Court File and Parties

COURT FILE NO.: FS-13-76814 00-01

DATE: 2018 02 07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Deborah Malcolm Bolland, Applicant AND: James Edward Patrick Bolland, Respondent

BEFORE: TRIMBLE J.

COUNSEL: W. Abbott, for the Applicant R. Grosz, for the Respondent

HEARD: December 14, 2017

ENDORSEMENT

[1] This motion arises because the parties do not communicate – they make demands. When the demands are not met, they talk only through their lawyers. Apparently, they would rather pay lawyer’s bills than a long distance telephone charge, an internet fee, or for a postage stamp.

[2] The Applicant Mother (DOB July 11, 1969) brings a motion to change the final consent order of Snowie, J. of August 8, 2013, which the parties amended by an Amending Agreement dated 21 December 2014. She claims recalculated spousal support, child support, and s. 7 expenses for 2015, 2016, and 2018.

[3] The respondent Father (DOB March 25, 1968) opposes the motion and claims overpayment under all categories.

Snowie, J.’s Order:

[4] Snowie, J.’s order gives effect to the parties’ Separation Agreement. At the time of the Agreement, the parties’ incomes were undetermined. Therefore, the parties agreed that effective August 1, 2013, the father would pay the mother child support of $1000/month, and pay 61% of all s. 7 expenses. S.7 expenses listed were to be paid. All other s. 7 expenses were to be agreed upon, in writing, before being incurred.

[5] In clause 36, the parties state that the support to be paid in any year is to be based on their incomes for that year, with spousal support at the SSAG mid-range.

[6] By June 1, 2015, the parties were to begin exchanging their s. 7 receipts for the previous year for an adjustment in terms of payments outstanding for s. 7 expenses.

[7] By June 1 each year, the parties were to exchange their tax information as set out, and support paid in the previous year was to be adjusted to actual income earned in that year. Any over or underpayments were to be accounted for by payments or deductions in the next year.

[8] Because incomes were unknown, no spousal support was ordered, although changing it was on the same formula as child support.

The Amending Agreement:

[9] On December 21, 2014, the parties signed an Amending Agreement, amending their Separation Agreement and Snowie, J.’s order, since their 2013 incomes had been determined. No amending order appears to have been taken out.

[10] Under the Amending Agreement, Father and Mother agreed that he would pay spousal support of $388/month from March to December 2013 (which was mid-SSAG range) which was to be deductible to Father and taxable to Mother. For the year 2014, the parties agreed that Father would pay Mother spousal support of $388/month, for a total of $4,656. Spousal support was to continue in 2015 at $388/month until the parties 2014 incomes were determined. Once the 2014 incomes were determined, spousal support for 2015 could be recalculated based on 2014 incomes.

[11] With respect to child support, in the Amending Agreement the parties agreed that effective January 1, 2015, Father would pay child support to the end of 2014 of $874/month, and that he would continue to pay that in 2015 until the parties’ 2014 incomes were determined, at which time child support would be recalculated for 2014 based on 2014 actual incomes. Father’s share of section 7 expenses was fixed at 61% and was not subject to adjustment or review based on income changes (see clauses 3.1 to 3.3).

[12] The parties agreed that there were no arrears in any support or s. 7 expenses effective December 21, 2014.

The Basic Facts:

[13] The Parties were married on August 19, 2000, separated on February 27, 2011 and were divorced on June 21, 2014. They have one child, Drew J. D. Bolland, (DOB November 4, 2007). The child resides with Mother, although they have joint custody. The Order provides great detail about access. The Father now resides in Langley, B.C. Access appears problematic because of distance and disagreements between Father and Son.

[14] The parties’ exchange of income information has been slow.

The Consent:

[15] On December 14, 2017, while waiting for this matter to be heard, the parties reached an agreement recorded in a Consent, filed, as follows:

1. Father will pay child support of $917/month for one child (Drew Bolland, DOB November 4, 2007), effective December 1, 2017 and on the first day of every month thereafter, based on Father’s annual income of $96,664.

2. Commencing December 1, 2017, and on the first day of every month thereafter, Father will pay $285/month for s. 7 expenses. This is not a cap.

3. Section 7 expenses for any year shall be reconciled by January 31 of the following year, or earlier if there is a material change in circumstances.

4. If, after recalculating support obligations following June 1 of any year, Father has overpaid s. 7 expenses in any given year, one third of any such overpayment shall be deducted from s. 7 expenses owing in the March, April and May payments of the following year. If Father has underpaid s. 7 expenses in any given year, the underpayment shall be payable one third in each in the March, April and May payments of the following year.

5. Unless I order otherwise, the remaining clauses of the August 8, 2013 order and December 21, 2014 Amending Agreement continue.

[16] After presenting the signed consent on the above five points, the parties advised that they had agreed on a change to Snowie, J.’s order regarding access such that henceforth, access between Drew and Father would be at Drew’s discretion and arranged between them, directly.

[17] I order that a final order issue, according to the consents, as above, changing Snowie, J.’s order.

Issue to be Determined:

[18] Mother brought this motion as a Motion to Change, probably because of the change to access requested. This was resolved on consent.

[19] For the balance of the motion, there is no material change in circumstances that would warrant altering the agreement reached by the parties or Snowie, J.s order. The balance of Mother’s Motion to Change deals with quantum of spousal support, child support and s. 7 expenses for 2015, 2016 and 2017, and shortfalls or overpayments in respect of each of these obligations. She does not request a change in Snowie, J.’s order with respect to these obligations; rather, she seeks enforcement of it. The issues Mother raises include:

a) what are the proper levels of child support,

b) spousal support and s. 7 expenses, and

c) whether there has been an under or over payment of any of these since the Amending Agreement was signed.

Analysis:

1. Incomes for Calculation Purposes:

[20] Based on the Canadian Revenue Agency (CRA) Assessments in the record (unless footnoted otherwise), I make the following determination of line 150 incomes for support purposes:

	2014	2015	2016	2017
Father	87,049	87,460	96,664	96,664[^1]
Wife	72,215	70,844	61,532	74,622[^2]

[21] Since we have CRA assessments for 2015 and 2016, and reasonable income information for 2017, child and spousal support in each of those years can be calculated on actual incomes.

2. Child Support Owing:

[22] Based on these incomes, according to DivorceMate calculations, child support for one child resident in Ontario with the support recipient, and a payor resident in Ontario in 2015 and 2016, and B.C. in 2017, is set out in the following chart. The chart also includes my findings as to support actually paid, and the net balance owing.

Year	Monthly Child Support	Annual Child Support	Child Support Father Paid	Net Owing by Father
2015	780	9,360	10,488[^3]	(1,128)
2016	853	10,236	10,184	(52)
2017	917	11,004[^4]	9,315[^5]	1,689
2018	917	1,834[^6]	1,834[^7]	0

[23] Father underpaid child support to the end of February, 2018 by $516. He owes this amount to Mother.

3. Spousal Support Owing:

[24] Mother says that the effect of clause 2.3 of the Amending Agreement is that she should be paid support in 2015 up to June 1 at $388/month, which would be adjusted after June 1 based on Father’s 2014’s actual income.

[25] She misconstrues the Amending Agreement. Clause 4.1 provides that, except for quantum decided in the Amending Agreement, the provisions of the Order still apply. A reasonable interpretation of the Order as amended by the Amending Agreement, is that support owed in 2015 would be $388/month, and then readjusted after the CRA assessments were available for 2014 incomes. That adjustment would be applied to the entire spousal support obligation in 2015, and any over- or under-payment rectified in 2016.

[26] Based on the line 150 incomes, above, and the Order and Agreement, mid line spousal support with one child resident in Ontario with the support recipient, and a payor based in B.C. from 2017 onward, spousal support Father owes to Mother is set out in the following chart.

Year	S/S monthly	S/S Annual	S/S Paid	Net Owing
2015	0	0	4,656[^8]	($4,656)
2016	0	0	2,328[^9]	($2,328)
2017	0	0	0

[27] Father overpaid spousal support to date by $6,984. Mother owes this amount to Father.

4. Section 7 Extraordinary Expenses:

[28] Mother seeks an order for payment by Father of shortfalls in 2016 and 2017’s s. 7 extraordinary expenses. She claims a shortfall of s. 7 payments in 2016 of $2,727[^10] and a shortfall of s. 7 payments in 2017 of $3,474.62.[^11]

[29] Father says that the s. 7 extraordinary expenses that the parties agreed to in para. 25 of Snowie, J.’s order were those related to the child’s hockey league, camps and tournaments; hockey equipment; Kumon or other tutoring; Lion Head summer golf camp; other summer camps; counselling; and medical, dental, orthodontic, glasses, and prescription expenses not paid by either party’s health care plan, which requires either to pay $100 or more in the aggregate.

[30] Father says that Mother has been enrolling Drew in more extracurricular activities than contemplated in the Order or Amending Agreement, without consulting him, including house league soccer, hockey and basketball, all of which Father says are not extraordinary. He says that other expenses are not s. 7 expenses. Father says that he overpaid $790.78 in s. 7 expenses for 2016 and $2,543.81 for 2017.

[31] Mother says that the expenses she claims are proper s. 7 expenses as provided for in the Separation Agreement and Order, notice was given as required, and Father was consulted as required.

[32] Based para.s 24 to 27 of Snowie, J.’s order, clause 5.6 of the Separation Agreement, and 3.3 of the Amending Agreement, the s. 7 expenses that are covered are those listed in para. 25 of the order, plus those that are agreed to in advance, in writing. Father’s share of s. 7 expenses is fixed at 61% and not subject to change barring a material change in circumstances.

[33] Father has not brought a motion to change. Therefore I do not change his share of s. 7 expenses. The issue for me to determine is whether the disputed items fall within the Order and Amending Agreement.

[34] The expenses with which Father disagrees, and my decision with respect to each, are set out in the following chart:

2016

Item	Date	Amount	Finding
Dentist	12/01/16	166	Mother paid. Father submitted to his insurer. Father’s insurer direct deposited this to his account. He owes this to mother.
Mouth Guard	12/01/16	70	A mouth guard is both a dental/orthodontic necessity given Drew’s sports activities, or part of his hockey equipment for league hockey. Father owes $42.70.
Mississauga Soccer	02/02/16	250	Not recoverable. This expense is not listed in para. 25 of the Order nor agreed to in advance.
Music Instrument rental in 2013		286.97	Not recoverable. This expense is outside the ambit of the order and Amending Agreement as it was incurred in 2013.
Music Instrument rental in 2014		185.00	Not recoverable. This expense is outside the ambit of the order and Amending Agreement as it was incurred in 2014.
Crutches	07/04/16	50.00	This is a medical necessity. On the de minimus principle, Father owes $30.50. The parties must seek coverage from their health insurers per the Order, and reimbursement shall be made accordingly.
Air Cast	07/04/16	190.00	This is a medical necessity. On the de minimus principle, Father owes $115.90. The parties must seek coverage from their health insurers per the Order, and reimbursement shall be made accordingly.
Grad Photos	15/04/16	69.00	Not recoverable. This expense is outside the ambit of the order and Amending Agreement. If, however, Father was given or is given a grad photo from the package purchased, he will owe $42.90.
Soccer Cleats	15/05/16	62.99	Not recoverable. This expense is outside the ambit of the order and Amending Agreement.
Track Suit	22/07/16	133.34	Recoverable. This expense is for equipment for the Hawkes, a league hockey team. Father owes $81.34.
Superfeet Insoles	08/08/16		Not recoverable. This expense (based on the description) is outside the ambit of the order and Amending Agreement.
Performance Skate Socks	08/08/16	56.49	Recoverable. This expense is for hockey equipment. Father owes $34.45.
Water Bottle	08/08/16	7.90	Not recoverable. This expense (based on the description) is outside the ambit of the order and Amending Agreement.
Bauer dry fit	19/09/16	96.04	Not recoverable. This expense (based on the description) is outside the ambit of the order and Amending Agreement.
Tutoring	26/09/16	400.00	Recoverable – tutoring. Henceforth, mother must provide Father with qualifications of tutor along with proof of expense. Father owes $244.00..
Tutoring	22/12/16	825.00	Recoverable – tutoring. Henceforth, mother must provide Father with qualifications of tutor along with proof of expense. Father owes $503.25.
Jean Augustine School Clothing		188.00	Not recoverable. This expense is outside the ambit of the order and Amending Agreement.

[35] Based on the foregoing, Father owes Mother a further $1,213.45 in s. 7 expenses for 2016.

2017

Item	Date	Amount	Finding
Hockey – Hawkes Clothing	03/02/17	217.32	Recoverable. Hockey equipment. Father owes $132.56.
Tutoring	15/02/17	450.00	Recoverable. Tutoring. Henceforth, mother must provide Father with qualifications of tutor along with proof of expense. Father owes $274.50.
Ball Hockey	17/02/17	180.00	Not recoverable. This expense is outside the ambit of the order and Amending Agreement.
Basketball	21/02/17	76.38	Not recoverable. This expense is outside the ambit of the order and Amending Agreement.
Summer House Basketball	08/03/17	270.00	Not recoverable. This expense is outside the ambit of the order and Amending Agreement.
North York Soccer House League	09/03/17	280.00	Not recoverable. This expense is outside the ambit of the order and Amending Agreement.
Leader in Training Camp	05/04/17	138.26	Recoverable. It is an “other summer camp”. Father owes $84.34
Basketball shoes	15/06/17	313.01	Not recoverable. This expense is outside the ambit of the order and Amending Agreement.
Basketball	10/06/17	33.89	Not recoverable. This expense is outside the ambit of the order and Amending Agreement.
Golf Apparel	16/05/17	374.54	Recoverable as necessarily incidental for Golf camp. Father owes $228.47.
Shirt	13/05/17	58.00	Not recoverable. This expense is outside the ambit of the order and Amending Agreement.
Golf Clubs	25/07/17	463.29	Recoverable as necessarily incidental for Golf camp. Father owes $282.61.
Hockey Equipment	01/09/17	880.13	Father paid 100%. Mother owes father $39.00

[36] Based on the foregoing, Father owes Mother a further $963.48 in s. 7 expenses for 2017.

Summary:

[37] On consent I order that:

a) Father will pay child support of $917/month for one child (Drew Bolland, DOB November 4, 2007), effective December 1, 2017 and on the first day of every month thereafter, based on Father’s annual income of $96,664.

b) Commencing December 1, 2017, and on the first day of every month thereafter, Father will pay $285/month for s. 7 expenses. This is not a cap.

c) Section 7 expenses for any year shall be reconciled by January 31 of the following year, or earlier if there is a material change in circumstances.

d) If, after recalculating support obligations following June 1 of any year, Father has overpaid s. 7 expenses in any given year, one third of any such overpayment shall be deducted from s. 7 expenses owing in the March, April and May payments of the following year. If Father has underpaid s. 7 expenses in any given year, the underpayment shall be payable one third in each in the March, April and May payments of the following year.

e) Except as amended by this order, the August 8, 2013 order of Snowie, J., and December 21, 2014 Amending Agreement continue in effect.

[38] Not on consent, I order that:

a) Father will pay Mother child support arrears for the period of January 1, 2015 to February 28, 2018 fixed in the sum of $516.00, which is in addition to child support already paid for the same period.

b) Father will pay arrears in s. 7 expenses for calendar 2016 fixed in the sum of $1,213.45, which is in addition to s. 7 expenses already paid for the same period.

c) Father will pay arrears in s. 7 expenses for calendar 2017 fixed in the sum of $963.48, which is in addition to s. 7 expenses already paid for the same period.

d) Based on the parties’ incomes, no spousal support is payable by Father to Mother since January 1, 2015. Therefore, Mother owes Father $6,984.00 for support overpayment.

e) SDO is to issue. FRO is to enforce.

f) Since it is inappropriate, in my view, to deduct overpayment of spousal support from ongoing or arrears of child support or s. 7 expenses owing, Mother shall repay Father’s spousal support overpayment of $6,984.00 in 24 monthly payments of $291, with the first payment being made on April 1. 2018.

Costs:

[39] Unless parties agree on costs, I will address costs in writing. Submissions are limited to three double spaced pages excluding offers and bills of costs. The Mothers are to be served and filed by 4 p.m. on March 2, 2018, and the Father’s by 4 p.m. on March 16, 2018.

TRIMBLE, J

Date: February 7, 2018

COURT FILE NO.: FS-13-76814 00-01

DATE: 2018 02 07

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: DEBORAH MALCOLM BOLLAND, Applicant AND: JAMES EDWARD PATRICK BOLLAND, Respondent

BEFORE: TRIMBLE, J.

COUNSEL: William Abbott, for the Applicant R. Grosz, for the Respondent

ENDORSEMENT

TRIMBLE, J.

Released: February 7, 2018

[^1]: No CRA Assessment is available for 2017. Per Father’s June 15, 2017 pay stub his annual gross income is approximately $88,000. He bases his support calculations for 2017 on $96,664, however, which I accept. [^2]: No CRA Assessment is available for 2017. Therefore, I used as Mother’s income as stated in her Financial Statement filed on the Motion to Change. [^3]: $874 x 12 [^4]: I assume that December, 2017’s payment was made. [^5]: I have not included any agreed payments for December, 2017 [^6]: For present purposes, I assume Father paid child support per the agreement for January and February, 2018 [^7]: I have not considered payments made per the agreement for January and February, 2018. [^8]: 338 x 12 [^9]: 338 x 1st 6 months of 2016 [^10]: $8755.62 x 61% = 5,349.68 – payments of $2,622.64. [^11]: $7,127.25 x 61% = $4,354.75 – payments of $880.13.