COURT FILE AND PARTIES

COURT FILE NO.: F2077/10

DATE: 2014-02-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lisa Ann Marunic (Liberty), Applicant

AND:

Michael Liberty, Respondent

BEFORE: The Honourable Mr. Justice Harper

COUNSEL:
Mr. Richard G. Startek, Counsel for the Applicant

Ms. Kanata Cowan, Counsel for the Respondent

HEARD: January 21, 2014

ENDORSEMENT

Issues

[1] The Respondent, Michael Liberty (Michael) brought a motion to change his separation agreement with Lisa Ann Marunic (Lisa), dated March 6, 2003. He sought a change in the base amount of child support, retroactive to January 1, 2009. At the outset of the argument of the motion, counsel advised that this issue had been settled. After reviewing the parties’ minutes of settlement, I endorsed that an order should go in accordance with the minutes of settlement signed that morning in relation to that issue.

[2] Michael also sought to terminate the provision that requires him to pay the sum of $372 per month as his contribution to child care, and to determine what his contribution to section 7 expenses should be. He does not agree that a number of expenses are proper section 7 expenses. The expenses in dispute are detailed below.

[3] A further outstanding issue relating to support payments made by Michael is what his payment of $4,644 in November of 2011 should be applied to.

[4] The issues relating to the parenting scheme set out in the separation agreement were settled by the parties by the completion of the court day on January 21, 2014. On the morning of January 14, I interviewed the parties’ 14 and 15 year-old children. No evidence had been brought forward at that point with respect to the children’s wishes. With children of these ages, their views are an essential part of the determination of what is in their best interests. The interview was conducted in a board room with only myself and court staff, including the court reporter. After the interview, a transcript of my discussion with the children was given to the parents and counsel. In addition, I gave a summary of my discussions with the children in open court. My summary to the parents is set out below.

[5] I found these children to be very intelligent, respectful, and easy to engage. I informed them that when I making a decision that will impact on children of their age, I feel that it is very important to allow the children the opportunity to meet with me. I get some understanding and a sense of the children, and they at least see who the decision maker is and feel a part of the process. I told them that my only priority is to fashion a decision that is in their best interests. I emphasised that I wanted to fashion something that would allow them to be children and provide them with a better opportunity to wake up in the morning and smile, and be allowed to love both parents and for both parents to be allowed to love and be with them.

[6] Both children represented that they are doing well in school. The younger child plays football for his high school. He enjoys it and wants that activity to continue. The elder child is on a competitive swim team. He swam competitively for a number of years now, but this is his first year with this new program. The new program is more intensive then what he was involved with in previous years. He really likes the swimming and the competition, and wants to continue this activity. It takes up approximately 3 nights per week, with the possibility of increasing to 5 nights. He competes in a number of Ontario cities on the weekends and both parents participate in taking him to his meets, depending on which parent he is residing with at the time.

[7] The children expressed that they want to keep the schedule they have with their parents and build in some flexibility so that if they are with one parent and they want to arrange an event or other activity, their wishes and schedule will be considered.

[8] After relating my summary of the interview with the children to their parents and counsel, I gave the opportunity for them to discuss the possibility of settling the parenting issues. I am pleased that the parents arrived at their own settlement of these parenting issues after considering the children’s input.

Section 7 Expenses

[9] There are a number of expenses which Lisa claims Michael should contribute to pursuant to section 7 of the Child Support Guidelines. Michael does not agree that these expenses are proper expenses pursuant to that section. The disputed expenses relate to:

a. The elder child’s swimming and equipment;

b. The younger child’s football and equipment;

c. A school trip;

d. Certain medical and dental expenses over $100 that were not covered by insurance.

[10] Michael takes the position that except for item “d.” set out above, the expenses for swimming, football, and the school trip should all be considered as part of the base amount of support. In addition, he states that if they are properly the subject matter of an extraordinary expense, he did not consent to the swimming expense and it is not reasonable given the income he earns.

The Law and Analysis

[11] 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.

[12] In Andrews v. Andrews (1999), 1999 3781 (ON CA), 45 O.R. (3rd) 577, the Ontario Court of Appeal succinctly set out the considerations for an expense to properly qualify under section 7 of the Guidelines at paragraph 14. In summary:

(1) the expense must be extraordinary;

(2) the expense must be necessary in relation to the best interest of the children; and

(3) the expense must be reasonable having regard to the means of the parents and their spending patterns for the children during cohabitation.

Consultation and Consent of the Other Parent

[13] There is no requirement that the expense be agreed to in advance of the child being enrolled in the activity. The agreement of these parents that was incorporated into a court order provided for joint custody with shared decision-making on all major issues, such as medical care, education, and religion. In the event there was a disagreement, the parties were to avail themselves of the services of a parenting coordinator or mediator. The agreement is silent as to what is to happen if a parenting coordinator or mediator failed to produce an agreement. The agreement also provided that Lisa shall make the final decisions relative to the day-to-day care of the children. Neither the phrase “major decisi