BRACEBRIDGE COURT FILE NO.: FC-95-113
DATE: 20131028
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.O.H.
Applicant
– and –
L.V.
Respondent
Unrepresented
Jason Herbert, for the Respondent
HEARD: October 18, 2013
McDermot J.
Introduction
[1] This was a motion brought by the Applicant, Mr. D.O.H., “setting ongoing support for R.M.H. and the correct quantum of arrears as ordered by The Honourable Mr. Justice Wood on February 14, 2013.” In effect, it is a motion to change child support payable pursuant to paragraph 6 of the order of Wood J. made on January 9, 2009 and to rescind arrears under that order, which are presently in the amount of approximately $10,000.[^1] By consent order made by me on July 11, 2013, my mandate at this motion was further defined as the issues of:
a. The wording of paragraph 3 of the order of Wood J. dated December 22, 2012;[^2]
b. Ongoing support;
c. Arrears;
d. Special expenses since 2009 as per disclosure ordered in the December 22, 2012 order;
e. Overpayments since 2009 if any.
[2] Much of the argument of the day was spent on procedural issues. Mr. D.O.H. complained that Wood J. had ordered on December 13, 2012 that the Respondent provide disclosure of her claimed s. 7 expenses by January 20, 2012. In fact, it appears that much of that disclosure was not provided by the Respondent, Ms. L.V., as required by that order, and was only provided through her financial statement which was sworn on October 10, 2013 and served on that date. The Applicant objected to that evidence being filed or referred to in the motion.
[3] It does appear that most of the information attached to the Respondent’s financial statement was provided late and that the Respondent breached the order of Wood J. in failing to provide this disclosure on a timely basis. I offered the Applicant an opportunity to draft an affidavit in response that day in court, but that proved to be a fruitless exercise. In the end, I ordered the matter to proceed. The material filed late by the Respondent was disclosure of s. 7 expenses which was evidence available to the Respondent only. The expenses might be the subject matter of argument as to whether the expenses were legitimate s. 7 expenses; there was little that the Applicant could file to indicate that the expenses were not, in fact, incurred. Furthermore, the Applicant was served with the material on October 10 and could have responded well prior to the hearing of the motion on October 18. Finally, this matter has been hanging fire for some time, and it was important, in my view, to resolve it sooner rather than later, as the amounts in issue were minor compared to the grief it was causing to all parties concerned, not the least of whom is, I am sure, the parties’ youngest child, R.M.H..
[4] For the reasons set out below, I have ordered the following:
a. Paragraph 6 of the order of Wood J. dated January 9, 2009 shall be varied to provide that, commencing November 1, 2013, the Applicant will pay the Respondent base guideline child support in the amount of $144 per month for R.M.H., born […], 2003 plus a contribution to R.M.H.’s s. 7 expenses in the amount of $72 per month for a total child support payment of $216 per month.
b. The child support set out above is based upon the following:
i. The Applicant’s income is $16,760.16 per annum;
ii. The Respondent’s income is $46,717.00 per annum;
iii. Base guideline child support for one child is $144 per month;
iv. The Respondent is responsible for 28% of the s. 7 expenses of the child which include the following expenses:
Child’s activities, including skating, swimming, soccer and summer camp: $700 per annum;
Counseling costs of $2,400 per annum.
c. The Respondent shall provide the Applicant with copies of receipts for counseling annually. If the average cost of counseling is more than $300 per month or less than $100 per month, either party may seek leave to bring a motion to change the Applicant’s contribution to that expense. If the Respondent does not provide the receipts upon request, the Applicant may obtain them from the counselor directly.
d. The amount of support payable by the Applicant (not net of the amount actually paid), including s. 7 expenses shall be adjusted by the Director of the Family Responsibility Office to the following amounts for the following years:
i. For 2010, there shall be a credit to Mr. D.O.H. of $116;
ii. For 2011, I fix arrears for that year in the amount of $1,016;
iii. For 2012, the support payable by the Applicant shall be adjusted to $2,011 and the director shall determine the arrears for that year based upon that support amount less the amount actually paid by Mr. D.O.H.; and
iv. For the first ten months of 2013, to October 31, 2013, the support payable by the Applicant shall be adjusted to $2,154 and the director shall determine the arrears for that period of time based upon that support amount less the amount actually paid by Mr. D.O.H..
e. All other terms and conditions of the order of Wood J. dated January 9, 2009 shall remain in full force and effect and nothing in this order shall affect the arrears owing by Mr. D.O.H. as of December 31, 2009.
Background Facts
[5] The order sought to be varied dated January 9, 2009 is a final order; it settled custody and access as well as support to the two children in issue in this proceeding. Those children are A.L.H., who is presently 21 years of age, and R.M.H., who is now 10. A.L.H. was Mr. D.O.H.’s child who was brought into the relationship; R.M.H. is the natural child of the parties. Originally, A.L.H.’s natural mother, N.M. was a party to this litigation; her arrears of child support for A.L.H. were set at zero by order of Wood J. made January 14, 2009 and she was removed as a party to the proceedings by a further order of Wood J. dated December 13, 2012.
[6] My reading of the January 9 order confirms that Mr. D.O.H. and Ms. L.V. considered themselves the parents of A.L.H. as well as R.M.H.. And notwithstanding the fact that A.L.H. was Mr. D.O.H.’s natural child and Ms. L.V.’s stepchild, the January 9 order makes it clear that Ms. L.V. stood in the place of A.L.H.’s mother. That order gave the parties joint custody of A.L.H. and R.M.H. and they were to have their primary residence with Ms. L.V.. The order provided for specified access between R.M.H. and Mr. D.O.H.. It also confirmed that the parties were releasing their property claims respecting one another.
[7] More relevant to this litigation are the provisions of the order respecting child support. They are the provisions in issue in this motion, and read as follows:
6.(1) Commencing on the 1st day of January, 2009, and on the first day of each subsequent month pending further Order of the Court or agreement of the parties, the Applicant D.O.H. will pay to the 3rd Party Orr for the support of the two children, A.L.H. , born […], 1992, and R.M.H., born […], 2003, the total of the following amounts:
(a) $400.00 per month based on the Applicant D.O.H.'s income of $16,700 per year inclusive of section 7 special expenses;
(2) The amounts below are the current Federal Child Support Guidelines, section 7 expenses expended on the children:
ITEM COST OF ITEM
R.M.H.'s skating $270.00/year
R.M.H.'s daycare $300.00/month
R.M.H.'s swimming $13.75/month
R.M.H.'s soccer $90.00/year
A.L.H.'s kickboxing $252.00/year
A.L.H.'s soccer $100.00/year
The parties anticipate that the above list of special or extraordinary expenses under the Guidelines, section 7, will change over time and that the Applicant D.O.H.'s obligation for payment will, accordingly, change. 3rd Party Orr will seek the Applicant D.O.H.'s consent to enrolling the child into an activity that increases the applicable section 7 expenses more than $150 per month if he is expected to contribute more than that.
The Applicant will pay Orr $1,560.00 as final settlement of any and all retroactive child support claims relating to either R.M.H. or A.L.H. within 30 days to the date of this agreement.
All support payments of the Applicant D.O.H. shall be made by direct deposit to Orr's account on or before the fourth day of each month.
The parties agree to withdraw from the FRO program and may vary the quantum of child support by written consent signed by both parties at any time.
12.(1) Child support payments provided may be varied for any of the reasons contemplated in the Federal Child Support Guidelines. The parties agree, pursuant to the Guidelines, section 15(2), that the present income of the parties is as follows:
(a) Applicant D.O.H.'s current income $16,500.00;
(b) 3rd Party Orr's income $42,000.00.
(2) Child support payments will be varied from time to time to reflect changes in the income of either party and the status of any special or extraordinary expenses consented or reasonable under the legislation for the children. The Applicant D.O.H. shall notify and provide the 3rd Party Orr with proof of employment immediately upon securing same, be it salaried or self employment.
(3) To facilitate the calculation of varied child support payments each of the parties will, on or before May 15th of every year, provide the other, at the other’s written request, with the financial information referred to in the Child Support Guidelines, section 21, and also (in the case of the 3rd party Orr) current information about the status of any expenses referred to in Guidelines, paragraph 7 and income.[^3]
[8] In argument, it was acknowledged that the $400 per month payable by the Applicant under paragraph 6 of the order consisted of base guideline support of $243 per month based upon Mr. D.O.H.’s income of $16,500 per annum; the remaining amount constituted his share of the s. 7 expenses for the two children of $157 per month.
[9] Mr. D.O.H. also acknowledges that the arrears set by paragraph 8 of the order have, in large, never been paid.
[10] Mr. D.O.H. stated during argument that when the order was made, things were quite amicable between the parties. If so, that did not last. Firstly, Mr. D.O.H. discovered that A.L.H. had left the Respondent’s care without notification to him; he says that he paid support for a number of months when he should have only paid for one child. Although the parties eventually agreed that A.L.H.’s support would cease as of May 1, 2010,[^4] Mr. D.O.H. says that this does not take into account about five months prior to this time that A.L.H. lived outside of the Respondent’s home and during which Mr. D.O.H. paid support for two children.
[11] As well, Mr. D.O.H. says that he demanded receipts for the s. 7 expenses for the children from Ms. L.V. as early as December of 2009; he provided evidence of e-mails to Ms. L.V. dated March 29 and May 19, 2010 demanding receipts for those expenses. He was particularly concerned about the share of day care expenses that he was paying in light of the fact that R.M.H. started school full time in 2009 and her day care expenses would have obviously dropped. By e-mail dated June 30, 2010, Mr. D.O.H. advised Ms. L.V.’s solicitor at the time, Gregory Evans, that:
Should you advise the current status of the Section 7 expenses, with proof of expenditure, I will provide my proportionate share. I cannot provide my proportionate share while your client fails to advise me of the expenditures.[^5]
[12] Mr. D.O.H. interpreted the order as allowing him to cease paying the s. 7 expenses in the event that receipts were not provided and he stopped paying his share of those expenses after May of 2010. He has not made any contribution towards s. 7 expenses since that date.
[13] He did, however, continue to pay the base support owing for one child after that date, which he calculated to be $131 per month based upon his income at that time which he apparently estimated to be $16,800 per month.[^6]
[14] Mr. D.O.H. continued paying the base support until August, 2011, when he stopped paying as a result of allegations made to the local Children’s Aid Society of abuse suffered by R.M.H. while in his care. Those allegations were made in September, 2010; at that time, Mr. D.O.H.’s access to R.M.H. was suspended. He described the allegations made as being “numerous, varied and completely false complaints”.[^7] He says that he continued to pay base guideline support after that date; however he states that, in a motion for access to R.M.H. brought by him before Olah J. in August, 2011, she confirmed that the January 9, 2009 order continued to be suspended. Relying upon this, Mr. D.O.H. ceased paying base guideline support in August, 2011.
[15] The C.A.S. proceedings were withdrawn by consent order of Wood J. dated December 22, 2011. Once that occurred, and Mr. D.O.H. resumed seeing R.M.H., he resumed payment of base guideline child support in April, 2012.
[16] Mr. D.O.H. also complained that the Respondent unfairly registered the order with the Director of the Family Responsibility Office for enforcement of support. To his chagrin, he discovered some eight days after the withdrawal of the child protection proceedings that the Director was seeking to enforce some $10,000 or so in arrears. Presumably these arrears included the arrears which remained unpaid under paragraph 8 of the January 9, 2009 order. In any event, Mr. D.O.H. complains that he settled the terms of the withdrawal of the protection proceedings and amended the January 9, 2009 order without notice of the fact that Ms. L.V. had previously and surreptitiously filed false claims of support with the F.R.O.[^8]
[17] Mr. D.O.H.’s main complaint was that Ms. L.V. had claimed arrears of support for two children when A.L.H. had long left her care. Apart from this issue, however, Ms. L.V. was left at that time with few options. Mr. D.O.H. had not paid the arrears set by paragraph 8 of the January 9, 2009 order and he arbitrarily ceased paying s. 7 expenses in June, 2010. He also had stopped paying any child support whatsoever in August, 2011. Although I would have expected Ms. L.V. to have honoured the agreement that support would be paid for one child from May, 2010 on,[^9] because of the arbitrary actions of the Applicant in ceasing to pay support on several occasions without justification, and because there was little or no communication between the parties at that time, Ms. L.V. was left with little choice but to register the support obligation with the Director.
[18] As noted above, Mr. D.O.H. stated that, until the dispute over s. 7 expense receipts and the C.A.S. proceedings, the parties had been largely getting along and were amicable. That may be so, but the history of this matter does not seem to indicate that to be the case. Until the January 9 order, these parties had been litigating custody, access, support and property issues since 2005 without respite. That history resulted in a 14B motion brought by the Respondent on notice to declare the Applicant a vexatious litigant;[^10] in the absence of material filed by the Applicant, Wood J. ordered on March 19, 2012 that neither party party may bring a motion for any reason without leave of the court except to fix post-secondary expenses. On December 13, 2012, Wood J. clarified that either party may bring a motion for leave for permission to file a motion for substantive relief. By order of February 14, 2003, and after valiant efforts to settle this matter, Wood J. gave leave to bring this motion to change child support and to fix arrears. There is no issue that this matter is properly before the court for consideration.
Analysis
[19] This is, in effect, a motion to change under s. 37 of the Family Law Act. Under that provision, a party requesting a variation in support is required to prove a change in circumstances within the meaning of the child support guidelines: see s. 37(2.1). That would include “any change in circumstances that would result in a different order for the support of a child or any provision thereof”: see s. 14 of the Child Support Guidelines.[^11] No serious issue was taken by either party that there had not been a change in circumstances since the order was made in 2009. A.L.H. has left the Respondent’s care and has since become independent; moreover, the Respondent’s income has apparently increased since the order was made. Section 7 expenses have changed insofar as R.M.H. has entered school on a full time basis, and is now going to court ordered counselling. Furthermore, the order itself permits variation of the base support along with s. 7 expenses in accordance with the respective incomes of the parties: see s. 12(2) of the January 9, 2009 order. There is no issue taken by either party that this court has jurisdiction to entertain this variation proceeding.
[20] The following issues were raised by the parties in argument of this motion:
a. Should support be reduced in respect of the period of time that A.L.H. was out of the Respondent’s care being September, 2009 to January, 2010[^12] and after August 11, 2011 when Olah J. confirmed the suspension of the January 9, 2009 order?
b. Should income be imputed to Mr. D.O.H. beyond his disability income received from Worker’s Compensation?
c. What is Mr. D.O.H.’s contribution to the special expenses of the child or children if any from 2010, when he ceased to pay his share of expenses, to date?
d. What is Mr. D.O.H.’s ongoing base child support and contribution to the s. 7 expenses of R.M.H.?
[21] I will deal with each of these issues in turn.
(a) Should support be reduced in respect of the period of time that A.L.H. was out of the Respondent’s care being September, 2009 to January, 2010 and after August 11, 2011 when Olah J. confirmed the suspension of the January 9, 2009 order?
[22] It is not denied that A.L.H. was living at her grandmother’s between September, 2009 and January, 2010. It is also undisputed that the Applicant paid support for two children during that period of time. The Applicant submits that he should not be obligated to pay support for that period of time as he was not made aware of the fact that A.L.H. was out of the Respondent’s care, and the Respondent should not receive support for a child who was not then dependent upon her within the meaning of s. 29 of the Family Law Act.
[23] On December 13, 2012, the parties attended at a case conference before Wood J. and arrived at a consent order. Paragraph 3 of that that order provided that support for A.L.H. would cease as of May 1, 2010. It did not appear to address the earlier period of time that A.L.H. was out of the Respondent’s care, which was between four and five months according to the A.L.H.’s affidavit sworn on April 18, 2011. Although Mr. D.O.H. may not have known that A.L.H. had moved out during the relevant period, by the December 13, 2012 case conference, he was certainly aware of this fact.
[24] I agree with Mr. Herbert that the issue of A.L.H.’s support was settled by that consent order. That order deals with the termination date of support for A.L.H. and is on consent. Presumably, had Mr. D.O.H. wished to deal with the earlier period of time, he could have reserved his right to do so.
[25] And it makes perfect sense that support not be eliminated or reduced during this period of time. A child’s temporary absences from the primary residence home do not necessarily result in a reduction or elimination of child support as many of the expenses for that child may very well continue during that time. That parent may have to continue to maintain a household or a room for the child during that period or may supply the child with funds. A.L.H.’s return to the Respondent’s care may have been contemplated as the reasons for her absence were not made clear. Ms. L.V. may have provided some funds to A.L.H.’s grandmother during that time. In any event, it is clear that this was a temporary absence as A.L.H. returned to Ms. L.V.’s care in January, 2010 until May of that year, when she finally left the Respondent’s care.
[26] I do not find that the Applicant’s child support for A.L.H. should be reduced or eliminated for the period of time between September, 2009 and January, 2010, when A.L.H. resided at her grandmother’s home.
[27] Regarding the second period of time, Mr. D.O.H. suggested that he was justified in not paying child support between August and December, 2011 as he was not then seeing R.M.H. and the C.A.S. proceedings suspended support. He notes that R.M.H. may have been in foster care during this time.
[28] It is trite that time sharing and access issues are independent of the obligation to pay child support. Although the access provisions of the order of January 9, 2009 were suspended by the child protection proceedings, that had no bearing on the support provisions of the order. There was no evidence that R.M.H. was ever in foster care or out of the care of the Respondent. As such, the Applicant also had no basis to cease paying support during that period of time.
(b) Should income be imputed to Mr. D.O.H. beyond his disability income received from Worker’s Compensation?
[29] Mr. D.O.H. receives income from Worker’s Compensation. He does not file income tax returns, as the income received from Worker’s Compensation is not taxable income under the Income Tax Act.[^13] His income from this source has never wandered far from the income recited by the January 9, 2009 order of $16,500 per annum.
[30] Mr. Herbert on behalf of the Respondent suggests that income to be inaccurate. He says that there is evidence that the Applicant makes substantially more. He relies upon the following:
a. Mr. D.O.H. is apparently a mechanical engineer. Ms. L.V. has found a website which apparently indicates that Mr. D.O.H. is operating a business known as D.O.H. Project Management which is working on several projects in the Turks and Caicos Islands in the Caribbean.
b. Mr. Herbert has reviewed the bank statements filed with Mr. D.O.H.’s affidavit sworn January 17, 2013. He says that there are unexplained deposits beyond his Worker’s Compensation income and transfers from his spouse. He notes unexplained deposits of $10,016.60 in 2009 and $8,582.51 in 2010. Presumably there were no unexplained deposits in 2011 which is the last year of bank statements provided.
[31] Mr. Herbert suggests that income be attributed to Mr. D.O.H. in at least a minimum wage amount of $21,800 per annum. As noted, he says that the evidence shows that Mr. D.O.H. has other sources of income, and is concealing those sources from the court.
[32] Mr. D.O.H.’s partner, S.G., swore an affidavit on January 18, 2013[^14] stating that the web site was created by her for her own use as a “Designer” and did not reflect an actual business entity. She says that it was solely to provide design capabilities to prospective clients and not to promote any business owned by Mr. D.O.H.. She provides detailed information respecting the web site and her intentions in that regard. Mr. D.O.H. also notes that he is not a member of the Professional Engineer’s Association, and could not presently act as a mechanical engineer.
[33] The Applicant also says that the deposits to his account are deposits from savings. He states that he used his savings, including cash savings, to pay expenses, including the support paid to the Respondent. He did not provide copies of his savings account as disclosure; however, when asked, he stated that these savings were mostly in cash in a safety deposit box, and he does not have any bank account other than as disclosed pursuant to Wood J.’s order.
[34] This is a motion to change argued on affidavit evidence. I am not in a position to make judgments on credibility. Unless the evidence is patently false, I have to take it at face value and accept it at face value.
[35] In my view, Mr. D.O.H. has, in his evidence, provided detailed explanations for the concerns raised by Mr. Herbert. He has shown the purpose of the website in issue; moreover, the website itself as disclosed in the exhibit attached to the Respondent’s affidavit is not the website of an active business if the exhibit is all there was to it. There were explanations of the transfers from savings, and Mr. D.O.H.’s cash savings were confirmed in his financial statement, prepared and filed before the issues were raised, which disclosed cash savings.
[36] I note as well that the fact that Mr. D.O.H. received no unexplained deposits in 2011 is consistent with his contention that he has used up much of his savings and has no access to further resources.
[37] Moreover, what has really changed on that front from when the January 9, 2009 order was negotiated? At that time the parties had litigated the matter extensively, and at that time, Ms. L.V. accepted that Mr. D.O.H.’s income was $16,500 from Worker’s Compensation. If there had been evidence that Mr. D.O.H. had extra income from other sources at that time, it would have been raised and it was not. Ms. L.V.’s acceptance of Mr. D.O.H.’s income at that time is evidence to me that she did not suspect at that time that Mr. D.O.H. had extra income; there is no evidence to show that anything has changed since then.
[38] Finally, in light of Ms. L.V.’s late disclosure, she cannot complain about the quality of Mr. D.O.H.’s disclosure; he appears to have provided everything that he was obliged to provide and on a timely basis.
[39] Accordingly I find that Mr. D.O.H.’s income from Worker’s Compensation is as stated in his materials, in the range of the amount under which support was set in 2009.
[40] I note that Mr. D.O.H.’s calculation of his base guideline amount of support was based upon income from employment in the amount which he says that he made. In fact, Worker’s Compensation income is not subject to income tax; as such, the base guideline amount is slightly higher than as paid by Mr. D.O.H. in order to reflect the fact that Mr. D.O.H. does not pay income tax on that income: see s. 19(1)(b) of the Child Support Guidelines.
(c) What is Mr. D.O.H.’s contribution to the special expenses of the child or children if any from 2010, when he ceased to pay his share of expenses, to date??
[41] Mr. D.O.H. initially argued that he should pay no section 7 expenses whatsoever. I did not understand his argument, but he appeared to have been basing it on misconduct on the part of Ms. L.V.. He noted her late disclosure and her registration of the wrong support amount with the Family Responsibility Office. He noted the fact that the parties have little communication between themselves.
[42] It would have been helpful had Ms. L.V. responded in March, 2010, to Mr. D.O.H.’s request for receipts. He was entitled to request that disclosure and Ms. L.V. only provided the required receipts in October of this year, eight days before the hearing of the motion, an unacceptable delay. That can be only partially explained by events, such as the protection issues, arising in the meantime; there is no excuse for Ms. L.V. ignoring the order of Wood J. made in December, 2012 regarding disclosure of s. 7 expenses to be made by January 20, 2013.
[43] That being said, Mr. D.O.H.’s reaction to that failure to disclose by arbitrarily ceasing to pay the s. 7 expenses was also without justification. As I mentioned to him during argument, had he not received the receipts that he was entitled to, that would have been the time to bring a motion to change and to revise the s. 7 contribution. Had he done so, the issue of A.L.H. would probably have been dealt with then as well. His failure to do so, and to arbitrarily cease making those payments, contributed to this litigation as much as did Ms. L.V.’s failure to provide timely disclosure of the s. 7 receipts.
[44] There is no basis for an order excusing Mr. D.O.H. from paying any s. 7 expenses. Mr. D.O.H. has not provided or proven hardship and the relations between the parties do not remove Mr. D.O.H. from his obligation to contribute to the child’s expenses under s. 7 of the Guidelines.
[45] Notwithstanding the argued position of the Applicant that I review the order from its inception, I am not going to review the order prior January, 2010 as the subject was only broached by Mr. D.O.H. in March, 2010: see D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. Furthermore the order has to have some prospective effect, and to review the support payable back to the date of the order would create a precedent allowing a review of a court order from its inception. In the absence of misrepresentations made at the date of the order, that would be an inappropriate result.
[46] That position seems to have been confirmed by the consent filed on July 11, 2013, which states that I am to consider “special expenses since 2009” which would imply that the 2009 special expenses are not under review today.
[47] I intend to go through the various s. 7 expenses claimed by Ms. L.V. since 2010 only and determine their validity. I will then determine the base and s.7 support amounts for previous years, based upon Mr. D.O.H.’s income from Worker’s Compensation, and based upon the expenses that I have allowed.
Review of Claimed s. 7 Expenses
[48] There are a number of s. 7 expenses claimed by Ms. L.V. in her materials. Some fall within the classifications contained in s. 6 of the final order under review; at least one, R.M.H.’s counselling, is a new expense.
(i) R.M.H.'s Activities
[49] R.M.H.’s activities include skating, soccer and swimming. These would normally not be extraordinary extra-curricular expenses within the meaning of s. 7(1)(f); however the parties agreed that these expenses would be paid for proportionate to the parties’ income in the final order. In light of this, the expenses are allowed.
[50] Mr. D.O.H. states that he should not have to pay those expenses; he states that he was excluded from the activities and should not have to pay.
[51] The activity is for the child and not for the parents. The exclusion of a parent from the activity is not a basis for the activity not to be paid for by both the parents under the Guidelines. Moreover, although Mr. D.O.H. blames Ms. L.V. for the protection proceedings, I am not in a position to make that finding on affidavit evidence only; accordingly, I do not make any finding as to why Mr. D.O.H. was excluded from R.M.H.’s activities, or for that matter, her life, during those protection proceedings.
[52] R.M.H.’s activities continue to be valid s. 7 expenses to be borne proportionately to income by the parties.
(ii) R.M.H.'s Day Care Expenses
[53] R.M.H. is now in school on a full time basis. She no longer attends full time day care, and has not since September, 2009. The original obligation provided that daycare was expected to cost $300 per month; the receipts provided by the Applicant indicate that, from the beginning, daycare cost nowhere near that. The expense appears to have disappeared by March, 2012.
[54] Mr. D.O.H. argues that the receipts are not true receipts. He complained that the income tax returns were not provided to prove that the day care was deducted. He denies his obligation to pay day care.
[55] Mr. Herbert acknowledged on behalf of his client the fact that the day care is deductible. Moreover, the fact that day care is deductible from income will go to the benefit of the Applicant who pays a proportionate share of the after tax costs of day care. Finally, it is obvious that Ms. L.V. works full time and she required day care at least until R.M.H. turned 10 years of age, when she can be left alone before and after school. As such day care is a legitimate s. 7 expense as disclosed by the receipts provided by the Respondent.
[56] I agree with the Respondent that the summer camp is a reasonable day care expense or alternatively an extracurricular expense to be shared under s. 7(1)(f).
(iii) R.M.H.’s Counseling
[57] On February 14, 2013, and on consent of both parties, Wood J. ordered that R.M.H. attend at counselling “with an individual to be recommended by R.M.H.’s doctor.” Leading up to that order, Mr. D.O.H. had complained of the counseling that R.M.H. had previously received, which he blamed for the false disclosures leading up to the protection proceedings. Presumably R.M.H.’s doctor recommended Dr. Carole McMaster’s office in Barrie; R.M.H. has been seeing Dr. McMaster since April of this year, and appears to attend every two weeks at an average cost of between $200 and $250 per month.
[58] Mr. D.O.H. submitted that all of these costs would be paid by the union benefits available to Ms. L.V. who he says is a member of the Ontario Public Service Employees Union (“OPSEU”). Both parties provided unsworn evidence regarding this issue. Mr. D.O.H. provided a benefits guide to OPSEU members which states that members are eligible for up to $1,200 per annum in psychological services, but based upon a maximum contribution of $25 per visit. This means that if R.M.H. had 25 visits to a psychologist in 2013, Ms. L.V. would be reimbursed about $625 (and not the full $1,200 in the benefits booklet).
[59] Ms. L.V. provided correspondence from her insurer. It indicated that the maximum benefit per annum is $350 and that she has exhausted that. Mr. Herbert pointed out that Ms. L.V. and her partner have to bear all of the travel expenses twice per month from Huntsville to Barrie, and that those expenses are not even being taken into account.
[60] Finally, Mr. D.O.H. blamed Ms. L.V. for the need for counseling. He says that there has been alienating behaviour by her necessitating counseling. I am not prepared to find that on the basis of untested affidavit evidence. Both parties blame the other for the state of their daughter’s mental health; it is probable that each parent bears some responsibility. The child needs counselling and both parties should be contributing to that expense pursuant to s. 7(1)(c).
[61] For these reasons, I agree with Mr. Herbert that the counselling costs as proven are a s. 7 expense to be shared proportionately by each parent without deduction.
(iv) A.L.H.’s Kickboxing
[62] As I noted, I am not going to examine expenses incurred prior to January 1, 2010.
[63] There is only one receipt for A.L.H.’s kickboxing for 2010, and the the receipt was not issued to Ms. Mondino but to A.L.H. directly. I am going to assume that to be an accurate statement and that Mr. D.O.H. is correct that A.L.H. paid that cost from her own resources. I find that there are no expenses for A.L.H. chargeable as a s. 7 expense after January 1, 2010.
Calculation of Respective Contributions
[64] The parties’ respective incomes between 2010 and 2012 and their proportionate share of s. 7 expenses are as follows:
| Year | D.O.H. | L.V. | D.O.H.’s Proportionate Share of s. 7 Expenses |
|---|---|---|---|
| 2010 | $16,593.84 | $44,843.00 | 28.7% rounded up to 29% |
| 2011 | $16,676.76 | $51,119.00 | 26.2% rounded down to 26% |
| 2012 | $16,760.16 | $46,717.00 | 28.1% rounded down to 28% |
[65] There are some obstacles to calculating arrears based upon the materials provided by the parties. Both parties are at odds on some of the payments made since 2009; Ms. L.V.’s material indicates that no payments have been made on account of base support since October, 2012; Mr. D.O.H. says in his material that he is making ongoing payments although it unclear as to whether he is paying that today. No statement of arrears has been filed and I do not know what has been paid on account of support since October, 2012.
[66] The parties do seem to be in agreement with the payments made by Mr. D.O.H. for 2010 and 2011. I can accordingly fix the arrears for those years, but I am unable to fix the arrears for 2012 based upon the material filed as I do not know what exactly was paid by Mr. D.O.H.. I am left with adjusting the amount payable for that year retroactively, and allowing the Family Responsibility Office to adjust and determine the arrears payable by the Applicant in 2012.
[67] Accordingly, on a year by year basis, I calculate what should have been paid by the Applicant as follows:
(i) 2010
[68] In 2010, Mr. D.O.H.’s income was $16,593.84. He paid for two children between January and May of that year; after that date, the child support reduces to child support for one child. As such, base child support for two children for that year was $244 per month from January to May, 2010 for a total of $1,220. After that date, base guideline support for R.M.H. was $143 per month for a total of $1,001. Total base child support payable by Mr. D.O.H. for 2010 was accordingly $2,221.
[69] Other than child care expenses, special expenses for that year determined as set out above are as follows:
Skating $320.00
Soccer $100.00
Swimming $381.50
Total $801.50
[70] Twenty-nine per cent of that amount is $232.44 for the year.
[71] Regarding day care, the total costs of child care was $2033.25. I have attached as Schedule ‘A’ a DivorceMate calculation which calculates the Applicant’s share of the after tax costs of the child care. Taking into account the tax consequences, the Applicant’s proportionate monthly payment for child care for 2010 is $29 per month or $348 for the year. Rounding down the other costs, the total amount payable for s. 7 expenses for 2010 was $580 for the year ($232 + $348).
[72] Therefore, including s. 7 expenses, Mr. D.O.H. should have paid a total of $2,801 for child support in 2010.
[73] Mr. D.O.H. paid a total of $2,917 in child support in 2010. He overpaid $116 in support for that year. There should be a credit to Mr. D.O.H. in the amount of $116 for 2010.
(ii) 2011
[74] In 2011, Mr. D.O.H.’s income was $16,676.76. As such, base child support for one child for that year was $144 per month for a total of $1,728.
[75] Other than child care expenses, special expenses for that year determined as set out above are as follows:
Skating $325.00
Soccer $100.00
Swimming $176.00
Total $601.00
[76] Twenty-six per cent of that amount is $156.26 for the year.
[77] Regarding day care, the total costs of child care was $1,013. I have attached as a Schedule ‘B’ a DivorceMate calculation which calculates the Applicant’s share of the after tax costs of the child care. Taking into account the tax consequences, the Applicant’s proportionate monthly payment for child care for 2011 is $15 per month or $180 for the year. Rounding down the other costs, the total amount payable for s. 7 expenses for 2011 was $336 for the year ($156 + $180).
[78] Therefore, including s. 7 expenses, Mr. D.O.H. should have paid a total of $2,064 for child support in 2011.
[79] As Mr. D.O.H. paid a total of $1,048 in child support in 2011. He underpaid $1,016 in support for that year. There are therefore arrears of child support in the amount of $1,016 for 2011.
(iii) 2012
[80] In 2012, Mr. D.O.H.’s income was $16,760.16. As such, base child support for one child for that year was $145 per month for a total of $1,740.
[81] Other than child care expenses, special expenses for that year determined as set out above are as follows:
Skating $325.00
Swimming $385.00
Total $710.00
[82] Twenty-eight per cent of that amount is $198.80 for the year.
[83] Regarding day care, and including the summer camp costs, the total costs of child care was $428.50. I have attached as Schedule ‘C’ a DivorceMate calculation which calculates the Applicant’s share of the after tax costs of the child care. Taking into account the tax consequences, the Applicant’s proportionate monthly payment for child care for 2012 is $6 per month or $72 for the year. Rounding up the other costs, the total amount payable for s. 7 expenses for 2012 was $271 for the year ($199 + $72).
[84] Therefore, including s. 7 expenses, Mr. D.O.H. should have paid a total of $2,011 for child support in 2012.
[85] It is unknown as to what exactly Mr. D.O.H. paid to the Director for support in 2012. Therefore, the director should adjust support payable for that year by Mr. D.O.H. to the amount of $2,011.
(iv) 2013
[86] Using the previous year’s income, base child support for one child for 2013 remains at $144 per month for a total to the date of the motion of $1,440.
[87] There are no child care expenses for 2013, but there are now counseling expenses and a summer camp expense (not treated as child care). The expenses are as follows:
Skating $440.00
Soccer $120.00
Summer Camp $290.00
Counseling $1,700.00
Total $2,550.00
[88] Twenty-eight per cent of that amount is $714.00 for the year.
[89] Therefore, including s. 7 expenses, Mr. D.O.H. should have paid a total of $2,154 for child support for the first ten months in 2013.
[90] It is unknown as to what exactly Mr. D.O.H. paid to the Director for support for the first ten months of 2013. Therefore, the director should adjust support payable by Mr. D.O.H. for that portion of the year, to October 31, 2013, to the amount of $2,154.
(d) What is Mr. D.O.H.’s ongoing base child support and contribution to the s. 7 expenses of R.M.H.?
[91] Based upon Mr. D.O.H.’s 2012 income, Mr. D.O.H. should continue to pay base child support of $144 per month.
[92] Regarding s. 7 expenses, I do not wish the same thing to occur as happened in early 2010. These people are unable to negotiate or mediate a dispute; their only recourse appears to be court and either party requires leave to commence a motion to change. Accordingly, I need to be cautious in fixing Mr. D.O.H.’s ongoing s. 7 expenses.
[93] It appear to me that there are certain ongoing expenses which continue from year to year. These include soccer, swimming and summer camp, which on average from year to year about $700 per year; at a 28% contribution, Mr. D.O.H. would pay $196 per annum, or about $16 per month.
[94] The other ongoing expense appears to be the counseling. It is common ground that R.M.H. requires counseling and will need to continue this in the future. The cost of two sessions per month appears to be about $200 per month; although the counseling to date has cost more than that, this resulted from a one-time assessment charge of $550, which I presume will not be repeated. Mr. D.O.H.’s 28% contribution to the counseling would be $56 per month. Accordingly, Mr. D.O.H.’s total s. 7 contribution, in addition to the support payable by him, would be $72 per month.
Order
[95] There will therefore be a final order to go as follows:
a. Paragraph 6 of the order of Wood J. dated January 9, 2009 shall be varied to provide that, commencing November 1, 2013, the Applicant will pay the Respondent base guideline child support in the amount of $144 per month for R.M.H., born […], 2003 plus a contribution to R.M.H.’s s. 7 expenses in the amount of $72 per month for a total child support payment of $216 per month.
b. The child support set out above is based upon the following:
v. The Applicant’s income is $16,760.16 per annum;
vi. The Respondent’s income is $46,717.00 per annum;
vii. Base guideline child support for one child is $144 per month;
viii. The Respondent is responsible for 28% of the s. 7 expenses of the child which include the following expenses:
Child’s activities, including skating, swimming, soccer and summer camp: $700 per annum;
Counseling costs of $2,400 per annum.
c. The Respondent shall provide the Applicant with copies of receipts for counseling annually. If the average cost of counseling is more than $300 per month or less than $100 per month, either party may seek leave to bring a motion to change the Applicant’s contribution to that expense. If the Respondent does not provide the receipts upon request, the Applicant may obtain them from the counselor directly.
d. The amount of support payable by the Applicant (not net of the amount actually paid), including s. 7 expenses shall be adjusted by the Director of the Family Responsibility Office to the following amounts for the following years:
v. For 2010, there shall be a credit to Mr. D.O.H. of $116;
vi. For 2011, I fix arrears for that year in the amount of $1,016;
vii. For 2012, the support payable by the Applicant shall be adjusted to $2,011 and the director shall determine the arrears for that year based upon that support amount less the amount actually paid by Mr. D.O.H.; and
viii. For the first ten months of 2013, to October 31, 2013, the support payable by the Applicant shall be adjusted to $2,154 and the director shall determine the arrears for that period of time based upon that support amount less the amount actually paid by Mr. D.O.H..
e. All other terms and conditions of the order of Wood J. dated January 9, 2009 shall remain in full force and effect and nothing in this order shall affect the arrears owing by Mr. D.O.H. as of December 31, 2009.
f. Support deduction order to issue.
[96] The parties may make written submissions regarding the costs of this motion with the Applicant making submissions first and then the Respondent on a ten day turnaround. The costs submissions to be no more than five pages in length, not including any offers to settle submitted on the motion and bills of costs.
McDERMOT J.
Released: October 28, 2013
[^1]: I do not know what the exact arrears presently are. Many figures were thrown around, but neither party filed an up-to-date statement of arrears.
[^2]: The order referred to was actually made December 13, 2012. Paragraph 3 of that order ends support for the oldest child, A.L.H., as of May 1, 2010. Mr. D.O.H. seeks to reduce support for that child during a five month period prior to that date and Mr. Herbert argues that issue is res judicata by reason of paragraph 3 of the December 13 order.
[^3]: The reference to “3rd Party Orr” in the order is to the Respondent, Ms. L.V..
[^4]: See paragraph 3 of the order of Wood J. dated December 13, 2012 which was placed in issue by my endorsement of July 11, 2013.
[^5]: See e-mails attached as Exhibit “B” to the affidavit of the Applicant sworn October 10, 2013, found at Tab 2 of Volume V of the Continuing Record.
[^6]: If he had income from employment of $16,800 per year, he is correct that his child support would be $131 per month. Because his income is from Workers Compensation, which is not taxable income, the support is slightly higher as discussed below.
[^7]: Paragraph 4 of the Applicant’s affidavit sworn December 5, 2012, found at Tab 7 of Volume IV of the Continuing Record
[^8]: See paragraph 30 et sequent. of Mr. D.O.H.’s affidavit sworn November 14, 2012 and found at Tab 7 of Volume IV of the Continuing Record
[^9]: See the e-mails between the parties attached as attached as Exhibit “B” to the affidavit of the Applicant sworn October 10, 2013, found at Tab 2 of Volume V of the Continuing Record which confirmed that the parties had agreed that support would cease for A.L.H. as of May, 2010.
[^10]: I note that the Applicant says that the Respondent’s solicitor served this motion when he knew that the Applicant would be absent from his home and that by the time he returned, he could not respond to the motion. See paragraphs 35 and 36 of Mr. D.O.H.’s affidavit sworn November 14, 2012 which can be found at Tab 6 of Volume IV of the Continuing Record.
[^11]: O. Reg. 391/97
[^12]: Mr. D.O.H. stated in argument that A.L.H. was out of the Respondent’s care for six months prior to May, 2010, when the support came to an end. In fact, A.L.H.’s affidavit sworn April 18, 2011 filed as Exhibit D to Mr. D.O.H.’s affidavit sworn July 4, 2013 discloses that she lived at her grandmother’s between September, 2009 and January, 2010, at most a five month period.
[^13]: R.S.C. 1985, c. 1 (5th Supp.)
[^14]: The affidavit states that the deponent is Mr. D.O.H. but it is apparent from its contents that it was sworn by Mr. D.O.H.’s partner.