ST. CATHARINES

COURT FILE NO.: 435/07

DATE: 2013-06-14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Shannon Leigh Richardson

Applicant Mother

– and –

Jeffrey Lawrence Wade

Respondent Father

Philip M. Sheehan, for the Applicant Mother

Hendrik Keesmaat, for the Respondent Father

HEARD: March 19, 2013 at St. Catharines

THE HONOURABLE JUSTICE THERESA MADDALENA

LONG MOTION ENDORSEMENT

ISSUES FOR THE COURT

[1] The issues for adjudication by the court as a result of this long motion include the following:

(1) The interpretation of paragraphs 3.1, 3.2 and 3.3 of the order of Justice L. Walters dated April 1, 2008.

(2) What arrears, if any, of table child support, s.7 extraordinary extracurricular expenses, and s.7 medical expenses are owed by the respondent father to the applicant mother as a result of the consent order of April 1, 2008?

(3) What amounts, if any, should be ongoing on account of table amount of child support, s.7 extraordinary expenses and/or s.7 medical expenses for the two children?

INTRODUCTION

[2] The applicant mother and the respondent father commenced co-habitation April 1, 2000 and married September 28, 2002.

[3] The parties separated in December 2006 and became divorced May 5, 2008.

[4] There are two children of their marriage, namely, Sarah Anne Wade, born January 11, 2003, and Hannah Leigh Wade, born May 30, 2005.

[5] All issues arising out of the parties’ marriage were dealt with by way of minutes of settlement which were incorporated into the consent order of April 1, 2008, which order is now the subject of this long motion before the Court.

[6] Certain provisions of that order are now in dispute between the parties.

[7] Paragraph 3.1 of the order reads as follows:

Based on the Respondent having an annual income of $91,100.00 for 2007, the Respondent shall pay to the Applicant as child support for the two children of the marriage namely Sarah Anne Wade born January 11th 2003 and Hannah Leigh Wade born May 30th, 2005 the sum of $1,500.00 per month commencing March 1st, 2008, with half payable on the first and fifteenth day of each and every month thereafter. The sum of $1,500.00 is made up as follows:

i) $1,295.00 – table amount payable under the Child Support Guidelines based on the Respondent’s income of $91,900.00 for support of two children;

ii) $205.00 – special extraordinary expenses under the Child Support Guidelines; (parties sharing such expenses on a 1/3, 2/3 basis with the Respondent paying 1/3)

[8] Paragraph 3.2 of the order reads as follows:

The table amount of $1,295.00 and the contribution to the special extraordinary expenses of $205.00 shall be non-variable and remain the same to June 30th, 2011, and shall be reviewed in accordance with subsection 3.3 referred to hereafter.

[9] Paragraph 3.3 of the order reads as follows:

A review of child support and extraordinary expenses pursuant to the provisions of the Child Support Guidelines shall take place yearly commencing 2011 and any change in the child support and/or extraordinary expenses shall be effective July 1st of each year commencing July 1st, 2011. The Applicant and Respondent shall exchange a copy of their T1 general tax returns, including all schedules, by May 30th of each year as well as a copy of their Notices of Assessment and Notices of Reassessment, if any, immediately upon same being available to them commencing with the tax year 2007.

[10] On January 5, 2012, the applicant mother brought the current motion to change, which motion included a request for adjustment to ongoing table child support, adjustment to special extraordinary expenses, and payment for s.7 medical expenses as well as compelling the respondent father to disclose his income tax returns and notices of assessment commencing for the taxation year 2007.

[11] Once the action was commenced, the relevant disclosure was eventually provided.

[12] The respondent father’s position was that he was not required to provide his 2007, 2008 and 2009 income tax returns and notices of assessment since all child support including s.7 expenses were not variable until after June 30, 2011.

[13] The applicant mother is employed as an engineer with Conestoga-Rovers in St. Catharines, Ontario. Her gross 2011 income was $94,628. The respondent father is employed as an accountant at Wade and Partners in Hamilton, Ontario. His gross 2011 income was $95,784.

[14] During the course of the motion to vary brought by the applicant mother, the respondent father responded that he had the children approximately 40 percent of the time and requested an adjustment of support arguing that the applicant mother owed him money. Eventually this claim was abandoned by the him.

FINANCIAL ISSUES

[15] The applicant mother argued that despite the clear disclosure provisions in the order of April 1, 2008, the respondent father did not provide his disclosure in a timely manner as required in paragraph 3.3 of the order. She was therefore forced to bring the motion, which is currently before the court.

[16] The respondent father stated that he was not required to provide his 2007, 2008 and 2009 income tax information since all support, including s.7 expenses, both extraordinary, extra-curricular and medical were not variable until after June 30, 2011.

[17] There are a few noteworthy observations with respect to the consent order of April 1, 2008. Firstly, all parties agree that the table amount of child support and “special extra-ordinary expenses” were non-variable until June 30, 2011. (Paragraph 3.2). Secondly, the order clearly states that the parties shall exchange income tax returns, including all schedules and notices of assessment starting with the taxation year 2007. (Paragraph 3.3). Thirdly, medical extraordinary expenses were dealt with separately in the order under paragraphs 3.4 to 3.9 inclusive.

[18] Paragraphs 3.1 and 3.2 of the order make no specific references to “medical” extraordinary expenses but both refer to the table amount payable under the Child Support Guidelines and to special extraordinary expenses under the Child Support Guidelines.

[19] However, there is a specific disclosure provision for exchange of income tax returns commencing in 2007. Therefore, the applicant mother stated that she required the 2007 income, in compliance with the court order, to determine the proper apportionment of s.7 medical expenses. The respondent father stated that all such expenses and/or adjustments commenced July 1, 2011, and not before. The respondent father stated all such claims, that is s.7 medical expenses as well as s.7 special extraordinary expenses, were all included in the amount of $205 as referred to in paragraph 3.1 of the order.

[20] If the father’s interpretation is correct, then why is there clear reference in the order to income tax disclosure starting with the year 2007? Why would disclosure not start, as with the other expenses, with the year 2010 to allow adjustment to commence July 1, 2011? What is the purpose of the 2007 disclosure if not to adjust or apportion medical expenses for the children?

[21] Paragraph 3.9 of the order of April 1, 2008 regarding medical benefits reads as follows:

The costs of the medical, dental, orthodontic, optical, psychological, or counselling expenses not covered by the dental, extended health or drug plan will be shared proportionate to the incomes of the parties provided however that any such expense on an emergency basis is reasonable. The same will apply to any non-emergency expense incurred, provided the expense is incurred with the consent of both parties, such consent not to be unreasonably withheld.

[22] The logical conclusion from reading paragraph 3.9 in conjunction with paragraph 3.1, 3.2 and 3.3 is that the parties shall share proportionately to their incomes the medical expenses of their children not covered already by any health, drug, or dental plan.

[23] This proportionate sharing should start in 2008 based on their 2007 incomes.

[24] The respondent father did eventually disclose the income tax returns for 2007, 2008, 2009, 2010 and 2011. However, this was after the action was started by the applicant mother. It is further noted that, by the time this motion was heard by the court on the 19th of March, 2013, the respondent father had not yet disclosed to the applicant mother his 2012 T4 slip (although his counsel advised that it was available on his i-phone), despite the fact that the T4 slip for 2012 would have been made available to the respondent father by his employer by the end of February 2013.

CHILD SUPPORT – TABLE AMOUNT ARREARS

[25] It is clear and undisputed from the order of April 1, 2008, that the first adjustment of table child support and special extraordinary expenses is to occur commencing July 1, 2011. Thus the first adjustment period is July 1, 2011 through to June 30, 2012. This is based on the 2010 income for child support purposes of the respondent father.

[26] The next adjustment period is from July 1, 2012 through to June 30, 2013. This is based on the 2011 income for child support purposes of the respondent father. The further adjustment period is from July 1, 2013 through to June 30, 2014. This is based on the 2012 income for child support purposes of the respondent father.

[27] The respondent father’s 2010 line 150 income on his T1 general return is $91,704. The respondent father has professional and union dues of $840 as a valid deduction for child support purposes. These deductions are covered under Schedule III of the Child Support Guidelines.

[28] The respondent father has also shown the amount of $848.00 as a deduction for “telecommunications expense” as a schedule on his 2010 income tax return. While this may be permissible for income tax purposes, it is not one of the Schedule III adjustments to income permitted under the child support guidelines.

[29] Thus child support table amount is $1,304 per month for the period July 1, 2011 through to and including June 30, 2012. The respondent father has paid $1,295 monthly leaving arrears therefore of $9 monthly times 12 months, which equals $108.

[30] The next adjustment is for the period July 1, 2012 through to June 30, 2013. The respondent father’s 2011 income at line 150 is $95,785, less professional and union dues of $875. The respondent father claims for child support purposes an additional deduction of $1,223.50 “telecommunications expenses” which, again, I do not find to be an appropriate adjustment to income under Schedule III.

[31] Therefore, the table child support amount per month is $1,353. The respondent father has paid $1,295 per month and thus arrears are $58 times 12 months equals $696.

[32] Therefore, the total table child support arrears are $804 owing by the respondent father to the applicant mother on account of table child support.

[33] Further, had the respondent father made timely disclosure, arrears may not have accumulated. The respondent is well able to pay and there is no reason why the children should not benefit from the proper amount of table child support. Further, I find that the applicant mother has been diligent in the pursuit of her claims for adjustment to child support.

[34] Further, commencing July 1st , 2013, the respondent father shall pay table child support in accordance with his 2012 line 150 amount as shown on his income tax return subject to Schedule III adjustments only for professional and union dues. This amount cannot be quantified by the court as there was no disclosure of the respondent father’s 2012 T4 slip or income tax return at the time of the motion. The 2012 income tax return of the respondent father should be available for disclosure at this time since the date for the filing of the tax information with the Canada Revenue Agency is long past.

[35] Further, child support shall be reviewed and adjusted annually on July 1st of each and every year.

[36] The parties further shall continue ongoing disclosure of income tax returns and notices of assessment and/or notices of reassessment for as long as child support is payable. These documents shall be exchanged annually no later than June 1st of each year and the table child support along with special extraordinary expenses and medical and s.7 medical expenses shall be adjusted by July 1st of each year commencing July 1st, 2013.

SPECIAL EXTRAORDINARY EXPENSES (NON-MEDICAL)

[37] Special extraordinary expenses are variable effective July 1, 2011.

[38] The applicant mother and the respondent father disagree fundamentally as to what constitutes s.7 extraordinary expenses. The respondent father submits that payment by him is dependent on his consent, that he should be provided with advance notice, and copies of invoices. He further submits that s.7 special extraordinary expenses also includes medical expenses.

[39] The applicant mother has provided her list of extraordinary expenses incurred for both children from July 2011 through to February 2013. That list is appended as Schedule “A” attached hereto. The list indicates that the applicant mother has paid on account of extraordinary expenses for the children, up to and including February 2013, the amount of $20,745. According to the applicant mother, the respondent father’s share is $10,372 (rounded). The respondent father has already paid $4,336 (rounded) and thus the respondent father owes the applicant mother an additional $6,036 (rounded).

[40] The respondent father complains that she does not discuss the special or extraordinary expenses with him before the applicant mother incurs them. Further, he is not made aware of them and has not consented to those expenses. He further states that some of the expenses are subsumed in the table amount of child support.

[41] Firstly, I accept the evidence of the applicant mother that she has communicated to the respondent father, generally via e-mail, information regarding the children’s special extraordinary expenses for the majority of those activities (save and except there was not an e-mail for Sarah’s indoor soccer and Hannah’s outdoor soccer).

[42] A review of the expenses reveals that by far the larger share of the expenses are for the children’s daycare, the children’s camps, travelling sport activities, dance, gymnastics and other fitness activities.

[43] Taking into account the best interests of these children, their pattern of activities, the financial abilities of both parents, I am persuaded that the expenses shown are appropriate as extraordinary extracurricular activities for these children. The children’s mother is an engineer and their father is an accountant. There is no reason why these two children should not be afforded a lifestyle and benefits commensurate with the income of both parents.

[44] These parents earn approximately equal income so it is appropriate to apportion these expenses on a 50/50 basis.

[45] Thus, the arrears outstanding and owing by the respondent father to the applicant mother on account of extraordinary expenses for extracurricular activities as well as daycare expenses are $6,036 for the period July 1, 2011 through to February 2013.

[46] Commencing therefore July 1, 2013 and payable monthly, until further adjustment or court order, the respondent father shall pay to the applicant mother on account of s.7 extraordinary expenses for the two children the amount of $519 (rounded) monthly. This is in addition to the table amount of support and s.7 medical expenses which I shall deal with next.

[47] The respondent father has further indicated that he is prepared to pay as long as he has provided his consent and is in agreement with the activity. Given the long history of animosity between these parties, it is not likely that agreement will be easily reached. It is the court’s view that the respondent father is entitled to be advised in advance of the child’s activity and/or daycare. He shall be provided with all invoices, schedules, and other necessary documents. However, if agreement is not forthcoming, the applicant mother shall make the final decision with respect to the s.7 expenses for the children.

SECTION 7 MEDICAL EXPENSES

[48] Medical expenses are specifically dealt with pursuant to paragraph 3.4 through to 3.9 of the order of April 1, 2008. The applicant mother argues that the medical expenses are not captured by paragraph 3.2 of the order. The medical expenses, according to the applicant mother, are to be paid proportionately prior to July 1, 2011. The respondent father states all is to start July 1, 2011 and forward.

[49] The court concludes that the only reasonable explanation for the 2007 disclosure in the order is to deal with medical expenses which are not covered pursuant to paragraph 3.2 of the order. Accordingly, the 2007 income disclosure would be required in order to calculate proportionately the respective shares of the parties for the medical expenses commencing from the year 2008 and forward.

[50] The applicant mother has provided a summary of the medical expenses from 2007 through to 2012 for the two children. This is appended as Schedule “B” attached hereto. The court notes that the chart prepared by the applicant mother includes 2007 medicals of $87.76 as the respondent father’s share. The court notes that these are prescription drug expenses and also audiology expenses for 2007. There is no evidence that these are not proper and legitimate medical expenses to be covered for the children. Indeed the respondent father, in his evidence, does not quarrel with the specific medical expenses except to state that these are covered in the order requiring him to pay $205 per month. The court further notes from the chart attached that the respondent father has paid no medical expenses except for $60 for the year 2011.

[51] The applicant mother has stated in her affidavit material that the expenses as shown are likely to continue for the children.

[52] The court does not agree in these circumstances, that these are subsumed in the amount of $205 under special extraordinary expenses. These are clear and proper medical expenses incurred on behalf of the children and ought to be treated separate and apart from the special extraordinary expenses for extracurricular activities or the childcare expenses. Accordingly, the respondent father shall pay to the applicant mother on account of s.7 medical expenses arrears in the amount of $842 calculated in accordance with Schedule “B” attached.

[53] The applicant mother states in her affidavit that she anticipates on an ongoing basis that there will be similar expenses for the children. There is no evidence to the contrary. Accordingly, the respondent father shall pay to the applicant mother for ongoing s.7 medical expenses the amount of $13 per month commencing July 1, 2013 and continuing on the 1st day of each and every month thereafter until further court order or readjustment. This represents his proportionate share for the children’s medical s.7 expenses. This payment is in addition to the amount outlined in paragraph 46 herein regarding s.7 extraordinary extracurricular and child care expenses.

MISCELLANEOUS ISSUE

[54] The respondent father wishes an order that the children shall be with him whenever the mother is unavailable to be with them. The applicant mother indicates that while this is happening in any event, she does not wish to have this incorporated into the order. I decline to incorporate such a provision into the order particularly given the acknowledged acrimony between these parents.

CONSENT VARIATION

[55] The parties do consent to the variation (Reference Court Exhibit 1) of paragraph 2 e) of the order of April 1, 2008. Accordingly, on consent, paragraph 2 e) of the order of April 1, 2008, is replaced with the following:

e) Christmas – In even years beginning in 2012, the children will be with the Applicant from 4:00 p.m. Christmas Eve to 10:00 a.m. on December 26th and with the Respondent from 10:00 a.m. on December 26th until 10:00 a.m. on December 27th. In odd years commencing 2013, the children will be with the Respondent from 4:00 p.m. Christmas Eve to 10:00 a.m. on December 26th and with the Applicant from 10:00 a.m. on December 26th until 10:00 a.m. on December 27th. The balance of the Christmas holidays will be shared by the parties in accordance with the regular access arrangements;

SUMMARY OF ORDERS

Arrears:

[56] The respondent father shall pay to the applicant mother the following amounts on account of arrears:

(i) $804 owing on account of table amount of child support arrears covering July 1, 2011 through to June 30, 2013.

(ii) $6,036 owing on account of s.7 special extraordinary expenses (not including medical) covering July 1, 2011 through to February 2013.

(iii) $842 owing on account of s.7 medical expenses covering 2007 through to 2012.

Ongoing Child Support:

[57] The order of April 1, 2008 is varied and ongoing child support is as follows:

(i) Commencing July 1, 2013 and continuing on the first day of each and every month until further adjustment or court order, the respondent father shall pay to the applicant mother table amount of child support based on his 2012 Line 150 from his income tax return, subject only to Schedule III adjustment for professional or union dues. (Please note: Both counsel should have this disclosure and should add proper table amount here.)

(ii) Commencing July 1, 2013 and continuing on the first day of each and every month until further adjustment or court order, the respondent father shall pay to the applicant mother on account of s.7 special extraordinary expenses the amount of $519 monthly. This is based on a 50/50 sharing of expenses.

(iii) Commencing July 1, 2013 and continuing on the first day of each and every month thereafter until further order or adjustment, the respondent father shall pay to the applicant mother on account of s.7 medical expenses, the amount of $13 monthly. This is based on a 50/50 sharing of the expenses.

Ongoing disclosure:

[58] For as long as child support is payable, the parties shall annually disclose their income tax returns, together with all schedules, along with any notices of assessment or reassessment. The income tax returns shall be disclosed by June 1st each year with any adjustment to be completed by July 1st of each year.

[59] The notices of assessment and/or reassessment shall be disclosed as soon as received from Canada Revenue Agency.

[60] The first disclosure under this order shall occur with the 2012 income tax return and notices of assessment so as to permit adjustment for proper guideline amount for July 1, 2013.

[61] The applicant mother shall continue to provide to the respondent father all necessary invoices, schedules, pertaining to s.7 extraordinary expenses and s.7 medical expenses.

[62] The applicant mother shall advise the respondent father of the children’s s.7 expenses and activities. However, if the parties do not agree on an activity or expenditure, the final decision shall remain with the applicant mother.

Consent Variation:

Paragraph 2(e) of the order of April 1, 2008 is hereby varied by deleting paragraph 2 (e) in its entirety and adding the following:

(e) Christmas – In even years beginning in 2012, the children will be with the Applicant from 4:00 p.m. Christmas Eve to 10:00 a.m. on December 26th and with the Respondent from 10:00 a.m. on December 26th until 10:00 a.m. on December 27th. In odd years commencing 2013, the children will be with the Respondent from 4:00 p.m. Christmas Eve to 10:00 a.m. on December 26th and with the Applicant from 10:00 a.m. on December 26th until 10:00 a.m. on December 27th. The balance of the Christmas holidays will be shared by the parties in accordance with the regular access arrangements;

[63] The request of the respondent father for the children to be with him whenever the mother is unavailable is hereby dismissed.

COSTS

[64] Unless otherwise agreed, parties shall make written submissions as to costs. Submissions are limited to two pages plus a bill of costs plus any offers to settle. The applicant mother’s submissions are due by July 5, 2013. The respondent father’s submissions are due by July 26, 2013.

Maddalena, J.

Released: June 14, 2013

ST. CATHARINES COURT FILE NO.: 435/07

DATE: 2013-06-14

ONTARIO

SUPERIOR COURT OF JUSTICE

Shannon Leigh Richardson

Applicant Mother

– and –

Jeffrey Lawrence Wade

Respondent Father

LONG MOTION ENDORSEMENT

Maddalena, J.

Released: June 14, 2013