Court File and Parties

COURT FILE NO.: FS-05-009039-00 DATE: 20170405 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Deborah Ann Shaw, Applicant AND: Paul Friesen, Respondent

BEFORE: Van Melle, J.

COUNSEL: Mahzulfah Uppal, for the Applicant Kimberly Paynter, for the Respondent

HEARD: March 22, 2017

Endorsement

[1] This is the respondent’s motion seeking:

1. To terminate child support payments for Meagan Maura Friesen, born July 12, 1994, as of July 1, 2012;
2. An order that any section 7 expenses for the children, namely, Meagan Maura Friesen and Philip Stephen Friesen, born April 2, 1998, be calculated commencing 2010 onwards;
3. An order that any arrears owing for section 7 expenses from 2010 to 2015 be fixed in the amount of $8,000.00;
4. An order that the applicant provide full particulars of Philip’s current schooling, including proof of current enrolment and costs associated with the program as well as any loans, bursaries, grants and employment income that Philip has had access to;
5. An order that as long as child support is payable, the applicant shall provide details relating to Philip’s schooling at the commencement of each semester, including proof of continued full-time attendance and proof of expenses including Philip’s employment income, OSAP, bursaries, his tax returns and year-to-date pay stubs and any other gifts or revenue;
6. He also seeks a recalculation of child support based on what he says his actual income has been since 2008.

[2] The applicant acknowledges that child support for Meagan should terminate, but says it should terminate as of September, 2012. She is also looking for payment of section 7 expenses for the two children from September 2, 2008 to date. She seeks to have any overpayment of child support by the respondent for Meagan set off by a portion of the unpaid section 7 expenses.

[3] She seeks an order that the respondent pay to her $44,597.92, representing his share of section 7 expenses from the date of separation to April 30, 2017.

[4] She seeks ongoing child support for Philip for so long as he attends at a post-secondary educational institution on a full-time basis, and that the applicant pay his proportionate share of section 7 expenses.

Background

[5] The parties commenced cohabitation in 1994 and separated in 2005. There are two children of the marriage, Meagan, born July 12, 1994, and Philip Stephen Friesen, born April 2, 1998.

[6] The separation was acrimonious and many court appearances, commencing in 2005, were required. Eventually, Justice Lemon made an order based on minutes of settlement. The order is dated September 2, 2008.

[7] The respondent commenced his motion to change on March 26, 2013. In the motion to change, the respondent was seeking a termination of child support for Meagan. However, in response to his motion to change, the applicant sought payment of section 7 expenses.

[8] The relevant portions of Justice Lemon’s order are:

Paragraph 11: Child Support

The Respondent/Father, Paul Friesen, shall pay to the Applicant/Mother, Deborah Ann Shaw, for the support and maintenance of Meagan Maura Friesen, born July 12, 1994, and Philip Stephen Friesen, born April 2, 1998, the sum of $1,064.00 per month commencing January 1st, 2008, and payable on the first day of each month in advance until one or more of the following occurs:

(a) The child ceases to reside with the Applicant/Mother;

(b) The child become 18 years of age and ceases to be in full time attendance at an educational institution;

(c) The child becomes 22 years of age;

(d) The child marries;

(e) The child becomes 16 years of age and is employed on a full-time basis;

(f) The child dies;

(g) The Applicant/Mother dies.

Paragraph 12: Factual Basis for Child Support

The amount of child support has been determined with reference to the following agreed upon facts:

(a) The Respondent/Father’s gross annual income for the taxation year 2007 is $71,788.00;

(b) The Applicant/Mother’s gross annual income for the taxation year 2007 is $67,157.09;

(c) Under the Child Support Guidelines, the table amount of support for the two children is $1,064.00 per month;

(d) Child support shall be payable by the Respondent/Father to the Applicant/Mother pursuant to paragraph 11 subject to an amendment in the quantum being paid as of May 1st each year for so long as support is payable. The Respondent/Father shall provide to the Applicant/Mother copies of his T-4 slip(s) and as filed income tax return on or before April 30th in each year and the parties are to agree as to the base amount of child support payable for the children based on the Respondent/Father’s gross annual income for the prior year. The parties agree that the base child support will be varied commencing May 1st each year pursuant to a Consent to Vary that is to be filed with the Family Responsibility Office. Should either party fail to execute the Consent to Vary and a Court Application becomes necessary, the party that unreasonably refused to execute the Consent shall be liable to the other party for his or her legal costs for the bringing of such an Application. In the event the parties fail to agree as to what amount of base child support is payable, the child support that had previously been agreed to shall continue to be paid on a monthly basis until such time as the parties agree or a Court orders otherwise.

Paragraph 15: Extraordinary Expenses

(a) The Respondent/Father, Paul Friesen, and the Applicant/Mother, Deborah Ann Shaw, shall contribute proportionately toward the reasonable extraordinary costs incurred on behalf of the children which expenses shall be agreed upon by the parents in advance;

(b) The Applicant/Mother shall provide the Respondent/Father with receipts for all extraordinary expenses and the Respondent/Father shall pay his proportionate share of the net cost of these expenses within 30 days of being provided with the receipt;

(c) Neither parent shall enroll the children in any extracurricular program or activity without obtaining the consent of the other parent in writing. If consent is unreasonably withheld, either party may apply to the Court for an adjudication as to responsibility for the extraordinary expenses.

Paragraph 18: Dental Coverage and Extended Health Care Coverage

(a) The Respondent/Father, Paul Friesen, shall maintain the dental and extended health care coverage for the children so long as he is required to support them but only if he continues to be covered by the plans through employment and the coverage continues to be available for the benefit of the children;

(b) The Respondent/Father and Applicant/Mother shall share proportionality the cost of any medical, dental (including orthodontal), vision and prescription treatment of the children not covered by insurance or already incorporated into the child support as a special expense …

Paragraph 19 – Financial Disclosure

(a) The amount of child support payable by the Respondent/Father, Paul Friesen, until his obligation to pay child support terminates with respect to both of the children, shall be reviewed annually on May 1st commencing in the year 2009 to take into account changes in each parent’s income, the Special Expenses incurred for the children and any amendments to the Child Support Guidelines (including revisions to the Table Amounts). The amount of child support previously agreed to shall continue to be paid on a monthly basis until such time as there is an agreement or Court order otherwise;

(b) The Respondent/Father and the Applicant/Mother shall, commencing on April 30, 2009 and on April 30th of each year thereafter, deliver to the other true copies of his or her:

i) Income tax return as filed with Revenue Canada for the preceding year;

ii) All notices of assessment and reassessment (if not received by April 30th, then within two weeks of receipt of same);

iii) Such other information as may be applicable under Section 21 of the Child Support Guidelines.

Paragraph 20 – Family Responsibility Office

(a) Each parent shall advise in writing the Family Responsibility Office or any other agency involved in the enforcement of support, of any facts necessary to amend its’ records when the amount of child support payable either changes or terminates;

(b) Each parent shall be responsible for the payment of the other parent’s costs associated with obtaining the appropriate adjustment in the enforcement of support if that parent fails to notify the agency promptly after a reasonable request.

Termination of Support for Meagan

[9] Meagan turned 18 years of age on July 12, 2012. The evidence adduced by the respondent demonstrates that Meagan’s last days at school were in June, 2012. As a result, support for Meagan terminates pursuant to the court order with the August 1, 2012 payment.

Contribution to Section 7 Expenses

[10] The final order of Justice Lemon, paragraph 15, provided that the parties were to contribute proportionately toward the reasonable extraordinary costs which were to be agreed upon by the parents in advance. The applicant was to provide receipts for all the expenses and the respondent would then pay the net costs of the expenses within 30 days. Neither party was to enrol the children in any extracurricular program or activity without obtaining the consent of the other parent in writing. If the consent was unreasonably withheld then the parties were to apply to the court for adjudication.

[11] The applicant incurred section 7 expenses without seeking consent or having any discussions with the respondent about the expenses. She also did not provide any receipts or documentation until this court proceeding commenced. She then claimed contribution from the respondent dating back to 2008.

[12] As well, there is an issue as to the proportionate sharing of the section 7 expenses. The applicant acknowledges that she has not made disclosure pursuant to the order. She has provided her 2008 to 2011 and 2015 income tax returns and Notices of Assessment. The applicant provided only the first page of her 2012, 2013 and 2014 income tax returns.

[13] The applicant provides a chart of section 7 expenses and asks for the respondent to contribute $40,000.00.

[14] She has not included any tax credits, subsidies, reimbursements that she may have received toward these expenses.

[15] The applicant provides no explanation for not complying with the disclosure provisions of Justice Lemon’s order. She says instead that the order provided that the extraordinary expenses were to be shared 51.7% to the respondent and 48.3% to the applicant. However, she ignored the last sentence in that particular section which says:

In subsequent years, the parties will base their percentages on the parties’ incomes for the prior year and use that as a basis for determining their proportional responsibility.

[16] The applicant explains her reason for not consulting with the respondent regarding section 7 expenses. She states in her affidavit of March 9, 2017 that it has been very difficult for her to communicate with the respondent. She also states that the respondent did everything he could to talk the children out of any sports and any involvement in anything that would cost him money. She states that this became particularly true when Philip began to excel in hockey. She also states that the fact that she had to get a court order in 2008 to compel the respondent to pay retroactive section 7 expenses, explains her failure to obtain his consent pursuant to the court order.

[17] I find this difficult to understand. If, in fact, the respondent was difficult leading up to the final order of Justice Lemon, the court order which was based on minutes of settlement, could have been worded in a different way. In any event, it was always open to the applicant to return to court for an order compelling the respondent to contribute to the extraordinary expenses.

[18] The other problem is the lack of receipts and documentation. Her explanation is that she was a busy single mother raising two children and thus misplaced or lost many receipts. Again, given the acrimonious nature of this matter, her evidence defies belief as keeping receipts for future reference would presumably be even more necessary. It seems likely to me that the applicant was prepared to leave the issue of the section 7 expenses to one side as long as she was continuing to receive the support for Meagan to which she was not entitled. Thus, it seems it was only when the respondent commenced this motion to change that the applicant decided to try to obtain a contribution to the section 7 expenses.

[19] Many of the items that are claimed are not in fact section 7 expenses. However, in oral submissions, she said that she would be content with a proportionate sharing of Philip’s rep hockey costs and the uninsured dental and medical costs that the respondent did not share.

[20] The problem with that is that she has not produced reliable receipts for the rep hockey costs. Also, the respondent has produced documentation from his health plan carrier, Green Shield Canada, to show that some of the costs which are being claimed by the applicant were, in fact, paid by Green Shield. However, although I accept the respondent’s evidence in this regard, in reviewing the various tables and documentation, it is clear to me that a number of medical/dental expenses were not covered by either party’s medical insurer. It is difficult to decipher how much this would amount to, but I am confident that the respondent’s share would be at least $1,500.

[21] A claim for a contribution to the portion of medical and dental expenses not covered by either party’s plan is somewhat different than a claim for extracurricular activities. The medical/dental expenses are not discretionary.

[22] The respondent acknowledges some obligation to contribute to extracurricular expenses. In that regard, he has offered to pay $8,000.00 towards these expenses, stating that these are the receipts which he accepts as appropriately documenting reasonable section 7 expenses that were in fact incurred.

[23] It is very important to note that the order of Justice Lemon was based upon minutes of settlement arrived at between the parties with counsel. To wait five years to claim section 7 expenses that have not been properly presented in accordance with an order based on those minutes of settlement is completely improper. Parties must be held to their agreements. Another issue that causes me concern is the fact that after the applicant was served with the motion to change in 2013 she did not feel it necessary to keep receipts for that time period. There are significant issues with the evidence produced for 2014, 2015 and 2016. For example, in calculating the cost of Rep Hockey for Philip, the applicant has produced information as to what Rep Hockey in Toronto costs. I am at a loss to understand why the applicant could not have approached the organizers of the Rep Hockey that Philip was involved in to obtain the information as to the cost. I clarify here though, that even if she had, given that she failed to comply with Justice Lemon’s order, she would not be entitled to reimbursement from the respondent.

[24] Additionally, the applicant claimed expenses for items that are not section 7 expenses. She purchased cell phones for the children. She says that she purchased them so that the children could speak with their father. That may be so, however, again she did not obtain the respondent’s consent in advance and she has not provided receipts.

[25] The applicant’s chart of section 7 expenses contains a number of other items that are not section 7 expenses either. The Child Support Guidelines take into consideration many expenses for the children. It is improper to claim every out-of-pocket expense.

[26] In the circumstances of these parties, it is unlikely that school uniforms, dryland training, advanced shooting, school fees, police check and high school sports would be considered section 7 expenses. It is debatable as to whether or not a laptop expense for high school students is a section 7 expense. It would certainly not be an annual expense.

Respondent’s contribution to ongoing section 7 expenses

[27] I spoke to the parties regarding the respondent’s contribution to Philip’s ongoing post-secondary expenses. In that regard, the order of Justice Lemon is also very clear. I was asked to make a determination of this matter however, again, the information before me was not complete. I do not have the applicant’s proper income tax disclosure, nor do I have any information from 2016 or from 2017.

[28] In her affidavit of March 9, 2017 the applicant deposes that she had to purchase a new laptop for Philip for Conestoga College. She said he was required to obtain a new laptop due to the necessity of having to have an AutoCAD program on his computer. She said that she obtained a discount through her employment to purchase the computer and that he would be able to use the computer for the balance of his post-secondary education. However, again, she did not produce any receipts for this computer and AutoCAD program. In her documentation, the applicant raises the issue that the respondent has not given any financial assistance to Philip other than child support for his educational costs. She states that she should not have to beg him to do so; that it is an obligation. She states as well that the respondent and his new spouse live in a house with no mortgage and no responsibility for children. However, she fails to mention the fact that she has not complied with the order of Justice Lemon of 2008. Had she done so, and had the respondent refused to contribute, this would be a very different story. As well, if she had proper receipts for the amounts that she has spent, again this would be a different story.

[29] She states that the respondent’s refusal to pay section 7 expenses has been an ongoing issue. She states as well that he has not contributed towards the children’s section 7 expenses following the final order of Justice Lemon. Again, this is in large part due to the applicant’s failure to comply with that court order.

Respondent’s claim that he has overpaid child support

[30] Regarding the respondent’s claim for overpayment of child support, I note that he is claiming an overpayment back to 2008. He wants to deduct union dues that are deductible in the calculation of child support pursuant to the child support guidelines. However, union dues were not deducted when the original minutes of settlement were entered into. As I stated earlier, he was represented by counsel when the minutes were entered into. As well, in the following years, despite Justice Lemon’s order, he did not make the disclosure as ordered. Therefore, until 2012, he is responsible for the $1,064.00 per month in child support. Just as the applicant did not follow the order regarding section 7 expenses; the respondent did not follow the order regarding disclosure, and is thus not entitled to a reduction in the child support payments. In 2012, as a result of continuing to pay child support for Meagan and based on his income, I have calculated the overpayment and it is $19,317.00.

[31] An order will issue that:

1. Support for Meagan terminates with the August 1, 2012 payment;
2. The respondent pay to the applicant $8,000 as his contribution to section 7 expenses to date;
3. The respondent pay to the applicant $1,500 as his share of section 7 medical expenses not covered by Green Shield.
4. The applicant provide to the respondent full particulars of Philip’s current schooling, including proof of current enrolment and costs associate with the program as well as any bursaries, grants and employment income that Philip has access to (if she has not already provided this information);
5. As long as child support is payable, the applicant provide details relating to Philip’s schooling at the commencement of each semester, including proof of continued full-time attendance and proof of expenses including Philip’s employment income, bursaries and any other revenue;
6. The respondent has overpaid child support in the amount of $19,317. This amount shall be offset by the $9,500 that he owes to the applicant on account of medical/dental and section 7 expenses;
7. Support deduction order to issue;
8. All other provisions of Justice Lemon’s order to remain in full force and effect.

[32] At the conclusion of the argument of the motion, I asked the parties for their respective costs’ outline. The applicant acknowledged that her lack of disclosure probably disentitled her to a costs’ award. The respondent produced a costs’ outline and offer to settle. The offer to settle was sealed and I have only unsealed it after making my determination of the issues raised by this motion.

[33] The offer to settle is close to my decision but is not better for the respondent than the outcome of the motion. As well, although the respondent was mostly successful on the motion, he did not enjoy complete success. The respondent is therefore entitled to a portion of his costs on a partial indemnity basis. On a full recovery basis he claims $7290.44 plus a fee for the appearance at the motion itself. Counsel’s hourly rate is $110.00 and the motion took 2 hours to argue, thus the full recovery rate for the motion would be $220.00. Substantial indemnity is approximately 80 – 90% of full recovery. Substantial Indemnity is roughly one-third more than partial indemnity. The respondent is therefore entitled to 75% of his partial indemnity costs. Although it appears that the respondent’s counsel spent quite a bit of time researching the issues presented by this motion, her hourly rate is extremely reasonable. The respondent is entitled to costs in the amount of $3000. The costs will be payable when Philip is no longer entitled to support.

Van Melle, J. Date: April 5, 2017