Court File and Parties

CITATION: Brock v. Sorger, 2015 ONSC 7478

COURT FILE NO.: FC-11-064-1

DATE: 2015/12/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Daniel Lawrence Brock, Applicant

AND

Carmen Maxine Sorger, Respondent (Moving Party)

BEFORE: Madam Justice A. Doyle

COUNSEL: Caspar Van Baal, Counsel for the Applicant

Sean Jones, Counsel, for the Respondent

HEARD: November 12, 2015 in Ottawa

ENDORSEMENT

[1] Carmen Sorger, the mother, is requesting a review of Justice de Sousa’s Order dated April 29, 2013 regarding child support and section 7 expenses to be paid by the father, Daniel Brock. That Order anticipated a review as of August 1, 2015. This is the review.

[2] The father agrees to contribute to some of the section 7 expenses and has brought a motion requesting an order that payments be made directly to third parties.

[3] The issues are:

1. What child support is payable for the two children who reside with the mother and for the child who is attending university out of town?

2. What are the section 7 expenses and what is the father’s contribution?

3. Should the father be permitted to pay any of the section 7 expenses directly to third parties?

Background

[4] The parties commenced cohabiting in May 1990, married on May 16, 1992, and separated on March 31, 2010.

[5] The parties’ three children are:

• Callum, born April 19, 1997, who is attending his second year at the University of Toronto;

• Sebastian (“Sasha”), born December 29, 1998, who is attending Lycée Claudel, a private school;

• Adriana, born July 25, 2002, who has been attending St‑Laurent Academy, a private school, since September 2015.

[6] The mother is employed by the Federal Government and states that her income is $109,583 per annum. She resides with the children in Ottawa.

[7] The father is a lawyer practicing in a national law firm in Toronto and his 2014 salary was over $356,103. He resides in Toronto with his new wife and their two young children.

[8] The final Order of Justice de Sousa stipulated that the father would pay child support in the amount of $6000, comprised of $4411 Table support per month based on his annual income of $275,000 plus $1589 per month for section 7 expenses. The agreed amount for section 7 expenses was reduced to permit the father to service his debts. The amount of section 7 expenses payable was non‑variable for two years to give the parties and the children a break from the cost and stress of the preceding two years of litigation.

[9] The final Order provided for joint custody of the children including joint decision‑making on all matters relating to the children’s education. The children’s primary residence would be with their mother.

[10] The separation agreement provided that the mother retained ownership of the matrimonial home and the lakefront property in Quebec, as well as her government pension.

[11] In the fall of 2013, the mother applied for their daughter Adriana to attend grade 7 at Elmwood School. Elmwood is a private school and its tuition fee is approximately $20,000 to $25,000 per annum. In May 2014, the mother brought a motion to change as the father refused to pay for half the cost of Adriana’s education while attending Elmwood.

[12] In July 2014, the mother’s emergency motion, requesting an order dispensing with the father’s consent so that Adriana could attend Elmwood was dismissed.

[13] In July 2015, the mother’s amended notice of motion requested an order permitting Adriana to attend St‑Laurent Academy as the school could address her educational needs due to her learning disabilities diagnosed in an educational assessment. The father consented to Adriana attending St‑Laurent Academy.

[14] On July 24, 2015, the parties consented to an order which required both parties to make direct payments to St‑Laurent Academy. The mother would pay $2095 per month for three months (August, September and October) to St‑Laurent Academy, and the father would pay $3891.33 per month for three months. The father was to continue paying child support of $6000 per month as per Justice de Sousa’s Order. The parties agreed that the issue of whether the father would be permitted to make direct payments to third parties would be determined by the motions judge.

[15] The mother is claiming section 7 expenses amounting to approximately $79,832 per year. She is seeking an order that the father pay 77.7 % of section 7 expenses, which is his proportionate share.

[16] The father has been voluntarily paying a proportionate share of the university expenses directly to the University of Toronto to ensure that Callum’s time at university is not disrupted.

[17] The father has entered into a consumer proposal and has reduced his debt load from $445,612.17 to $180,000. The parties agree to the three major section 7 expenses for the children: (1) Callum’s University of Toronto expenses; (2) Sebastian’s Lycée Claudel private school fees; and (3) Adriana’s St‑Laurent Academy private school fees. They do not agree on the amounts and other section 7 expenses claimed, which include health‑related expenses and extracurricular activities.

Mother’s Position

[18] The mother is seeking a variation of paragraphs 43, 47 and 49 of Justice de Sousa’s Order dated April 29, 2013. She is requesting the following:

• $5094 per month of child support based on the father’s current annual income of $382,500 for two children at home full‑time and Callum at home during the summer months; and

• $5010 per month representing 77.7% of net section 7 expenses which include education, medical/dental expenses and extracurricular activities (totalling $6657 per month).

[19] For the purposes of determining her proportionate share, the mother indicates that her current income is $109,583 and the father’s income is $382,500 per annum.

Father’s Position

[20] The father is requesting the following:

• That child support be based on his 2014 income of $356,103 or, in the alternative, his projected 2015 income of $382,500, minus $10,000 for business expenses.

• That he pay the Table amount for two children since it is uncertain whether Callum will be returning to live with his mother during the summer months and if he returns home, he will pay the Table amount for the four summer months.

• In determining the proportionate share of each party, he is suggesting that the Court use the mother’s projected income, which includes her working as an Acting Senior Advisor since September 2015. He is submitting her 2015 income should be $113,000.

• He is prepared to pay $3400 per month as his contribution to section 7 expenses and he is requesting that payments be made directly to third parties, including the University of Toronto for Callum’s post‑secondary education, Lycée Claudel for Sebastian’s education and directly to St‑Laurent Academy for Adriana’s private school tuition.

Issue # 1: What child support is payable for the two children who reside with the mother and for the child who is attending university out of town?

Analysis

“Child of the Marriage”

[21] In determining child support, the Court must first determine whether the children are “children of the marriage” within the definition of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.).

[22] Adriana and Sebastian are under the age of majority and continue to attend school full‑time and hence are entitled to the Table amount of support. Callum is over the age of majority and is attending full‑time the University of Toronto. The parties agree that the full Table amount is not appropriate to be paid to the mother, as the child is out of town for eight months of the year.

[23] Section 3 of the Federal Child Support Guidelines, S.O.R./97-175 (the “Guidelines”) reads as follows:

Presumptive rule

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable Table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[24] I accept the mother’s evidence that Callum will be returning to live with her during the summer months. His home has been with the mother since separation; there is no history of him remaining in Toronto during the summer months nor is there evidence that he has reason to stay in Toronto during summer months, i.e. employment.

[25] Based on the condition and means of the parties, the Court orders that the Table amount of child support for Callum will be payable for four months of the year,

Income

[26] The father’s position is that the Court should consider 2014 income to determine support or alternatively, his 2015 income with a deduction for expenses.

[27] The mother’s position is that the Court should use current income in determining child support.

[28] See Dymon v. Bains, 2013 ONSC 915 at paragraph 32, the court used the “most accurate approximation of the applicant’s income on a prospective basis” to calculate child support.

[29] It is appropriate to use current income when determining support payable on a prospective basis, especially when the 2015 calendar year is almost at an end.

[30] The mother’s 2015 income can be determined by reviewing her last paystub and adding her bi‑weekly payments until the end of the calendar year. There is no evidence that she will earn more even though she has been in an Acting Senior Advisor position since September 2015, as the father submits. This is speculative and is not supported by any evidence before the Court. I find that the mother’s annual income is $109,583.

[31] The income of the father is $382,500, minus $10,000 for personal business expenses (cell phone, business development and travel), i.e. $372,500 as stated in his financial statement sworn October 8, 2015. The business expenses are reasonable given he receives partnership income as set out in his T5013 form attached to his 2014 T1 General Return.

[32] Therefore, the father will pay the amount of $4970 per month based on an annual income of $372,500 for two children living with the mother on a full‑time basis and one child at home during the four summer months. (Averaged over 12 months of the year).

Issue # 2: What are the section 7 expenses and what is the father’s contribution?

Mother’s Position

[33] The mother is claiming that the yearly amount of section 7 expenses of $79,832 meets the above criteria. Her submissions outline each expense for each child, setting out the explanation, the reasonableness and the affordability of the same. All three children have their own unique needs and she submits that the father’s income combined with his new wife’s 2014 income of approximately $100,000 would suggest that he is well able to afford to contribute to the section 7 expenses claimed.

[34] The father’s debts and consumer proposal should not be a priority. The children’s needs are a priority.

[35] The calculations presented would provide that the father would pay 77.7% of the expenses.

[36] Based on these calculations, the mother’s counsel submits that the father’s Net Disposal Income (“NDI”) would be of 44.4% and the mother’s NDI would be of 55.6%. He submits that this is not an unreasonable amount given that the mother has four members of the family living under her roof.

Father’s Position

[37] The father submits that the Court should engage in a balanced view approach when determining section 7 expenses.

[38] As a general principle, the father states that he cannot possibly afford to pay a share of all section 7 expenses claimed. He has presented his overall budget, which shows that after payment of federal/Quebec taxes, the Table amount of support, access costs, a 75% share of the living expenses in his current home in Toronto and debts of $4000, he is left with a negative balance of $3175. Even without the payment of $4000 per month towards the consumer proposal, he is just breaking even.

[39] He relies on Clark v. Clark, 2014 ONCJ 493, where Justice McSorley stated at paragraph 28:

The second case in the father's book of authorities also considered the issue of 'reasonableness' in relation to s. 7 expenses. Neither the pages nor the paragraphs of the decision are numbered. However on the last page of the judgment, the court notes the following:

When assessing the reasonableness of the "extraordinary" expense taking into account the means of the parties, the judge will consider factors such as capital, income distribution, debt load, third party resources which impact upon a parent's ability to pay, access costs, obligations to pay spousal or other child support orders, spousal support received and any other relevant factors. The exercise is akin to the conventional "ability to pay" approach. For these "add on" expenses, the Guidelines do not presume an ability to pay.

[40] His position is that some section 7 expenses are subsumed by the Table amount paid and that some are not necessary, reasonable and/or affordable.

[41] In addition, he states that he incurs approximately $1000 in monthly travel costs for his children to visit him in Toronto.

[42] He has entered into a Division 1 consumer proposal which requires a payment of $4000 per month starting January 1, 2016. If he misses a payment, he could be petitioned into bankruptcy, which could impact his status with the firm. As his law firm is a national firm, its head office is in Montreal and hence he is subject to Quebec taxes, which rates are higher than those of Ontario.

[43] He owns no home, car or investments. In contrast, the mother has a residence, a Quebec lakefront cottage and a net worth of $600,000. He is in a deficit position of $269,500. Although his wife earned $100,000 in 2014, her 2015 income will be $31,000.

Analysis

The Law

[44] Section 7 of the Guidelines sets out the criteria in determining section 7 expenses. It reads:

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:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attribuTable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(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.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

[45] Whereas the Table amount is required to financially contribute to the custodial parent’s ongoing living expenses for the children and is mandated (except in certain and specified circumstances, e.g. shared custody), the award of section 7 expenses is discretionary.

[46] In determining section 7 expenses, the Court must consider the necessity of the expense, the reasonableness of the expense, the conditions and means of the parties and the spending pattern of the family prior to separation. With respect to post‑secondary educational costs, the Court will consider the contribution of the child.

[47] The determination of section 7 expenses is fact‑driven. Hence, counsel seeking contribution should provide the requisite evidence to prove their claims.

[48] The Court requires a full record of the expense, estimate or receipt, the need for the expense, the reasonableness of the expense, the historical information regarding the data and an analysis of the impact of this expense having consideration to the Table amount received, the parties’ incomes, the special needs of the children, and any other relevant factors.

[49] Section 7 of the Guidelines provides for an in‑depth analysis of numerous factors the court must consider, having regard to the family’s financial picture.

[50] Both counsel have submitted a number of cases. Each case has different scenarios with different incomes and various family units. Although the general principles and analyses from the cases are helpful and can provide guidance to the Court, the Court must review the evidence and the facts of this particular family to determine whether the section 7 expense is a proper one, having regard to all the factors set out in section 7.

[51] The onus is on the moving party to demonstrate that the section 7 expenses claimed fit within the above factors. See Kase v. Bazinet, 2011 ONCJ 718, 16 R.F.L. (7th) 746, where Justice O’Connell at paragraph 39 states:

The list of special and extraordinary expenses under clauses 7(1) (a) to (f) is exhaustive. If a claim does not fall within any of the listed categories, then it must be dismissed.…

[52] The test of awarding section 7 extraordinary expenses was set out in Titova v. Titov, 2012 ONCA 864 at paragraph 23:

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"….

My Decision

[53] Below is the list of section 7 expenses claimed, the parties’ respective positions, and my rulings. Based on the above findings of the parties’ respective incomes, the father will pay his proportionate share of 77% of the net expense.

Callum

Education

[54] Both parties agree that the University of Toronto tuition and meal plan are proper section 7 expenses. The mother is claiming $19,028 and the father states that the amount should be $17,992 based on the University of Toronto invoices.

[55] The best evidence comes from the University of Toronto documents and I find that the annual tuition and meal plan costs are $17,992.

[56] The books claimed by the mother are $500. The father estimates that the cost will be $1000 and he agrees to contribute his proportionate share. The Court orders the father to pay his proportionate share of $1000 for books.

[57] The mother claims the expense of Callum’s travel home four to five times per year in the amount of $1600. She submits that this expense was allowed in Campbell v. Campbell, 2015 NSSC 28. This expense was also permitted by Justice Mesbur in Waese v. Bojman, 19 R.F.L. (5th) 220, 2001 CanLII 28221 at paragraph 14 where she found that “[i]t is not unreasonable to expect that [the child] will return home at Christmas, the end of term and perhaps at study week”.

[58] I find that this is a reasonable and necessary expense as Callum should have an opportunity to return home in Ottawa to visit with his mother and his siblings (although they meet up in Toronto as well). I find that the father should contribute his proportionate share to a reasonable amount of $500 allocated for travel expenses.

Child’s Contribution to his own Education

[59] In addition, the father submits that Callum should be contributing to post‑secondary expenses. This past summer, Callum was not able to maintain employment and through no fault of his own, was unable to earn any income.

[60] In Lewi v. Lewi, 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321, 267 D.L.R. (4th) 193, the Ontario Court of Appeal confirmed that section 7 of the Guidelines requires that the court determine what a child should contribute towards their own post‑secondary education costs. The means of the child should be considered along with the means of the parents. The extent of the means depends on the circumstances of the case. In the Lewi case, the children had capital assets and were expected to utilize them for the purpose of their education.

[61] It is a reasonable expectation that a child contribute to his own post‑secondary education expenses. The father suggests that Callum should obtain a 40‑hour per week job next summer for four months at a minimum wage and expect to earn over $7000, half of which can be used to contribute to his education.

[62] In my view, this is not realistic.

[63] Nevertheless, it is reasonable that Callum make efforts to locate work and obtain some remuneration in order that he should off‑set some of the post‑secondary educational costs.

[64] I find, in the circumstances of this case, that $1000 is a reasonable amount for him to save from his earnings for the next academic year. At minimum wage, he could earn $1000 in four months during the summer if he works approximately five hours per week. This is a fair expectation for an adult child.

[65] Therefore, the father will pay his proportionate share of post‑secondary expenses for the 2016‑2017 academic year and forward in the amount of $16,992 per year.

Tutoring

[66] Regarding Callum’s tutoring, the mother is claiming the amount of $1280 estimated at $40 per week (organization, English and Social Sciences). The mother states that the child has had tutoring for years during his junior and high school studies for subject areas, as well as planning and organization. The father states that Callum is no longer taking Mathematics in university and that portion of the expense is not necessary and reasonable. The mother does not dispute this fact. He is prepared to contribute the amount of $640. I accept that figure.

Activities

[67] The mother proposes that it is reasonable for Callum to have a gym membership in the amount of $400. The father states that Callum already is entitled to a gym membership through the university and hence it is not necessary.

[68] There is no evidence that a gym membership in additional to the use of the university facilities is necessary for Callum. There is no evidence of special equipment or program that is offered at a gym that is not available at the university. Therefore, this expense is not allowed.

Medical

[69] The mother indicates that in 2010 when Callum attended Ashbury College, he underwent a psycho‑educational assessment. It was recommended that there be a follow‑up assessment to assist him in university. Her original claim was of $3000 of which $1600 is covered with the net insurance cost of $1400. The father indicates that the assessment has been completed and that the total cost was of $2530 and after insurance, the total net cost is $430. The mother does not dispute this fact. The father is prepared to pay a proportionate share. Therefore, he will pay his proportionate share of $430.

Miscellaneous

[70] The mother is claiming driver’s insurance of $950 per annum on her vehicle to be used by Callum and Sebastian. The father objects as this is not a necessary expense. Callum resides in Toronto and does not need a vehicle to attend school or work. Sebastian does not drive and he does not need the car to go to school or work. Since this expense is not necessary, this expense is not allowed.

[71] The telephone plan of $50 per month is not allowed, as it is subsumed in the Table amount of child support.

Sebastian (Sasha)

Education

[72] The amount of $11,564 for tuition fees at Lycée Claudel is accepted by the father.

[73] The father is not prepared to contribute to books. I think this is a reasonable and necessary expense. Sebastian is attending a private school and books are part of the educational costs, as they were for his brother, Callum. The cost of books in the amount of $450 is a proper section 7 expense.

Tutoring

[74] The mother is claiming the expense of hiring a tutor at $45 an hour to help Sebastian prepare for final comprehensive examinations. She states that since he is focusing on Science and Math for his French baccalaureate, he should obtain remedial help. The cost claimed is $1350.

[75] The father states that this is not a section 7 expense as it is not necessary. There is no recommendation for this expense nor is there a history of this expense being incurred. In Clark v. Clark, 2014 ONCJ 493, at paragraph 29, the court did not allow the child’s tutoring expense as there was no evidence that the expense was necessary or that the parties had discussed the expense.

[76] I agree with the father that this expense is not necessary. The evidence has not been established that Sebastian requires this expense. Certain advertisements have been submitted regarding tutoring but no evidence has been marshalled to indicate the details of the tutoring required for Sebastian.

Dental

[77] The cost of Sebastian’s orthodontics net of insurance coverage is $2500. The mother states that he has “crooked teeth” and an “overpopulated mouth”. His treatment was postponed until his siblings’ treatments were completed. The father agrees to pay his share of the treatment once it has been completed.

[78] The Court must determine whether the orthodontic treatment should be paid as part of the regular monthly amount paid by the father or once it is incurred. Given the nature of the parties’ relationship and what the father describes as “a high conflict situation”, it would not be in the best interests of Sebastian that his parents discuss the payment of his orthodontic work, which could result in a delay to his dental treatment. This expense will be paid as a regular support payment until the father’s 77% share has been paid.

Activities

[79] The mother is claiming the cost of $600 for snowboarding/sailing, an activity that Sebastian has enjoyed in the past. The father says it can be subsumed in the Table amount.

[80] The necessity of activities must be examined through the lens of other educational and medical needs of these children, which usually should be a priority before leisure and recreational activities. That is not to say that activities are not important to children as part of their development, socialization and physical fitness. However, the parties’ incomes and their respective financial positions must be considered. The father has an income that is substantial but he has a debt load that he still carries from their separation, he is remarried and has two children, whose needs he must also meet.

[81] The Court notes that in Hugel v. Hugel, 2004 CanLII 15763 (ON SC), 5 R.F.L. (6th) 309 at paragraph 16, the Ontario Superior Court of Justice made the following comments when the family’s combined annual income was of $400,000:

… How can a high‑income family categorize an expense as "extraordinary" when it is not uncommon for a similarly placed family to incur such an expense? Indeed, dance, voice, music lessons and camps are not uncommon in high‑income families. Those costs are included in the Table amount.

[82] I agree that snowboarding/sailing costs are not “extraordinary” activities as required under section 7, which would require an additional amount to be paid by the father. This amount is denied.

[83] The mother is claiming the expense of piano lessons in the amount of $1800 for Sebastian. The father states that this expense is not necessary, nor was he consulted with respect to it. Given the numerous section 7 educational and medical expenses currently incurred for this family, this is not a necessary or reasonable expense.

[84] The mother is claiming a contribution for Mandarin lessons, which Sebastian has been taking for several years. I find that the Mandarin lessons in the amount of $1360, although a laudable educational pursuit, must be measured against the backdrop of the above necessary and reasonable section 7 expenses.

[85] In this family, the three children attend school with high tuition fees, require orthodontic work and possess special needs that require medical and/or educational intervention; these types of pursuits must be considered by taking into consideration other priorities. There is no cultural connection for Sebatian to learn this language. Neither parent has a Chinese background. These lessons are not necessary or reasonable given the need for the parents to contribute to other expenses for the children.

Miscellaneous

[86] The mother is requesting a contribution for Sebastian’s driving lessons and examination of $600.

[87] In D’Urzo v. D’Urzo, 2002 CanLII 78074 (ON SC), 30 R.F.L. (5th) 277 (Ont. S.C.), the husband earned $48,752 and the mother earned $65,272. The court did not permit payment of the driver training expenses. He considered it a relatively modest amount. The father was already paying $735 as Table amount and $365 for section 7 expenses. The mother’s income had increased significantly since the previous court order and the father’s income had decreased.

[88] In the circumstances of this case, with the high level of Table amount of child support being paid, the Court disallows this section 7 expense, as it can be subsumed under the Table amount.

[89] The mother’s claim for a telephone plan of $540 per annum is not a necessary expense, as Sebastian is living at home and this expense can be subsumed under the Table amount.

Adriana

Education

[90] The mother is proposing the amount of $17,460 for tuition at St‑Laurent Academy. The father has agreed to an amount of $16,000, inclusive of books and $3,000 for one‑on‑one tutoring three times a week.

[91] The uniform cost of $400 is not allowed. It is not “extraordinary” as defined under section 7 (1) (d), and should be subsumed under the Table amount of support.

[92] I do not find that the cost of books of $150 is “extraordinary” as set out in section 7(1)(d) and it is subsumed under the Table amount of support. It is a small monetary amount that can be paid out of the Table amount of child support.

[93] I do not find that the proposed technological equipment to assist with a learning challenge, Dragon Dictate, at a cost of $200 is “extraordinary” and it should be subsumed under the Table amount.

[94] In her July 13, 2015 affidavit, the mother requested $2400 for tutoring. This was executed before Adriana commenced at St‑Laurent Academy. Given that she is receiving tutoring at the school, this claim is no longer necessary.

Medical

[95] The mother wishes Adriana to attend therapy as recommended by Dr. Borovay. The mother wishes to retain Dr. Barbara Virley and she estimates the total cost to be $5920. This therapy would presumably assist the child with respect to issues of lack of self‑esteem and anxiety. The professionals do not agree on this issue.

[96] Doctor Borovay was retained to assess Adriana’s academic, emotional and social well‑being. She had previously been assessed by Dr. Bolduc in 2010 when she was seven years old. In her assessment dated June 10, 2015 at page 14, Dr. Borovay states as follows:

With regard to social and emotional functioning, Adriana exhibits symptoms of anxiety and dysphoria. She presents as a quiet girl who very much wants to meet others’ expectations of her. It will be important for her parents and teachers to be aware of her learning and social‑emotional profile in order to provide her with the support she requires to reach her potential. Adriana would benefit from engaging in individual therapy in order to learn strategies to manage her anxiety, fears and dysphoric emotions. Therapy will also be important in helping her to build self‑esteem and self‑confidence. Therapy should help Adriana to elaborate and be specific about her feelings and this will help her to become more confident and to take increasing initiative on her own.

[97] It is noted that Dr. Borovay also recommends pharmacotherapy to ameliorate ADHD symptomatology. Subsequent to this report, the parties agreed that Adriana would attend a private school, namely St‑Laurent Academy, which can address her needs as set out in this report. Doctor Borovay makes the following findings: “Adriana has learning disabilities in reading and written expression and attentiveness, weak executive functioning, some ADHD symptoms and anxiety.”

[98] The father is not in agreement, as Dr. Arthur Leonoff does not believe that Adriana requires therapy at this time. Doctor Leonoff was retained by the parties to render an opinion regarding the school that Adriana should attend. In the last paragraph of his report dated July 7, 2015, Dr. Leonoff states the following:

Nevertheless, I do not recommend potentially overreacting and insisting on counselling for Adriana at this time. My concern would be that this would provide an added forum for grievance, which could further distract Adriana. Moreover, at base, I believe that this is essentially an academic problem and Adriana’s stresses will diminish when her learning issues are better addressed. Of course, if her emotional adjustment appears to be suffering and this is interfering with her capacity to adapt then counselling should always be an option….

[99] Given Dr. Leonoff’s comments and the fact that Adriana has just commenced attending St‑Laurent Academy, the parties can certainly delay the consideration of this expense. Counselling for their daughter can be reassessed at a later date. Therefore, this claim is not allowed.

[100] The mother claims the expense of the psycho‑educational assessment done by Dr. Borovay for a total cost of $3000, and the net of insurance cost is $1480. This will be completed in the spring 2016. The father agrees to contribute his proportionate share of the amount of $1480. The Court allows this expense.

[101] The mother claims past psychological services of $1000 and after insurance, the net cost is $600. Receipts were provided by the mother. This is a necessary medical expense not covered by insurance and is a proper section 7 expense.

Dental

[102] The mother claims expenses for orthodontics net of insurance of $3500. The father states that there is no evidence that this is needed. The father states that the total cost was of $7000 for Phase I and II. She is now in Phase II. The amount of $5000 is covered by the insurance, leaving a net amount of $2000 to be paid. Under the previous settlement agreement, the father stated that $3000 was allotted for her orthodontics and that it had been paid through his $1589 per month.

[103] I have reviewed the Order of Justice de Sousa’s and the amount of $1589 per month for section 7 expenses. The Order does not stipulate what section 7 expenses are covered by that amount. Certainly, Adriana’s orthodontic work is listed in Schedule B “Special or Extraordinary Expenses for the Children” but the total net monthly amount is $4505.11, whereas the father was only paying $1589 per month. His 77% proportionate share would have been of $3468.93 per month. He cannot now argue that he has already paid for her expense if he paid less than his proportionate share of section 7 expenses.

[104] Therefore, this is a necessary and reasonable expense and the father is responsible for 77% of the cost of $2000 for orthodontic work.

Activities

[105] The summer camp expense claimed by the mother is of $650 per year. Adriana is now 14 years old and although she may have attended summer camp prior to separation, this is not a necessary expense. Alternatively, each parent can pay for a summer camp when the child is with them. This is not a necessary expense and can be captured in the Table amount of support payable. In addition, each parent will have the opportunity to register Adriana in summer camps during the time she is with them.

[106] The mother also claims sports/dance/guitar expenses in the amount of $1000 per year. The Court is not aware of the amount attributed to each of these activities. In any event, they do not fit within the meaning of “extraordinary” to qualify as section 7 expenses. The mother is claiming movies and dinners out in the amount of $360. This is not a necessary expense.

[107] As well, skiing lessons and ski equipment rentals in the amount of $350 are not necessary expenses nor can they be described as “extraordinary” within the meaning of section 7. This expense is not allowed.

Issue # 3: Should the father be permitted to pay any of the section 7 expenses directly to third parties?

Position of the Parties

[108] The father wishes to continue to make payments directly to third parties, including the University of Toronto, Lycée Claudel and to Adriana’s private school. The mother vigorously opposed this request.

[109] Also, he would prefer to pay the tutors directly so that he can obtain related information directly. In this way, he can assess his children’s educational progress.

[110] His other reasons are as follows:

• He is already making payments to the University of Toronto and to St‑Laurent Academy.

• In this way, he is contributing to the actual cost that is being incurred.

• He can ensure that the payments are being made.

• The payment will be made on time.

• The payments will be “up front” rather than pro‑rated over the 12 months – so to ensure that first and last instalments are paid on the due dates.

• Costs will be paid upon invoices being received without delay.

• The children believe that the father is not contributing.

[111] The mother says that the father must show a material change of circumstances to allow payments to be made directly to the third party.

[112] The consent Order of July 2015 permitted the father to pay these institutions directly as a term of the adjournment to the motion date.

Legal Principles

[113] In Armaz v. van Erp, 7 R.F.L. (5th) 1, 2000 CanLII 22585 Justice Perkins makes the following observations at paragraphs 18 and 19:

The payment of the s. 7(e) expenses, [post‑secondary] education costs, is quite another matter. There the very purpose of the support add on is to cover additional expenses not related to the provision of a home, food, clothing or recreation, but rather education related expenses that are generally paid to third parties such as universities, bookstores, railways or airlines. It is accordingly not inappropriate to have the s. 7 expenses paid to the daughter or to these third parties directly.

The convenience of paving expenses direct to third parties is that the father knows the expenses are going where they ought to go and the mother does not have to put the money up front and then collect it monthly. The difficulty with this approach is that the Family Responsibility Office will not generally enforce third party payments if they are not made. However, in this case the father is [self‑employed] and the advantages of support deduction through the Family Responsibility Office are not as great as in the case of an employee. So I conclude that the education costs can be paid [directly] to the university, any service provider designated by the daughter or to the daughter herself, as arranged by the father and the daughter.

[114] In Waese v. Bojman, supra., Justice Mesbur orders that the mother’s payments be made directly to the institution. She did not provide an analysis as to why this is done in this particular case. However, it should be noted that this was the child’s first year at university and his payments were made from the father’s income from his position as sole shareholder of a corporation. And it was the child’s first year to attend university outside Toronto and therefore no history of the university and expenses being paid by the parties to each other.

[115] In Buck v. Buck, 2013 BCSC 449 Mr. Buck “did not retain counsel… nor participate in the trial although he attorned to the jurisdiction of the court.” The interim order provided that Mr. Buck pay child support and spousal support and half of the monthly property tax and mortgage payments regarding the matrimonial home. It also ordered him to continue paying private school tuition for the two children as he had been doing so since the separation and continued to do so until the trial.

[116] However, he failed to comply with the child and spousal support orders. At the time of the trial, there were arrears of over $119,000 in spousal and child support arrears. He resided out of the country and held assets and accounts in the United States. Mr. Buck was on assignment in Bahrain at the time of the trial. The court found that the children could only continue in private school as long as Mr. Buck paid the tuition, which was $26,000 per year, which he had been doing since the separation. The court allowed the direct payment to be made to the educational institution.

Decision

[117] The Court considers the following factors in determining that there should not be payments directly to third parties:

• The history of payments;

• The lack of cooperation and level of communication between the parties;

• The enforceability of section 7 payments through the Family Responsibility Office;

• The interests of the children that would dictate that payments be made promptly and expeditiously while not provoke controversy between the parties;

• Extenuating circumstances which would require that payments be made directly to third parties, i.e. recipient not making payments or tardy in payments.

[118] Here, the payments have been made to the mother and there is no evidence that this has not worked in the past. There is no evidence of non‑payment, tardiness or accumulated interest owing as a result of mother’s delinquent payments.

[119] The father admits that this is a high conflict situation. In Oczkowski v. New, 2011 ONSC 3932 Justice Robertson refused to allow third party payments, as she felt at paragraph 32 that “it would exacerbate the level of conflict”.

[120] The father receives partnership income which could be subject to enforcement through the Family Responsibility Office and hence can be distinguished from the Waese case.

[121] I see no basis to change the Order of Justice de Sousa that section 7 expenses be paid directly to the mother. There are no grounds shown that would demonstrate a material change of circumstances requiring a departure from the previous process. The father’s motion is dismissed.

Summary

[122] Therefore, the Order of Justice de Sousa dated April 29, 2013 shall be changed. The father will pay child support in the amount of $4970 per month commencing August 1, 2015.

[123] In addition, commencing August 1, 2015, the father will pay 77% of the net section 7 expenses to the mother as listed below:

Callum

• $17,992 minus $1000 for Callum’s contribution for 3^rd and 4^th year of university

• Books – $1000

• Tutoring – $640

• Travel – $500

• Psycho‑educational assessment (one time only) – $430

Sebastian

• Lycée Claudel – $11,564 (only 2015‑2016 scholastic year)

• Books – $450 (only 2015‑2016 scholastic year)

• Orthodontic work– $2500 (one time only)

Adriana

• St‑Laurent Academy – $16,000

• Orthodontic work – $2000 (one time only)

• Dr. Borovay’s psycho‑educational assessment for spring of 2016 – $1480

• Psychological services – $600 (one‑time payment)

[124] The father will be credited for the payments he has already made on the above expenses.

[125] Receipts for these expenses must be provided by the mother to the father on a regular basis. Once the expense has been incurred, the father should receive notice and the amount of the section 7 contribution should change accordingly.

[126] In September 2016, the parties will be required to adjust support when Sebastian completes his secondary education at Lycée Claudel. It is speculative at this point to set child support, and the Court makes no order at this time.

[127] The moving party may submit its submissions on costs by January 22, 2016 and the responding party by January 29, 2016 and any reply by February 5, 2016. Each costs submission shall be no longer than two pages in length, excluding the Costs Outline.

Madam Justice A. Doyle

Date: December 1, 2015

CITATION: Brock v. Sorger, 2015 ONSC 7478

COURT FILE NO.: FC-11-064-1

DATE: 2015/12/01

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Daniel Lawrence Brock, Applicant

AND

Carmen Maxine Sorger, Respondent (Moving Party)

BEFORE: Madam Justice A. Doyle

COUNSEL: Caspar Van Baal, Counsel for the Applicant

Sean Jones, Counsel, for the Respondent

ENDORSEMENT

Doyle J.

Released: December 1, 2015