Court File and Parties
Court File No.: 01-FL-81-2 Date: 2016-06-30 Superior Court of Justice - Ontario
Re: Lisa Daher, Applicant And: Michel Burrowes, Respondent
Before: Justice P. E. Roger
Counsel: Self-represented - Applicant Self-represented Respondent
Heard: June 24, 2016
Endorsement
[1] This matter has a rather significant history of litigation.
[2] The Applicant mother brought, amongst others, a motion to change on May 6, 2014 seeking to change child support as previously ordered by Justice Polowin on June 1, 2005.
[3] The parties have two children: Quincy Burrowes, born April 21, 1996 and Avery Burrowes, born May 17, 1994.
[4] The Applicant’s motion was heard by Justice Kane on October 7, 2015.
[5] At the time, Justice Kane made various findings, including that: (a) effective July 1, 2014, the child support should be limited to one child, as the youngest son, Quincy, would be finishing school and working as a military reservist; (b) the oldest son was enrolled at university and expected to graduate in May 2016; (c) the mother left Ottawa and moved to Winnipeg in July 2015; and, (d) the two sons have resided with their father, since their mother’s departure in July 2015. Justice Kane made a thorough endorsement dealing with the issue of table amount of child support, reducing the father’s obligation to one child effective July 1, 2014 (when the youngest son was deemed to be independent) and terminating the father’s obligation to pay child support effective July 31, 2015 (when both sons lived with him).
[6] Justice Kane dealt with all issues before him. However, with respect to the claims for retroactive section 7 expenses, he indicated that they were adjourned on terms because of a lack of evidence. In an endorsement dated January 11, 2016, Justice Kane confirmed that the mother had filed additional evidence and that the section 7 part of the motion could return. This is what returned before me.
[7] The issues before this Court are: (1) With regards to section 7 expenses, how far back can they be retroactively dealt with? (2) What is the parties’ respective income, for purposes of this motion, during the allowed retroactive period of time and, correspondingly, what is their proportional sharing of section 7 expenses? (3) What are the allowable section 7 expenses and, consequently, amounts owing by each? (4) The Applicant also seeks an order to transfer RRSPs as payment for back support ordered by Justice Kane and for the payment of section 7 expenses that I might order and she also seeks that all further enforcement actions required be taken in Manitoba, her place of residence.
[8] I will address firstly the appropriate retroactive period.
[9] The Order of Justice Polowin, dated June 1, 2005, provides at para. 17 that “As of May 1st, 2005, the parties shall share proportionate to their income, all reasonable extraordinary expenses as defined by section 7 of the Federal Child Support Guidelines, and shall include daycare, school fees, camp, recreation and sports fees, medical and dental expenses, and the children’s airfare to Winnipeg each summer”.
[10] Further, at para. 20, the Order of Justice Polowin provides for the parties to retain a mediator to mediate and provide a binding decision should the parties be unable to resolve accounting issues described in that paragraph and, as well, accounting relating to section 7 expenses for the period from separation to and including April 2005.
[11] Consequently, it is clear from these two paragraphs that the Order of Justice Polowin dealt with section 7 expenses up to May 1, 2005. That is however not determinative of what is in this case the appropriate retroactive period to be used by this Court as the Supreme Court of Canada has provided extremely useful guidance on this issue.
[12] The Supreme Court of Canada in D.B.S v S.R.G.; L.J.W. v T.A.R.; Henry v Henry; Hiemstra v Hiemstra, [2006] 2 S.C.R. 231, 2006 SCC 37 deals squarely with the issue of the period of retroactive child support. Considering the factors outlined in that decision and the circumstances of this case, this Court will follow the general approach outlined in para. 123 of the D.B.S. decision that it would usually be inappropriate to make a support award retroactive to a date more than three years before formal notice.
[13] Consequently, the applicable retroactive period is limited to May 1, 2011 onwards.
[14] The next issue to be dealt with is the parties’ respective income. On that point, it was agreed at the hearing of the motion (only for purposes of this motion to calculate their respective share of section 7 expenses) that their income is respectively as shown below. Consequently, their proportionate share of section 7 expenses is also as indicated in the table below.
| Year | Mother’s Annual Income | Father’s Annual Income | Mother’s Proportionate Share | Father’s Proportionate Share |
|---|---|---|---|---|
| 2011 | $ 94,625 | $ 135,951 | 41 % | 59 % |
| 2012 | $ 88,825 | $ 142,392 | 38% | 62% |
| 2013 | $ 65,450 | $ 149,487 | 30% | 70% |
| 2014 | $ 65,450 | $ 152,150 | 30% | 70% |
| 2015 | $ 65,450 | $ 152,150 | 30% | 70% |
[15] The next issues to be dealt with are the allowable section 7 expenses and corresponding amounts owing by each.
[16] None of the clothing expenses sought is allowed for any of the parties. These are not special or extraordinary expenses. Furthermore, these were particularly excluded in the Order of Justice Polowin (para. 16 of her Order which provides that “The Applicant shall be solely responsible for purchasing all of the children’s clothing and recreational equipment”). Applying the second part of paragraph 16 of the Order of Justice Polowin, none of the recreational equipment purchased by the Applicant for the children will be allowed.
[17] I will firstly review the special or extraordinary expenses claimed by the Applicant going back to 2011. The only allowable amount for the Applicant is $1,400 for swim camp, which is allowed as an extraordinary expense. Although it is not clear when precisely in 2011 these were incurred, the full amount will be allowed. None of the other amounts claimed for 2011 are allowed as they are not special or extraordinary expenses. Indeed, in 2011, the income of the Applicant combined with the table amount of child support she received was sufficient to cover the music and lifeguard expenses claimed. As no information was provided to assess the factors at section 7 (1.1) (b) of the Federal Child Support Guidelines, then the music and lifeguard expenses are not allowed for 2011 as they are not extraordinary expenses.
[18] For 2012, none of the clothing expenses are allowed for reasons indicated above. With regards to the cycling expenses, these do not exceed amounts that the Applicant could have reasonably covered considering her income and table amount of child support received and, as no additional information has been provided to assess the factors at section 7 (1.1) (b) of the Federal Child Support Guidelines, these amounts are not allowed as they are not extraordinary expenses. The amount claimed for a bike of $451.95 is not allowed as an extraordinary expense as it is specifically excluded for the Applicant by paragraph 16 of the Order of Justice Polowin.
[19] For 2013, the only amounts allowed for the Applicant as extraordinary expenses are the swim club expenses in the amount of $1,362. The cellphone amounts sought are not special or extraordinary expenses and the other amounts are excluded for the same reasons as indicated above – not extraordinary expenses.
[20] For 2014, the school tutoring expenses are not extraordinary expenses as the amount of $120 claimed does not exceed amounts the Applicant could reasonably cover taking into account her income and table amount of support received that year. Furthermore, no additional information was provided to assess the other factors at section 7 (1.1) (b) of the Federal Child Support Guidelines. However, the physiotherapy amount sought of $160 is allowed as a special expense.
[21] Finally, for 2015, none of the amounts sought by the Applicant are either special or extraordinary expenses. The clothing are not included for reasons outlined above, while the other amounts are not extraordinary expenses as they are not amounts that exceed those the Applicant could have reasonably covered considering her income and support paid at the time with no additional information to assess para. 7 (1.1) (b) of the Federal Child Support Guidelines.
[22] Consequently, for the period of 2011 to 2015, the total amount of section 7 expenses allowed for the Applicant total $2,922.00, subject to the parties’ proportionate share.
[23] The Court will now deal with the issues raised by the Respondent and claims for section 7 expenses claimed by the Respondent.
[24] The Respondent firstly seeks to correct two alleged errors in the Order of Justice Kane. However, he has not brought a motion to change. Consequently, as explained during the motion, unless the Applicant would consent to changes to reflect her income as outlined above, which she indicated she is not prepared to do, this Court is not prepared to address any issue with the Order of Justice Kane without a motion to change. If the Respondent wishes to pursue this he will have to bring a motion to change.
[25] Next, the Respondent questioned the income of the Applicant for purposes of calculating their proportionate share of section 7 expenses. On this point, as indicated above, he (and the Applicant) agreed at the hearing of the motion with the Applicant’s income as indicated in the above table for purposes of this motion dealing with section 7 expenses.
[26] Dealing with the section 7 expenses claimed by the Respondent for the same period of time and starting with 2011.
[27] None of the amounts sought by the Respondent for 2011 is allowed. The evidence is not sufficient to establish that the clothing and medical amounts sought were in relation to the children’s best interest and in any event the medical expenses claimed in 2011 were incurred prior to May 2011 and therefore are outside the allowed period or retroactivity. The amounts relating to school and extra-curricular activities are amounts that do not exceed what the Respondent could have reasonably covered considering his income and no information was provided to assess the factors at section 7 (1.1) (b) of the Federal Child Support Guidelines. Consequently these are not extraordinary expenses.
[28] The same reasoning applies to most of the amounts sought by the Respondent for 2012, 2014 and 2015. The only amounts allowed for the Respondent is the amount of $5,028 incurred in 2013 for medical expenses, which was incurred for Avery’s orthodontic expenses and the amount of $700 incurred for psychological counselling in 2014. The amounts actually incurred for orthodontic expenses were $7,528, minus $2,500 received from the insurer, leaving a balance of $5,028 paid by the Respondent.
[29] Applying the applicable percentages to the amounts found owing, the Respondent owes the Applicant the following:
- 2011: 59% of $1,400.00 = $826.00
- 2012: 0
- 2013: 70% of $1,362.00 = $953.40
- 2014: 70% of $160.00 = $112.00
- 2015: 0
- TOTAL $1,891.40
[30] Similarly, the Applicant owes the Respondent for 2013 30% of $5,028 or $1,508.40 and for 2014 30% of $700 or $210, for a total of $1,718.40.
[31] Consequently, considering the above, on a net basis, final order to go that the Respondent pays to the Applicant for any and all special or extraordinary expenses owing up to 2015 the all-inclusive amount of $173.00 ($1,891.40 - $1,718.40).
[32] Considering the amounts found owing for special or extraordinary expenses, this Court will not order any transfer of RRSPs as payment or security for the payment of those amounts. Similarly, the Court has been provided no information about amounts still owing and will not order any transfer of RRSP amounts in payment of amounts still owing pursuant to the Order of Justice Kane.
[33] This Court has dealt with this matter from the onset and, as indicated above, this matter has involved a significant number of court proceedings. Jurisdiction was and still is properly before this Court such that no order will be made as sought by the Applicant allowing her to proceed next in the province of Manitoba.
[34] Finally, both parties sought significant amounts for legal costs. However, none provided sufficient backup information. Considering the outcome of this motion and the lack of evidence on this issue no order will be made as to costs of this part of the motion.