NATURE OF MOTION

[1] Since Ashwin and Ashika Surekaran were born, their mother, Priyaline Gnanasabapathy (“Ms. Gnanasabapathy”), has been their primary caregiver. Their father, Surekaran Nagarajah, (“Mr. Nagarajah”), had no contact with them from June 2015 to June 2017, and paid minimal child support.

[2] Ms. Gnanasabapathy began the present proceeding by application in 2015, in which she claimed a divorce, custody of the children, spousal and child support, and equalization of net family property. Mr. Nagarajah failed to deliver an Answer and on April 7, 2016, was noted in default. In January 2017, an Order was made for an uncontested trial, which was held on November 27, 2017.

[3] After seeking bankruptcy protection for the debt that she incurred trying to make ends meet for the parties’ children in the absence of support from Mr. Nagarajah, Ms. Gnanasabapathy has finally been able to secure improved employment, so she is abandoning her claim for ongoing spousal support, while reserving her right to claim a divorce, retroactive spousal support, and equalization of net family property until she is able to obtain further disclosure from Mr. Nagarajah. For the present, she claims a final order for custody of the children, and child support from Mr. Nagarajah, as well as his proportionate contribution to the payment of the children’s special and extraordinary expenses.

BACKGROUND FACTS

[4] Ms. Gnanasabapathy is 37 years of age (born May 24, 1980); Mr. Nagarajah is 40 (born January 15, 1977). They were married on November 4, 2006, and separated 8 ½ years later, on February 17, 2015. There are two children of the marriage, Ashwin Surekaran, who is 9 years old (born May 18, 2008), and Ashika Surekaran, who is 6 (born December 1, 2010).

[5] Ms. Gnanasabapathy holds a Bachelor of Commerce (Hons.) in Accounting from the University of Windsor. She is employed as a payroll specialist with ADP Canada Corp., a business outsourcing firm, where she currently earns approximately $59,000. Mr. Nagarajah is a long distance truck driver who earned $64,027.40 in 2014, as appears from the Drivers Annual Report of P.E. Black Transportation Inc. for that year. Adjusted for inflation, the current equivalent of that amount is $66,570.19, based on the online Inflation Calculator of the Bank of Canada.^1

[6] Ms. Gnanasabapathy began the present proceeding by Application in November 17, 2015, in which she claimed a divorce, custody of the children, spousal and child support, and equalization of net family property.

[7] Ms. Gnanasabapathy’s Application and supporting material were personally served on Mr. Nagarajah on December 4, 2015, as appears from the Affidavit of Pardeep Thiara of that date. Mr. Nagarajah did not deliver an Answer and on April 7, 2016, Ms. Gnanasabathy obtained an Order from Dawson J., noting him in default. On January 18, 2017, Gordon J. adjourned the uncontested trial to a date to be arranged with the Trial Coordinator. Ms. Gnanasabathy attended today for her Uncontested Trial. She filed an Affidavit for Uncontested Trial in Form 23C and gave additional oral testimony.

ISSUES

[8] Ms. Gnanasabathy is no longer seeking an order for ongoing spousal support, and she wishes to defer her claim for divorce, retroactive spousal support, and equalization of net family property until she obtains more information about his earnings since 2014, and property that she believes he owns in Sri Lanka and Cuba. The Court must therefore determine the following:

a) Is it in Ashwin’s and Ashika’s interests that a final Order be made granting custody of them to Ms. Gnanasabapathy and what access, if any, should Mr. Nagarajah have to them?

b) What amount, if any, should Mr. Nagarajah be ordered to pay for the support of the parties’ children, including retroactive support?

c) What contribution should Mr. Nagarajah make to the children’s special and extraordinary expenses pursuant to section 7 of the Federal Child Support Guidelines?

PARTIES’ POSITIONS

[9] Mr. Nagarajah has not delivered an Answer or provided evidence in the proceeding. Accordingly, the Court has only the position of Ms. Gnanasabapathy on these issues. She asserts that it is in Ashwin’s and Ashika’s interests that she be given sole custody of them, and that Mr. Nagarajah should be required to take a parenting course as a condition to continuing his access. Ms. Gnanasabapathy submits that the court should impute an income of $70,000 to Mr. Nagarajah based on his 2014 earnings, and should order him to pay child support of $1,037 per month and contribute his proportionate share to the payment of the children’s special and extraordinary expenses.

ANALYSIS AND EVIDENCE

a) Is it in Ashwin’s and Ashika’s interests that a final Order be made granting custody of them to Ms. Gnanasabapathy and what access, if any, should Mr. Nagarajah have to them?

Legislative framework

[10] The Court’s determination of custody and access is governed by section 16 of the Divorce Act.[^2] Section 16(1) provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or another person. Section 16(4) provides that, in making an order under section 16, the court may grant custody and/or access to more than one person. Section 16(6) gives the court a broad discretion to include any terms, conditions, or restrictions in a custody/access order that it considers fit and just.

[11] Section 16(8) provides that the sole criterion for determining custody and access issues is “the best interests of the child…, as determined by reference to the conditions, means, needs and other circumstances of the child.”

[12] Section 16(10) provides:

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such access. [Emphasis added]

[13] The goal of maximum contact with each parent is not absolute, but maximum contact can only be restricted to the extent that it conflicts with the best interests of the child.[^3] The child’s best interests must be paramount to any other consideration when access is ordered. The convenience of the parents is not ignored, but is secondary to the welfare of the child.[^4]

[14] The Divorce Act does not set out a detailed list of other factors to be considered when determining the best interests of a child. However, in an effort to apply the best interests test with greater precision and consistency, courts, when applying the “best interests” test, have considered the criteria set out in provincial and territorial legislation. The relevant provisions in Ontario are sections 20 and 24 of the Children’s Law Reform Act (“CLRA”).[^5]

[15] Under section 20 of the CLRA, both parents are equally entitled to custody of their child. Where the parents live separate and apart, and the child resides with one of them with the consent of the other, the entitlement to access continues, along with the right to visit with and be visited by the child, and to make inquiries and be given information as to the child’s health, education, and welfare.[^6]

[16] Section 24(1) of the CLRA provides as follows:

Merits of application for custody or access

(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(d) any child.

[17] I will consider the evidence in relation to each of the factors that is pertinent to the determinations to be made in relation to Ashwin and Ashika.

i. Love, affection and emotional ties between Ashwin and Ashika and their mother and father

[18] Ashwin and Ashika have strong bonds of affection with their mother. They have had no contact with their father from June 2015 to June 2017. Access resumed in August 2017, after Mr. Nagarajah’s parents visited from Sri Lanka and negotiated the resumption with Ms. Gnanasabapathy. Since then, although Ms. Gnanasabapathy has not restricted his access, Mr. Nagarajah has exercised access to the children approximately two days per week, from 3:30 p.m. to 6:30 p.m., but never overnight and rarely on weekends.

ii. Ashwin’s and Ashika’s views and preferences, if they can reasonably be ascertained

[19] The court has not received evidence as to Ashwin’s and Ashika’s preferences for the time they spend with each parent. As they had no contact with their father from June 2015 to June 2017, and he has not sought to exercise access to them overnight or on weekends, their expression of preferences would be of limited value.

iii. The length of time that Ashwin and Ashika have lived in a stable home environment

[20] Ashwin and Ashika have resided primarily with their mother since the parties separated on February 17, 2015.

iv. The ability and willingness of Ms. Gnanasabapathy and Mr. Nagarajah to provide Ashwin and Ashika with guidance and education, the necessaries of life, and any special needs

[21] The parties’ son, Ashwin, is believed to suffer from Attention Deficit Hyperactivity Disorder and has difficulty socializing with other children. He attends special classes, in an after school program with his teacher. Ms. Gnanasabapathy has been attending to Ashwin’s needs in that regard, but has been unable to enroll him in extracurricular activities to improve his behavior, as his teacher has recommended, owing to the lack of child support from Mr. Nagarajah.

[22] The parties’ daughter, Ashika, has no known special needs that require specialized care.

[23] Ms. Gnanasabapathy’s income in 2014 was $19,000. She has been the sole source of support for herself and the children since the parties separated. After being employed in a series of contract positions, she was laid off for a period of time and until she was able to find suitable alternative employment, was dependent on EI benefits. Mr. Nagarajah paid only two installments of child support, in the amount of $600 each, in April and May 2015. He has not provided support since May 2015, in spite of Ms. Gnanasabapathy’s repeated requests that he do so. Owing to Ms. Gnanasabapathy’s financial hardship, she was forced to incur debt to private and institutional lenders to care for the children, culminating in a proposal to creditors for bankruptcy protection on November 3, 2015.

[24] Given Mr. Nagarajah’s limited interest or involvement in the children’s care, Ms. Gnanasabapathy is best able to care for them and to make decisions independently about their religion, education, and health needs.

v. The plan proposed by each of Ms. Gnanasabapathy and Mr. Nagarajah for the children’s care and upbringing

[25] Ms. Gnanasabapathy is a 37 year old payroll specialist. Mr. Nagarajah is a long distance truck driver. Mr. Nagarajah is away for long periods of time in his employment and spending time with a girlfriend in Cuba. It is therefore in the children’s interest that the children reside primarily with her.

vi. The permanence and stability of the family unit with which it is proposed that Nathanael will live

[26] Ashwin and Ashika have resided in Brampton with their mother, Ms. Gnanasabathy, since the parties separated on February 17, 2015.

[27] Mr. Nagarajah resides in Etobicoke. Ms. Gnanasabapathy believes that he lives alone, but has limited information as to the stability of his household.

vii. The respective ability of Ms. Akiri and Mr. Umukoro to act as a parent

[28] Ms. Gnanasabapathy has been Ashwin’s and Ashika’s primary caregiver both before and since the parties’ separated in February 2015.

[29] Since the parties’ separation, Mr. Nagarajah has verbally abused Ms. Gnanasabapathy when he comes to pick up the children, calling her a “bitch” in their presence. He has also interrogated the children as to her whereabouts and male friends. He repeatedly asked the parties’ son, Ashwin, detailed questions about his mother, whether or not she has male friends, if she holds their hands or kisses them, etc. He sent Ms. Gnanasabapathy a video of him asking Ashwin questions about Ms. Gnanasabapathy’s personal relationships, telling him that he would give him a chocolate if he told his father everything. This conduct is naturally disturbing to Ashwin.

[30] In June 2015, Mr. Nagarajah removed the children from their daycare without informing Ms. Gnanasabapathy or obtaining her consent. She only learned that he had taken them when she went to pick them up. This led to an argument between the parties and the two year interruption in Mr. Nagarajah’s exercise of access to the children.

vi. The plan proposed by Ms. Gnanasabapathy and Mr. Nagarajah for Ashwin’s and Ashika’s care and upbringing

[31] Ashwin and Ashika are dependent on Ms. Gnanasabapathy for their day to day care and are closely bonded to her. Ms. Gnanasabapathy has provided stability and continuity for them in their first two years after the parties’ separation and wishes to continue doing so. She has been highly involved in their upbringing and care.

[32] Mr. Nagarajah has not been actively involved in the children’s care and has chosen not to participate in the present proceeding. As noted above, he has provided minimal financial support and even less emotional support to Ms. Gnanasabapathy.

[33] It is in Ashwin and Ashika’s best interest to continue to reside with their mother, and to be in her primary care. I am prepared to make the orders that Ms. Gnanasabapathy requests respecting incidents of custody and access to enable her to continue caring of Ashwin and Ashika effectively, subject to such motions as Mr. Nagarajah may make in the future for access.

b) What, if any, child support should Mr. Nagarajah pay?

Legislative framework

[34] The Divorce Act, s. 15.1 provides, in part:

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

[35] Section 2 of the Act defines “child of the marriage” as follows:

“Child of the marriage" means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge….

[36] The Family Law Act contains the following provisions regarding a parent's obligation to support a child of the marriage:

31.(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.[^7]

[37] In determining what amount of child support is appropriate in the present case, I have considered s. 3 of the Guidelines, which states:

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.[^8]

[38] Child support may be ordered retroactively to cover at least the period of time from when the applicant notified the payor spouse of her intention to claim such support.

Jurisprudence

[39] In D.B.S. v. S.R.G., (2006), the Supreme Court of Canada comprehensively addressed how the court should determine claims for “retroactive child support.”[^9] Bastarache J. began his majority reasons by pointing out that the word “retroactive” in relation to child support is a misnomer, because such support sought is only retroactive in the sense that it had not been ordered to be paid during the relevant period, even though it was owed in accordance with the Guidelines. Before discussing the factors a court was to consider prior to ordering retroactive child support, he stressed that such awards should not be seen as exceptional. He stated:

It cannot only be exceptional that children are returned the support they were rightly due. Retroactive awards may result in unpredictability [for the payor parent], but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.[^10] [Emphasis added.]

[40] Bastarache J. identified four factors that the court should consider when determining whether to order a retroactive award:

(1) unreasonable delay by the recipient parent in applying for the support;

(2) conduct of the payor spouse;

(3) circumstances of the child; and

(4) hardship occasioned by the retroactive award. [Emphasis added.]

[41] Justice Bastarache further indicated that none of these factors is decisive, and that “a court should strive for a holistic view of the matter and decide each case based on its particular factual matrix”.[^11]

[42] Justice Bastarache stated the following regarding the hardship that retroactive support orders may cause:

I agree with Paperny, J.A., who stated in D.B.S. that courts should attempt to craft the retroactive award in a way that minimized hardship (paras. 104 and 106). Statutory regimes may provide judges with the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., s. 11 of the Guidelines. But I also recognize that it will not always be possible to avoid hardship. While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case.[^12] [Emphasis added]

[43] Justice Bastarache concluded:

The proper approach [for determining the date of retroactivity] can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.[^13] [Emphasis added]

Applying the legal principles to the facts of the present case

[44] The most recent income information that is available for Mr. Nagarajah is from 2014, when his annual income was $64,027.40. I have applied the rate of inflation from that year to the present, to arrive at the income I impute to him from 2015 to 2017, based on the online inflation calculator on the Bank of Canada web site.[^14] Based on that incomes, Mr. Nagarajah’s table child support obligation for the parties’ 2 children, based on the current Federal Child Support Guidelines, is as follows:

Year Annual Income Child Support Payable

2015: $64,030.00 $975.00

2016: $64,690.00 $986.00

2017: $65,655.00 $1,001.00

2018: $66,570.00 $1,015.00

c) What contribution should Mr. Nagarajah make to the Children’s Special and Extraordinary Expenses?

Legislative framework

[45] The contribution that parents are required to make to their children's education costs is governed by s. 7 of the Guidelines:

(1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:

(a) Child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) That portion of the medical and dental insurance premiums attributable to the child;

(c) Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) Expenses for post-secondary education; and

(f) Extraordinary expenses for extracurricular activities.

(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.[^15]

[46] The well-established test for whether an expense is extraordinary is whether it is "reasonable and necessary", having regard to the parents' individual and collective means. The court must assess whether the expense is objectively sensible for this particular separated family. It considers a number of factors, including the parties' historic spending patterns.

[47] Once having determined that an expense is extraordinary, having regard to the parties' joint income, and that it is reasonable and necessary, having regard to the means and circumstances of the parents and child, the court must, pursuant to s. 7, apportion responsibility for the expense in proportion to the parties' incomes.

[48] In Titova v. Titov, in 2012, the Court of Appeal for Ontario set out the procedure courts must apply when determining whether to award special and extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, as follows:[^16]

Calculate each party’s income for child support purposes
Determine whether the claimed expenses fall within one of the enumerated categories of s. 7
Determine whether the claimed expenses are necessary “in relation to the child’s best interests”
Determine whether the claimed expenses are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”
If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”.
Consider what amount, if any, the child should reasonably contribute to the payment of these expenses
Apply any tax deductions or credits.[^17] [Emphasis added.]

[49] Having completed this exercise, the court must then determine how the balance of the expenses should be apportioned between the parties.[^18]

Factors Relevant to “Reasonableness”

[50] In Terry v. Moyo, in 2013, Justice O`Connell of the Ontario Court of Justice adopted six factors relevant to determining the reasonableness of a s.7 expense, as enunciated by the Manitoba Court of Appeal in 2002. They include:

The combined income of the parties;
The fact that two households must be maintained;
The extent of the expense in relation to the parties' combined level of income;
The debt position of the parties;
Any prospects for a decline or increase in the parties' means in the near future; and
Whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.[^19]

The Test for “Extraordinary”

[51] Before 2006, when the Federal Child Support Guidelines were amended to add s.7 (1.1), there was disagreement among Canadian courts of appeal about whether the test was a subjective one – where the income of the parents was a relevant factor – and an objective one, which simply looked at whether the expense was “ordinary” or “extraordinary”. The 2006 amendment resolved this dispute in favour of a subjective test.

[52] Section 7(1.1) of the Federal Child Support Guidelines now provides a definition of “Extraordinary Expenses”:

DEFINITION OF “EXTRAORDINARY EXPENSES”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

[53] The test set out in section 7(1.1) takes account of the spouse’s income and the amount of child support to be received. In MacNeil v. MacNeil, in 2013, Gauthier J. succinctly sets out the jurisprudence interpreting “extraordinary”:

The real issue is whether the expenses are “extraordinary.”

The question of how to determine whether expenses are “extraordinary” was specifically addressed at paragraph 28 of Titova, based on a British Columbia Court of Appeal decision from 1998:

It also does not appear that the trial judge turned her mind to the question of whether the expense for items such as school books and school registration qualified as “extraordinary”. As set out in McLaughlin v. McLaughlin (1998), 1998 5558 (BC CA), 167 D.L.R. (4th) 39 (B.C.C.A.) at para. 64, the use of the word “extraordinary” in s. 7 implies that ordinary expenses are intended to be covered by the basic table amounts.

This interpretation of “extraordinary” is consistent with the Ontario Court of Appeal decision in Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), [2003] O.J. No. 1733, 64 O.R. (3d) 496, where s. 7 expenses were described as “special or extraordinary expenses that are determined to be additional costs of raising a child that are not incorporated in the table amounts” [emphasis added] (para 13).

“Extraordinary” expenses were described as “unusual”, or “disproportionate” by the Manitoba Court of Appeal in Andries v. Andries, 1998 14093 (MB CA), [1998] M.J. No. 196, 159 D.L.R. (4th) 665:

An expense for an extra-curricular activity is extraordinary only where it is disproportionate to the usual costs associated with that particular activity. The income of the parties is irrelevant in determining whether an expense is extraordinary. It is only if the expense is otherwise found to be extraordinary, in the sense of being unusual or exceptional according to an objective standard, that one looks to the incomes of the parties to determine whether the expense is reasonable and in accord with the spending patterns of the parties prior to the separation.[^20] [Emphasis added.]

[54] Some of the cases cited predate the 2006 amendments, although Titova approved the McLaughlin decision in 2012. Any interpretation must take account of the subjective considerations enumerated in the Guidelines.

[55] In Bordin v. Bordin, (2015), Horkins J. stated the considerations as follows:

An extraordinary expense is one that given the combined income of the parties would not be incurred for the children as a matter of course (see Celotti v Celotti, [2007] O.J. No. 2538 (S.C.); Park v Thompson, 2005 14132 (ON CA), [2005] O.J. No. 1695 (C.A.)).[^21]

[56] In Boisvert v. Boisvert, (2007), Whitten J. noted at para. 48:

Section 7(1.1)(a) appears to exclude expenses that would reasonably be expected to be covered by a combination of the custodial parent’s income and the Guideline amount received by that parent. Section 7(1.1)(b)(i) provides that if s. 7(1.1)(a) is not applicable, the court could still exclude such an expense if that expense was disproportionate and not economically justifiable given the income of and support received by the custodial parent. This section includes as factors for consideration the nature and number of extra-curricular activities, their cost, and any other factors considered relevant by the court. The overall thrust of section 7(1.1)(b) appears to be to exclude activities which would be beyond the lifestyle and economic means of the children and their parents. That cannot be said about a claim for extra-curricular activities such as Beavers, gymnastics, sport ball and day camp. These are all extra-curricular activities which are age appropriate and are modest means of developing the socialization and athleticism of young children.[^22] [Emphasis added.]

Applying the legal principles to the facts of this case

The parties’ proportionate share of their collective income (and of the children’s s. 7 expenses)

[57] Ms. Gnanasabapathy’s income in 2016 was $43,412.00, based on Line 150 of her Notice of Assessment from Canada Revenue Agency for that year. Ms. Gnanasabapathy is currently employed as a payroll specialist by ADP Canada Corp, where her Earnings Statement for the period ending July 31, 2017 discloses a year-to-date gross pay of $34,575.13. Pro-rating that amount over the preceding seven months, her monthly income was $4,939.30. Extrapolating from that monthly income, I find that her current annual income is $59,271.60.

[58] Based on Mr. Nagarajah’s 2016 income of $64,690.00, which I have imputed to him, and Ms. Gnanasabapathy’s 2016 of $43,412.00, Mr. Nagarajah’s proportionate share of the parties’ collective income of $108,102.00 that year was 60%.

[59] Based on the current income of $66,570.00 that I have imputed to him, Mr. Nagarajah’s proportionate share of the parties’ collective income of $125,841.60 is 53%. Averaging the two years, I find that Mr. Nagarajah’s proportionate contribution to the children’s s. 7 expenses should be $56.5%.

The children’s necessary and reasonable expenses

(i) Day care

[60] Ms. Gnanasabapathy has tendered a letter dated September 15, 2017, from the Region of Peel, confirming that her child care arrangements for Ashika Surekaram, effective October 2, 2017, for before and after school and P.A. days, was $10.83 per day. Based on 4.35 weeks per month from October onward, I calculate her expense at $10.83 x 5 days x 4.35 weeks x 8 months (the academic session) = $1,884.42 per year, or $157.04 per month, which I round to $160.00. Based on the amount of the expense, I am satisfied that it is an necessary and extraordinary expense, meaning one that Ms. Gnanasabapathy should not be expected to pay from the ordinary child support payments she receives from Mr. Nagarajah. Mr. Nagarajah’s 56.5% contribution to this expense is $90.40 per month, which I round to $90.00.

(ii) Tutoring

[61] Both children are struggling academically. The children need tutoring, which is available from Kumon Learning Centres at a cost of $121.50 per child per month. This is a reasonable and necessary expense that I find the parties would have undertaken when they lived together. Mr. Nagarajah’s 56.5 % of the collective expense of $243.00 per month is $139.30 per month, which I round to $140.00.

(iii) Extra-curricular activities

[62] Ashwin’s teachers have recommended that he be enrolled in extra-curricular activities as an outlet for his energy and hyperactivity, and improve his behavior. Swimming is available at a cost of $83.00 per child per month. This also is a necessary and reasonable expense. Mr. Nagarajah’s proportionate share of the total of $166.00 per month would be $93.79, which I round to $94.00. Tae Kwon Do is available at a cost of $120.00 per child per month. This is a necessary and reasonable expense and Mr. Nagarajah’s proportionate share of the total cost of $240.00 per month is $135.60, which I round to $135.00.

[63] While both swimming and Tae Kwon Do are desirable, and reasonable, I do not regard both as necessary. Mr. Nagarajah’s proportionate contribution to both activities would be $229.00. Accordingly, Mr. Nagarajah’s monthly contribution to the children’s extra-curricular activities will be $115.00, and Ms. Gnanasabapathy may choose which activity she shall enroll each of the children in. She shall be required to forward the receipts for payment to Mr. Nagarajah, but this shall not be a pre-condition to his obligation to pay his share.

(iv) Medication

[64] Ashwin requires Concerta as medication to treat his ADHD. The portion of the cost that exceeds Ms. Gnanasabapathy’s medical coverage is $22.00 per month. Mr. Nagarajah’s 56.5% share of this cost is $12.43 per month, which I round to $12.00.

(v) Total

[65] Based on the foregoing, Mr. Nagarajah’s proportionate share of the children’s s. 7 expenses is as follows:

(i) Day Care: $ 90.00

(ii) Tutoring: $140.00

(iii) Swimming/

Tae Kwon Do: $115.00

(iv) Medication: $ 12.00

TOTAL: $357.00 per month

[66] Ms. Gnanasabapathy currently owes $945.00 for accumulated day care expenses that she has not yet been able to pay. Mr. Nagarajah will be required to pay his $533.93, which I round to $534.00, at the rate of $43.00 per month for 13 months, until the amount is paid in full. Thus, Mr. Nagarajah will pay a total of $400.00 per month toward the children’s s. 7 expenses.

CONCLUSION AND ORDER

[67] For the reasons stated above, it is ordered and adjudged that:

The Applicant, Priyaline Gnanasabapathy, (“Ms. Gnanasabapathyi”) shall have custody of the Children of the Marriage, Ashwin Surekaran, born May 18, 2008, (“Ashwin”) and Ashika Surekaran, born December 1, 2010, (“Ashika”).
The Respondent, Surekaran Nagarajah, (“Mr. Nagarajah”), shall have reasonable access to Ashwin and Ashika, at such times and in such circumstances, including supervision, as the parties agree upon or, if the parties do not agree, as the Court may direct, on motion by Mr. Nagarajah, on notice to Ms. Gnanasabapathy.
Ms. Gnanasabapathy has leave to obtain a passport(s) and government or other documents for Ashwin and Ashika Surekaran as they may require. Mr. Nagarajah’s consent to the issuing of such documents or renewals is dispensed with.
Ms. Gnanasabapathy has leave to travel outside Canada with Ashwin and Ashika Surekaran without the necessity of obtaining a Statutory Declaration or Consent from Mr. Nagarajah to do so.
Mr. Nagarajah has the right, to move for access to Ashwin and/or Ashika Surekaran. Ms. Gnanasabapathy shall keep Mr. Nagarajah apprised of an address where she can be served with motions for access to the children.
Ms. Gnanasabapathy shall forthwith serve this Order on Mr. Nagarajah by mail at 214-2737 Kipling Avenue, Etobicoke, Ontario M9V 4C3.
Mr. Nagarajah shall pay the following amounts to Ms. Gnanasabapathy for the support of Ashwin and Ashika Surekaran:

(a) From March 1 to December 1, 2015, Mr. Nagarajah shall pay to Ms. Gnanasabapathy the amount of $975.00 per month, based on his 2014 annual income, which I impute to him in the amount of $64,027.40, which I round to $64,030.00.

(b) From January 1 to December 1, 2016, Mr. Nagarajah shall pay to Ms. Gnanasabapathy the amount of $986.00 per month, based on his 2015 income, which I impute to him in the amount of $64,688.52, which I round to $64,690.00.

(c) From January 1, 2017, onward, Mr. Nagarajah shall pay to Ms. Gnanasabapathy the amount of $1,001.00 per month, based on his 2016 income, which I impute to him in the amount of $65,654.78, which I round to $65,655.00;

(d) From January 1, 2018, onward, Mr. Nagarajah shall pay to Ms. Gnasabapathy the amount of $1,015.00 per month, based on his 2017 income, which I impute to him in the amount of $66,570.19, which I round to $66,570.00.

(e) From October 1, 2015, onward, Mr. Nagarajah shall pay his proportionate contribution to Ashwin’s and Ashika’s s. 7 expenses in the amount of $400.00 per month, beginning December 1, 2017.

Mr. Nagarajah’s child support amount shall be adjusted annually on the anniversary date of the Order in accordance with the Federal Child Support Guidelines. Mr. Nagarajah shall produce to Ms. Gnasabapathy, by May 15 each year beginning 2017, his income tax return, with all schedules and attachments for the preceding year and, forthwith upon his receipt of it from the Canada Revenue Agency, his Notice of Assessment.
Mr. Nagarajah shall maintain all dental, medical, and extended health plan coverage available at his places of employment for the parties’ children, and for Ms. Gnanasabapathy for so long as they are entitled to be supported by him or to pay his proportionate share of the cost of prescription drugs, dental expenses, orthodontic and medical costs, and medical insurances not covered by any such plan.
Mr. Nagarajah shall forthwith sign a direction to his insurance company requiring it to reimburse Ms. Gnanasabapathy directly for monies paid by her for medical and dental expenses for the children and her.
Mr. Nagarajah shall forthwith name Ms. Gnanasabapathy, in trust for the children, as the irrevocable beneficiary of his life insurance policies and provide proof of same to her by May 15 each year, beginning 2017.
Mr. Nagarajah shall forthwith produce to Ms. Gnanasabapathy documentation showing his interest in any real estate in Canada or elsewhere in the world, and the value of such interests.

COSTS

[68] Ms. Gnanasabapathy was successful in her Application and is presumptively entitled to her costs. In Berta v. Berta, (2015), the Court of Appeal stated:

In Biant v. Sagoo (2001), 2001 28137 (ON SC), 20 R.F.L. (5th) 284 (Ont. S.C.), the court considered the costs award scheme under the rules and commented, at para. 20:

[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe a discretion under Rule 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.

This court has repeatedly endorsed the Biant court’s approach to the determination of costs in family law disputes: see for example, Ruffudeen-Coutts v. Coutts, 2012 ONCA 263, 15 R.F.L. (7th) 35, at para. 4; Sordi v Sordi, 2011 ONCA 665, 134 R.F.L. (7th) 197, at para. 21; M. (A.C.) v. M. (D.), 23003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), at para. 40. [^23] [Emphasis added]

[69] Ms. Gnanasabapathy s lawyer, Ms. Singh, was called to the Ontario Bar in 2009. She has therefore been practicing law for 8 years. According to the Costs Bulletin that the Rules Committee of the Court issued in 2005 to guide judges and lawyer as to the hourly rate that lawyer should reasonably be entitled to claim, on a partial indemnity scale, as compensation for the costs their clients incurred, lawyers who have practiced law for less than 10 years were entitled to claim a maximum hourly rate of $225 that year. Twelve years have passed since the Costs Bulletin was issued, and the court therefore adjusts the amounts for inflation. The current equivalent of $225 in 2005 is $270.00.

[70] Ms. Singh spent 20 hours on Ms. Gnanasabapathy’s Application, including today’s hearing, for which she attended from 11 a.m. until 5 p.m. I consider the time claimed to be reasonable, having regard to the number of issues and the moderate complexity. Applying Ms. Singh’s hourly rate of $270 to the 20 hours she spent, her client is entitled to recover $5,700.00 plus H.S.T. (13%). On a partial indemnity scale, the amount is $8,550.00 plus H.S.T. The costs on a full recovery basis would be approximately 10% higher.

[71] Ms. Gnanasabapathy incurred an additional $400.00 in disbursements, consisting of the $280.00 fee for an uncontested trial, and $120.00 for photocopies, process servers, and filing fees. These disbursements are normal and not excessive and will be allowed in the amount claimed.

[72] The total fees and disbursements claimed are proportionate to the amounts at stake in the proceeding and the amount that Mr. Nagarajah should have expected to pay if unsuccessful in the proceeding.

[73] For the foregoing reasons, it is further ordered and adjudged that:

Mr. Nagarajah shall pay Ms. Gnanasabapathy’s costs of this proceeding, to this date, fixed in the amount of $ , consisting of the following:

(a) $8,550.00: Fees

(b) $1,111.50 H.S.T. on fees

(d) $ 52.00 H.S.T. on disbursements

$10,113.50: TOTAL

These costs shall be payable forthwith and shall be enforced as child support by the Director of Support Enforcement.

A support deduction order shall issue.

Price J.

Released: November 28, 2017

CITATION: Gnanasabapathy v Nagarajah, 2017 ONSC 7098

COURT FILE NO.: FS-15-84924-00

DATE: 2018 11 28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

PRIYALINE GNANASABAPATHY

Applicant

and -

SUREKARAN NAGARAJAH

Respondent

REASONS FOR JUDGMENT

Price J.

Released: November 28, 2017

[^2]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. [^3]: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 46, 117-18. [^4]: S.(B.L.S.) v. S. (T.M.), 2003 CarswellAlta 133. [^5]: Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, section 24. [^6]: CLRA, sections 20(1), (4), and (5). [^7]: Family Law Act, RSO 1990, c F.3 [^8]: Federal Child Support Guidelines, S.O.R. 97-175, s. 3. [^9]: S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231. [D.B.S.]. Also: W.(L.J.) v. R.(T.A.); Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37 [^10]: D.B.S., at para. 97. [^11]: D.B.S., at para. 99. [^12]: D.B.S., at para. 116. [^13]: D.B.S. , at para. 125. [^14]: https://www.bankofcanada.ca/rates/related/inflation-calculator/ [^15]: Federal Child Support Guidelines, s. 7 [^16]: Adapted from Titova v. Titov, 2012 ONCA 864, at para. 23. [^17]: In Wawzonek v. Page, 2015 ONSC 4374, Justice Pazaratz says, at para. 198, that the tax considerations should come before consideration of the child’s contribution. [^18]: Wawzonek v. Page, 2015 ONSC 4374, at para. 198. [^19]: Terry v. Moyo, 2013 ONCJ 364, at para. 29. [^20]: MacNeil v. MacNeil, 2013 ONSC 7012, paras. 31 to 34. [^21]: Bordin v. Bordin, 2015 ONSC 3730, at para. 116. [^22]: Boisvert v. Boisvert, 2007 24073 (ON SC), 40 R.F.L. (6th) 158, para. 48. [^23]: Berta v. Berta, 2015 ONCA 918, at paras. 92-93.

Gnanasabapathy v Nagarajah, 2017 ONSC 7098

Case Summary

NATURE OF MOTION

ISSUES

PARTIES’ POSITIONS

ANALYSIS AND EVIDENCE

a) Is it in Ashwin’s and Ashika’s interests that a final Order be made granting custody of them to Ms. Gnanasabapathy and what access, if any, should Mr. Nagarajah have to them?

c) What contribution should Mr. Nagarajah make to the Children’s Special and Extraordinary Expenses?

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 7

Legal Tests 3

Legislation 4