respondent reviewed the funding received by the applicant with respect to the children from 2009 through 2012 based on confirmation of funding he sought from the various funding providers. The respondent specifically referenced the following:
a. Email dated September 14, 2012 from Easter Seals confirming the applicant receives $400.00 annually for Incontinence Supplies since 2009;
b. Letters dated August 27, 2012 and September 4, 2012 from Halton Support Services identifying that organization as the “transfer payment agency for Alexander’s Complex Special Needs funding”. The funding is provided by the Ministry of Community and Social Services. These letters confirmed that funding of $33,840.00 for Alexander for the period April, 2011 – March, 2012. The applicant received $32,698.50, ErinoakKids was paid $200.00 and the Darling Home for Kids (Cedarbrook Society) was paid $750.00. For the partially completed fiscal year April, 2012 – March, 2013, the applicant received $6,272.00 and ErinoakKids was paid $450.00; and,
c. Letter of the Ministry of Community and Social Services dated October 16, 2012 stating the applicant is paid an ACSD benefit of $445.00 monthly (increased to $450.00 at September, 2012) and $3,500.00 yearly for Enhanced Respite both respecting Alexander.
[60] Based on the letters from the funding providers/administrators, the respondent calculates that the applicant received funding from all sources for Alexander in 2009 of $5,500.00, $5,560.00 for 2010, $41,938.50 for 2011 and $15,082 to date of trial for 2012.
[61] The respondent testified to his position that the $450 monthly ACSD benefit paid to the applicant is to assist with extra expenses such as diet/medical/devices.
[62] The respondent’s position was that all expenses for Alexander were/are satisfied by the funding sources referenced.
[63] The respondent also took the position that the majority of the items claimed by the applicant as extraordinary expenses were items that are not extraordinary and, therefore, contributed to by him in the form of his basic monthly child support payment.
[64] In particular, the respondent does not accept the stem cell procedure and related expense claimed by the applicant.
[65] In support of his position, the respondent referenced an email dated October, 2010 from Dr. Banwel (Associate Professor of Paediatrics, Director Paediatric Demyelinating Disease Program and Senior Associate Scientist The Hospital for Sick Children) in response to the respondent’s question whether “stem cell treatment is a viable option” for Alexander. Dr. Banwel states that “stem cell transplantation is not yet available for children with disorders for which the cause is unclear. While there are places in the world that offer injection of stem cells, such places are not really providing a reliable treatment option. I am afraid stem cell research is still in its infancy.” The respondent’s position is that the expense is not reasonable as it is not supported by the medical profession in Canada.
[66] The respondent provided an email from the applicant to him dated November 18, 2008 seeking the respondent’s consent for the children to travel to China for treatment. In her email the applicant states that “I am not asking you to contribute financially…I just need your notarized consent so they can travel with me for the treatment.” The respondent also provided an email from the applicant dated August 3, 2010 to the respondent’s then lawyer where she states she is seeking the respondent’s consent for Alexander to travel to Germany for stem cell treatment and “in return, I am willing to consent to give your client full and final release from financial responsibility pertaining to this treatment.” The respondent gave evidence that he did in fact consent to both trips such that he should be entitled to the release from financial contribution agreed to by the applicant in her emails.
[67] Lastly, the respondent provided a printout he claims from a website created by the applicant to fundraise for the trip to China. The respondent took the position that the website at January, 2009 stated $39,102.76 had been raised contrary with the applicant’s testimony in chief that she had raised $19,500.
[68] The respondent stated his position that his basic monthly child support payment for Alexander should be reduced to reflect all periods that Alexander was/is in respite care. In cross-examination, the respondent clarified his position that the number of days that Alexander is in the applicant’s care impacts what his support obligations should be. The respondent stated that he should not have any support obligation to the applicant each day that Alexander is in Sunbeam Lodge or other third party care.
[69] In support of his request for a reduction on support payments for each day that Alexander is in Sunbeam Lodge or other third party care, the respondent provided the letter dated September 12, 2012 from ErinoakKids summarizing the numerous therapy/health appointments for Alexander and that he attended for 2 respite weekends in 2012. The respondent also provided the letter from the Darling Home for kids dated July 10, 2012 summarizing all respite stays for Alexander there from November 2009 –March, 2012. Most of these stays are for a few days in duration on average approximately every 6 weeks.
[70] Respecting Nicholas, the respondent provided a letter he obtained from Sunbeam Lodge dated October 19, 2012 stating “Upon placement each child’s needs are assessed to ensure all costs for their care are included in the rate negotiated with their placement agency. Therefore neither the placement agency or Sunbeam Lodge does not look to the parents for payment of any kind. Occasionally parents such as yourself and Gabrijela request for massage therapy, music therapy or reflexology over and beyond what has been negotiated with the placement agency. In this circumstance and in order to accommodate this personal request parents are required to pay for these additional therapy sessions.”
[71] The respondent takes the position that based on the letter he received from Sunbeam Lodge all costs for Nicholas are paid for and any additional items are at the discretion of each parent. In cross-examination, the respondent reiterated his position that he has zero support obligation to the applicant with respect to Nicholas for so long as Nicholas resides full time at Sunbeam Lodge with any expense incurred by either parent for Nicholas being voluntary without contribution owed by the other parent.
[72] The respondent testified that he purchases items for Nicholas and does not seek repayment from the applicant such as clothing, toys etc.
[73] In cross-examination the respondent was taken to the child expenses calculations of the applicant. In response, the respondent stated his position that the majority of the items were regular expenses covered by basic child support payments.
[74] The respondent testified that his present employer does not offer health benefits. He further stated that he made efforts previously to obtain coverage with Manulife at spring 2012 but could not get coverage for the pre-existing conditions of the children. The respondent had no paperwork to confirm these applications.
[75] The respondent testified that he does not have life insurance presently. The respondent takes the position that he will consent to an order requiring him to obtain $100,000 in life insurance coverage, which he believes is sufficient security for his support obligations.
[76] The respondent testified that he did not receive the 25% from the net proceeds of sale from 29 Sandwell Drive, Etobicoke payable to him pursuant to the 2006 Separation Agreement.
[77] In cross-examination the respondent was taken to the reporting letter of Michael Fisher dated August 28, 2006 addressed to the parties for the sale of 29 Sandwell Drive, Toronto property and related Direction Re Funds dated August 25, 2006 noting the $95,196.53 sale proceeds balance was paid to the parties jointly. The respondent repeated he did not receive his 25% share.
[78] In cross-examination the respondent was taken to the parties’ 2008 Property Agreement. Counsel for the applicant put it to the respondent that the agreement provided that each party released the other from any claims on division of property. In response, the respondent stated his view was that this proceeding could “supercede” the agreement.
[79] With respect to the issue of the passports, the respondent took the position in cross-examination that he would not consent to any approval with respect to the passports without receiving unspecified particulars.
Analysis
[80] This is an emotionally complex but legally straightforward case. Nicholas and Alexander both have significant medical issues that impact the quality of their daily lives and the related resources both financial and emotional of the parties.
[81] The applicant seeks child support payable pursuant to the Guidelines. However, neither of the parties attacked the validity of the 2006 Separation Agreement. It is unclear to me whether the parties had legal counsel assisting in the drafting of this agreement and/or related independent legal advice. I do note that the agreement is a mere two pages in length and the child support term is expressed in straightforward, lay language that the parties did not challenge.
[82] The first step in the child support analysis is to reference the 2006 Separation Agreement. This agreement sets forth the terms both parties considered acceptable and that both parties were content to rely on in ordering their child support responsibilities. As such, the court has repeatedly pronounced that such separation agreements must be given considerable weight (see D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231).
[83] The next step in the child support analysis for this case is a review of the applicable legislative scheme.
[84] Section 15.1(1) of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.) provides that a court may order a spouse or former spouse to pay child support. Section 15.1(3) mandates that any such an order must be made in accordance with the Child Support Guidelines.
[85] Despite the mandate in s. 15.1(3), the Divorce Act does allow the court to make an order for child support different than the amount prescribed in the Guidelines where the court is satisfied that special provisions in a written agreement respecting the financial obligations of the spouses, directly or indirectly, benefit a child, or that special provisions have otherwise been made for the benefit of a child.
[86] The meaning of “special provisions” has been reviewed by various courts in Canada. The thrust of this review is that a special provision is one that objectively viewed is out of the ordinary and benefits the child. An important factor in this analysis is a comparison between the support amount in the agreement and what support would otherwise be paid pursuant to the Guidelines (see Wright v. Zaver (2002), 2002 CanLII 41409 (ON CA), 59 O.R. (3d) 26 (C.A.) and Quinn v. Keiper, [2007] O.J. No. 3643(Ont. S.C.J.)). A special provision can include a term “reflecting a financial obligation greater than that which the law would impose” (see Danchuk v. Danchuk, [2001] B.C.J. No. 755, 2001 BCCA 291).
[87] The parties freely entered into the 2006 Separation Agreement that provides that the respondent would pay would pay $600.00 monthly child support and 50% contribution to “any additional expenses such as respite services, uninsured health expenses and similar”. This agreement was entered into acknowledging that Nicholas was then in residence at Sunbeam Lodge and Alexander was primarily resident with the applicant.
[88] While the 2006 Separation Agreement does not state the income of the respondent (or applicant), the $600.00 monthly child support agreed to is the Guidelines amount payable for two children by a payor with an annual income of $40,000.00. A $40,000.00 income is consistent with the evidence before me as to the respondent’s earnings and I infer that this was the income agreed to by the parties as the basis for the respondent’s child support obligations at the time of the 2006 agreement. I am further supported in making this inference by the term in the 2006 Separation Agreement requiring the respondent and applicant to each contribute 50% to the additional expenses for the children. In her Motion to Change the applicant filed her 2006 Notice of Assessment evidencing an income for her of $39,625.00 for that year. An equal sharing of the additional expenses of the children is consistent with the applicant’s known income of $39,625.00 and the respondent’s inferred income of $40,000.00 at the time of the 2006 Agreement.
[89] The parties subsequently entered into another agreement, namely the 2008 Property Agreement. The 2008 Property Agreement does not address child support presumably as both parties were content to continue the support terms in the 2006 Separation Agreement.
[90] The parties were divorced by Divorce Order of Herold J. dated March 25, 2008. Again, the Divorce Order does not address child support presumably as both parties and the court (see section 11(1)(b) of the Divorce Act obligating the court to be satisfied that reasonable child support arrangements made with reference to applicable guidelines before granting a divorce) were content to continue the support terms in the 2006 Separation Agreement.
[91] I also note that the respondent in his Answer dated April 27, 2012 (see Schedule “J”) relies on the $600.00 monthly child support amount set forth in the 2006 Separation Agreement in his calculation of arrears of child support up to the point of a without prejudice Temporary Order of Seppi J. made at April, 2009.
[92] The Applicant has sole custody of both Nicholas and Alexander pursuant to the consent Partial/Final Order of Herold J. dated November 10, 2010. However, there is no dispute that Nicholas was placed in full-time residence at Sunbeam Lodge at February 22, 2006 where he is and will remain indefinitely. Only Alexander was then and today remains resident with the Applicant.
[93] The unfortunate reality for the parties and Nicholas is that he will in all probability remain resident and in the full-time care at the Sunbeam Lodge or similar facility.
[94] While there seems little doubt that both parents have a moral obligation to contribute emotionally and financially towards Nicholas’ care, the question in this case is the legal obligation to financially support a child who is not in the day to day care of either party.
[95] Section 2(1) of the Federal Child Support Guidelines defines a child as a “child of the marriage”.
[96] Section 2(1) of the Divorce Act defines a “child of the marriage” as a child of two spouses or former spouses who is under the age of majority and who has not withdrawn from their charge.
[97] Simply stated, a child is entitled to support where he is under the age of majority and under parental charge.
[98] The Supreme Court of Canada had the opportunity to review the meaning of the word “charge” in the context of a child support claim where the subject child was resident in a group home and not with either parent. The Supreme Court decided that if a child is resident in a group home then the child is considered to have withdrawn from parental charge such that no child support obligation exists for that withdrawn child (see Krangle (Litigation ad litem of) v. Brisco, [2002] Carswell BC 65, 2002 SCC 9).
[99] Given that Nicholas has been resident full-time at the Sunbeam Lodge since February 22, 2006, Nicholas had withdrawn from parental control at the date of separation on August 15, 2006 such that no support obligation would be owed by either party for Nicholas pursuant to the Guidelines subject to an agreement otherwise made by the parties.
[100] Stated differently, support would have been payable pursuant to the Guidelines for Alexander only when the parties separated unless the parties agreed otherwise. I find that the parties did agree otherwise when they agreed in the 2006 Separation Agreement that the respondent would pay $600.00 monthly child support pursuant to the Guidelines on the basis of the respondent’s income of $40,000.00.
[101] The next question to determine is whether the agreement that the respondent would pay $600.00 monthly child support pursuant to the Guidelines on the basis of the respondent’s income of $40,000.00 is a special provision permitting the court to make an order for child support other than pursuant to the Guidelines? I find that it is.
[102] The amount the respondent would have been obligated to pay in child support at the time of the 2006 Separation Agreement pursuant to the Guidelines would have been $367.00, being the amount payable for one child of the marriage (i.e. Alexander) based on an income of $40,000.00. Clearly, the $600.00 payable pursuant to the 2006 Separation Agreement is considerably more than the Guidelines amount. This is an obvious benefit to the children and one that is out of the ordinary given that the respondent did not then or now has an obligation to contribute child support for Nicholas apart from the agreement the parties made.
[103] I find that the special provisions intended and created in the 2006 Separation Agreement have continued to date. The circumstances of the children are the same as when the agreement was entered into, namely Nicholas is resident at Sunbeam Lodge and Alexander resides with the Applicant. The respondent’s present earnings are the highest income he has generated. Except for the agreement of the parties, the amount the respondent would be obligated to pay in child support pursuant to the Guidelines would be $458.00, being the amount payable for one child of the marriage (ie. Alexander) based on the respondent’s 2011 income of $50,837.00. Clearly, the $600.00 payable pursuant to the 2006 Separation Agreement remains more than the Guidelines amount. This is an obvious benefit to the children and one that is out of the ordinary given that the respondent would not have an obligation to contribute child support for Nicholas apart from the agreement the parties made.
[104] Based on all of the above, I find that the support provisions of the 2006 Separation Agreement satisfy the requirements of the Divorce Act and, in particular, s. 15.1(3). Accordingly, child support shall be paid by the respondent pursuant to the terms of the 2006 Separation Agreement, namely in the amount $600.00 monthly child support and 50% contribution to section 7. special or extraordinary expenses. I dismiss the applicant’s request for child support pursuant to the Guidelines.
[105] The only evidence before me respecting historic payments of any monthly child support is the F.R.O. Statement of Account dated July 24, 2012 filed by the Respondent. This Statement of Account evidences enforcement commencing July 14, 2009 of the $333.00 monthly ordered on a without prejudice basis by Seppi J. in her temporary order dated April 14, 2009. Based on the analysis above, I find that the Respondent should have been paying child support in the amount of $600.00 monthly pursuant to the terms of the 2006 Separation Agreement. Accordingly, I hereby order that the commencement date for the respondent’s $600.00 monthly child support shall be July 14, 2009 and each 14th of the month thereafter with credit to the respondent for all payments made to date.
[106] I do not accept the respondent’s argument that his child support obligations should be reduced for each day that Alexander is in 3rd party care (ie. Sunbeam Lodge, Darling House etc.). The terms of the 2006 Separation Agreement do not provide for any such discount on monthly support. Quite the opposite, the 2006 Separation Agreement contemplates that Alexander may be in such 3rd party care where the agreement provides that the respondent shall contribute 50% to “any additional expenses such as respite services…” I have above ordered the respondent’s monthly child support of $600.00 monthly be paid from July 14, 2009 forward. The evidence before me at trial from July, 2009 forward was that Alexander has attended for 3rd party respite care approximately every 6 weeks typically for a few days at a time. I will not reduce the respondent’s monthly child support obligations in that context.
[107] I must also address the significant arrears of section 7. Guidelines extraordinary expenses claimed by the applicant.
[108] Based on the above analysis, the respondent would have no obligation to contribute to the support of Nicholas, including to extraordinary expenses, but for the terms of the 2006 Separation Agreement. The only direct evidence before me respecting extraordinary expenses for Nicholas was the Service Agreement dated May 2, 2006 between the Delisle House Association, Sunbeam Lodge and the parties and the two letters from Sunbeam Lodge dated October 19, 2012 and November 20, 2012. On the basis of the evidence presented, I find that there are no extraordinary expenses for Nicholas at this time.
[109] The two letters from Sunbeam Lodge make it clear that Nicholas’ needs were assessed by Sunbeam Lodge with all costs for Nicholas for those needs being paid by Ministry funding. Any additional items were at the choice of each parent.
[110] The November 20th letter confirms that the applicant chose to contribute $2,412.82 since Nicholas commenced residence at Sunbeam Lodge at February, 2006 (i.e. approximately $350.00 annually on average). The November 20, 2012 letter does not detail these contributions (ie. the amount and item for each payment) voluntarily made by the applicant. I do note that I have nothing from Sunbeam Lodge confirming its agreement, as Nicholas’ service provider, with the recommendations at January, 2010 and September, 2012 by Kristan Young, Nicholas’s massage therapist, for funding of additional massage treatments.
[111] While I applaud the applicant’s additional contributions towards Nicholas, I do not consider the non-particularized, relatively small and voluntary contributions above and beyond the Ministry funding for Nicholas’ needs as assessed by the service provider, Sunbeam Lodge to be Guidelines extraordinary expenses that the respondent should be obligated to contribute to. This decision is without prejudice to the applicant returning the issue of future massage or any other treatment options before the court based on prevailing medical evidence/opinion and/or other supporting documentation and addressing the resources each party then has to contribute to such treatment.
[112] The most costly extraordinary expense claimed by the applicant is for the stem cell treatments she has sought outside of Canada and that she seeks to repeat every three years. The approximate cost of each treatment is $25,000 to $40,000.00. I cannot find that this is special or extraordinary expense pursuant to section 7. of the Guidelines based on the evidence before me.
[113] While there is no doubt that Alexander and Nicholas have significant health issues, I have no medical or other evidence before me beyond anecdote from the applicant that the stem cell treatment she has obtained and seeks to continue is reasonable. The only input I have is the email of Dr. Banwel from the Hospital for Sick Children who states that suggested stem cell treatment is not a reliable treatment option. On this basis, I cannot say that the treatment is in children’s best interest.
[114] I also note that the expense of $25,000.00 - $40,000.00 is not in my view reasonable with reference to the means of party. The applicant’s highest income from 2006 forward was $44,000.00 and she presently claims to have no income. The respondent’s earnings from 2006 range from $32,000.00 to his present income of $50,837.00. The parties simply do not have the resources to contribute to this significant cost even if it was otherwise reasonable based on prevailing medical opinion. Accordingly, I will not allow this expense as part of the extraordinary expenses that the respondent must contribute 50% towards. This decision is without prejudice to the applicant returning the issue of future stem cell or any other treatment options before the court based on prevailing medical evidence/opinion and/or other supporting documentation and addressing the resources each party then has to contribute to such proposed treatment.
[115] Although not necessary for my decision respecting the stem cell treatment, I will note that even if I had been able on the evidence to find that the treatments were extraordinary expenses I would have great difficulty ordering the respondent to contribute given the applicant’s emails dated November 18, 2008 and August 3, 2010 seeking the respondent’s consent for the children to travel for treatment in exchange for seeking no contribution from the respondent to these treatments.
[116] I have reviewed the other section 7. expenses claimed in the applicant’s section 7. expenses brief for Alexander. I agree with the respondent that some of the items claimed are not extraordinary but instead ones that would be appropriately payable from the monthly child support amount. Specifically and based on the evidence before me, I do not find that the monthly clothing, laundry/dry cleaning, school supplies, pet care, outings and vacation amounts claimed yearly in the applicant’s children’s expenses brief are extraordinary expenses. Accordingly, I have removed these amounts from the applicable yearly claims made by the applicant.
[117] After deduction of the items noted above from the applicant’s claimed expenses, I find that the following extraordinary expenses are owing by the respondent:
a. 2007 – Total annual expenses of $8,508.00 less total funding of $8,480.00 ($4,980.00 ACSD and $3,500.00 enhanced respite) = $1,028.00 deficit. The respondent’s 50% share is $514.00.
b. 2008 – Total annual expenses of $9,648.00 less total funding of $8,600.00 ($5,100.00 ACSD and $3,500.00 enhanced respite) = $1,048.00 deficit. The respondent’s 50% share is $524.00.
c. 2009 – Total annual expenses of $10,776.00 less total funding of $9,000.00 ($5,100.00 ACSD, $400.00 Easter Seal incontinence grant and $3,500.00 enhanced respite) = $1,776.00 deficit. The respondent’s 50% share is $888.00.
d. 2010 – Total annual expenses of $12,540.00 less total funding of $9,000.00 ($5,100.00 ACSD, $400.00 Easter Seal incontinence grant and $3,500.00 enhanced respite) = $3,540.00 deficit. The respondent’s 50% share is $1,770.00.
e. 2011 – Total annual expenses of $13,188.00 less total funding of $33,763.88 ($24,523.88 Ministry monies paid through Halton Support Services from April –December, 2011 [$32,698.50 paid to applicant April, 2011 – March, 2012/12 = $2,724.875 monthly x 9 months in 2011 = $24,523.88], $5,340.00 ACSD, $400.00 Easter Seal incontinence grant and $3,500.00 enhanced respite) = $20,575.88 surplus. The respondent’s 50% share is $00.00.
f. 2012 – Total annual expenses of $15,828.00 less total funding of $23,706.62 ($14,446.62 Ministry monies paid through Halton Support Services from January - November, 2012 [balance of the $32,698.50 paid to applicant April, 2011 – March, 2012/12 = $2,724.875 monthly x 3 months in 2012 = $8,174.62 + $6,272.00 paid April, 2012 forward], $5,360.00 ACSD, $400.00 Easter Seal incontinence grant and $3,500.00 enhanced respite) = $7,878.62 surplus. The respondent’s 50% share is $00.00.
[118] Based on all of the above, I find and order the respondent pay to the applicant arrears of section 7. expenses to December 31, 2012 in the total amount of $3,696.00.
[119] It seems obvious that the needs of Nicholas and Alexander are not static and will change as their respective medical issues and related treatments evolve. I am unable to forecast the section 7. expenses and contributions going forward for that reason and given that the annual funding received by the applicant against the childcare expenses changes year to year. The parties will need to address the expenses annually to determine whether there is a funding surplus or deficit with related obligation by the respondent to contribute.
[120] Support Deduction Order to issue.
[121] The evidence before me does not support any order by me to impute income to either party.
[122] I am satisfied that the applicant cannot work presently based on the medical documentation she filed at trial and her significant child care responsibilities for Alexander.
[123] I am not persuaded that the respondent is underemployed pursuant to section 19 of the Guidelines. The respondent testified that he was terminated at October, 2007 from his employment with Simerra as a property manager in the GTA. At October, 2007, he entered into bankruptcy. Given this financial collapse, the respondent relocated to Collingwood, Ontario at the beginning of 2008 to have the financial and other support from his family located in that area. In short order (ie. February, 2008), the respondent obtained employment in the Collingwood area with Proguard as a junior property manager. Since then, he has remained with that employer to the present, working full time and obtaining pay increases each year. I do not find the respondent is underemployed and will not impute income based on the evidence before me.
[124] The respondent testified that he has no health benefits through his place of employment and that he was denied private coverage when he applied to Manulife. In the face of this evidence, I will only order that the respondent shall name the children as beneficiaries for all health benefits he has available through his employment.
[125] The respondent is agreeable to obtaining life insurance coverage in the face amount of $100,000.00 as security for his support obligations. In his Answer, the respondent notes the monthly payment for a policy with a face value of $100,000.00 is $151.60 and $263.20 monthly for a face value of $200,000.00. Given the age of the children, the current child support obligation and the uncertainty of the future treatment and other expenses for the children, I believe that a policy with a $200,000.00 face value is appropriate. I hereby order the respondent to obtain and hereafter maintain such policy in good standing naming the applicant as the irrevocable beneficiary in trust for the two children and to provide proof of the policy within 30 days of this order and thereafter annually within 14 days of written request from the applicant. If the respondent dies without the policy being in good standing then his child support obligations, including section 7. expenses and all arrears of support and ongoing payments shall be a first charge against his estate.
[126] For so long as child support is payable, the applicant and the respondent must provide a complete copy of her/his income tax return, including copies of all attachments, and related notice of assessment/re-assessment to the other party by June 30th annually commencing June 30, 2012.
[127] The Order of Herold J. dated November 10, 2010 provided the applicant with sole custody of the children with the right to travel with the children. Clearly, the order would be meaningless if the applicant did not have the ability to obtain the travel documents required for the children to travel. I have no difficulty whatsoever ordering that the applicant may obtain passports for the children and that the respondent’s consent is permanently not required/dispensed with.
[128] The respondent sought payment of the 25% from the net proceeds of sale from 29 Sandwell Drive, Etobicoke he states the applicant owes to him pursuant to the 2006 Separation Agreement. The reporting letter of the lawyer who handled the sale, Michael Fisher dated August 28, 2006 addressed to the parties for the sale of 29 Sandwell Drive, Toronto property and related Direction Re Funds dated August 25, 2006 noting the $95,196.53 sale proceeds balance was paid to the parties jointly were filed as evidence in this trial. The respondent simply stated that he did not receive his 25% share. The respondent was aware or ought reasonably to have been aware of the sale of the property and by inference that his share should be paid to him at or about August 28, 2006. The respondent’s Answer claiming payment of these monies is dated April 27, 2012. The deadline for bringing a claim for payment of these monies was 2 years from August 28, 2006. The Answer dated April 27, 2012 claiming payment of these monies is well outside the 2 year limitation period. On that basis, I hereby dismiss the respondent’s claim for payment of monies owing under the 2006 Separation Agreement.
[129] Finally, I will address the respondent’s claim for costs. Neither party obtained all of the relief that she/he sought in this proceeding. The success was very much divided on the various issues I have decided with no clear victor or loser. On that basis alone, there shall be no order for costs payable by either party for this case.
[130] I would also note that any cost order would serve to tax already strained resources that should be directed to providing both Alexander and Nicholas as much care and comfort as both parents can bear. Nicholas and Alexander need both parents emotionally and financially to shoulder the challenges that these children face daily. I have been called upon to determine the legal obligations of the parties and have now done so. It is my hope that with this litigation now resolved both parents will see fit to step outside of their personal differences and coordinate their resources for the benefit of two children who so obviously need all that their parents can provide.
[131] The approval of the applicant and respondent as to form and content of this order is hereby dispensed with. The court office shall expedite the typing, issuing and entering of this Final Order with a copy mailed to each party.
[132] Unless this order is withdrawn from the Director’s office, the Family Responsibility Office, it shall be enforced by the Director and all amounts owing under this Final Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
[133] This orders bears post judgment interest at the rate of 3% per annum effective from the date of this order. Where there is a default in payment the payment in default shall bear interest only from the date of default.
Fitzpatrick J.
Released: May 31, 2013
COURT FILE NO.: 5956/10
DATE: 2013-05-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GABRIJELA SCHRYVER
Applicant
– and –
BRIAN SCHRYVER Respondent
REASONS FOR JUDGMENT
FITZPATRICK J.
Released: May 31, 2013