ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-4360
DATE: 20131025
BETWEEN:
P.K.
Christopher J. Unruh, for the Applicant
Applicant
- and -
W.K.
William S. Mathers, for the Respondent
Respondent
HEARD: October 22, 24, 2013
REASONS FOR JUDGMENT
Conlan J.
Introduction and the Background of the Litigation
[1] What a refreshing case – little venom between the parties, focussed issues for resolution and a short trial.
[2] The parties married in September 1997 and separated in October 2008. They have two children.
[3] In her Application issued in March 2009, the Applicant mother, P.K., sought a divorce; custody of the two children, girl M.K. born on […], 2002 (11 years old) and boy N.K. born on […],, 2005 (7 years old); child support from the father as per the Guidelines including section 7 expenses; spousal support from the father; a restraining order against the father; equalization of assets; and an order that the father take certain action regarding a Royal Bank line of credit.
[4] At trial, the mother advanced claims for a divorce; custody and principal residency of the two children; supervised access to the father; child support as per the Guidelines, arrears commencing April 2010 and ongoing including section 7 expenses; spousal support, arrears commencing on the date of separation and ongoing, at the high range (alternatively, mid-range) and for an indefinite period; and an equalization payment.
[5] In his Answer filed in May 2009, the Respondent father, W.K., sought a divorce; custody of or, alternatively, specified access to the children; and equalization of net family properties.
[6] At trial, the father conceded custody and principal residency of the children in favour of the mother. He seeks supervised access, at his cost subject to reasonableness. He concedes his child support obligation as per the Guidelines. He admits owing child support arrears starting April 2010. He disagrees with some of the section 7 expenses claimed by the mother. The father disputes the spousal support claim. He supports the divorce order. He denies that he owes any equalization payment.
[7] On December 21, 2011, Lemon J. made a Temporary Order that the father pay child support in the amount of $963.00 per month.
[8] On February 15, 2012, Tulloch J. (as His Honour then was) made a Temporary Order, on consent, that the father have specified access to the children, restricted to alternate weekends for short periods of time and in public; that the father pay 75% of section 7 expenses for day care; and that the father pay spousal support in the amount of $1.00 per year.
[9] On November 14, 2012, I made a Temporary Order that the father disclose certain financial documents to the Applicant.
[10] The father’s 2012 gross annual income was $71,499.00 as reported for tax purposes. He earns $26.25 per hour. He is a welder fitter. The mother’s 2012 gross annual income was $21,674.00 as reported for tax purposes. She earns $13.75 per hour. She is a veterinary assistant.
[11] The most recent Net Family Property Statement in the Trial Record that has been completed by either party is that of the mother dated March 2013. It shows an equalization payment from the father to the mother in the amount of $13,769.41.
[12] This speedy trial was held in Owen Sound on October 22 and 24 (final submissions only), 2013. Only two witnesses testified – the parties. I reserved my decision.
The Issues and Analysis
Divorce
[13] On consent, the parties are hereby divorced. It takes effect immediately. So ordered.
Custody and Access
[14] On consent, P.K. shall have sole custody of the two children. The two children shall primarily reside with their mother. So ordered.
[15] On consent, W.K. shall have supervised access with the two children at the access centre in Walkerton and/or the centre in Owen Sound. The cost of the supervised access shall be borne by the father. The schedule of such access shall be agreed to in advance by the parties. The frequency of the access shall be no more than once per week. The access shall be in accordance with the wishes of the two children. So ordered.
[16] The only item in dispute between the parties regarding custody and access is whether the cost of the father’s supervised access ought to be borne by him solely or divided in some manner between the parties.
[17] In my view, it is more reasonable to have the cost borne by the father alone. So ordered, for these reasons.
[18] First, he makes a decent amount more money than the mother. Second, the cost of the supervised access, I am told, is fairly nominal. Third, although the access benefits the children and, thus, indirectly their mother, the access is primarily for the benefit of the father and the rebuilding of his rather estranged relationship with the children.
[19] I am satisfied on balance that the said custody/access arrangement ordered herein is in the best interests of the children.
Child Support
[20] On consent, the father shall pay child support for the two children in the amount of $1,058.00 monthly commencing November 1, 2013 and on the first day of each and every month thereafter. So ordered.
[21] A Support Deduction Order shall issue for enforcement through the Family Responsibility Office (“FRO”).
[22] That monthly award is the Guidelines table amount based on the Respondent father’s 2012 gross annual income as reported for tax purposes - $71,499.00.
[23] On consent, child support arrears payable by the father between April 2010 (when he stopped paying child support) and now shall be fixed at $23,544.24, inclusive of interest.
[24] The mother proposes that the said arrears be paid by the father at the rate of $750.00 to $1,000.00 per month.
[25] In my view, that suggestion is unreasonable. At most, the father’s current income against expenses results in the Respondent having a very modest surplus per month – likely somewhere between nil and $250.00.
[26] The father recommends that he pay off the child support arrears at the rate of $200.00 monthly. That is reasonable, especially given the other financial commitments to be satisfied by the father as directed herein. So ordered.
[27] The child support arrears payments shall be enforced through the FRO. The first payment against arrears shall be made on November 1, 2013 and thereafter on the first day of each and every month.
Section 7 Guidelines Expenses for the Children
[28] This issue was the primary focus of the trial and the closing submissions by counsel.
[29] The mother seeks an Order that the father shall pay $148.00 monthly for the children’s special and extraordinary expenses commencing November 1, 2013, plus $12,938.71 in arrears dating back to 2009.
[30] The quantum of $148.00 per month is based on the father’s proportionate share of the total 2012 expenses paid by the Applicant for the children and outlined in the charts contained as part of Exhibit 1, tendered by the mother.
[31] The father makes two main submissions in response to the relief sought by the mother. First, some of the expenses claimed are not proper section 7 items – chiropractic care, the boy’s hockey and school food contracts for things like milk and/or pizza. Second, the share of the expenses sought to be borne by the Respondent (75%) is too high and based on erroneous income figures for the mother which do not include child support payments or tax benefits received by her. It is submitted that, between 2009 and 2012, the actual share payable by the father should be between 60 and 65 per cent.
[32] I have reviewed all of the jurisprudence provided by counsel.
[33] The threshold test specified for special and extraordinary expenses in the wording of subsection 7(1) of the Guidelines requires that I examine the necessity and reasonableness of the expense in question.
[34] Necessity is determined in accordance with the best interests of the child.
[35] Reasonableness is examined having regard to the means of the parents, the child (not relevant here) and the family’s spending pattern before separation.
[36] Put bluntly, with regard to the latter, do not sign your daughter up for private pony lessons two weeks after separation if even the thought of a pony coming near your child three weeks before gave you a headache. At least do not do so under the assumption that your ex-partner will be paying part of the freight.
[37] Applying these principles to the case before me, I find that the chiropractic expenses for the children have not been and are not in the future reasonably necessary. I accept that chiropractic care may have been helpful to the children for a short period of time after the motor vehicle accidents, however, beyond that I have no medical evidence to cause me to conclude, on balance, that the children have reasonably needed the treatment in their best interests.
[38] As such, the father shall not be responsible to pay anything towards the chiropractic expenses claimed by the Applicant, arrears or ongoing.
[39] I find that the boy’s hockey is reasonably necessary. I accept the evidence of the Applicant that it has provided a tangible benefit for N.K.’s socialization and maturity.
[40] The costs of the hockey are growing exponentially because the boy is now goalie and plays on a competitive team. Good for him. Perhaps we have the next Ken Dryden in our midst.
[41] N.K. did not play hockey before the separation (he was too young).
[42] Given the family’s spending patterns before separation (which I know very little about) and the parties’ finances currently, I am capping the father’s liability to pay towards his son’s hockey at $1,500.00 per year total from both parties. The Applicant will have to cover anything above that amount herself. The annual cost currently is around $1,300.00 or so, however, that will likely increase with more travel for hockey in the months and years to come.
[43] The father shall be responsible to pay his proportionate share of expenses associated with N.K.’s hockey, capped at a total of $1,500.00 annually from both parents. That applies to arrears and on a go forward basis. So ordered.
[44] Regarding the school food contracts for both children, I find those expenses to be reasonably necessary and affordable. Children in school deserve to have some fringe benefits, just like their friends. Milk is healthy. Pizza and the odd snack help the children fraternize with one another and “fit in”. Can these children go without? Yes, however, we are not talking about a king’s ransom in any event.
[45] The father shall be responsible to pay his proportionate share of expenses associated with the children’s school food contracts. That applies to arrears and on a go forward basis. So ordered.
[46] There is no dispute about the other section 7 items claimed by the Applicant; the father shall be responsible to pay his proportionate share of those other expenses. That applies to arrears and on a go forward basis. So ordered.
[47] The remaining issue to be decided is what percentage should represent the father’s proportionate share of the special and extraordinary expenses.
[48] I disagree with the father’s position that child support paid to the mother ought to be included in her income for purposes of calculating the respective shares of each parent. That is contrary to the plain wording of section 3.1 of Schedule III of the Guidelines.
[49] I agree with the father, however, that tax benefits received by the mother ought to be included in her income. In closing submissions, counsel for the mother conceded that point.
[50] Counsel shall recalculate the annual income figures for the Applicant from 2009 to 2012, inclusive, taking in to account all tax benefits received by the mother.
[51] The income figures for the father shall be those outlined by Mr. Mathers in his closing submissions: $69,708.00 in 2009, $60,082.00 in 2010, $67,461 in 2011 and 71,499.00 in 2012.
[52] Counsel can then calculate the proportionate shares owed by each parent. If counsel cannot agree on the calculation, I may be spoken to.
[53] For 2013, the income figures for each parent shall be the same as they were in 2012. There is no reliable evidence to conclude that the respective incomes will be materially different this year for either party.
[54] Going forward, commencing in 2014, the income figures shall be the line 150 amounts reported for tax purposes the prior year, subject to the parties agreeing otherwise and subject to the direction outlined above regarding tax benefits received by the mother.
[55] I Order that each parent shall pay his/her proportionate share of the allowable special and extraordinary expenses for the two children.
[56] I decline to accede to the Applicant’s request that the father pay a specific monthly amount commencing November 1, 2013. That is not practical for young children whose expenses can vary significantly month to month.
[57] Rather, the mother shall present to the father something in writing to prove the expense, such as a receipt, bill, account or even an official letter from a sports team or school, for example. Immediately upon receipt of that documentation, provided that the expense is one allowed herein or something else mutually agreed upon by the parties in advance, with neither one of them unreasonably withholding such approval, the father shall pay to the Applicant his proportionate share of the expense.
[58] With regards to the section 7 arrears, the amount in question depends upon the calculations of counsel in accordance with these Reasons. Again, if counsel disagree on the figure, I may be spoken to.
[59] Once the amount of section 7 arrears is determined, then my Order is that the father shall pay that amount at the rate of $200.00 per month. The section 7 arrears payments shall be enforced through the FRO. The first payment against section 7 arrears shall be made on November 1, 2013 and thereafter on the first day of each and every month. So ordered.
Life Insurance
[60] The Applicant seeks an Order that the father maintain life insurance to secure child support.
[61] That relief is opposed by the father.
[62] I decline to grant that relief.
[63] First, it was not pleaded by the Applicant. Parties ought to generally be held strictly to their pleadings. This is not trial by ambush.
[64] Second, with the other financial obligations of the father including those ordered herein, I am not satisfied that the relief sought is reasonable. He simply cannot afford it.
Medical, Health and Dental Coverage
[65] On consent, the father shall, for so long as he is obliged to pay child support and has coverage through his employer, maintain medical, extended health and dental benefits coverage for the two children.
[66] The father shall promptly submit to the insurer any and all receipts given to him by the mother. Upon his receipt of payments from the insurer, the father shall promptly deliver those payments to the Applicant and, if necessary, endorse the cheques to her.
Spousal Support
[67] The father opposes the mother’s claim for spousal support - $188.00 monthly commencing November 1, 2013 plus $5,283.44 in arrears from the date of separation.
[68] I agree with the father’s position on this issue.
[69] The current law of spousal support in Canada offers a fairly expansive basis for entitlement. Generally, if there is a significant income disparity between the parties after separation, there will be an entitlement to some spousal support.
[70] The decision of the Supreme Court of Canada in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, created a broad basis for compensatory claims for spousal support based on economic disadvantage from the marriage or the conferral of an economic advantage on the other spouse.
[71] In Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, the need basis for spousal support was outlined by the Supreme Court of Canada. A spouse may advance a non-compensatory claim based on need or hardship created by the loss of the marital standard of living.
[72] “Indefinite” spousal support does not mean permanent spousal support. It simply means that the order is without a time limit at the time that it is made. Indefinite support orders remain open to variation as the circumstances of the parties change, and the orders may have review conditions attached to them. In other words, indefinite spousal support means support that is subject to the normal process of variation and review.
[73] Indefinite spousal support orders are more common in long marriages (twenty years or more).
[74] A strong compensatory claim generally favours a spousal support award at the higher end of the ranges regarding both duration and quantum. Similarly, a strong compelling need on behalf of the recipient will generally result in a spousal support award that is longer and higher in amount. There are other factors that affect duration and quantum, and some of these considerations are specified in the legislation.
[75] In this case, although there is an income disparity between the parties and has been since separation, there is nil evidence to support the Applicant’s entitlement to spousal support on a compensatory basis.
[76] The mother was employed and working significant hours throughout the entire relationship, except for two years total of maternity leave. She was the primary but not exclusive caregiver for the children. I can find nothing in the evidence of either party at trial to support a conclusion, on balance, that the mother suffered any economic disadvantage from the marriage. Nor can I find anything in the evidence at trial to support a finding that the Applicant conferred an economic advantage or benefit to the Respondent.
[77] Regarding need, this is not a situation where the mother is in considerable financial hardship, and her situation will only improve after what is ordered herein begins to take effect.
[78] The Applicant’s total annual expenses appear to slightly exceed her income, including child support. The Respondent’s total annual expenses come very close to equalling his income. Neither party suggests that the other has unreasonable expenses or is underemployed.
[79] There is no evidence before me that P.K. is any worse off now, financially, than she was before the separation. I cannot conclude in these circumstances that the Applicant has a need or hardship arising from the loss of the marital standard of living.
[80] The mother has failed to establish her entitlement to spousal support on a balance of probabilities. Claim dismissed.
Property
[81] On consent, the mother’s alternative position is accepted by the Court.
[82] Rather than order an equalization payment from the father to the mother in the amount of roughly $13.5 thousand (as principally suggested by the Applicant) or a very modest payment from the mother to the Respondent (on the father’s calculations), it makes much more sense to have the father be solely responsible for the $28,000.00, approximately, current balance on the joint Royal Bank of Canada line of credit.
[83] That is my Order. The father shall fully indemnify and save harmless the Applicant from any and all liability associated with that line of credit. He shall make all of the payments against it. He shall cooperate with any efforts made by the mother to have her name removed from the account.
Conclusion
[84] Final Order to go as per these Reasons for Judgment.
[85] It seems to me that success has been at least somewhat divided in this case. Counsel should consider that in talking to each other about costs.
[86] If the parties are unable to settle the issue of costs, they may contact the Trial Coordinator in Owen Sound to schedule a further Court attendance of thirty minutes in length to hear submissions and consider filings in that regard.
[87] I shall consider the matter of costs resolved between the parties if the Trial Coordinator is not contacted within two weeks of the release of these Reasons for Judgment.
[88] This trial was well conducted by both counsel. I am grateful for their assistance including their helpful closing submissions and the case law filed.
[89] I wish the parties the very best moving forward. I hope that the Respondent father re-establishes a relationship with the two children.
[90] I will look for N.K. between the pipes on the ice. And I hope that M.K. enjoys her figure skating, dance and guitar.
Conlan J.
Released: October 25, 2013
COURT FILE NO.: 09-4360
DATE: 20131025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
P.K.
Applicant
- and -
W.K.
Respondent
REASONS FOR JUDGMENT
Conlan J.
Released: October 25, 2013