Court File and Parties
COURT FILE NO.: D13866/12 DATE: 2016-07-15 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AMANDA LEIGH-ANN SMITH, Applicant AND: ANDREW RICHARD ROBERT SMITH, Respondent
BEFORE: The Honourable Mr. Justice D.A. Broad
COUNSEL: David Maltby, for the Applicant Caitlin Elizabeth Murray, for the Respondent
HEARD: May 25, 2016 – written submissions directed to be completed by June 30, 2016
REASONS FOR JUDGMENT
[1] The parties were married on November 8, 2008 and separated on September 29, 2010. There are two children of the relationship (twins) Quinn Gabriel Smith and Damien Reese Smith born December 31, 2008 and one child to whom the respondent is not the biological father but acknowledges that he has stood in the place of a parent, namely Connor Aloysius Smith born July 22, 2007.
[2] The parties entered into partial final Minutes of Settlement dated May 25, 2016 which resolved the issues of custody and access, property equalization and the issuance of a divorce order. It was agreed that the applicant have sole custody of the children and that the respondent have access to the children on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. The parties agreed that there shall be no equalization and that a divorce shall issue. Neither party made a claim for spousal support.
[3] The issues which were left for trial were the following:
(a) child support arrears and ongoing child support payable by the respondent; (b) contribution by the respondent towards s. 7 expenses; and (c) whether the respondent should be required to take the children to organized recreational activities arranged by the applicant when he is exercising access on Sundays.
The Parties’ Incomes
[4] The applicant’s annual income, pursuant to her Financial Statement sworn January 21, 2016 is $21,936.72, comprised of $600.00 per month as a self-employed para-legal and child tax benefits of $1,228.06 per month. The respondent’s income as a drywall installer fluctuates from week to week as he is paid on a “piece-work” basis. In 2014 his line 150 income was $48,738.10 and in 2015 it was $58,192.10.
Child Support
[5] In 2014 the respondent was ordered to pay child support in the sum of $959 per month based upon a imputed income of $50,000 per annum. He was also ordered to pay a fixed amount of $124 per month representing 50% of the section 7 expenses claimed by the applicant. Pursuant to the temporary consent order dated August 21, 2015 the monthly child support was adjusted downwards from $959 per month to $933 per month in accordance with the respondent’s 2014 income of $48,738.10. Section 7 expenses remained the same at $124 per month. In 2016 the respondent continued to pay child support in the sum of $933 per month and section 7 expenses fixed at $124 per month.
[6] The respondent’s ongoing child support obligation based on an annual income of $58,192.10 is $1,134.00 per month commencing June 1, 2015. The parties are not in substantial disagreement with this.
[7] The respondent submits that he overpaid child support by $312.00 in 2014 and underpaid child support by $2,180.00 in 2015, resulting in a net underpayment of $1,868.00 to the end of 2015. The applicant makes no submissions contrary to this. The underpayment for 2016, to July 1, 2016 is the sum of $1,407.00, resulting in aggregate arrears for 2014, 2015 and 2016 to date of $3,275.00.
[8] The respondent argues that payment of arrears should not be ordered to be paid in light of the large payments made by him towards s. 7 expenses for which insufficient supporting evidence was provided by the applicant.
[9] I propose to deal with the question of whether arrears of child support are owing by the respondent following my determination of the issue of s. 7 expenses.
S. 7 Expenses
[10] At trial the applicant produced various documents by which she sought to support her claims for s. 7 expenses. Counsel for the respondent only received these documents less than 24 hours prior to the trial despite the order of Justice Kent dated October 9, 2015 that receipts for any s. 7 expenses being be produced within 40 days and numerous requests by respondent’s counsel that they be produced. Some of the documents produced by the applicant on the eve of trial did not comprise receipts, as ordered, but were in the nature of calculations and estimates put together by the applicant herself and communicated to her counsel.
[11] The onus is on the applicant to prove with sufficient documentary support that the claimed s. 7 expense has been incurred or will be incurred. As stated by McIntyre, J. in the case of Krislock v. Krislock (1997), 34 R.F.L. (4th) 420 (Sask. Q.B.) at para. 16:
A claim for contribution to expenses as set forth in s. 7 is predicated upon the premise the party is seeking a contribution to actual expenses incurred. Section 7 is not a basis for submitting a shopping list of estimated expenses for a variety of activities for the purposes of simply increasing the monthly child support payable. The party seeking contribution for s. 7 expenses should provide sufficient details to satisfy the Court the expense is being incurred, or will be incurred, and particulars of the actual expense involved. The party seeking such contribution also has the burden of ensuring that the evidence or material submitted establishes that the expense meets the qualifying criteria applicable to the specific category of expense claimed as well as the qualifying criteria found in the opening words of s. 7(1).
[12] The documentation produced by the applicant in support of her claims for s. 7 expenses was lacking in specificity and hard to follow. It was left to the court to do its best to try to piece together disparate, incomplete and confusing documentation and testimony in order to try to discern whether the applicant has been able to support her claims for s. 7 expenses. It is reasonable for the court to expect that supporting material of this nature be presented in an organized and understandable fashion which would afford it the necessary confidence that its determination is informed and well-founded.
[13] The governing principles applying to claims for special or extraordinary expenses brought under s. 7 of the Child Support Guidelines were usefully and comprehensively reviewed by O’Connell, J. in the case of Kloc v. Wozniak 2013 ONCJ 363 (O.C.J.) at paras 28-37. Some of the principles which have emerged from the case-law are as follows:
- An order for s. 7 expenses involves the exercise of judicial discretion, considering the objectives of the guidelines, including section 1(a) which reads “to establish a fair standard for children that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation”;
- The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances;
- One of the factors to be considered is whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred;
- The list of special and extraordinary expenses under clauses 7(1)(a) to (f) is exhaustive and if a claim does not fall within any of the listed categories it must be dismissed;
- Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support;
- A court has a discretion to order that a payor contribute to an expense if the expense is extraordinary (that is, an expense that exceeds the amount which the recipient would reasonably be expected to cover taking into account the table amount of support payable and the recipient’s income), reasonable and necessary; and
- A custodial parent does not have a carte blanche to enrol a child in any number of extra-curricular activities and then look to the non-custodial parent to share all of the costs
[14] The applicant appears to have incurred a cost of $5,295 for child care while she was attending schooling to train as a para-legal, comprised of the following:
$2,020 (September 2014-January 2015) $1,440 (January-June 2015) $585 (March Break Camp 2015) $1,490 (Summer 2015)
- ($260) (January 2015 overlap) $5,295 (total)
[15] The applicant testified that the children attended a day camp during the March Break in 2016 at a cost of $100.00 per child ($300.00 in the aggregate). However, no documentary evidence was produced for this expense. I would not allow this as an extraordinary s. 7 expense.
[16] The applicant produced a receipt showing that two of the children, Connor and Quinn, participated in music lessons from April to December 2013 at $18 to $19 per lesson for an aggregate cost of $467. There was no evidence that the respondent was consulted prior to this expense being incurred.
[17] The applicant testified that all three children participated in house-league or recreational hockey in 2013-14 and again in 2014-15, producing registration receipts. The total registration cost for the 2013-14 season was $1,010 and for the 2014-15 season it was $1,175.
[18] The applicant testified that two of the children Quinn and Connor were enrolled in basketball for the 2015-16 season at a cost of $100.00 each. A handwritten receipt was produced indicating a cash payment of $220.00 however neither the payee nor the purpose of the payment was identified.
[19] The applicant produced a receipt showing expenditures for dance lessons for Damien of $240.00 in 2013-14 and $237.50 in 2014-15. She testified that the total cost for the past year for dance lessons for Damien was $959.00 including tuition and costumes. However she produced no receipts for this expenditure. The applicant estimated the ongoing cost for dance at $1,000.00 per year depending on what classes Damien enrolls in.
[20] The court’s determination of whether an expense is for a usual or ordinary extracurricular activity included in the table amount of support or an extraordinary s. 7 expense must be done in the context of the means of the parents (see Krislock at para. 25). In this case the income of the respondent is over twice that of the applicant’s. Although the applicant has re-partnered, the primary responsibility to contribute to the cost of activities is on the respondent, not on the applicant’s new partner.
[21] It is noted that the applicant has only claimed, in respect of hockey, the registration fees and not the cost of equipment. She testified that she and her partner budget $250.00 per year for equipment for each child.
[22] The applicant testified that in 2016 Damien attended some academic tutoring because he struggles in math. However she produced no receipts for any expenditures in respect of tutoring.
[23] In this case, in the context of the parties’ relative incomes, I would consider the reasonable registration costs (but not equipment or costume costs) of up to one athletic activity and up to one non-athletic/arts-related activity (e.g. dance, music, visual arts) per child per year (customarily from September 1 to August 31) to be an extraordinary s. 7 expense to which the respondent should be required to contribute. On an on-going basis the applicant should consult with the respondent prior to incurring this type of expense.
[24] Based upon the evidence the applicant has incurred the following s. 7 expenses to date:
Child-care $5,295.00 Music lessons $467.00 Hockey (2013-14 season) $1,010.00 Hockey (2014-15 season) $1,175.00 Basketball (2015-16 season) $220.00 Dance (2013-14) $240.00 Dance (2014-15) $237.50 Total: $8,644.50
[25] The respondent submits that the parties agreed to share extraordinary expenses equally, rather than in proportion to their incomes, in the Separation Agreement dated November 15, 2010 and that the applicant has consented to s. 7 expenses being apportioned in this fashion throughout the proceeding, as exemplified by her Affidavit sworn October 31, 2013.
[26] The Separation Agreement was not referred to in evidence at the trial nor entered as an exhibit. Moreover I am unable, upon review of the Separation Agreement included in the Continuing Record to identify a provision wherein it was agreed to share extraordinary expenses equally. Unfortunately, the apportioning of s. 7 expenses was not an issue which was addressed in the evidence at trial.
[27] I agree with the alternate submissions of the respondent that s. 7 expenses incurred prior to trial should be apportioned based upon the parties’ 2014 incomes at 82% to the respondent and 18% to the applicant and that from and after the date of this Order the apportionment should be 67% to the respondent and 33% to the applicant. This takes into account the tax benefits enjoyed by the applicant.
[28] The respondent’s share of s. 7 expenses incurred by the applicant to date, based upon an apportionment of 82%, is the sum of $7,088.49. He has paid $124.00 per month since January 2014 comprising $3,844.00 in the aggregate, leaving a shortfall of $3,244.49.
[29] The aggregate of the arrears of monthly child support and underpayment of s. 7 expenses is the sum of $6,519.49 ($3,275.00 + $3,244.49). This amount should be paid by the respondent in 48 equal instalments of $135.82/month commencing August 1, 2016 in order to avoid undue hardship to the respondent.
Obligation of the Respondent to Take Children to Activities on Sundays
[30] The respondent testified that alternate Saturdays and Sundays are the only times when he can exercise access to the children due to his work schedule. Indeed he works on the Saturdays that he does not have the children. He is not opposed to taking the children to their activities on the Saturdays and testified that he does so, but he wishes to set aside Sundays for family time. Sunday is the only available day for each of his mother and father (separated from one another) to visit separately with the children, share meals together and spend uninterrupted quality time together as a family. The respondent testified that he remains flexible about taking the children to an activity in the event that they had an occasional tournament which requires them to attend on Sunday. However, he requested that he be allowed discretion in determining how to spend quality time with the children on Sundays when he has access to them. He feels that he has been relegated, by the applicant having unilaterally involved the children in these extra-curricular activities, to the role of transporting the children to activities on both Saturdays and Sundays on the two weekends per month when he has access, and has been required to simply watch them from the stands rather than spending quality time them. The evidence indicated that, because the children reside in a small community, hockey games, even at the house-league level, are played in various towns in the region at some distance from one another.
[31] The applicant testified that the children’s activities, especially hockey, require them to attend occasional practices and games on Sundays, and that it is in their best interests that they participate in these activities and that they do so fully in order not to fall behind their peers in their development. She gave evidence that it had been communicated by the children’s coaches that their failure to attend on Sundays adversely affected their playing time when they did attend. She also testified that the children chose not to enrol in hockey for the 2015-16 season due to the comments or complaints by other boys on their team that they were not showing up for practices as required.
[32] The conflict between a custodial parent’s desire to have the children participate fully in their extra-curricular activities in order to develop their skills to their full potentials and an access parent’s desire to maximize the quality time that he can spend with the children and to permit them to spend time with their extended family on his or her side represents a dilemma which I daresay is faced by many separated parents.
[33] In the case of Jelinski v. Grajczky, 2011 SKQB 383 (Sask. Q.B.) McIntyre, J. made the following observations at para. 18 on the facts of that case:
Unfortunately [the child] is caught in the middle of the acrimony which exists between her parents. Her parents cannot communicate with each other in a civil manner. There is no flexibility with their parenting arrangement so as to accommodate [the child]'s wishes and desires. They are both obsessed about "their time" with [the child]. [The father] in particular has put his needs ahead of his daughter's, given his attitude towards her extra-curricular activities initiated by [the mother]. Rather than support [the child] in her activities as a proud parent he has created anxiety for her. She worries she will not be able to attend some events if she is going to be in her father's care at the time. [The father] has displayed extremely bad judgment in the events which unfolded after the application was made. He has only himself to blame for the rupture which occurred in his relationship with [the child].
[34] Unlike the situation in Jelinski, there is little or no reliable evidence in the present case respecting the children’s wishes and preferences on the question of missing activities associated with their extra-curricular involvements versus spending time with their father and paternal grandparents. I do not find the evidence of the applicant that the children declined to play hockey for the 2015-16 season because of comments made by team-mates about them missing practices reliable on the issue. Moreover the child in Jelinski was somewhat older (10 years of age) than the children in the present case and was found to have well developed wishes and preferences.
[35] The maximum contact rule exemplified in subsection 16(10) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as am., provides that the court should give effect to the principle that a child should have as much contact with each parent as is consistent with the child’s best interests. In my view this principle goes not only to the quantity of contact but also to the quality of the contact.
[36] I find that it is in the children’s best interests in this case that they have the opportunity to develop a close bond and relationship with their father and to that end to be given the opportunity to spend one-on-one time with him. It is also in their best interests to be able to spend quality time with their paternal grandparents.
[37] The respondent demonstrated, in his evidence, a willingness to be flexible on the issue, whereas I found the applicant’s position to be inflexible by comparison. Given that the respondent is willing to take the children to their activities on the Saturdays when they are in his care, I find that he should be given the discretion to determine how to spend Sundays when he exercises access to the children, in their best interests. There is no evidence that the respondent cannot be relied upon to make responsible decisions in this respect.
[38] However, as an admonition to the respondent, he will be well-advised as the children get older and begin to develop their own wishes and preferences, to be sensitive to those wishes and preferences and take them into account, so as avoid running the risk of fracturing his relationship with one or more of the children, as had occurred in the Jelinski case as a result of the father’s inflexible attitude.
Disposition
[39] In order to give effect to the foregoing, it is ordered, on a final basis, as follows:
(a) Order to go in accordance with signed Partial Minutes of Settlement, filed, dated May 25, 2016; (b) The respondent shall pay to the applicant arrears of monthly child support and underpayment of s. 7 expenses to the date hereof in the aggregate sum of $6,519.48. This amount shall be paid by the respondent in 48 equal instalments of $135.82/month commencing August 1, 2016; (c) The respondent shall pay to the applicant child support in the sum of $1,134.00 per month commencing August 1, 2016, in accordance with the Federal Child Support Guidelines based upon an annual income of $58,192.10; (d) The cost of extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines shall be apportioned 67% to the respondent and 33% to the applicant; (e) The applicant shall consult with the respondent before enrolling the children in extra-curricular activities for which contribution from the respondent as s. 7 expenses are to be claimed by her or which may require a child’s participation at a time when they are in the care of the respondent. In consulting the applicant shall provide the respondent with full and complete known information with respect to the registration cost and the frequency with which activities may be scheduled during times when the children are in his care. The final decision respecting enrollment, following such consultation, shall be made by the applicant. Any such extra-curricular activities shall be limited to up to one athletic activity and up to one non-athletic/arts-related activity (e.g. dance, music, visual arts) per child per year (customarily from September 1 to August 31). The expense associated with such activities for which the contribution of respondent may be required shall be limited to registration fees or charges, and shall not include other associated costs such as equipment, costumes, travel, accommodation, food, etc.; and (f) The respondent shall be required to take the children to their scheduled activities on Saturdays when they are in his care, but shall have the discretion to determine whether to take them to such activities on Sundays in which they are in his care. The applicant shall provide reasonable and timely notice to the respondent of activities of the children scheduled during the respondent’s access times.
Costs
[40] The parties are strongly encouraged to agree on costs. If they are unable to so agree they may file written submissions of no more than three pages, double-spaced, in addition to any pertinent offers and draft bills of costs, within 21 days. Each party may make brief reply to the other’s submissions, not to exceed two double-spaced pages, within 7 days thereafter. Such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within 21 days, the parties will be deemed to have settled the issue of costs as between themselves.
D.A. Broad J. Date: July 15, 2016