M.I. v. M.C., 2017 ONSC 5341
CITATION: M.I. v. M.C., 2017 ONSC 5341
COURT FILE NO.: 03-FS-282880-0001
DATE: 20170911
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: M.I., Applicant
AND: M.C., Respondent
BEFORE: Mr. Justice M. D. Faieta
COUNSEL: Norman Epstein, for the Applicant
Elizabeth Pacheco, Respondent
Karen Lindsay-Skynner, for the Office of the Children’s Lawyer
HEARD: May 25, 2017
E N D O R S E M E N T
introduction
[1] The parties separated after twelve years of marriage on March 1, 2014. They have two children: Nadia, age 16, and Sandra, age 13 (not their real names).
[2] On May 24, 2016, the Respondent (“Mom”) filed this motion for a temporary order requiring the Applicant (“Dad”) to: (1) pay child support retroactively to March 1, 2014; (2) pay special and extraordinary expenses under section 7 of the Federal Child Support Guidelines, SOR/97-175, as amended, (“CSG”) retroactively; (3) maintain a life insurance policy for the benefit of the children; (4) maintain dental, medical and extended health plan coverage for the children; (5) pay spousal support to Mom adjusted annually for inflation, maintain a life insurance policy for the benefit of Mom and to maintain dental, medical and extended health plan coverage for Mom. Mom also sought an order for temporary sole custody of the children.
[3] On June 9, 2016, the motion was adjourned to July 14, 2016 and the following temporary Order was granted by Justice Moore on consent of the parties:
[Dad] shall pay child support to [Mom] for the children … in the sum of $1,228.00 per month commencing January 1st, 2016 based on his 2015 income of $84,654.22, on a without prejudice basis to [Mom’s] claim to seek retroactive adjustment of support and arrears owing.
[Dad] shall contribute 61 percent of the children’s special or extraordinary expenses to [Mom] within seven days of [Mom] delivering proof to him of the expense provided [Dad] approves of the expenses, such approval not to be unreasonably withheld. In determining his contribution to the expense, [Dad] may deduct any income tax benefit or other subsidy received by [Mom] for that special or extraordinary expense.
By no later than June 1st each year, the parties shall exchange copies of their income tax returns, as filed, for the applicable calendar year. The parties shall then determine the appropriate Table amount of [Dad’s] child support obligation for the applicable calendar year, in accordance with the Child Support Guidelines.
Unless the Support Order and Support Deduction Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the party to whom they are owed. …
[4] On July 14, 2016, Justice Allen granted the following temporary Order:
[Dad] shall pay costs fixed at $1,500.00 plus HST within 30 days of the date of this Order to [Mom] …
[Mom’s] motion is adjourned to September 20, 2016. …
[5] On September 20, 2016, Justice Moore granted an Order requesting the Office of the Children’s Lawyer to provide such services as the Children’s Lawyer deems appropriate to Nadia and Sandra. The basis for this request was to determine whether the children should live with Mom or Dad given their expressed preferences.
[6] The motion balance of the parties agreed to an Order, that amongst other things, required Dad to pay child support in the amount of $1,228.00 per month to Mom based on his reported income in 2015 of $84,654.22.
[7] On September 12, 2016 Dad filed a motion for temporary custody and primary residence of Nadia based on her wishes; uninterrupted access to Sandra; a variation of the amount of child support to reflect the change in custody of Nadia and Mom’s income of $55,000 per year.
[8] With the assistance of the Office of the Children’s Lawyer (“OCL”), the parties implemented a temporary arrangement in January 2017 whereby Nadia resides primarily with her Dad and Sandra resides primarily with her Mom.
[9] At the hearing of this motion, the parties resolved the issue of custody and access. They appear to have largely continued the current arrangement. Their partial settlement provides as follows:
Parenting Time:
[Sandra] to have her primary residence with the Mom and [Nadia] to have her primary residence with the Dad. The girls to remain together while exercising a shared parenting schedule, spending alternating weekends with their parents. [Nadia] shall have a dinner visit with the Mom and [Sandra] each Wednesday as well as the flexibility to move between her parents’ homes during the week at her discretion and as can be agreed between the parties. [Sandra] to have a short weekly visit with the Dad on alternate Wednesday evenings or other evening to be chosen by the Dad and Sandra each alternating week in consultation with Mom.
All the holidays be split equally to maximize the time that the girls spend with both parents or as otherwise agreed. For summer holiday access, each parent to give each other notice of what weeks they have selected by March 1. For the summer of 2017, the Dad shall have the pick of dates and shall provide notice of his selected dates by June 1, 2017. The Mom shall have first pick of dates in the summer of 2018. Commencing in 2019, the Dad shall have the first pick in odd years and the Mom shall have first pick in even years.
Decision Making:
Mobility should not be part of the custodial decision-making. A parent should not be able to move further than 10 kilometres from their current residence without written agreement of the other party or court order. Each party shall provide the other with 90 days written notice of any intention to move.
Each parent shall be responsible for the day to day decision making regarding the children when they are in his or her care. Each parent will consult with the other regarding significant decisions regarding the children such as non-emergent health, religion and change of school. If the parties cannot agree, [Mom] shall make the final decision with respect to [Sandra].
The parties to use Family Wizard to communicate and to consider using mediation or mediation/arbitration to solve any disputes that may arise.
The parties agree to be flexible with respect to special occasions and family events that may arise and will not insist on strict compliance with the parenting schedule set out above. At the time that a change of schedule is requested, the parent requesting the change shall offer make up time.
Child Support
[10] Despite primarily residing with Dad, based on the uncontroverted paragraph 20 of Mom’s affidavit sworn, May 18, 2017, I find that Nadia has resided with Mom more than 40% of the period from January 1, 2017 to May 18, 2017. Accordingly, for purposes of calculating child support, I accept Mom’s position that Nadia’s residence is shared between Mom and Dad, and that Sandra resides with Mom. Thus, based on Mom’s 2016 income of $61,408 and Dad’s 2016 income of $91,600, I find that Dad shall pay child support of $766 per month to Mom effective January 1, 2017.
Retroactive Child Support Variation
[11] Mom submits that the child support payment required by Justice Moore’s consent order dated June 9, 2016 was based on Dad’s stated income of $84,654.22. However, Dad’s income for 2016 was subsequently reported to be $91,600.00. Mom seeks an order that retroactively increases the amount of child support for 2016 to reflect his actual income. In the circumstances, such variation is appropriate.
Section 7 Expenses
[12] Mom states that Dad has unreasonably refused to pay any special expenses under section 7 of the CSG. Receipts have been sent to counsel and not response has been provided:
Sandra – keyboarding – City of Toronto – September 12, 2015 - $198.44
Sandra – keyboarding – City of Toronto – January 7, 2016 - $200
Sandra – Artistic Way Ltd classes – March 29, 2016 - $455.39
Sandra – Artistic Way Ltd classes – August 27, 2015 - $420.36
Sandra – Artistic Way Ltd classes – $315.27
Nadia – registration fee for high school – March 3, 2015 - $120.00
Nadia - McCarthy school uniforms – August 11, 2015 - $286.50
Nadia – monthly metropasses – July 2015, September 2015, October 2015, January 2016, February 2016 - $112 each
Nadia – Meadowlarke Stables Inc – May 15, 2014 - $114.13
Nadia – Meadowlarke Stables Inc – May 15, 2014 - $401.15
Nadia – Meadowlarke Stables Inc – July 3, 2014 - $114.13
Nadia – Meadowlarke Stables Inc – July 23, 2014 - $401.15
Nadia – Meadowlarke Stables Inc – February 19, 2015 - $401.15
Nadia – Meadowlarke Stables Inc – June 5, 2015 - $29.95
Nadia – Meadowlarke Stables Inc – May 25, 2015 - $28.25
Nadia – Meadowlarke Stables Inc – June 3, 2015 - $175.15
Nadia – Meadowlarke Stables Inc – June 8, 2015 - $401.15
Nadia – Meadowlarke Stables Inc – June 15, 2015 - $28.25
Nadia – Meadowlarke Stables Inc – August 15, 2014 - $28.25
Nadia – Meadowlarke Stables Inc – July 10, 2015 - $158.20
Nadia – Meadowlarke Stables Inc – November 11, 2015 - $129.95
Nadia – Midtown Medical – July 2, 2015 - $35.00 – chiropody consultation
Nadia – Midtown Medical – July 2, 2015 - $450.00– orthotic foot brace
Nadia – purchase of computer – January 9, 2016 - $734
Sandra – Artistic Way Ltd. classes – March 8, 2016 - $455.39
Nadia - McCarthy school uniforms – August 20, 2016 - $327.50
Sandra – Artistic Way Ltd classes – September 20, 2016 - $420.36
Sandra – Artistic Way Ltd. classes – January 12, 2017 - $315.27
Nadia – Dr. Goldstein – dermatologist – January 27, 2017 - $300
Sandra – Artistic Way Ltd classes – April 4, 2017 - $420.36
[13] Mom’s affidavit dated September 14, 2016 states:
Under the Order, [Dad] also agreed to contribute his proportionate share towards the childrens’ special or extraordinary expenses, and has not contributed toward any of the expenses for which invoices were provided. Under the circumstances, the Applicant requires direction as to what constitutes a special or extraordinary expense. It is my position that the childrens’ orthodontic and orthotic expenses, horse riding lessons and tack locker rental, art and music classes, school fees and uniform and metropass costs be included as special and extraordinary expenses for which the Applicant cannot deny his consent.
In his affidavit dated July 12, 2016 the Applicant suggests that I am not “being accurate” with my claims for section 7 expenses and that he had not agreed to incur extra expenses such as a tack locker rental for the eldest child. However, I have provided him with invoices for all expenses claimed. Additionally, the tack locker rental was an expense that was regularly incurred prior to our separation and the Applicant continued contributing toward it post-separation for some time, until he arbitrarily decided to stop.
In his affidavit dated July 12, 2016 the Applicant infers that I may be forcing [Sandra] into art and music lessons against her will. I vehemently deny forcing the child into these programs. Indeed, in the report of the Office of the Children’s Lawyer, [Sandra] reveals in her interview (at page 4) that she is considering taking both art and music lessons.
In his affidavit dated July 12, 2016 the Appellant alleges that he has “no knowledge that the girls require orthodontic expenses”. However, I have been telling the Applicant about [Nadia’s] need for braces for approximately two years, and have various emails evidencing same. I have also requested that the Applicant agree to the expense through counsel several times, commencing May 25, 2015.
In his affidavit dated July 12, 2016, the Applicant states that he and I agreed to enroll the children in Catholic school but that “the uniforms are a point of contention”. Frankly, this does not make sense, as uniforms are a mandatory component of Catholic school attendance and an expense which must be incurred.
[14] Dad did not provide reply evidence to this affidavit.
[15] Dad submits that Mom failed to comply with these requirements of the June 9, 2016 Order in that he was not consulted prior to such expenses being incurred. Dad does not have a veto over these types of expenses as his approval is not to be unreasonably withheld. However, going forward, I order that no further activities are to be arranged by Mom or Dad, without providing the other parent with prior written notice, if such parent seeks to be reimbursed by the other parent.
[16] I find that the expenses claimed by Mom are proper and reasonable under section 7 of the CSG.
[17] Based on their relative incomes, I order that Dad shall pay Mom 59% of the expenses described above, net of any reimbursement whether insurance or otherwise. I also order that each parent shall pay their proportionate share of section 7 expenses based on the relative incomes of Mom and Dad in the year that such expense is incurred.
CONCLUSIONS
[18] For the reasons given, I have made the orders described above. I encourage the parties to resolve the issue of costs failing which each party may deliver costs submissions within two weeks of today’s date and reply cost submissions within three weeks. Costs submissions shall be a maximum of three pages exclusive of any settlement offers that were made.
Mr. Justice M. D. Faieta
Released: September 11, 2017