COURT FILE AND PARTIES
COURT FILE NO.: D-19,341/11
DATE: 2013-11-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHANON KATHERINE ABIGAIL MACNEIL
Applicant
– and –
CLINT ANTHONY JUDE MACNEIL
Respondent
Réjean Parisé, for the Applicant.
Nicola Munro, for the Respondent
HEARD: October 15, 16, 23, 24, 25, 2013
gauthier, j.
REASONS FOR DECISION
[1] On November 6, 2013, I released my Reasons on the issues of custody, access, and child support. I indicated at that time that the issue of Section 7 expenses under the Federal Child Support Guidelines (the “Guidelines”) would be dealt with in a separate Ruling to follow.
[2] The following is that Ruling.
Section 7 – Federal Child Support Guidelines:
A – Day Care Expenses:
[3] Section 7 of the Guidelines sets out that a child support order may provide for an amount to cover child care expenses incurred as a result of the custodial parent’s employment.
[4] Although the Husband acknowledged that day care costs are a proper section 7 expense, he offered two reasons why he should not have to pay those expenses on a retroactive basis.
[5] Firstly, he indicated through counsel that, despite requests for invoices or receipts for the day care, he never was provided with that documentation.
[6] Secondly, he says that, he did not view the children as requiring day care during the school year, as he was available to pick them up after their school day.
[7] The Husband’s second argument overlooks the fact that the children were in the de facto care of the Wife since the separation, and that a temporary order confirming this was made in September, 2011. Because of her employment, day care was required both before and after school. Therefore, except for the weeks in the summer when the children were in his care, the day care expense was a proper section 7 expense.
[8] Having said that, the Husband should have been provided with receipts or other documentation in connection with the day care expenses being borne by the Wife. He wasn’t. Notwithstanding this fact, the Husband knew day care expenses were being incurred, and he had some idea of the cost, having paid his share for the months of July and August, 2011.
[9] Mr. Parise’s document entitled “Child Support Adjustment” sets out the following to show the retroactive day care expense claim being advanced against the Husband, and based on a 60% proportionate share:
December, 2010 $124.94
January to March, 2011 $374.82
April to June, 2011 $396.30
September to December, 2011 $528.40
January to March, 2012 $396.30
April to June, 2012 $524.25
(N.B. 3 months at $234.24 is $702.72. 60% of that is $421.63)
Total Claimed: $2,354.01
[10] The only documentary information provided regarding the above consists of two letters from the Children Services Representative of the City of Greater Sudbury advising the Wife of the cost of day care: one dated May 6, 2011, indicating the cost to be $220.17 per month, effective May 1, 2011, and, one dated February 17, 2012, to the effect that the cost will be $234.24, effective April 1, 2012.
[11] There is no documentary information for December, 2010, or for January, 2011 to May, 2011. That being so, the only amount for which a claim for retroactive payment of day care expenses can be made is the amount of $1,610.53, broken down as follows:
May and June, 2011 $264.20
September to December, 2011 $528.40
January to March, 2012 $396.30
April to June, 2012 $421.63
[12] The documentary information was provided to the Husband and to the Court at the beginning of the trial. The claim for day care expenses was not advanced until trial (although claimed in the Application).
[13] In the circumstances, it would be unfair to call upon the Husband to pay the full amount of the proven day care expenses in the amount of $1,610.53. He will be ordered to pay one half of that amount, that is $805.26.
[14] In addition, the Wife is claiming retroactive day care expenses for the school year, from September, 2012, to June, 2013, and for September, October and November 2013: 60% of $234.24 for 13 months being $1,827.07.
[15] Once again, I am of the view that it would be unfair to order such amount to be paid by the Husband when no documentary information about the expense was provided to him prior to trial. It would be fair for the Husband to pay one half of that amount, and I will so order.
[16] The Husband will also pay his proportionate share of the day care costs incurred by the Wife, effective December 1, 2013, that share being 60%. The Wife will provide documentary confirmation to the Husband of any change in the day care rate.
[17] The Husband and the Wife will each be responsible for the payment to the daycare provider of the total cost for the weeks during which the children are in the care of each of them, for the summer vacation period.
[18] I turn now to the issue of extraordinary expenses for extracurricular activities.
[19] The Wife is looking to the Husband to pay his proportionate share of the following expenses:
(a) Semi private swimming classes for all three children, for September and October, 2013: $420
(b) Kayleigh’s Registration fees for Dance: $160.40
(c) Monthly fee for Kayleigh’s Dance: $90
(d) Clothing and shoes for Kayleigh’s Dance: $219.56
[20] Receipts for the above expenditures were given to the Husband on September 5, 2013, by way of email. The total cost of the above, for the duration of the school year is $1,578.56. The Husband’s share would be $947.14.
[21] There is no dispute that the above activities are “extracurricular”. The Husband takes no issue with the children being involved in such activities. In fact, he indicated during his testimony that he is prepared to assist in defraying the cost of such activities, provided that they are proper “extraordinary” expenses.
[22] As enunciated recently by O’Connell J. in Terry v. Moyo, [2013] O.J. No. 3188, 2013 ONCJ 364, the decision to award s. 7 expenses is a discretionary one.
- An order for contribution to special and extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and amount: Julien Payne and Marilyn Payne, Child Support Guidelines in Canada, 2009, Irwin Law (Toronto), p.227, 231.
Relevant Legislation:
[23] S.7 of the Federal Child Support Guidelines defines what are “extraordinary expenses for extracurricular activities”:
- (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(f) extraordinary expenses for extracurricular activities.
Definition of “extraordinary expenses”
(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the 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 paragraph (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 spouse requesting the amount, including the amount that the 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 or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
[24] While the Wife may have to budget in order to cover the above expenses, I cannot conclude that the expenses in question “exceed those that the parent or spouse …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…”
[25] The Wife earns more than $62,000 from her employment and will be receiving in excess of $1,750 per month in child support. In this circumstance, the expenses for the extracurricular activities are not “extraordinary” as defined in s. 7 (1.1)(a).
[26] According to s. 7 (1.1)(b), that does not end the inquiry.
[27] The test for awarding s. 7 extraordinary expenses was recently described by the Ontario Court of Appeal in Titova v. Titova, 2012 ONCA 864, [2012]O.J. No. 5808 [Titova], as follows:
In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”.
[28] In applying the above six part test to the case before me, I find that the parties’ incomes are $62,314 and $94,976, respectively. At the time of separation, they would have had a combined income in excess of $100,000. This was not a family of modest means. In the circumstances of this particular family, the expenses would have been reasonably subsumed in normal expenses.
[29] The concept of “necessity” in terms of the best interests of the children has been broadly interpreted. In Easton v. McAvoy, 2005 ONCJ 319, [2005] O.J. No. 5479, Renaud J. permitted expenses relating to hockey, soccer, swimming and gymnastics and said this, at paragraph 42, in the context of the concept of “necessity”:
…the participation of children in physical activities is not a luxury. This develops bodies and minds, introduces them to healthy activities and lifestyles and instils a sense of challenge, self-confidence and accomplishment that comes with such participation.
[30] Given the Husband’s concession that the activities are appropriate and beneficial to the children, I need not determine whether they are necessary “in relation to the children’s best interests”.
[31] The real issue is whether the expenses are “extraordinary.”
[32] The question of how to determine whether expenses are “extraordinary” was specifically addressed at paragraph 28 of Titova, based on a British Columbia Court of Appeal decision from 1998:
It also does not appear that the trial judge turned her mind to the question of whether the expense for items such as school books and school registration qualified as “extraordinary”. As set out in McLaughlin v. McLaughlin (1998), 1998 5558 (BC CA), 167 D.L.R. (4th) 39 (B.C.C.A.) at para. 64, the use of the word “extraordinary” in s. 7 implies that ordinary expenses are intended to be covered by the basic table amounts.
[33] This interpretation of “extraordinary” is consistent with the Ontario Court of Appeal decision in Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), [2003] O.J. No. 1733, 64 O.R. (3d) 496, where s. 7 expenses were described as “special or extraordinary expenses that are determined to be additional costs of raising a child that are not incorporated in the table amounts” [emphasis added] (para 13).
[34] “Extraordinary” expenses were described as “unusual”, or “disproportionate” by the Manitoba Court of Appeal in Andries v. Andries, 1998 14093 (MB CA), [1998] M.J. No. 196, 159 D.L.R. (4th) 665:
An expense for an extra-curricular activity is extraordinary only where it is disproportionate to the usual costs associated with that particular activity. The income of the parties is irrelevant in determining whether an expense is extraordinary. It is only if the expense is otherwise found to be extraordinary, in the sense of being unusual or exceptional according to an objective standard, that one looks to the incomes of the parties to determine whether the expense is reasonable and in accord with the spending patterns of the parties prior to the separation.
[35] I have come to the conclusion that the expenses in question are not exceptional or unusual expenses, nor are they disproportionate to the parties’ income. They are ordinary, common, and unexceptional expenses which would have been reasonably included in the family’s normal expenses. Accordingly, they are expenses which are intended to be covered by the basic table amount of child support. I decline to order an “Add-On” to the Husband’s child support obligation.
[36] Order:
- In addition to the table amount child support ordered to be paid by the Husband to the Wife for the three children, the Husband shall pay the following s.7(1)(a) expenses:
(a) The sum of $805.26, being one half of his proportionate share of the day care expenses incurred by the Wife for the period from May, 2011, to June, 2012;
(b) The sum of $913.54, being one half of his proportionate share of the day care expenses incurred by the Wife for the period from September, 2012 to June, 2013, and, from September to November, 2013;
Effective December 1, 2013, the Husband shall pay to the Wife, in addition to the table amount of child support, the sum of $153.14 per month, being the Husband’s 60% share of the total monthly day care expense of $255.24;
The Wife will provide documentary confirmation to the Husband of any change in the day care rate, within 10 days of being advised of such change;
The Husband and the Wife will each be responsible for the payment to the day care provider of the cost of same for the weeks during which the children are in the care of each of them, for the summer school vacation period.
The Wife’s claim for an Order pursuant to s.7(1)(f) of the Federal Child Support Guidelines is dismissed.
The Claim for Equalization of the parties’ net family property was adjourned by me on October 25, 2013. A date for the trial of that issue, before me, will be set by the Trial Coordinator, at the request of counsel.
If the parties are unable to agree on costs, they are to communicate with the Trial Coordinator, within twenty (20) days of the date of this Order, to set a date and time to argue costs, failing which, neither party will be awarded costs.
Madam Justice L. L. Gauthier
Released: November 14, 2013
COURT FILE AND PARTIES
COURT FILE NO.: D-19,341/11
DATE: 20131114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHANON KATHERINE ABIGAIL MACNEIL
Applicant
– and –
CLINT ANTHONY JUDE MACNEIL
Respondent
REASONS FOR JUDGMENT
SECTION 7 – Federal Child Support Guideline expenses
GAUTHIER, J.
Released: November 14, 2013