ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: FD-1551-08
Date: 2013-07-05
Between:
George Nogueira De Sousa
Applicant
Jerry J. Chaimovitz, for the Applicant
– and –
Lisa Marie Colizza
Respondent
Joanne F. Guarasci, for the Respondent
Heard: April 22, 2013
The honourable justice b. h. matheson
REASONS FOR JUDGMENT
[1] This matter was heard on April 22, 2013, after an earlier hearing where it was directed that a further pre-tial be heard.
[2] The parties were married on June 29, 2002. There is one child of the marriage, Nicholas Nogueira De Sousa, born October 19, 2003.
[3] The parties separated on May 23, 2005.
[4] They entered into a Separation Agreement dated September 27, 2007. It is Exhibit No. 1.
[5] The parties were, after the start of the litigation, able to resolve all of the issues other than those related to child support and to s. 7 extraordinary expenses involving soccer and hockey for Nicholas.
[6] The parties were able to agree on the incomes for each for the years 2007-2011, with one exception. The respondent states that in the year 2011 the applicant made $450,500 income, not $446,853 as stated by the applicant. It would appear that this matter was resolved prior to the court hearing.
[7] As stated, all issues were resolved other than the financial ones dealing with arrears and the issue of retroactivity of some payments.
[8] The issues that the court must decide are spelled out in the written submissions of the parties. They are as follows:
How does the court interpret s. 5.12(a) of the Separation Agreement?
Are the respondent’s claims for hockey and soccer expenses for their son expenses as defined by the guidelines?
Has the applicant contributed his proportionate share of the s.7 expenses, save and except for $599.75?
Costs.
[9] The respondent and applicant both set out their request for relief and they are basically the same.
[10] Section 5.12(a) reads as follows:
Once a year, on or before June 1st, George and Lisa will review the child support arrangements in this Agreement and adjust the child support paid by George to be consistent with the Guidelines given his income in the preceding year and the child’s special and extraordinary expenses at that time. If they do not agree about any change, they will use Part 6 of this Agreement [dispute resolutions sections] to resolve the issues.
[11] This section of the Separation Agreement is, in my opinion, clear and unequivocal. There is no reference to retroactive child support payments. The adjustment for child support payments quite clearly is on a go forward basis.
[12] Therefore, in my opinion, the outstanding issue is as to whether the hockey and soccer expenses for Nicholas are covered by s. 7 of the Child Support Guidelines.
[13] Section 7(1.1) of the Guidelines reads as follows:
(1.1) For the purposes of clauses (1) (d) and (f),
“extraordinary expenses” means
(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or
(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,
(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child,
(iv) the overall cost of the programs and activities, and
(v) any other similar factors that the court considers relevant.
[14] In the case of Homier v. Paquette [2011] O.J. No 2407 the Divisional Court held that the Superior Court of Justice did not give sufficient reasons in determining whether the guidelines as set out in s. 7(1.1) had been considered.
[15] In this case the respondent mother is claiming only for extraordinary expenses for soccer and hockey. She is not claiming for extraordinary expenses for baseball, karate, golf lessons, or ski membership. In the claim for soccer and hockey for expenses over and above the basic expenses for these two sports, these expenses include special fees, equipment fees, and travel expenses.
[16] The applicant takes the position that these expenses do not fall within the definition of extraordinary expenses as set out in s. 7(1.1)(a), referred to above.
[17] The respondent does not set out how she arrives at the conclusion that the expenses she is claiming fall within s. 7(1.1)(a). She cites the case of Beninger v. Beninger, [2007] B.C.J No. 1913. In that case, Justice Bruce found that the father had paid for his child’s swim team or swimming lessons before she, the child, went to university. The father did not want to pay anything further for her swim team or swimming lessons now that she was at university.
[18] In that case, Bruce, J. ordered the father to pay the extraordinary expenses claimed by the mother. I agree with this approach. Therefore, the applicant father will pay for the expenses over and above the base fees. It will be on the basis of the two salaries for each year, and not on the basis of the 80-20 split as stated by the mother.
[19] These s.7(1.1) expenses include travel, accommodation, if some distance from home, and meals. Those are reasonable expenses and should be part of s.7(l.l)(a) special expenses. Respondent shall pay in relation to income of each party.
[20] The parties to their credit have been able to resolve all the issues except for the issues set out in paragraph eight. The parties shall work out the finances based on this judgment. If they are not able to do so, I may be asked to hear further argument.
[21] If the parties are not able to agree on costs, I may be spoken to as well.
MATHESON, J.
Released: July 5, 2013
HAMILTON COURT FILE NO.: FD-1551-08
DATE: 2013-07-05
ONTARIO
SUPERIOR COURT OF JUSTICE
George De Sousa
Applicant
– and –
Lisa Marie Colizza
Respondent
rEASONS FOR JUDGMENT
Matheson, J.
Released: July 5, 2013