REASONS FOR DECISION

OVERVIEW

[1] The Applicant and Respondent separated on October 1, 2007 and entered into a Separation Agreement on January 30, 2009.

[2] Shortly following the execution of the Separation Agreement the Applicant was released from his long-term employment and became self-employed.

[3] In July of 2011 the Applicant decreased his monthly child support payments and in January of 2012 the Respondent filed the Separation Agreement with the Family Responsibility Office.

[4] In March of 2012 the Respondent began receiving child support payments through FRO but did not receive payments for any s. 7 expenses or RESP contributions.

[5] On April 23, 2014, the Applicant commenced a Motion to Change the Agreement retroactive to January 2010.

ISSUES

[6] Has there been a material change in circumstance sufficient to warrant the Motion to Change?

[7] If so, what is the Applicant’s income for child support purposes from 2010 to date and ongoing?; and

[8] What is the Applicant’s proportionate share contribution towards the Children’s’ section 7 expenses from 2010 to date and ongoing?

DETERMINATION OF ISSUES

[9] The issues are determined as follows:

a. The Applicant’s change of employment from a T4 employee to a self-employed business owner with the corresponding income and expense adjustments qualifies as a material change in circumstance sufficient to warrant the Motion to Change;

b. The Applicant’s income as determined by the court for the period 2010 to 2015 is as per Jonathan Hames’ Report, Scenario 1;

c. The Applicant’s income as determined by the court for 2016 is $128,000 and for 2017 is $92,000;

d. The Applicant’s proportionate share contribution towards the Children’s section 7 expenses from 2010 to date and ongoing varies in accordance with the Applicant’s varying income as per the Report Scenario 1, and the findings of the court.

FACTS

[10] The parties were married on October 14, 1993.

[11] The parties separated on October 1, 2007.

[12] The parties were divorced on July 22, 2009.

[13] There are two children, a son Kim born on December 27, 1996, and a son Maxim born on April 29, 2003 (the “Children”).

[14] Kim completed grade 12 in June 2014 and did not continue with post-secondary full-time studies. Accordingly, as of December 27, 2014 Kim was not a child of the marriage. At the date of trial Maxim was enrolled in grade 8 at Charlton Public School.

[15] On January 30, 2009 the parties executed a Separation Agreement which settled all issues between them, including child support in the monthly sum of $1,307.00 based on the Applicant’s annual income of $92,134.00.

[16] The Separation Agreement also provides that the Applicant shall contribute 60% towards the Children’s s.7 expenses.

[17] The Applicant is self-employed through his corporation, namely 2229567 Ontario Inc.

[18] On or about April 23, 2014, the Applicant commenced the herein proceedings seeking to change the quantum of his child support obligation retroactive to January 2010 alleging that his income is less than the $92,134.00 provided for in the parties’ Separation Agreement.

[19] On January 19, 2015 the parties attended a Case Conference. At the Case Conference, the parties agreed on consent inter alia that commencing January 1, 2015 the Applicant shall pay to the Respondent child support in the sum of $817.00 per month for Maxim only based on an income of $92,000.00, without prejudice to either party to argue that the Applicant’s income is lower or higher.

[20] The parties also agreed, on consent, that within seven days after the Case Conference, the parties will jointly retain an income valuator to prepare an income stream analysis of the Applicant’s income from 2010 to date. The costs of the joint income valuator were to be shared equally between the parties, subject to a reapportionment depending on the results.

[21] On January 28, 2015, the parties jointly engaged Jonathan Hames of SLF Financial Services Inc. to value the Applicant’s income for support purposes.

[22] On July 13, 2016, Mr. Hames provided his Final Report.

Jonathan Hames’ Report and the Determination of Income

[23] The Applicant’s reported income for income tax purposes from 2010 to 2015 was as follows:

2010 $25,490.00 2011 $33,108.00 2012 $67,282.00 2013 $34,000.00 2014 $55,000.00 2015 $66,000.00

[24] Notwithstanding the income reported to CRA for income tax purposes, the Applicant continued to pay child support for the support of the children in accordance with the Separation Agreement based on agreed income of $92,134.00 for 2010 and for 10 out of 12 months in 2011.

[25] In 2012 the Respondent registered the Separation Agreement with the Family Responsibility Office and the Applicant resumed payment of child support in accordance with the Separation Agreement despite his declared income.

[26] In March of 2014, the Applicant commenced a Motion to Change seeking to reduce the amount of child support payable to that aligned with his income reported to CRA for income tax purposes.

[27] As noted above, the parties’ son Kim turned 18 years old on December 27, 2014, did not pursue post-secondary education and ceased to be a child of the marriage.

[28] The parties agreed to reduce the child support effective as at January 1, 2015 to $817.00 per month which represents child support for one child based on income of $92,000. Support on this basis has been paid to the date of the hearing.

[29] With respect to Mr. Hames’ report, he presented two scenarios for the Applicant’s income. In the first scenario Mr. Hames added back various discretionary expenses to the Applicant’s income and applied an income tax gross up. In the second scenario Mr. Hames also added back subcontractor expenses claimed by the Applicant in each year and applied the income tax gross up to those expenses. Based on Mr. Hames’ report, the Applicant’s income for support purposes is as follows:

First Scenario Second Scenario 2010 $31,000.00 2010 $124,000.00 2011 $86,000.00 2011 $172,000.00 2012 $126,000.00 2012 $165,000.00 2013 $56,000.00 2013 $134,000.00 2014 $97,000.00 2014 $168,000.00 2015 $128,000.00 2015 $128,000.00

[30] Mr. Hames attended at trial and was qualified as an expert.

[31] Mr. Hames testified that for the purpose of completing his report he was not sufficiently satisfied with the Applicant’s documentation to verify that the subcontractors’ services were rendered or that the subcontractors’ invoices were paid to any third party. Mr. Hames did not testify at any time that he believed the invoices were fraudulent or forged nor did he testify that he believed that the subcontractors did not exist.

[32] The Respondent alleged that the subcontractors’ invoices were fraudulent and likely forgeries and that the Applicant received all funds alleged to be paid to the subcontractors. The Respondent urged the Court to make such a finding.

[33] Despite the able representation of counsel for the Respondent I am not satisfied for the purpose of the family law proceedings that the subcontractors’ invoices were fraudulent or forged nor am I satisfied that the Applicant received all funds alleged to have been paid to the subcontractors.

[34] The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 held that the civil standard of proof applies to all civil claims. That said, the Court also suggested the trier of fact must be mindful of the mysterious “inherent” probabilities or improbabilities as follows:

“…evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that just that the plaintiff satisfied the balance of probabilities test.”

[35] One way civil fraud is more easily proven is where there is a criminal conviction for fraud. If there is a finding after trial that finding will bind the civil court (See F.K. (Litigation guardian of) v. White, 2001 CanLII 24020. If there is a guilty plea that plea will normally be dispositive unless good reason is set out to explain why it should be ignored: Andreadis v. Pinton, 2009 CanLII 50220 (ONSC).

[36] In the present case the Applicant’s tax returns were reviewed and assessed by Canada Revenue Agency. The Applicant received a Notice of Assessment and in some cases a Notice of Reassessment. The returns were generally accepted in the form filed. There has been no finding of fraud by CRA nor any suggestion that the Applicant has ever been investigated or specifically audited by CRA.

[37] I have great difficulty accepting the Respondent’s argument that I should find that the invoices submitted to CRA were fraudulent in the face of their acceptance by CRA.

[38] The Applicant is an independent contractor who works with computer systems. While I found his testimony describing his work and duties almost incomprehensible – one matter was very clear – he works for high profile clients and deals with sensitive and confidential material.

[39] I expect that the Applicant is required to be bonded or otherwise is required to pass security clearances to secure his employment. I further expect that any finding of fraud or forgery by this court, whether it be related to family law proceedings or otherwise, would seriously impact the Applicant’s ability to earn a living to support his family.

[40] While I make no finding with respect to fraud or forgery relating to the Applicant’s income tax returns and invoices this does not mean that I accept that the Applicant was a credible and reliable witness.

[41] At times the Applicant’s evidence was “incomprehensible” because his answers were nonsensical. Although I make no finding of fraud or forgery, I did not find the Applicant’s explanation of the errors on the invoices or his practise of finding, hiring and paying contractors, believable. Nor did I find his explanation of his expenses relating to his meals, car expenses, travel, occupation costs, parking expenses, promotion and administrative expenses, believable.

[42] There are some areas where the Applicant’s evidence was more believable than other areas – such as the section 7 expenses – but when it came to discussing his income and expenses I prefer the evidence of the expert, Mr. Hames to that of the Applicant.

[43] At this time I note that the Respondent also alleged that the Applicant submitted a “fraudulent” mortgage application to the court. The “fraudulent” mortgage application is found at Exhibit 3a, Tab 28. This mortgage application indicates that the Applicant disclosed that his income was $60,000 as at November 2015. The mortgage application bears the name of the company “Allegro”. I note that this mortgage was applied for following the commencement of the proceedings.

[44] The Respondent was not satisfied with the mortgage application produced and requested and obtained directly from the finance company a further mortgage application submitted by the Applicant to B2B Mortgage Financing. This mortgage application disclosed that his income was $130,000 as at November 2015. The Respondent alleged that this application was the “real” application submitted and the filed mortgage application was fraudulent. The Applicant denied this allegation and stated that the $130,000 figure reflected the income earned by his corporation and the $60,000 figure reflected the income earned by him in his personal capacity.

[45] With respect to the allegation of fraud relating to the mortgage application, I find that the B2B application is a completely different and distinct application than that produced by the Applicant. I do not find that the Applicant committed a fraud in submitting the Allegra mortgage application to the court as opposed to the B2B mortgage application.

[46] Having found that fraud has not been established on the evidence submitted to the Court, however, does not end my enquiry.

[47] As noted by Mr. Hames during his testimony, there is a marked difference between determining income for the purpose of payment of income taxes and determining income for the purpose of family law proceedings for the support of dependents.

[48] The Applicant disputed Mr. Hames’ findings and submitted that Mr. Hames made several “errors” in his report which lead to an overestimation of the Applicant’s income. The errors allegedly made relate to claims made by the Applicant relating expenses for his motor vehicle, occupancy costs, promotion, meals, travel and management and administration.

[49] The Applicant alleged that Mr. Hames was not “very thorough in his investigation” and made “many obvious errors”.

[50] I completely disagree with this assessment of Mr. Hames’ investigation and his report. I find that Mr. Hames carefully reviewed the varying receipts and documents provided to him. He took care and time to thoroughly consider and weigh the evidence and he submitted a draft report to the parties prior to finalizing his report. Counsel for the Applicant submitted objections to the draft report which were duly considered by Mr. Hames.

[51] Mr. Hames was not convinced that the subcontractor invoices were legitimate but he took care not to jump to any conclusions. Mr. Hames stated the facts without becoming positional or biased. Mr. Hames presented his report and conclusions to the court in a straightforward manner. He explained the difference between calculating expenses and income for income tax purposes versus support purposes.

[52] The evidence provided by Mr. Hames at trial including the presentation of his findings represented a conscientious, thoughtful review performed in a professional and careful manner.

[53] For the purposes of reviewing and considering the issues herein I accept the income analysis as completed by the parties’ jointly retained expert Mr. Hames, and accept the income stream analysis as proposed by him by the First Scenario, rejecting the allegations of fraud and forgery.

[54] In 2010, based on Mr. Hames’ First Scenario income stream analysis, the Applicant’s child support obligation in 2010 for two children based on an annual income of $31,000.00 was $457 per month which translates into $5,484.00 annually. However, in 2010 the Applicant paid monthly child support in the total sum of $17,400.00. Therefore, the Applicant overpaid child support in 2010 by $11,916.00.

[55] While the 2010 adjustment extends beyond the usual considered time period, both parties sought readjustment to 2010. In the circumstances it is just to allow the readjustment to 2010.

[56] In 2011, based on an annual income of $86,000.00 the Applicant’s child support obligation for two children was $1,232 per month which translates into $14,784.00 annually. However, in 2011 the Applicant paid child support in the total sum of $13,250.00. Accordingly, his 2011 child support arrears are $1,534.00.

[57] Based on a 2012 annual income of $126,000.00, the Applicant’s child support obligation for two children was $1,734 per month which translates into $20,808.00 annually. However, in 2012 the Applicant paid child support in the total sum of $15,470.00. Therefore, his 2012 child support arrears are $5,338.00.

[58] Based on a 2013 annual income of $56,000.00, the Applicant’s child support obligation for two children was $832 per month which translates into $9,984.00 annually. In 2013, the Applicant made child support payments of $1,307.00 per month for a total of $15,684.00. Accordingly, the Applicant overpaid child support in 2013 by $5,700.00.

[59] In June 2014, the parties’ oldest child, Kim, graduated from high school and did not attend full-time at an educational facility. However, Kim did not turn 18 years old until December 27, 2014. Accordingly, the Applicant was obligated to pay child support to the Respondent for two children throughout 2014.

[60] Based on a 2014 income of $97,000.00, the Applicant’s child support obligation for two children for 2014 was $1,379 per month for a total $16,548.00 annually. In 2014, the Applicant made child support payments totalling $15,684.00 and, therefore his 2014 child support arrears are $864.00.

[61] Based on a 2015 income of $128,000.00, the Applicant’s child support obligation was $1,099 per month for one child for a total of $13,188.00 annually. In 2015, the Applicant made child support payments of $817.00 per month for a total of $9,804.00. Therefore, his 2015 child support arrears are $3,384.00.

[62] The Applicant did not provide any proof of income or financial disclosure for 2016 and 2017. During the course of the trial, the Applicant provided the missing balance sheets from his 2014-2015 Corporate Income Tax Return, his 2015-2016 Corporate Income Tax Return and his 2016 Notice of Assessment. No documents have been provided to substantiate any of the expenses claimed in the Applicant’s 2014-2015 Corporate Income Tax Return nor in his 2015-2016 Corporate Income Tax Return. Further, the Applicant provided his business bank statements from September 1, 2012 to August 31, 2014 for selected periods only.

[63] As the Applicant did not provide financial disclosure for 2016 and 2017, despite the fact that the matter was set down for trial, I find it reasonable to impute the Applicant’s 2016 income on his preceding year. I note that the mortgage application sworn by the Applicant in November of 2015 estimated his income at $130,000. Despite the Applicant’s claims that he was stating his income without deducting his business expenses, the evidence established that his business continued to flourish in much the same manner through 2015 to 2016. For these reasons I impute income to the Applicant for 2016 at $128,000.

[64] Based on a 2016 income of $128,000.00, the Applicant’s child support obligation was $1,099 per month for one child for a total of $13,188.00 annually. In 2015, the Applicant made child support payments of $817.00 per month for a total of $9,804.00. Therefore, his 2015 child support arrears are $3,384.00.

[65] In 2017, the Applicant lost his contract effective March 31, 2017. He obtained a new short term contract effective the end of April 2017. The new contract is for a few months and according to the Applicant for less money than before. However, I note that the Applicant has consistently maintained employment and has consistently earned a good income. During cross-examination the Applicant stated that he “always succeeds”. The evidence supports this statement.

[66] Mr. Hames in his report noted that the Applicant’s ongoing income for support purposes is $87,000. However, that was based on an old contract and did not account for bonuses or extra hours. At the date the Separation Agreement was negotiated the Applicant’s income was around $87,000 and he agreed to impute an income of $92,000 as his income was subject to bonuses. It seems both fair and just to continue an imputation of income at the parties’ original agreed upon amount at $92,000 for 2017 and on an ongoing basis.

[67] Based on an income of $92,000.00, the Applicant’s child support obligation in 2017 for the period January to November was $817 per month and for December was $847 for one child and for a total of $9,834.00. In 2017, the Applicant made child support payments of $817.00 per month for a total of $9,804.00. Therefore, the Applicant’s 2016 child support arrears are $30.

[68] With respect to 2017, the most recent information available is the Applicant’s 2015 income of $128,000.00. From January 2017 to December 2017, the Applicant would have paid a total of $9,804.00. Based on his income of $128,000.00 the Applicant should have paid $13,188. Accordingly, from January 2017 to December 2017 inclusive, the Applicant’s child support arrears are $3,384.00.

[69] Accordingly, the Applicant’s total child support arrears are $52,557.00 calculated as follows:

2010 ($11,916.00) 2011 $ 1,534.00 2012 $ 5,338.00 2013 ($ 5,700.00) 2014 $ 864.00 2015 $ 3,384.00 2016 $ 3,384.00 2017 $ 30.00

Total child support overpayment from January 2010 to December 2017: $3,154.00.

Imputation of Income to the Respondent

[70] The Respondent testified that since 2001 she has been employed on a full-time basis at the Hospital for Sick Children working 12 hour shifts (days/weeks/nights/weekends) for a total of approximately 30 to 36 hours per week.

[71] The Applicant submits that the Respondent should be working additional hours and urges the court to impute income to the Respondent for the purpose of determining proportionate payment of the s. 7 expenses.

[72] During her testimony the Respondent advised that she picks up additional shifts whenever they are available but she generally has worked approximately 36 hours per week since she started at HSC. She also stated that she works in the newborn intensive care unit which is very emotionally and physically draining.

[73] I accept the Respondent’s testimony in this regard and would not impute any further income to her.

Section 7 Expenses

[74] The Respondent takes the position that the Applicant has not contributed to any of the children’s s. 7 expenses contrary to the terms of the parties’ Separation Agreement.

[75] More particularly, the Respondent’s submits that on January 30, 2009, the parties executed a Separation Agreement which in part provides that the Applicant make child support payments based on income of $92,134.00 and contribute 60% towards the Children’s specified s. 7 expenses. Subparagraph 5.4(f) of the Separation Agreement also provides that the Applicant contribute 60% towards the Children’s monthly RESP contributions which total $266.

[76] The Respondent submits that as of July 2011 the Applicant unilaterally decreased his monthly child support payments as he claimed he could not meet his support obligation and contribution towards the Children’s s. 7 expenses.

[77] In 2012 the Respondent filed the Separation Agreement with the Family Support Responsibility Office and as of March 2012 the Respondent began receiving child support payments pursuant to the terms of the Separation Agreement through FRO. However, FRO was unable to enforce the obligation to contribute to his portion of the s. 7 expenses and RESP’s and the Applicant continued to disregard these payments.

[78] With the exception of the Tae-Kwon Do payment in October of 2009 the Applicant has not contributed to any of the Children’s s. 7 expenses.

[79] The Applicant the Separation Agreement specifically set out the s. 7 expenses that would be paid and divided 60/40. The expenses submitted (YMCA, summer camp) did not form part of the agreed expenses and are not payable by him. The Applicant further submits that the dental expenses were paid by the Respondent’s medical insurance coverage and as the balance is less than $100 this is not payable. As for the orthodontic expenses the Applicant claims that there is no evidence that it was medically necessary and he did not agree to the procedure. Finally, the Applicant acknowledges that the RESP is a proper expense that he has not contributed to but claims that “the parents” have already over-contributed as their eldest son has chosen not to attend post-secondary education.

[80] This brings me to a review of s. 7 expenses.

[81] The Applicant testified that the Respondent never discussed the s. 7 expenses with the exception of orthodontics and was never provided with receipts for the expenses. The Applicant also testified that he simply couldn’t afford the expenses.

[82] The Respondent testified that the parties’ always discussed the s. 7 expenses with the exception of orthodontics. The Respondent further testified that the Applicant was involved in the children’s activities and had direct conversations with the coaches and the activities and the fees.

[83] The Respondent suggests that the court is left with having to make a credibility finding – to determine the issues – and given the Applicant’s testimony on the financial issues the Respondent’s evidence should be preferred.

[84] Section 7 of the Child Support Guidelines provides for payment of special or extraordinary expenses which may be ordered to provide for an amount to cover all or a portion of expenses 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. These expenses include child care expenses incurred as a result of the custodial parent’s employment and health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment and physiotherapy, and extraordinary expenses for extracurricular activities.

[85] Despite the Respondent’s submission, it is not credibility that needs to be assessed to determine the section 7 issues. The assessment to be undertaken is whether the submitted expenses properly qualify as appropriate s. 7 expenses under the CSG. If there are proper s. 7 expenses, the fact that the Applicant refused to pay them or denied receiving a receipt, is irrelevant. This is especially true as the Respondent failed to pay any s. 7 expenses pursuant to the Agreement at any time.

[86] The Applicant claims that he did not agree to the YMCA after school program but only agreed to a program at Yasnaya for 9 months starting September 1 and ending May 31, which he claims to have paid his portion. I do not accept this submission. The YMCA after school program qualifies as a s. 7 expense and is properly payable without need to specifically list the program in the Agreement.

[87] At the date of separation the parties’ children were aged five and 13. Obviously there needs to be appropriate daycare in place for the five year old when the custodial parent is at work. It would be inappropriate to place the care of the child with the 13 year old. The CSGA specifically provide for day care expenses and the YMCA are legitimate s. 7 expenses. The same reasoning applies to the summer camps.

[88] The expenses relating to Tae Kwon Do, however, do not qualify as s. 7 expenses. There was no evidence that the Respondent could not afford to pay for the activity and no evidence that the child has special needs or talents relating to this activity. The same reasoning applies to basketball, skateboarding and skating.

[89] Gymnastics were agreed to be covered for the period September 1 to May 31. The additional courses were not agreed upon and there is no evidence that the child had special needs or talents relating to this activity.

[90] As for the orthodontics, the Applicant claims that the expense was a “non-medically required” orthodontic expense. In support of this claim he notes that it was not covered by insurance. The Applicant made the same argument regarding the physiotherapy. Not all dental plans cover orthodontics. Further, there are compelling reasons to require orthodontics that go beyond physically medically required. However, although the evidence established that the Respondent could not afford the expense, she did not provide any evidence that the expense was either medically or cosmetically warranted and she was aware that the Applicant objected to payment of the expense. As for the physiotherapy the Respondent testified that the child injured himself at sport and the Applicant saw the result of the injury. In the circumstances I find the orthodontic expense to be beyond the purview of s. 7 but the physiotherapy is a proper s. 7 expense.

[91] The piano expense does qualify as a section 7 expense as there was evidence that the eldest child had special talents that brings the activity into a s. 7 extraordinary expense.

[92] The dentist expenses were covered by insurance and where the balance remaining exceeds $100 per year for both children it will qualify as a section 7 expense. Where the balance remaining does not exceed $100 per year for both children it will not meet the threshold.

[93] Applying the above reasoning to the payment of s. 7 expenses, I find as follows:

a. In 2010, the Respondent paid for the following s.7 expenses:

Max’s YMCA after school program $1,215.77 Children’s dentist $ 97.00

[94] The YMCA program qualifies and the dentist does not. Based on the Applicant’s 2010 income of $31,000.00 and the Respondent’s 2010 income of $72,903.00, the Applicant’s proportionate share contribution towards the Children’s s.7 expenses is 23.5%. The Applicant’s obligation towards the Children’s s.7 expenses in 2010 was $285.71 for the year.

[95] In 2011, the Respondent paid for the following s.7 expenses:

Maxim’s summer camp $300.23 Max’s YMCA after school program $777.68 Children’s dentist $110.00

[96] All expenses qualify as s. 7 expenses. Based on the Applicant’s 2011 income of $86,000.00 and the Respondent’s 2011 income of $73,922.00, the Applicant’s proportionate share contribution towards the Children’s s.7 expenses was 53.8%. The Applicant’s obligation towards the Children’s s.7 expenses in 2011 was $639.10 for the year.

[97] In 2012, the Respondent paid for the following s.7 expenses:

Maxim’s summer camp $ 430.12 Maxim’s skating classes $ 113.00 Maxim’s Tae Kwon Do $ 777.33 Max’s YMCA after school Program $1,083.33 Wonderkids Gymnastics $ 299.45 Children’s dentist $ 67.00

[98] The summer camp and YMCA qualify as s. 7 expenses and the rest do not. Based on the Applicant’s 2012 income of $126,000.00 and the Respondent’s 2012 income of $70,903.00, the Applicant’s proportionate share contribution towards the Children’s s.7 expenses was 64%. The Applicant’s obligation towards the Children’s s.7 expenses in 2012 was $968.61 for the year.

[99] In 2013, the Respondent paid for the following s.7 expenses:

Maxim’s summer camp $449.74 Maxim’s skateboarding classes $271.20 Kim’s piano lessons $902.00 Maxim’s Tae Kwon Do $775.00

[100] The summer camp and piano lessons qualify as s. 7 expenses and the rest do not. Based on the Applicant’s 2013 income of $56,000.00 and the Respondent’s 2013 income of $64,962.00, the Applicant’s proportionate share contribution towards the Children’s s.7 expenses was 46.3%. The Applicant’s obligation towards the Children’s s.7 expenses in 2013 was $625.86 for the year.

[101] In 2014, the Respondent paid for the following s.7 expenses:

Children’s dentist $ 295.00 Maxim’s summer camp All Star $ 454.25 Maxim’s summer camp Schwartz-Riesman $ 850.00 Maxim’s March break camp $ 113.00 Maxim’s Tae Kwon Do $ 954.00

[102] All expenses qualify as s. 7 expenses excepting Tae Kwon Do. Based on the Applicant’s 2014 income of $97,000.00 and the Respondent’s 2014 income of $56,796.00, the Applicant’s proportionate share contribution towards the Children’s s.7 expenses was 63%. The Applicant’s obligation towards the Children’s s.7 expenses was $1,078.72 for the year.

[103] In 2015, the Respondent paid for the following s.7 expenses:

Maxim’s summer camp Schwartz-Riesman $ 960.50 Maxim’s summer camp All Star $ 595.50 Maxim’s basketball league $1,000.00 Maxim’s Tae Kwon Do $ 604.55

[104] The summer camps qualify as s. 7 expenses the rest do not. Based on the Applicant’s 2015 income of $128,000.00 and the Respondent’s 2015 income of $64,500.00, the Applicant’s proportionate share contribution towards Maxim’s s.7 expenses was 70%. The Applicant’s obligation towards the s.7 expenses in 2015 was $1,089.20 for the year.

[105] In 2016, the Respondent paid for the following s.7 expenses:

Maxim’s summer camp Schwartz-Riesman $ 1,073.49 Maxim’s basketball summer Camp $ 500.00 Maxim’s basketball league $ 1,200.00 Orthodontics $ 4,960.00 Sport physiotherapy $ 130.00 Maxim’s eyeglasses $ 200.00

[106] The summer camps, physiotherapy and eyeglasses are all proper s. 7 expenses. Based on the Applicant’s 2016 imputed income of $128,000.00 and the Respondent’s 2016 income of $67,905.00, the Applicant’s proportionate share contribution towards Maxim’s s.7 expenses is 65.34%. The Applicant’s obligation for the s.7 expenses in 2016 is $1,243.74 for the year.

[107] In 2017, to the date of trial, the Respondent paid for the following s.7 expenses:

Maxim’s summer camp Schwartz-Riesman $ 1,043.00 Maxim’s basketball summer Camp $ 500.00 Maxim’s glasses and contact lenses $ 220.00 Orthodontic expenses $ 1,075.00

[108] All expenses qualify as proper s. 7 expenses excepting orthodontics. Based on the Applicant’s 2017 estimated income of $92,000.00 and the Respondent’s 2017 estimated income of $67,905.00, the Applicant’s proportionate share contribution towards Maxim’s s.7 expenses is 57.53%. The Applicant’s obligation to Maxim’s s.7 expenses in 2017 is $1,014.25 from January 2017 to May 2017.

[109] The Applicant’s total arrears towards the after tax cost of the Children’s s.7 expenses from January 2010 to May 2017 inclusive are $6,945.19 calculated as follows:

2010 $ 285.71 2011 $ 639.10 2012 $ 968.61 2013 $ 625.86 2014 $ 1,078.72 2015 $ 1,089.20 2016 $ 1,243.74 2017 $ 1,014.25

Total s.7 arrears from January 2010 to May 2017 - $6,945.19

RESP Contributions

[110] The parties’ Separation Agreement also provides that the parties are to contribute their proportionate shares towards the Children’s RESP in the total sum of $266.00 per month.

[111] Since 2010, the Applicant has not contributed anything towards the Children’s RESP account. As a result, the Respondent has been contributing the full amount in the sum of $266.00.

[112] Once Kim turned 18 years of age in December 2014, the monthly contribution towards Maxim’s RESP account was reduced to $100.00 per month.

[113] Based on the parties’ respective proportionate share contributions from 2010 to May 2017, as stated above, the Applicant’s arrears of contributions towards the Children’s RESP account is $8,689.44.

[114] It is fair and just that the Respondent be reimbursed the amount the Applicant’s proportionate share. However, as the eldest child has chosen not to attend post-secondary education and the entire value can be utilized for Maxim, it is also fair and just that no further contributions be required by either party.

DISPOSITION AND ORDER

[115] For the reasons for decision above, I hereby Order as follows:

a. Commencing January 1, 2018, and on the first day of each month thereafter, the Applicant shall pay to the Respondent child support for Maxim (d.o.b. April 29, 2003) in the amount of $847 per month based on an attributed annual income of $92,000.00.

b. The Applicant shall pay to the Respondent the sum of $3,791.19, being the set-off amount of the Applicant’s overpayment of child support and the Applicant’s section 7 arrears from January 2010 to May 2017.

c. Commencing January 1, 2018, the Applicant shall contribute his 58% proportionate share towards the Maxim’s s.7 expenses on an ongoing basis.

d. The Applicant shall reimburse the Respondent his proportionate share of the RESP payments made to the Children’s RESP totaling $8,689.44.

e. Any ongoing requirement to contribute to the Children’s RESP account by either the Applicant or the Respondent is suspended.

[116] Subject to any offer to settle that may affect costs, on balance the Respondent was the more successful party and shall be entitled to her costs.

[117] The Respondent shall file costs submissions restricted to four (4) pages, with any offers to settle made and with her bill of costs attached thereto, within 60 days of today’s date.

[118] The Applicant shall file responding costs submissions restricted to four (4) pages, with any offers to settle made and with his bill of costs attached thereto, within 90 days of today’s date.

[119] Any Reply by the Respondent is limited to two (2) pages to be filed within 100 days of today’s date.

Justice S.J. Woodley

Released: December 14, 2017

Korsunskiy v. Korsunsky, 2017 ONSC 7462

Case Summary

REASONS FOR DECISION

OVERVIEW

ISSUES

DETERMINATION OF ISSUES

FACTS

Jonathan Hames’ Report and the Determination of Income

Imputation of Income to the Respondent

Section 7 Expenses

RESP Contributions

DISPOSITION AND ORDER

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Legal Tests 1