Dagg v. Chenier, 2015 ONSC 3049

COURT FILE NO.: A11,072/06

DATE: 2015-05-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Constance Dagg

Applicant

– and –

Gilles Chenier

Respondent

Josée Paquette, for the applicant

Gilles Chenier, acting in person

HEARD: April 30, 2015

REASONS FOR JUDGMENT

GAUTHIER, J.

Overview

[1] On April 30, 2015, I heard argument on a number of motions to change final orders brought by the respondent Gilles Chenier (“Chenier”) and responded to by the applicant Constance Dagg (“Dagg”). The issues to be dealt with were the following:

a. Custody of Benjamin

i. There was a temporary order for joint custody of Benjamin made, on consent, on July 8, 2013. Chenier requested that the temporary order be made final.

ii. Dagg did not oppose that request. Accordingly, I will order that paragraph 1 of the temporary order of July 8, 2013, be made final, such that the parties shall have joint custody of the child Benjamin Dagg Chenier, born March 27, 2000.

b. Passports and Travel

i. I dealt with the matter of the application for passports and the need for authorization for travel, in my endorsement of May 1, 2015. There remained the issue care and control over the passports.

ii. Chenier had requested that he be the custodian of the children’s passports, when obtained.

iii. Dagg responded by suggesting that her father, Brian Dagg, be the custodian of the passports. Chenier agreed to this suggestion. Brian Dagg was in the courtroom and indicated his agreement with this proposal. I will be making an order accordingly.

c. Summer Schedule

i. Chenier sought to amend paragraph 9 of the final order of July 8, 2013, to avoid the situation where Dagg ends up having two consecutive weeks with the children at the end of the summer.

ii. Dagg opposed any change to the existing order.

d. Parenting Arrangement for Hannah

i. There is a joint custody order for Hannah. The order provides for Hannah to have her primary residence with Dagg and specified visits with Chenier.

ii. Chenier sought to vary that order to provide that (i) Hannah, like her two siblings, spend alternating weeks with each parent, and (ii) that Chenier be afforded the first opportunity to care for Hannah if she is going to be cared for by any person other than Dagg on an overnight basis, during the time that Hannah is supposed to be in Dagg’s care.

iii. Dagg opposed any change to the existing and court-ordered parenting arrangement for Hannah.

e. Section 7 Expenses

i. Chenier sought to amend paragraph 19 of the final order of July 8, 2013, to extinguish his obligation to pay for certain expenses he suggests are not proper s.7 expenses such as school trips and cell phone bills.

f. Adjustment of Child Support

i. Chenier sought to amend paragraph 1 of the order of March 19, 2014, to reduce the child support he was to pay, that is $800 per month, to reflect his reduced income, from February 1, 2014.

ii. Chenier sought to extinguish any arrears accumulated up to January 31, 2014, and he claimed being entitled to an overpayment of child support.

iii. Chenier further sought an order that Dagg pay child support to him based on a joint and shared arrangement with regard to the three children, including Hannah.

iv. Chenier further sought to vary the order to provide that the parties share the s. 7 expenses on a proportionate basis, calculated on their respective incomes, effective February 1, 2014.

v. Dagg did not agree that the school trips and cell phone bills should be excepted from the s. 7 obligation, but does not oppose a variation of the order to provide for a sharing of the expenses as proposed by Chenier, effective August 1, 2014.

vi. Dagg requested that the court to take into account however that she has had to incur the sum of $2,700 for orthodontic treatments for Benjamin, as of September, 2014, without contribution from Chenier.

[2] This case has a lengthy and tortuous history.

[3] The parties resided in a common law relationship from February 1, 1996, until May 8, 1999, at which time they were married. They have three children from their union, Gillian Dagg Chenier, born on March 1, 1997, Benjamin Dagg Chenier, born on March 27, 2000, and Hannah Dagg Chenier, born on June 26, 2003.

[4] Dagg and Chenier separated in or about June 2005. They were divorced in March of 2011.

[5] The original application was issued in September 2006. A final order was made on July 25, 2007. It provided for, among other things, custody, child and spousal support, payment of s. 7 expenses, exchange of income information, extended health care coverage and responsibility for joint debts.

[6] Chenier brought a motion to change the final order in February 2009.

[7] On July 8, 2013, two orders were made, in accordance with minutes of settlement executed by the parties.

[8] Dagg and Chenier were to have shared and joint custody of Gillian, joint custody of Hannah, on a final basis, and joint custody of Benjamin, on a temporary basis.

[9] The orders set out the parenting arrangement for all three children on a year-round basis, and provided for Chenier to be responsible for all s. 7 expenses for the children.

[10] Chenier’s pleadings were ultimately struck by order made on November 7, 2013. The matter proceeded as an uncontested trial on January 13 and 14, 2014.

[11] On March 19, 2014, Cornell J. made a final order which addressed child support, retroactive child support, and s. 7 arrears.

[12] On March 27, 2014, Chenier was granted leave to bring a motion to change the final order of July 8, 2013, dealing with the parenting arrangements for Hannah.

[13] Chenier brought four additional motions to change a final order between August 22, 2014, and September 29, 2014, seeking to address a myriad of issues, including termination of spousal support, repayment of subsidies, benefits, income tax deductions or credits.

[14] On January 14, 2015, only the following issues were identified as requiring adjudication: (a) the parenting plan for Hannah, (b) variation of the child support payable by Chenier, (c) custody of Benjamin, (d) s. 7 expenses, and (arrears and/or overpayments).

[15] On that same date, I ordered that Chenier pay the sum of $27 per month in child support. This was a straight set off amount: Chenier would be paying $803 per month, for three children, based on income of $43,355; Dagg would be paying $776 per month, for two children, based on income of $52,250.

[16] As indicated earlier, Chenier brought yet another motion, returnable on February 5, 2015, for, among other things, a stay of enforcement and disclosure. That motion was dismissed and costs were awarded.

Issues

[17] A Passport and Travel

a. As indicated earlier in these Reasons, I have already dealt with the issues of passport application and authorization for travel. Nonetheless, what follows are my reasons for the order made on May 1, 2015.

b. On April 30, 2015, at the hearing of the motion, Chenier produced partially completed passport applications, requesting that Dagg sign same. There was a discrepancy between the address shown on the application and that shown on the supporting documentation. Such discrepancy would likely delay the issuing of new passports. Dagg therefore did not sign the applications.

c. The provisions of paragraph 17 of the July 8, 2013, order, which was a consent order, are clear and unambiguous. Chenier simply refused to comply with its terms, and for a considerable period of time.

d. In those circumstances, it is appropriate to grant the relief sought by Dagg with regard to those matters.

e. I will further order that once Dagg has received the passports, she will hand them over to Brian Dagg who shall be the caretaker of those documents. He will hand them over to each parent upon the request of the parent, and upon each parent providing written details of the planned excursion out of the country.

Summer Schedule

[18] Paragraph 9 of the final order of July 8, 2013 provides as follows:

All three children shall spend alternating weeks with each parent for the summer holidays to commence the first Monday after the last day of the school year end at 6:00 p.m. and go until the Monday of the Labour Day weekend at 6:00 p.m. The children shall spend from the Monday of the September Labour Day weekend to the first Monday after the first day of school with their mother.

[19] Chenier wishes to change this arrangement as it occasionally results in Dagg having the children in her care for two consecutive weeks at the end of the summer.

[20] The only explanation or justification put forward for the requested variation is that each parent should have the same amount of time with the children.

[21] There is no evidence about how the children’s best interests would be served by such request, or whether their best interests require such adjustment to the existing schedule.

[22] The parenting schedule for the summer months was determined on the consent of the parties, with the assistance of Ontario Children’s Lawyer counsel. Accordingly, I am not prepared to vary the order simply to ensure that there is a precise and exact equal sharing of the time.

[23] The provisions of an order are presumed to be appropriate and correct, and they should not be varied without good and sufficient reason. Such is lacking in this case. Chenier’s request for this relief is denied.

Parenting arrangement for Hannah

[24] The order of July 8, 2013 provides as follows:

2. The parents shall have joint custody of Hannah Dagg Chenier born June 26, 2003.

3. The child Hannah shall maintain her primary residence with the mother and shall have generous access with her father from Wednesday after school to Monday morning at school every second week. If there is no school on the Monday, the access continues until Tuesday morning at school.

[25] Chenier requests that paragraph 3 above be varied to provide that Hannah spend alternating weeks with each parent, like her two siblings. Chenier says that Hannah wants this change to the arrangement. Although O.C.L. counsel was involved previously, she was not involved in the current proceeding. The only evidence of Hannah’s wishes is Chenier’s advice to the Court.

[26] Hannah will be 12 years of age in June. She suffers from diabetes.

[27] According to Dagg’s evidence, Hannah is quite content with the existing arrangement, and has not voiced any desire to change it. Dagg has always been this child’s primary caregiver. She submits that Hannah’s best interests would not be served by changing the current arrangement.

[28] Again, other than the request to have all three children on the same schedule, there is no evidence that such change would benefit Hannah, or that her best interests require such a change.

[29] The arrangement for Hannah, just like the arrangement for the other two children, was arrived at with the assistance of O.C.L. counsel and consented to by both parents. There is no compelling reason to vary it. Chenier’s request for same is denied.

[30] Chenier conceded that the actual time that Hannah spends in his care is less than 40%. That being the case, there need not be any adjustment to the calculation of the child support based on joint and shared custody.

[31] I turn now to Chenier’s request that he be afforded the first opportunity to care for Hannah if Dagg is unavailable to do so, overnight, during the time Hannah is in her care. Chenier suggests that such “first opportunity” order be mutual.

[32] Dagg responds by saying that she would prefer that Hannah spend such overnight with Dagg’s father, Brian, and his spouse, with whom Hannah is very close. Brian Dagg and his spouse spend the winter in Florida, but are back home on Manitoulin Island for the summer months.

[33] Chenier agrees to relinquish the “first opportunity” to Brian Dagg during the summer months, but not during the school year. He is respectful of the relationship between Hannah and her paternal grandfather.

[34] In the circumstances, it is appropriate to grant both parties this right of “first opportunity”. Chenier’s suggestion that the right of “first opportunity” ought not to apply during the summer months is reasonable. I will craft the order accordingly.

Section 7 Expenses

[35] Paragraph 19 of the July 8, 2013, order provides that “The father shall pay all of the children’s s. 7 expenses including all sports and recreational activities, daycare, orthodontics, school trips and cell phone bills.”

[36] Paragraph 20 of the July 8, 2013, order provides as follows:

Each child shall be in at least one year-round or one per season sport or activity. Whichever parent has the child on that day or weekends of the sport or activity shall ensure that the child gets to her/his sport or activity including out of town tournaments. If that parent cannot attend for a good and valid reason, the other parent may take the child to the activity, sport or tournament. Disinterest or having the other children for access shall not be a valid reason not to ensure the child attends. At present, Hannah is in ringette and spring soccer. The parents shall communicate and agree in writing before registering a child in a new non-school sport or activity.

[37] Chenier takes issue with the characterization of certain of the expenses described in paragraph 19; he submits that the order is too broad and includes items which do not meet the definition of “extraordinary expenses for extracurricular activities.”

[38] Section 7 of the Federal Child Support Guidelines defines what are “extraordinary expenses for extracurricular activities”:

7. (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.

[39] While Dagg may have to budget in order to cover the above expenses, I cannot conclude that all the expenses outlined in paragraph 19 of the order of July 8, 2013, “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…”

[40] Dagg earns more than $62,000 from her employment. In this circumstance, the expenses for the extracurricular activities are not “extraordinary” as defined in s. 7 (1.1)(a).

[41] According to s. 7 (1.1)(b), that does not end the inquiry.

[42] 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”.

[43] For purposes of the final order of July 8, 2013, it did not matter whether the expenses listed at paragraph 19 were proper s. 7 expenses, given that Chenier agreed to be completely responsible for the activities and bills set out in the order. He was able to do so at that time, given his higher level of income.

[44] Now, however, given the drastic reduction in his income, in addition to the sharing of the s. 7 expenses, Chenier raises the issue of the characterization of some of the items listed at paragraph 19.

[45] The question of how to determine whether expenses are “extraordinary” was specifically addressed at para. 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 CanLII 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.

[46] This interpretation of “extraordinary” is consistent with the Ontario Court of Appeal decision in Ostapchuk v. Ostapchuk, 2003 CanLII 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).

[47] “Extraordinary” expenses were described as “unusual”, or “disproportionate” by the Manitoba Court of Appeal in Andries v. Andries, 1998 CanLII 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.

[48] I conclude that, other than the cost of “at least one year-round or one per season sport or activity”, any other recreational activity which is not done at a competitive level would not be an extraordinary expense. Likewise, school trips which do not involve out of country expenditures are not an extraordinary expense. Neither are cell phone bills. They are ordinary, common, and unexceptional expenses which would have been reasonably included in the family’s normal expenses. That being the case, they are intended to be covered by the basic table amount of child support.

[49] It would be appropriate then to vary the final order of July 8, 2013, to provide that the parties shall share, in proportion to their income, proper s. 7 expenses, including any day care (not likely to be incurred now, given Hannah’s age), special school trips, and the sports activities referred to at paragraph 20 of the July 8, 2013, order. The effective date of that variation is discussed later in these Reasons.

Effective date of the reduction in the child support payable by Chenier

[50] On January 15, 2015, I made a temporary order reducing Chenier’s child support from $800 per month to $27 per month, effective December 1, 2014. This was based on Chenier having an income in the amount of $43,355.

[51] Chenier now indicates that his income for 2015 is much lower than the $43,000. The financial statement he swore on April 19, 2015 sets out the sum of $1,500 as monthly income.

[52] Chenier requests a further reduction in his child support obligations given his reduced income.

[53] Dagg suggests that August 1, 2014, is the appropriate date. She submits that Chenier has been notoriously slow in disclosing his income over the years and further, as he has produced no evidence of any attempts to secure other employment, he should be deemed to be voluntarily under-employed. He should not benefit from both of those circumstances by having the reduction retroactive to February which, in fact, pre-dates the order of Cornell J. made in March 2014.

[54] Although Chenier was laid off in June 2014, there is no evidence of him having actively attempted to secure alternate employment to date. Chenier was under a duty to make all efforts to be able to contribute to the support of his children. In the circumstances, it is appropriate to impute income to him in the amount of $43,000, and I will do so.

[55] Chenier requests that the effective date for child support reduction and for the variation of the order dealing with s. 7 expenses be February 1, 2014. That was the date that his employment income was reduced. His employment continued, at the reduced rate of remuneration until June 2014.

[56] The motion to change the final order of March 19, 2014, to reduce child support, and to vary the arrangement for s. 7 expenses was made to the court on September 29, 2014.

[57] In the circumstances, it would not be appropriate to make the variation of the child support retroactive, that is, pre-dating the date of the motion (September, 2014). However, given Dagg’s position that August 1, 2014, would be reasonable, I will adjust the child support payable by Chenier effective that date. Likewise, insofar as the s. 7 expenses are concerned, the effective date of that variation will also be August 1, 2014.

[58] Dagg has tendered two DivorceMate calculations. One indicates Chenier’s income, for 2014 to be $43,840 and Dagg’s as being $63,700. Based on those numbers, the set off amount of child support payable by Dagg, would be $112 per month. That is the amount she would have paid for the months of August to October 2014, inclusive.

[59] Subsequently, as a result of Thibeault’s injury and the reduction of household income for Dagg, her income for child support purposes became $53,707. The set off amount is $37 per month, payable by Chenier. I had already reduced the support to $27 per month, effective December 1, 2014. For the sake of $10 per month, I will not revisit the child support for the period from December 1, 2014, until June 1, 2015.

[60] Chenier will pay the set off amount of $37 per month effective June 1, 2015. The quantum of child support will be readdressed when Chenier resumes employment.

[61] There appears to be no factual dispute that, indeed, Chenier was laid off by his employer. There appears to be no dispute either about Dagg’s spouse having been injured and her household suffering a reduction in income.

[62] It also appears that Chenier is likely to resume his former employment in the near future, and that Dagg’s spouse may well be gradually reintegrated into the workforce, increasing the household income.

[63] The reduced child support is intended to be temporary, subject to review once Chenier resumes employment. That being the case, I will not embark upon the inquiry required pursuant to ss. 9(b) and (c).

[64] Chenier further requested that I expunge the arrears of child support fixed by Cornell J. at $1,206 for the years 2011, 2012, and 2013, as well as the arrears of s. 7 expenses, also fixed by Cornell J., in the amount of $8,421.71.

[65] There is no evidentiary or factual basis supporting this request. Chenier’s employment status did not change until 2014. The arrears of both the child support and the s. 7 expenses relate to the years leading up to 2014, and were incurred while Chenier was employed.

[66] Furthermore, Cornell J. calculated the arrears of s. 7 expenses based on the June 25, 2007, order, that is, in proportion to the parties’ respective incomes. He did not attribute 100% of the responsibility for those expenses to Chenier, despite the final order of July 8, 2013, which provided that Chenier would pay for all the children’s expenses.

[67] Chenier’s request to expunge those arrears is denied.

[68] The last matter I will address is the possible overpayment of child support by Chenier, for the period from August 1, 2014, until June 1, 2015. Although I was provided with the F.R.O. Statement of Account, I am unable to determine precisely what amount Chenier might have paid. The Statement indicates a number of adjustments. I have no evidence to explain those adjustments. The matter of possible overpayment will have to be taken up with the F.R.O.

[69] Notwithstanding my inability to determine whether there has been an overpayment and, if so, how much, I will nonetheless order that Dagg receive a credit in whatever amount she has paid for Benjamin’s orthodontic treatment, on or before August 1, 2014. Any orthodontic expenses incurred or owed after that date would be shared in proportion to the parties’ income.

[70] The above addresses the outstanding issues identified in January 2015. The Court has set the date of August 25, 2015, at 9:00 a.m. for a settlement conference. It is anticipated that both parties will bring their 2014 income tax returns, and current sworn financial statements. The goal of the conference will be to re-address the issue of child support, in what is hoped will be an improved financial situation for both parties.

[71] Chenier shall not bring any further motions without leave of the Court.

Conclusion

[72] THIS COURT ORDERS AS FOLLOWS:

1. Upon the applicant receiving the children’s passports, she shall hand Benjamin’s and Hannah’s to Brian Dagg.

2. Brian Dagg shall be the custodian of the passports for the children Benjamin Dagg Chenier, born March 27, 2000, and Hannah Dagg Chenier, born June 26, 2003.

3. Brian Dagg will hand the passports over to each parent upon the request of the parent, and upon each parent providing written details of the planned excursion out of the country.

4. The motion to vary paragraph 9 of the final order of July 8, 2013, dealing with the summer parenting schedule is dismissed.

5. The respondent’s motion to vary paragraph 3 of the order of July 8, 2013, to provide for joint and shared custody of Hannah is dismissed.

6. Both parties shall have the first opportunity to care for Hannah on an overnight basis if the other parent, in whose care the child is, is unavailable to provide such care. This right of “first opportunity” shall be in effect during the school year only, and not during the summer months.

7. Paragraph 19 of the order of July 8, 2013 is deleted in its entirety and replaced with the following:

a. Effective August 1, 2014, the parties shall share the responsibility for the children’s s. 7 expenses in proportion to their respective incomes.

8. The respondent’s motion to vary paragraph 2 of the final order of March 19, 2014, to expunge the arrears of child support and the arrears of s. 7 expenses is dismissed.

9. Paragraph 1 of the final order of March 19, 2014 is varied to provide that the applicant pay child support to the respondent, in the amount of $112 per month for the months of August, September, and October, 2014.

10. Paragraph 1 of the final order of March 19, 2014 is varied to provide that the respondent shall pay child support to the applicant as follows:

a. Commencing June 1, 2015, in the amount of $37 per month, based on the applicant’s income of $53,707, and the respondent’s income (imputed) of $43,840.

11. The applicant will receive a credit to be applied to any overpayment of child support by the respondent, in an amount equal to any disbursement incurred for Benjamin’s orthodontic treatment, incurred prior to August 1, 2014.

12. The respondent shall not bring any further motions without leave of the court.

13. If the parties are unable to agree on costs, Dagg may make written submissions as to costs within 20 days of the release of these Reasons. Chenier has 10 days after receipt of Dagg’s submissions to respond. Such response shall be both served and filed, together with Affidavit of Service, before the expiry of the 10 day period.

14. The submissions shall not exceed 5 pages (double spaced) in length. If no submissions are received within the time frame set out above, the parties will be deemed to have resolved the issue between themselves.

The Honourable Madam Justice Louise L. Gauthier

Released: May 20, 2015

COURT FILE NO.: A11,072/06

DATE: 2015-05-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Constance Dagg

Applicant

– and –

Gilles Chenier

Respondent

REASONS FOR JUDGMENT

Gauthier, J.

Released: May 20, 2015