Court File and Parties
COURT FILE NO.: FC-13-1437 DATE: 2016/08/26 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Marzena Anna Urban, Applicant AND Christopher Peter Urban, Respondent
BEFORE: Madam Justice Mackinnon
COUNSEL: R. Bowles, for the Applicant R. Cross, for the Respondent, the Moving Party
HEARD: August 25, 2016
Endorsement as to Costs
[1] This motion is before me pursuant to the order of R. Smith J. dated March 10, 2016, to determine whether the Applicant mother’s refusals to contribute to certain s. 7 expenses are or are not reasonable. The parties have two children, Ashley and Michael. Both reside full time with their father and have little or no contact with their mother.
[2] The Respondent earns $90,077.80 per annum. The Applicant earns $60,298.72 per annum. She pays the Respondent $799.00 per month in child support.
[3] The Respondent seeks an order that the Applicant pay $8,385.11 for her share of s. 7 expenses for the period from May 27, 2015 to March 10, 2016. He also seeks the additional sum of $4,137.09 for the period from March 11, 2016 to date.
[4] He also asks the court to require the Applicant to pay him $963.25 per month on a go forward basis towards the children’s s. 7 expenses to be revisited upon certain future events occurring. This would amount to a change in the final order dated July 9, 2015 made on consent.
[5] As a preliminary objection, the mother submits that the scope of the motion should be confined to that specifically ordered by Justice Robert Smith. I agree. The father has not brought a motion to change. The fact that R. Smith J. allowed this narrow issue to proceed cannot be taken as the father would have it as green lighting a motion to change a final order by way of an alternate process. Similarly, the s. 7 expenses in issue before R. Smith J. are the subject of this motion, not additional expenses which the father wishes to add on for convenience.
[6] I appreciate that this has been a highly litigious case. Adhering to the scope of my judicial colleague’s order may well mean that the parties resort to further litigation. Disregarding process or the scope of a binding order is not the cure to high conflict litigation.
[7] For these reasons I confine my ruling to the expenses in issue as at March 10, 2016. These fall into two categories. The first category is Ashley’s post-secondary expenses. She is age 21 and is in third year of an accelerated Hons. BA program at Carleton University. Paragraph 10 of the July 9, 2015 order states:
“…Given Ashley’s income and access to student loans, the parties shall not contribute any further to Ashley’s post-secondary expenses, provided Ashley’s income remains approximately the same as it was in 2014”.
[8] In 2014, Ashley earned $14,400.00. In 2015 she earned $12,500.00. Her OSAP loan is $4,564.00 each academic year. In the context of Ashley’s ability to cover all of her post-secondary expenses, the drop in income is significant. In this context, it is not “approximately” the same as it was in the bench mark year.
[9] Rather than review all of Ashley’s expenses for 2015, it seems reasonable and consistent with the parties consent order to require the mother to make up her percentage share of the shortfall in Ashely’s income, which is 40 percent. Accordingly I order her to provide a cheque or bank draft payable to the father and to Carleton University jointly in the sum of $760. This is the method of payment provided for in the consent order.
[10] Given that I have decided to base the mother’s required contribution on the shortfall in Ashley’s income, not on a percentage of expenses, I have not found it necessary to address the submissions she made about factoring in the $1,500.00 tax credit the father received in 2015 by Ashley transferring her tuition deduction to him.
[11] This ruling should not be taken as forecasting a future disposition if an issue arises as to the mother’s appropriate contribution to Ashely’s 2016 post-secondary expenses. Several issues have been raised in connection to why and whether it is appropriate that Ashley’s projected income for 2016 is about half of what it has been before. The father deposed that Ashley’s program required more effort at this stage, in order to maintain her high GPA. I have not addressed these issues. I note for future reference that this evidence would properly come from Ashley herself and would be supported by academic records. I suggest that in advance of any further litigation in relation to the mother’s contribution to Ashley’s post-secondary expenses that Ashley would be well advised to provide this information to her mother directly.
[12] Nor have I had to address the mother’s position that she cannot reasonably afford the contribution the father was asking, because she can readily afford the amount I have ordered.
[13] The second category of expense is for Michael’s competitive hockey. Michael is 17 years old, and is going into grade 12.
[14] The amount of hockey expenses claimed for Michael is $12,623.44. I have deducted $1,165.00 being expenses incurred after the March 2016 order.
[15] I have also deducted $5,943.85 for mileage, calculated by the Respondent based on the kilometers he drives his son to and from hockey events, at the rate of $0.55 per kilometer. This is the rate that the Respondent’s employer pays him for work required travel.
[16] I disagree that “mileage” is a special expense. I agree with Sherr J. in Converti v Escobedo, 211, CarswellOnt 14-615 (OCJ) where he states that:
“…it is unusual to permit transportation costs as section 7 expenses”.
[17] “Mileage” includes a component for depreciation over and beyond reimbursement for gas expenditures. I do not agree it is a proper measure to use as between parents in relation to driving their child to activities.
[18] Additionally, the order dated July 9, 2015, made on consent, requires in para.14 that any future payment by the Applicant for s. 7 expenses shall be made by cheque or bank draft “payable jointly to the Respondent and the third party provider”. In my view this provision supports the interpretation that this type of cost to the Respondent was not intended to be shared by the Applicant.
[19] This leaves $5,515 worth of hockey expenses to consider. I do not accept the respondent’s submission that as long as an expense is incurred that is related to hockey that it is automatically an s. 7 expense. I have reviewed the expenses claimed to satisfy myself whether an expense is “extraordinary” under s. 7(1.1)(a) of the Child Support Guidelines.
[20] On this basis, I have removed five expenses which combine to total $230.00 from the list. (Items 11, 12, 14, and 17).
[21] I also decline to include the cost of Michael’s passport as an expense related to hockey. There are many reasons to have a passport. Presumably Michael’s is valid for at least 5 years, and is available to him for a variety of uses during that time.
[22] These reductions bring the total allowable total claim for hockey expenses to $5,124. The Applicant mother’s 40 percent share is $2,022.00.
[23] She says she is reasonable to refuse to pay because she only agreed to contribute to house league hockey. I might have acceded to that submission if I had been shown what the cost of house league hockey would have been, and the mother had made a payment in that amount.
[24] The mother also says that her refusal is reasonable because she cannot afford competitive hockey for her son. This submission is based only her annual income at $60,298.72. The Applicant did not deliver a financial statement even though one is required by Family Law Rule 13. I saw merit in her submission that on its face $963 per month for s. 7 expenses plus $799 per month table support may be unaffordable for her, but I am now considering a far lesser sum and have no other financial information from her to take into account.
[25] The Applicant also submitted that the Respondent did not ask her to contribute before he incurred each expense which is a requirement of the final order. This is addressed by R. Smith J.’s order which deemed a request and allowed time for her to agree or to refuse.
[26] Accordingly I find the refusal as it relates to the amount of $2,022 to have been unreasonable and I order that amount to be paid by way of reimbursement to the Applicant from the funds ordered to be held in trust by R. Smith J.
[27] It may be that my decision on affordability would have been different had the Applicant taken the step of delivering a financial statement. In future both parties are well advised to comply strictly with the terms of the final order and with the Family Law Rules.
[28] If costs are demanded by either party counsel may make brief submissions not to exceed two pages in length plus their bill of costs and any relevant offers to settle. Counsel shall agree on the exchange of submissions, all of which shall be in my hands on or before September 12, 2016.
[29] Payment of this order is deferred until after I have ruled on costs. The funds shall remain in trust until then.