Duarte v. Duarte, 2018 ONSC 6685

COURT FILE NO.: FS-09-67084-OOIS DATE: 2018-11-06 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SARAH DUARTE Antal Bakaity, for the Applicant Applicant

• and -

DANNY DUARTE Self-represented Respondent

HEARD: Oct. 31, 2017, and April 17, 2018, at Brampton, Ontario Price J. Reasons For Order

Overview

[1] Danny Duarte (“Mr. Duarte”) applied in 2013 to the Supreme Court of Newfoundland and Labrador, where he resides, to vary a final Order made on consent a year earlier, by the Superior Court of Justice of Ontario, where Sarah Duarte Vaz (“Ms. Vaz”) resides, to reduce the amount he is required to pay Ms. Vaz for the support of the parties’ two children, on the ground that his annual income had declined since the Order was made.

[2] On February 1, 2016, the Supreme Court of Newfoundland and Labrador, after hearing sworn testimony from Mr. Duarte, and in the absence of Ms. Vaz, made a Provisional Order varying the Ontario Order by reducing Mr. Duarte’s child support obligation and suspending his obligation to contribute to the children’s section 7 expenses (“the Newfoundland Order”). The Newfoundland Order has no effect until it is confirmed by the Superior Court of Justice of Ontario, which is a court of competent jurisdiction by reason of the fact that the children reside in Ontario.

[3] This Ontario Court first heard the sworn testimony of Ms. Vaz on October 31, 2017. Later, after receiving further documentary evidence submitted by Ms. Vaz, it hard further testimony from her on April 17, 2018. It must now decide whether to confirm the Provisional Order from the Newfoundland Court.

Background Facts

The parties’ marriage

[4] Mr. Duarte and Ms. Vaz were married for five years, from May 1, 2004, to February 19, 2009. They have two children, whose child support is the subject of the present proceeding:

(a) Kayla Talia Duarte, who is now 19 (born March 18, 1999); and

(b) Liliana Maria Duarte, who is now 13 (born July 30, 2005);

Final Order of Belleghem J.

[5] On December 16, 2011, Mr. Duarte and Ms. Vaz consented to a final Order by Belleghem J. in the Superior Court of Justice of Ontario, requiring Mr. Duarte to pay child support to Ms. Vaz in the amount of $851.00 per month, beginning June 1, 2011, for the support of the two children, based on his annual income of $61,547.20 and the Federal Child Support Guidelines for Newfoundland and Labrador. One year later, on January 17, 2013, Mr. Duarte applied to the Supreme Court of Newfoundland and Labrador, Trial Division (Family), to vary Belleghem J.’s Order.

Enforcement of Belleghem J.’s final support Order

[6] Ms. Vaz testified that Mr. Duarte was always in arrears with the Family Responsibility Office, the Office in Ontario charged with the responsibility of collecting support and enforcing support orders in this Province. Seven months passed, sometimes longer, when Mr. Duarte did not pay anything. He told her Ms. Vaz that he was laid off in 2012 and 2013. He told her that he was going to pay her $325, then $500, because he was not working at all. She left the matter in the hands of the Family Responsibility Office.

[7] Ms. Vaz began receiving paperwork when the Family Responsibility Office (“FRO”) increased its garnishment of Mr. Duarte’s bank account. She did not know they were doing that. The last time she spoke with them was in 2015, when the FRO notified her that it was suspending Mr. Duarte’s driver’s license or passport. $8,500 was deducted from his arrears once, when FRO garnished his tax refund.

[8] It appears that Mr. Duarte applied for an Order directing the Family Responsibility to refrain from further enforcement of Belleghem J.’s final support Order. Ms. Vaz was notified, and was asked whether she could participate by telephone. In the testimony she gave in this Court, she stated that she had thought that Mr. Duarte was applying because he had been laid off. She therefore agreed to a suspension of enforcement for 3 months. She later agreed to a further suspension at a second hearing, to allow Mr. Duarte to “catch up.”

The Provisional Order

[9] When Ms. Vaz received Mr. Duarte’s Application to the Court in Newfoundland to vary Belleghem J.’s final Order, she reviewed his tax returns and was surprised to see that his income since Belleghem J.’s Order was made was higher than it was when the parties consented to that Order. She and Mr. Duarte were talking at the time, and Mr. Duarte threatened to quit his job and leave Ms. Vaz with nothing, so she did not respond to his application.

[10] On February 1, 2016, Furey J., at the Judicial Centre of Corner Brook, Newfoundland, held a Provisional Hearing of Mr. Duarte’s application. Based on Mr. Duarte’s sworn testimony, and in the absence of Ms. Vaz, Furey J. made a Provisional Order requiring Mr. Duarte to pay Ms. Vaz the following amounts as child support for the two children, based on his annual income and his residency in Newfoundland and Labrador:

(a) $1,251 per month from January 1 to December 31, 2013, based on his 2013 annual income of $88,694 ($92,254 less union dues of $3,560);

(b) $1,296 per month from January 1 to December 311, 2014, based on his 2014 annual income of $92,241 ($92,241 ($95,500 less union dues of $3,259);

(c) $556 per month from January 1 to December 31, 2016, based on his annual income of $37,897.60 ($38,521 less union dues of $624);

[11] Justice Furey’s Provisional Order suspended, effective January 1, 2013, paragraph 12 of Belleghem J.’s Order dated December 16, 2011, which required Mr. Duarte to pay $226 per month to Ms. Vaz as his contribution to the children’s special and extraordinary expenses, pursuant to section 7 of the Federal Child Support Guidelines, (s. 7 expenses”), expenses, and ordered that all monies paid for the children’s s. 7 expenses since January 1, 2013, be credited to any child support owing.

[12] Justice Furey’s Provisional Order provided that the standard recalculation clauses would apply to the child support payments for 2016. In 2017, Mr. Duarte’s tax return disclosed a tax refund of $2,000, which she did not receive.

[13] The Provisional Order made by Justice Furey has no effect until it is confirmed by a court of competent jurisdiction. The Newfoundland Court sent the Provisional Order to the Superior Court of Justice of Ontario, which is a court of competent jurisdiction, being in the Province in which Ms. Vaz and the children continue to reside.

The hearing before this Court

[14] This Court received sworn testimony from Ms. Vaz on October 31, 2017, in the absence of Mr. Duarte. After the hearing, this Court received further documents from Ms. Vaz, consisting of her Notices of Assessment, receipts for s. 7 expenses, and documents setting out the costs of Kayla’s proposed program at Sheridan College. Because those documents were not in affidavit form, and therefore not admissible, the Court re-called Ms. Vaz, who gave further testimony on April 17, 2018, in which she identified the documents she had sent following the earlier hearing, and gave testimony concerning them.

Issues

[15] This Court must now determine whether to confirm the Provisional Order, dismiss Mr. Duarte’s Application, or return the matter to the Supreme Court of Newfoundland and Labrador for further evidence.

Parties’ Positions

[16] Mr. Duarte submits that this Court should confirm the Provisional Order based on the fact that his income has declined since the parties consented to the Order of Belleghem J. in 2011.

[17] Ms. Vaz submits that the Provisional Order should not be confirmed because Mr. Duarte is earning income that he has not disclosed. She asks that an Order be made increasing Mr. Duarte’s contribution to the children’s section 7 expenses.

Analysis and Evidence

Are the children still “children of the marriage”?

Kayla Talia Duarte

[18] Ms. Vaz testified that the parties’ eldest daughter, Kayla Duarte, was still in night school. She had not yet graduated because she had not completed a credit in English that she required for her degree. She attended St. Edmond Campion High School in Brampton for that purpose.

[19] Kayla initially thought she had graduated from grade 12 in June 2017. She went on her senior trip to Cuba with her graduating class, and attended the graduation ceremony with her class, where she received a diploma. However, in August 2017, she received a call from her school informing her that, in fact, she still needed to earn an English credit in order to complete the requirements for graduating from high school.

[20] Ms. Vaz testified that Kayla was surprised at this information, and would not have participated in the ceremony if she had known earlier. Ms. Vaz still does not know how it happened that Kayla had missed an English credit or why the School had failed to notice the omission until after Kayla’s graduation ceremony. She spoke with the school but it was never satisfactorily explained to her.

[21] In any case, a couple weeks after the call from the School, Kayla enrolled in a night school course in English at St. Edmond Campion. It later developed, however, that there was insufficient enrollment in that class, so it was cancelled. When notified of this in the 2nd week of September 2017, Kayla immediately enrolled at Notre Dame Catholic School in Brampton, the only school that offered a night school program in English, on the first night of school, paid the enrollment fee of $50, and began attending.

[22] At the time of Ms. Vaz’ testimony in October 2017, Kayla was attending classes regularly every Monday and Wednesday from 6 p.m. to 9:30 p.m., for 16 weeks, from the second week of September to the 2nd week of December 2017. Ms. Vaz tendered a confirmation of enrollment by the Dufferin-Peel Catholic District School Board for the Notre Dame night school course from September 20 to December 20, 2017, when she testified on April 17, 2018.

[23] When Ms. Vaz testified on April 17, 2018, she tendered documentation for the program Kayla had chosen to attend at Sheridan College. The courses were full in January, so Kayla was working part-time at McDonald’s, where she has maintained employment since she was 15 years old, and had enrolled in a full-time Early Childhood Education program beginning in September 2018. The cost of the program, consisting of four semesters over two years, is $4,360.00 per year.

Liliana Maria Duarte

[24] At the time when Ms. Vaz testified in October 2017, Liliana was 12 years old and was still in high school. She was enrolled in soccer and plays for her school. She tried out for basketball and soccer, and she was in swimming. She attended two camps in the summer. She played soccer with a Brampton company team at Mayfield School. She kept herself busy.

Findings

[25] Based on the foregoing, I find that both Kayla and Liliana are children of the marriage within the meaning of the Divorce Act. While Kayla was not attending school “full time”, she was engaged in activities that are reasonably expected to further her education and preparation for gainful employment in the future. Rotondi v Rotondi, 2014 ONSC 1520, paras. 28 to 41.

What amount of child support should Mr. Duarte pay?

Mr. Duarte’s income

[26] By his Order dated December 16, 2011, Belleghem J. ordered Mr. Duarte to pay Ms. Vaz child support in the amount of $851.00 per month beginning June 1, 2011, for the support of Kayla and Liliana, in accordance with the Newfoundland child support tables, based on his annual income of $61,547.20. In addition, Belleghem J. ordered him to pay Ms. Vaz $116.00 per month beginning January 1, 2012, toward the payment of the children’s s. 7 expenses. The support order was to be enforced by the Family Responsibility Office.

Income earned in 2013, 2014, and 2015

[27] Furey J. notes that Mr. Duarte’s income tax information for 2014 showed a total income of $95,500.00. When asked whether that makes sense, Mr. Duarte replied, “Yeah, probably. I was up there longer.” His income in 2012 was $87,293.00l; in 2013, it was $92,254.00.

[28] The provisional order of Furey J. ordered Mr. Duarte to pay child support as follows:

1. The Applicant, Danny Duarte, shall pay to the Respondent, Sarah Duarte Vaz, child support for the children of the marriage, Kayla Talia Duarte (DOB: March 18, 1999) and Liliana Maria Duarte (DOB: July 30, 2005), in the amount of $1,251 per month for the period from January 1, 2013, to December 31, 2013, (inclusive) based on the Applicant’s 2013 annual income of $88,694 ($92,254 less union dues of $3,560 = $88,694) and his residency in Newfoundland and Labrador.

2. The Applicant, Danny Duarte, shall pay to the Respondent, Sarah Duarte Vaz, child support for the children of the marriage, Kayla Talia Duarte (DOB: March 18, 1999) and Liliana Maria Duarte (DOB: July 30, 2005), in the amount of $1,296 per month for the period from January 1, 2014, to December 31, 2014, (inclusive), based on his 2014 annual income of $92,241 ($95,500 less union dues of $3,259 = $92,241) and his residency in Newfoundland and Labrador.

3. The Applicant, Danny Duarte, shall pay to the Respondent, Sarah Duarte Vaz, child support for the children of the marriage, Kayla Talia Duarte (DOB: March 18, 1999) and Liliana Maria Duarte (DOB: July 30, 2005), in the amount of $1,146 per month for the period from January 1, 2015, to December 31, 2015 (inclusive), based on the Applicant’s 2015 imputed income of $80,637.69 ($81,131.69 – union dues of $494 = $80,637.69) and his residency in Newfoundland and Labrador.

[29] There is no evidence before me that would support a different conclusion than the one reached by Furey J. regarding the income Mr. Duarte earned in 2013, 2014, or 2015, or the child support he should pay for those years. Paragraphs 1, 2, and 3 of Furey J.’s provisional order will therefore be confirmed.

Income earned in 2016

[30] At the hearing before Furey J. on February 1, 2016, Mr. Duarte stated that he had a new job in Corner Brook close to home and was earning “way less money” and, for that reason, needed to have his support order changed. He testified that he was employed as a Labourer II by the Ministry of Transportation and Highways in Deer Lake beginning in August 2015, and was earning “$18 and change” per hour.

[31] Mr. Duarte further stated before Furey J. that before taking the temporary or seasonal employment with Transportation and Highways, earning $28,529.02 per year, he was employed with AGF Steel in Muskrat Falls, earning $67,056.49, according to his paystub for the period ending August 15, 2015.

[32] Ms. Vaz stated that at the time of her testimony on October 31, 2017, Mr. Duarte, to her knowledge, was still employed by the same transport company as he was at the time of the proceeding before Belleghem J. in 2011. The parties’ daughter has told Ms. Vaz that he may also be working as volunteer fireman. Mr. Duarte acknowledged before Furey J. that he speaks to Kayla and Liliana every other day by telephone and Instagram and Tango.

[33] Furey J.’s provisional order provided as follows:

4. The Applicant, Danny Duarte, shall pay to the Respondent, Sarah Duarte Vaz, child support for the children of the marriage, Kayla Talia Duarte (DOB: March 18, 1999) and Liliana Maria Duarte (DOB: July 30, 2005), in the amount of $556 per month for the period from January 1, 2016, to December 31, 2016 (inclusive) based on the Applicant’s 2016 imputed income of $37,897.60 ($38,521.60 – union dues of $624 = $37,897.60) and his residency in Newfoundland and Labrador).

[34] Ms. Vaz asserts that Mr. Duarte’s income is at least as great as it was when Belleghem J. made his final Order. The transcript of proceedings before Furey J. discloses that Mr. Duarte acknowledged that in 2015, his income at AGF Steel was $67,056.49 per year, compared to the $61,547.20 that Belleghem J. imputed to him in 2011.

[35] In Mr. Duarte’s Income Tax Return for 2016, he reported his income to be $19,707.00, of which $13,918.00 consisted of Employment Insurance benefits. That return, with his e-mail dated October 27, 2017, was entered as Exhibit 1. I find that Mr. Duarte’s Income Tax Returns for 2015 and 2016, when he made current motion to vary his child support obligation, do not reflect the income that he is capable of earning.

[36] Ms. Vaz testified that she has learned from a post that Mr. Duarte made to the online website, “You Tube,” on March 3, 2016, that he operates his own business, which he calls “Graydom Extreme Flooring”, apparently based on the names of his sons, Grayson and Dominic. The business installs Epoxy flooring, which can be applied over plywood. The video contains Mr. Duarte’s address and telephone number, and shows him measuring a floor.

[37] Mr. Duarte’s personal Facebook page, dated November 7, 2016, contains the names of Sharon and Danny Duarte, and a photograph of Mr. Duarte. The Facebook page advertises a new look for flooring and says that Mr. Duarte is taking bookings now. Some posts to the Facebook page ask for price quotes. Mr. Duarte responds that the flooring is available in NL, (Newfoundland and Labrador). He provides 40 photos of flooring, apparently samples of jobs he has done. Mr. Duarte’s Facebook pages and mobile mail pages dated March 3, 2015, were entered as Exhibit 2.

[38] The transcript of proceedings before Furey J. discloses that Mr. Duarte did not reveal any earnings from his flooring business, or even the existence of that business in that proceeding. Mr. Duarte also failed to disclose his earnings from that business in his 2016 Income Tax Return. Mr. Duarte had not produced his Notices of Assessment for 2016, even by the time Ms. Vaz first testified before this Court in October 2017. Ms. Vaz testified that she had asked him for the Notice of Assessment multiple times, and that he had told her that he would get it to her. Then, within the two weeks preceding Ms. Vaz’s testimony on October 31, 2017, he stated that he couldn’t find it and had requested another.

[39] Rule 21 of the Federal Child Support Guidelines and Rule 13 of the Family Law Rules impose an obligation on Mr. Duarte to disclose the financial statements of his business. I draw an adverse inference from Mr. Duarte’s failure to make full financial disclosure and conclude that the information he did not disclose would not have supported the position he takes in this motion.

[40] In the absence of the required financial disclosure from Mr. Duarte in either his Income Tax Return for 2016 or the proceeding before Furey J., I find that his Line 150 income from his 2016 Notice of Assessment is not a reliable basis for determining his income for that year for support purposes pursuant to s. 16 of the Federal Child Support Guidelines. The Guidelines provide:

Calculation of annual income

16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

Pattern of income

17 (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

[41] Based on the evidence before him, Furey J. imputed to Mr. Duarte income of $88,694 in 2013, $92,241 in 2014, and $80,637.69 in 2015. Based on his income in those years, the lack of any substantial explanation for why he was incapable of earning similar amounts in 2016, the evidence from his Facebook and YouTube posts regarding the business he operated in 2016, and his failure to disclosure information regarding that business, I impute an income of $87,190.66, being the average of the previous three years, pursuant to s. 17(1).

[42] Pursuant to the Child Support Guideline table that applied in Newfoundland and Labrador up to November 2017, the child support for two children payable by a payor spouse who earned $87,190.66 was $1,231.52 per month.

[43] Under section 19 of the Divorce Act, the court that receives a provisional order must determine whether there is a sufficient basis under section 19(7) to:

(a) confirm the provisional order without variation; or

(b) confirm the provisional order with variations; or

(c) refuse to confirm the provisional order.

[44] For the foregoing reasons, my confirmation of the provisional order of Furey J. will entail the following variation to paragraph 4:

4. The Applicant, Danny Duarte, shall pay to the Respondent, Sarah Duarte Vaz, child support for the children of the marriage, Kayla Talia Duarte (DOB: March 18, 1999) and Liliana Maria Duarte (DOB: July 30, 2005), in the amount of $1,231.52 per month for the period from January 1, 2016, to December 31, 2016 (inclusive) based on the Applicant’s 2016 imputed income of $87,190.66 and his residency in Newfoundland and Labrador.

What percentage contribution should Mr. Duarte make to the payment of the children’s s. 7 expenses?

Ms. Vaz’ income

[45] Ms. Vaz has three children. Her youngest son, Mason, was born December 30, 2013.

[46] Ms. Vaz was employed at Tandem Property Limited from September 2012 to October 2013, when she went on maternity leave. She was supposed to leave on November 30th, and return November 30, 2014, but she left early, on October 16, 2013, because of complications with her pregnancy. She returned on January 2 or 3, 2015, and continued with Tandem until February 2016.

[47] In her testimony on April 17, 2018, Ms. Vaz tendered her Notices of Assessment for 2013, 2014, and 2015. Those documents disclose that her Line 150 income for those years was as follows:

• 2013: $39,261.00
• 2014: $38,540.00
• 2015: $23,623.00
• 2016: $45,629.00

[48] Ms. Vaz and her husband were going through a lot of changes. They both worked at the intersection of Yonge Street and Shepherd Street in north Toronto, and both were getting home at 6:30 p.m. With that schedule, they would have been unable to keep the children in their activities, so Ms. Vaz left her employment in February 2016, and stayed at home for a period of time.

[49] Ms. Vaz became employed again in November 2016 as Property Manager with Drake Property Management in Brampton, so that she could stay close to the children. She was to complete her first year with that employer on November 14, 2017.

[50] Based on Mr. Duarte’s income of $61,547.20 and Ms. Vaz’s income, I find that Mr. Duarte should contribute the following percentages, rounded to the nearest percentage, to the payment of the children’s s. 7 expenses:

• 2013: 61% of collective income of $100,808.20
• 2014: 62% of collective income of $100,087.20
• 2015: 72% of collective income of $85,170.20
• 2016: 57% of collective income of $107,176.20

What are the children’s s. 7 expenses?

[51] Ms. Vaz testified about the children’s expenses and provided her tax return, which lists the expenses: sports, swimming, camps, gym memberships, etc. Ms. Vaz is not claiming contribution for other expenses, including school sports, school trips, soccer shoes, uniforms, etc., for which she does not always get or keep receipts. For the expenses she does claim, she stated that she could provide the receipts, if necessary.

[52] When Ms. Vaz first asked Mr. Duarte to contribute to Kayla’s school trip to Quebec, which cost between $600 and $700, he first replied that he wanted to think about it. Later, he told her that she never let him see the children, so he would not contribute to the payment of their expenses. Ms. Vaz points out that she has, in fact, raised no impediment or objection to his having access to the children when he chooses to visit from Newfoundland. In any event, Mr. Duarte went to Newfoundland in 2011 or 2012, and ended up not paying for any of the children’s activities.

[53] Ms. Vaz testified at length on October 31, 2017, about the children’s s. 7 expenses. Although she did not come equipped with receipts at that time, she was permitted to return on April 17, 2018, at which time she tendered the receipts and records she had been able to assemble. Although she did not tender receipts for every one of the s. 7 expenses for which she claims contribution, I was impressed with the overall consistency of the evidence she had given on October 31, 2017, and the documents she tendered on April 17, 2018. I am satisfied that her testimony was truthful and I accept those aspects of it that are not corroborated by receipts, as being reliable on their own. I will indicate in my description of the expenses which ones Ms. Vaz documented with receipts.

[54] Beginning in 2013, the s. 7 expenses for Kayla, who was then 14 (born March 18, 1999) and Liliana, who was then 8 (born July 30, 2005), were as follows:

• 2013 a) Kayla’s s. 7 expenses

  1. $600.00 Paid for Kayla’s grade 8 school trip to Quebec
  2. $403.00 Paid to the Oakville YMCA for “Venture Tour Camp. Ms. Vaz tendered the receipt for this expense on April 17, 2018. She explained that Kayla attended the same camp since she was six years old, when Ms. Vaz and Mr. Duarte were together. Some were one week; some were two. Sometimes, the camps were overnight for Kayla, but not Liliana.
  3. $256. Paid to the Oakville YMCA for day camp, for which Kayla received credit for volunteer hours toward her high school graduation requirements. Ms. Vaz, in her testimony on April 17, 2018, tendered a receipt for the period July 29 to August 9, 2013.
  4. $534.00 Kayla’s gym membership at Cathy Campbell Recreation Centre for six months at $89.00 per month. Then she started working.
  5. $60.00 Paid to Kayla’s school as activity fee, part of her school registration fee b. Liliana’s s. 7 expenses
  6. $2,030.00 Paid to Ms. Vaz’s neighbor, Silvana Givanasio, (receipt tendered by Ms. Vaz on April 17, 2018), to provide daycare for Liliana from Jan 1 to June 30, 2013. Liliana was in day care both before and after school. Ms. Vaz paid her by the week at $120 per week. ($2,030.00 for approximately 6 months.)
  7. $2,030.00 After Ms. Vaz moved, she enrolled Liliana in September with a new babysitter, Natalie Reis, whom she still employs as needed. Ms. Reis also charged $120 per week for Liliana for four months, September to December. When Liliana was older, she went less frequently, because Kayla was able to pick her up at school. The cost therefore declined to $80 per week.
  8. $251.00 Paid to the Brampton North Soccer Centre for Liliana to participate in soccer during the summer season (from May onward). That was the fee only, and did not include the cost of shoes and pads, which Ms. Vaz also paid.
  9. $275.00 Paid to the Oakville YMCA for camp for Liliana. Sometimes, she would stay at Ms. Vaz’s mother’s home and the mother would drive her.
  10. $60.00 Paid to St. Edmund Campion Secondary School for Activity Fee;

• 2014 a) Kayla’s s. 7 expenses

  1. $60.00 Paid to Kayla’s school as Activity Fee, as part of her school registration;
  2. 395.00 Paid to Oakville YMCA for Counsellor in Training camp for the period June 30 to July 25, 2014. Ms. Vaz tendered the receipt for this expense on April 17, 2018. c. Liliana’s s. 7 expenses
  3. 227.00 Paid for soccer, (discounted owing to early registration)
  4. $400.00 Paid for daycare for Lilliana, for the year
  5. $350.00 Paid to the Oakville YMCA for 2 all-day camps for Lilliana, one in July and one in August, each at a cost of $175.

• 2015 a) Kayla’s s. 7 expenses

  1. $120.00 Gym membership at Cathy Campbell for six months at $10.00 per month. In her testimony on April 17, 2018, Ms. Vaz tendered receipts for the period November 7, 2014, to November 6, 2015.
  2. $60.00 Paid to Kayla’s school as activity fee, part of her school registration fee, for swimming
  3. $300.00 Kayla’s last summer camp, for two weeks at $150 per week, in Oakville. d. Liliana’s s. 7 expenses
  4. $1,938.11 29.41% of $6,590.00, (for which Ms. Vaz tendered a receipt on April 17, 2018), which she paid for Lillian and her youngest child, Mason. She paid $120.00 per week for Mason, who was full-time, and $50.00 per week for Lilian, who was part-time, for the whole year because she was working.
  5. $410.00 Adventure Camp at the Oakville YMCA for two weeks at $205 per week

• 2016 [78] Both parents were working at a great distance from home, so Ms. Vaz was unable to register the children for many activities that year. a) Kayla’s s. 7 expenses

  1. $400.00 Paid for driver training course
  2. $231.00 Paid to the City of Brampton for swimming lessons.
  3. $312.00 Paid for gym membership at fitness centre at Hurontario Street and Wanless Road in Brampton b) Liliana’s s. 7 expenses
  4. $231.00 Paid to the City of Brampton for camp
  5. 138.09 Paid to City of Brampton for swimming. Ms. Vaz tendered receipts for the period July 16 to August 16, 2016 ($47.74) and for the period September 15 to December 16, 2016, ($90.35) on April 17, 2018)
  6. $360.00 Paid for daycare for Liliana during March break and P.A. days, at $60.00 per week for approximately 6 weeks, from November 15 to the end of the year. Ms. Vaz tendered a receipt for $1,050.00 during her testimony on April 17, 2018 for day care paid for both Mason and Lilian.
  7. $60.00 Paid to a Christian sports camp for one week at $60.

• 2017 c) Kayla’s s. 7 expenses

  1. $312.00 Paid for gym membership at fitness centre at Hurontario Street and Wanless Road in Brampton
  2. 400.00 Paid for driver training course
  3. $231.00 Paid to the City of Brampton for swimming lessons
  4. $60.00 Paid to Kayla’s school as activity fee, part of her school registration fee, for swimming. Kayla stopped this activity in 2016 d) Liliana’s s. 7 expenses
  5. $231.00 Paid to the City of Brampton for camp
  6. $300.00 Paid for daycare for Liliana during March break and P.A. days.
  7. $410.00 Paid to the Oakville YMCA for summer camp for Liliana for two weeks at $205 per week.

[55] Apart from the foregoing expenses, Ms. Vaz testified that she had reimbursed Kayla the $100.00 per month she had saved in order to purchase a car and for her class graduation trip to Cuba, based on the understanding they had reached that Ms. Vaz would reimburse her upon her successfully graduating. Ms. Vaz honoured this commitment, notwithstanding the delay in Kayla completing her English credit, for which Ms. Vaz did not ascribe fault to Kayla. Ms. Vaz additionally paid $200.00 for a passport for Kayla, and new clothing. Ms. Vaz never asked Mr. Duarte to contribute to those expenses.

[56] Kayla was offered a full-time position at Heritage Fish and Chips Restaurant until she finished night school. She wanted to buy a new car, for which she had resolved to pay for the insurance herself, as well as gas and maintenance. Ms. Vaz and Mr. Duarte will give her their 2008 Honda Civic. Having regard to the expenses associated with this purchase, Kayla’s industry in saving for her portion of the car expenses, and the saving that this will permit in Kayla’s transportation costs, I do not propose to require Kayla to contribute more of her earnings toward her post-secondary education expenses.

[57] Ms. Vaz stated that Mr. Duarte has been kept aware of the children’s expenses. When he says he visits, Ms. Vaz tells him what their schedules are.

[58] Ms. Vaz has contributed to an R.E.S.P. for Kayla. She has made all of the contributions, and the Plan, with Government grants, now contains $10,000. Ms. Vaz was unable to contribute to a similar plan for Liliana.

[59] I find that the expenses listed above were reasonable and necessary for the support of the children, having regard to the means and circumstances of Mr. Duarte and Ms. Vaz, and consistent with the expectations the parties had for the children. For these reasons, I find that the total s. 7 expenses for the years 2013 to 2017 to which the parties should be required to contribute are as follows:

• 2013: $6,449.00
• 2014: $1,432.00
• 2015: $2,828.11
• 2016: $1,732.09
• 2017: $1,944.00

[60] Justice Furey’s Provisional Order provided, in part, as follows:

5. Based on the evidence of the Applicant, I order that the payment of $116 per month for the children’s section 7 expenses as set out in paragraph 12 of the Order of the Ontario Superior Court of Justice dated December 16, 2011 be suspended effective January 1, 2013.

[61] For the foregoing reasons, that paragraph will be varied as follows:

5. Based on the evidence of the Applicant and the Respondent, the order for payment of $116 per month for the children’s section 7 expenses set out in the Order of the Ontario Superior Court of Justice dated December 16, 2011, shall be varied as follows:

6. In addition to the base support set out above, the Respondent father shall pay the following additional amounts for the children’s section 7 expenses, beginning December 1, 2018, and payable on the first of each month thereafter until further order of the court or agreement of the parties:

• 2013: $327.82/month (1/12 x [61% x $6,449])
• 2014: $73.99/month (1/12 x [62% x 1,432])
• 2015: $169.68/month (1/12 x [72% x 2,828])
• 2016: $82.27/month (1/12 x [57% x 1,732])
• 2017: An amount to be determined based on his percentage of the parties’ collective income times the children’s s. 7 expenses of $1,944.00.

Conclusion and Order

[62] For the reasons set out above, it is ordered that:

1. The provisional order of the Honourable Justice Brian Furey dated February 1, 2016, is confirmed with the following variations:

2. The Applicant, Danny Duarte, shall pay to the Respondent, Sarah Duarte Vaz, child support for the children of the marriage, Kayla Talia Duarte (DOB: March 18, 1999) and Liliana Maria Duarte (DOB: July 30, 2005), in the amount of $1,231.52 per month for the period from January 1, 2016, to December 31, 2016 (inclusive) based on the Applicant’s 2016 imputed income of $87,190.66 and his residency in Newfoundland and Labrador.

3. Based on the evidence of the Applicant and the Respondent, the order for payment of $116 per month for the children’s section 7 expenses set out in the Order of the Ontario Superior Court of Justice dated December 16, 2011, shall be varied as follows:

4. In addition to the base support set out above, the Respondent father shall pay the following additional amounts for the children’s section 7 expenses, beginning December 1, 2018, and payable on the first of each month thereafter until further order of the court or agreement of the parties:

• 2013: $327.82/month (1/12 x [61% x $6,449])
• 2014: $73.99/month (1/12 x [62% x 1,432])
• 2015: $169.68/month (1/12 x [72% x 2,828])
• 2016: $82.27/month (1/12 x [57% x 1,732])
• 2017: The standard re-calculation shall be made of Mr. Duarte’s contribution to the children’s s. 7 expenses for that year of $1,944.00, based on his percentage of the parties’ collective income.

Price J.

Released: November 6, 2018