COURT FILE NO.: FS15-165(M1)
DATE: 20180410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.D.
Mr. Geoffrey Wells, for the Applicant
Applicant
- and -
T.S.
Mr. Ross H. Thomson, for the Respondent
Respondent
HEARD: April 5, 2018
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] This proceeding was commenced by the mother, J.D., in November 2016. It was tried in Owen Sound on April 5, 2018, in less than one full day of Court time.
[2] There were only two witnesses at trial – the parties. They gave their evidence by Affidavit and orally in the Courtroom.
[3] On July 16, 2015, on consent as per Minutes of Settlement, Fitzpatrick J. made a Final Order (“Final Order”) which, among other things, (i) granted to the parties joint custody of their three children, W. (a boy, now 15 years old), D. (a girl, now 12), and C. (a boy, now 9), (ii) granted primary residency of the children to J.D., (iii) ordered the Respondent father, T.S., to pay child support in the total amount of $1000.00 per month based on a gross annual income of $65,123.00, and (iv) ordered the parties to share equally section 7 expenses.
[4] Note that the $1000.00 in child support per month was a reduced figure for what the Guidelines actually provided at the time based on the stated income of T.S. The Final Order specifically refers to T.S. getting a $266.00 credit (my word) per month to account for increased travel costs to exercise his access with the children.
[5] Regarding section 7 expenses, clause 6 of the Final Order provides as follows:
- Section 7 expenses shall be shared equally including sporting activities, medical/dental expenses and the like, subject to the proviso that horseback riding expenses to be shared shall be limited to $500.00 per year unless otherwise agreed. If a parent wishes to enroll a child in a particular activity and the other parent does not agree, the parent who wishes to enroll the child may do so, but shall pay all of the expense.
[6] Some of the issues in J.D.’s Motion to Change were resolved between the parties, with a consent Final Order being made at Court at the commencement of the trial on April 5th. All that remained was child support, including section 7 expenses.
[7] Although for different reasons, both sides agree that there has been a material change in circumstances since the Final Order was made. Neither is content with the Final Order, in terms of child support. Both want it changed. Both have provided drafts as to how it should be changed.
[8] I am not one to make more work for myself, thus, there is no need to address whether there has been a material change.
[9] What should the new monthly child support figure be, payable by T.S.? What should be ordered for ongoing section 7 expenses? And what about arrears of child support owing by T.S.? Those are the issues for this Court to determine.
II. Analysis
[10] Although I appreciate Mr. Wells’ succinct statement of the law, this decision needs not any clutter with references to jurisprudence. It turns on credibility, findings of fact, and simple arithmetic.
Ongoing Child Support
[11] J.D.’s position, as reflected in the draft Order filed by her counsel, is that T.S. ought to pay child support for the three children in the amount of $1266.00 monthly, commencing May 1, 2018, based on an annual gross income of $65,123.00. That is the quantum provided for by the Guidelines.
[12] T.S., in the draft Order filed by his counsel, submits that he should pay child support for the three children in the amount of $1040.00 per month, commencing February 1, 2018, based on an annual gross income of $50,000.00. Again, that is the amount as per the Guidelines.
[13] For the following reasons, I agree with the position advanced by J.D., and I order that T.S. shall pay child support for the three children in the amount of $1266.00 monthly, commencing May 1, 2018, based on an annual gross income of $65,123.00.
[14] First, the July 2015 Order was based on $65,123.00 as the gross annual income for T.S. The position of J.D. accepts that same income but merely asks that the prior credit advanced to T.S. on account of increased travel costs for access purposes ($266.00 per month) be removed such that the full monthly amount for that income under the Guidelines would apply ($1266.00). Given that T.S. concedes that the said credit ought to no longer apply (his counsel made that clear in closing submissions), and given that T.S. never pleaded in his Response to Motion to Change any request that his base child support obligation be reduced (pages 6 and 7 of that pleading), the position of J.D. makes eminent sense.
[15] Second, even if this Court ignored T.S.’s pleading, there is no reliable evidence to conclude that T.S.’s gross annual income has gone down since July 2015, when the Final Order was made. In fact, for example, his own Financial Statement dated March 15, 2017 shows a gross annual income of $64,800.00 (no change at all from his Financial Statement dated January 20, 2015). Although it is true that T.S. has produced a T4 showing employment income of $50,380.58 for the tax year 2017, that is not a safe indicator of his actual total gross income for that year, or for 2018 for that matter. Why not? Because, in the past, in each of 2015, 2016 and 2017, T.S.’s stated gross annual income on his Financial Statement never aligned with his employment income as shown on documentation used for income tax purposes, such as a T4 or T1 General. In other words, for T.S., employment income has simply never been indicative of his gross annual income.
[16] Now, for the first time since 2015, when T.S. wants to have the base child support reduced, he presents a Financial Statement dated March 28, 2018 which shows a gross annual income that matches the employment income figure shown on his T4 for 2017, $50,380.00. I do not buy it. In light of the history, it makes no sense. It is too convenient.
Ongoing Section 7 Expenses
[17] J.D.’s position, as reflected in the draft Order filed by her counsel, is that certain section 7 expenses that are currently being incurred ought to be stipulated: hockey for the two boys, tutoring for C., horseback riding for D. (capped at $500.00 per year), summer camps for all three children (capped at $1000.00 for year), and medical and dental expenses including orthodontics and eyewear. Future section 7 expenses may include post-secondary education costs. Further, T.S. should pay 50% of the children’s special or extraordinary expenses in the amount of $239.00 per month, starting May 1, 2018. In addition, any school or extra-curricular activity that costs less than $100.00 will not be considered a special or extraordinary expense. Finally, each year, by May 1st, a written reconciliation will be done whereby T.S. will immediately be compensated for any overpayment or be required to account for any underpayment.
[18] T.S., in the draft Order presented by his counsel, submits that he ought to pay $130.00 monthly for section 7 expenses. Those expenses include sports, horseback riding, medical and dental costs, and eyeglasses. T.S. could agree to pay more than that, but anything above $130.00 per month would be strictly voluntary on his part. Post-secondary education costs would be dealt with if and when the time comes.
[19] For the following reasons, I am of the view that a compromised solution is appropriate.
[20] First, both parties are correct that it is time to move to a fixed amount to be paid each month by T.S. on account of section 7 expenses for the children, however, I disagree with J.D. that there ought to be some yearly reconciliation of sorts. That will not work. Having listened to and observed both parties while they testified at trial, I find that there is a significant degree of dislike and a complete lack of trust between them. Any attempt to deal with potential overpayment/underpayment by T.S. each year will be futile.
[21] The only exceptions shall be for (i) post-secondary education costs, which will have to be dealt with in the future, and (ii) medical and dental expenses. It would be unfair to J.D. to not allow for some extra compensation in the event that something unexpected occurs regarding the children’s health. Thus, I have arrived at wording, stipulated below, to account for that.
[22] Otherwise, T.S. shall pay “x” dollars per month towards section 7 expenses, commencing May 1, 2018, period.
[23] Consequently, there is no need to stipulate what the current special or extraordinary expenses are for the children. There is no need to cap any singular item. There is no need to exempt any item from being eligible. And there is no need to specify what percentage of the expense is being paid for by T.S.
[24] For these litigants, the simpler, the better.
[25] Second, what should “x” be? For a father who works for a relative, which presumably gives him the advantage of having at least a realistic prospect of obtaining more hours, and who is assisted financially by his current partner, and who does well enough to spend $200.00 per month on smokes and booze, $400.00 per month on meals at restaurants, and $325.00 per month on vacations (as per his most recent Financial Statement), as examples only, $130.00 per month towards his children’s expenses is woefully inadequate. So is $150.00 monthly, which figure T.S. offered during his trial testimony.
[26] T.S. does not challenge the propriety of any of the expenses outlined in J.D.’s chart (Exhibit 2), other than $5200.00 for W.’s orthodontics. I agree with Mr. Thomson that J.D. could not adequately explain what the actual cost to her was because she bartered with the dentist, boarding his horses in exchange for the dental work done. I also agree with Mr. Thomson that J.D. was less than forthright about the matter of the bartering until she was cross-examined at trial.
[27] Nonetheless, Exhibit 2 clearly shows that T.S.’s equal share of the section 7s would have been $285.94 per month from 2015 to 2017. Even accounting for some reduction in light of the item referred to immediately above, $239.00 monthly is a bargain for T.S. That shall, therefore, be the monthly figure.
[28] I order that, commencing May 1, 2018, T.S. shall pay $239.00 per month towards the children’s section 7 expenses. Post-secondary expenses, if any, shall be dealt with in the future. To clarify, the $239.00 per month does not include anything towards post-secondary expenses. In addition, in the event that the children’s medical and dental costs surpass $3400.00 in any given year, and upon J.D. providing written proof of those expenses to T.S., T.S. shall immediately pay one-half of the amount in excess of $3400.00.
[29] The $3400.00 is calculated as follows: $6137.00 (the total medical and dental costs outlined in Exhibit 2 – glasses and orthodontics), divided by two (equals $3068.50, the approximate cost of those expenses over a one-year period), plus ten per cent (equals $3375.35), rounded up to $3400.00 even, for the convenience of the parties.
[30] That will mean that, should the children’s medical and dental costs go up by about ten per cent or more in any given year, J.D. is not unfairly saddled with absorbing the entire extra cost.
[31] To be clear, “medical and dental costs” include prescription eyewear. They do not include C.’s tutoring.
Child Support Arrears
[32] J.D.’s position, as reflected in the draft Order filed by her counsel, is that T.S. should pay $7714.00 in base child support arrears for the period from December 1, 2015 to April 1, 2018 (the difference between $1000.00 per month actually paid and $1266.00 per month, over 29 months). And he ought to pay $7581.00 in section 7 arrears for the period between September 2015 and April 1, 2018 (a breakdown is provided in the chart attached to the draft Order, marked Schedule “A”).
[33] T.S., in the draft Order presented by his counsel, submits that he owes no arrears, whether for base child support or with regard to section 7s.
[34] For the following reasons, I agree almost entirely with the position advanced by J.D., and I order that T.S. shall pay $7714.00 in base child support arrears for the period between December 1, 2015 and April 1, 2018, plus $7000.00 in section 7 arrears for the period between September 2015 and April 1, 2018.
[35] There is no dispute that T.S.’s move in December 2015, which decreased his travel costs for access purposes, obviated the need to give him any credit towards what would otherwise have been the monthly child support award due under the Guidelines. Thus, effective that month, T.S. ought to have been paying the full amount.
[36] What amount? As decided above, $1266.00 per month based on his annual gross income of $65,123.00.
[37] As per Schedule “A” attached to J.D.’s draft Order, the shortfall in base child support amounts to $7714.00 over the 29 months between December 2015 and April 2018, inclusive.
[38] On arrears of section 7 expenses, but for W.’s orthodontics ($5200.00) and the issue of bartering between J.D. and the dentist, there is no dispute about the calculations contained in the said Schedule “A”.
[39] Due to J.D.’s vague evidence about how much it actually cost her to board the dentist’s horses, I will reduce the $5200.00 to $4000.00. That is somewhat arbitrary, but it is the best that I can do on the evidence available to me. That will reduce the arrears by $600.00 (half of the $1200.00). And, rounding up, that will reduce the total section 7 arrears sought by J.D. from $7581.00 to an even $7000.00.
Other Matters Raised in the Draft Orders Filed by Both Sides
[40] There are other things included in the draft Orders filed by both sides. For example, J.D.’s draft Order speaks about the termination of child support. T.S.’s draft Order speaks about hockey sweaters, for instance.
[41] I decline to deal with any of those additional items. Based on the pleadings, the consent Final Order that was made at the outset of the trial, and what I was told by counsel at the outset of the trial as to what was left to be decided, the orders that I have made herein are sufficient. The Fitzpatrick J. Final Order is changed accordingly.
III. Conclusion
[42] A Final Order shall issue in accordance with these Reasons.
[43] To summarize, (i) T.S. shall pay child support for the three children in the amount of $1266.00 monthly, commencing May 1, 2018, based on an annual gross income of $65,123.00, (ii) T.S. shall pay $239.00 per month towards the children’s section 7 expenses (excluding future post-secondary costs, if any), plus, in the event that the children’s medical and dental costs surpass $3400.00 in any given year, and upon J.D. providing written proof of those expenses to T.S., T.S. shall immediately pay one-half of the amount in excess of $3400.00, and (iii) T.S. shall pay $7714.00 in base child support arrears for the period between December 1, 2015 and April 1, 2018, plus $7000.00 in section 7 arrears for the period between September 2015 and April 1, 2018.
[44] On its face, J.D. has been largely successful and is presumed to be entitled to some costs. If the parties cannot resolve the issue of costs between themselves, I will accept written submissions. J.D. shall file within thirty days of the release of these Reasons (limited to two pages, excluding attachments such as offers to settle and dockets). Within fifteen days after receiving her submissions, T.S. shall file his submissions in writing (limited to two pages, excluding attachments). No reply is permitted without leave of the Court.
[45] I thank Mr. Wells and Mr. Thomson for their assistance in having this matter tried very efficiently.
Conlan J.
Released: April 10, 2018
COURT FILE NO.: FS15-165(M1)
DATE: 20180410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.D.
Applicant
- and -
T.S.
Respondent
REASONS FOR JUDGMENT
Conlan J.
Released: April 10, 2018