Garcia v. Rubello, 2019 ONSC 2036

Court File and Parties

COURT FILE NO.: FC-12-980-1 DATE: 20190403 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Claudia Veronica Garcia, Applicant -and- Roberto Salvador Briones Rubello, Respondent

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL: Steve Duplain, for the Applicant James D.S. Whyte, for the Respondent Allison Lendor, Office of the Children’s Lawyer

HEARD: March 6, 2019

Endorsement

1The parties are the parents of three daughters:

• Andrea Denise Briones-Garcia: Born March 14, 2002 (now 16 yrs. of age);
• And twin girls: Daniella Briones-Garcia: Born July 26, 2014 (now 14 yrs. of age); Abigail Briones-Garcia: Born July 26, 2014 (now 14 yrs. of age).

2Pursuant to the Order of Justice Polowin, dated March 3, 2014, the parents were granted joint custody of the children and the daughters resided with parents on alternating weeks. Child support was determined by using the set-off approach.

3In October 2015, the Applicant brought a motion to change wherein she sought sole custody of Andrea and proposed that the parties would continue the shared parenting of the twins. The relationship between Andrea and her father had become strained and as of May 2015, she no longer wanted to return to his care.

4The OCL became involved and Alison Lendor was appointed as counsel for all three daughters. She obtained a clinical assist worker, Victoria Norgaard. The parties engaged in counselling with Sally Bleeker.

5The twins began to express a desire to spend more time with their father. In March 2017, the Applicant sought an urgent motion as the twins were now refusing to return to her care. The motion was not deemed urgent given the upcoming Settlement Conference scheduled for the next month. On April 19, 2017, Justice Kane made an interim order based on Minutes of Settlement that restored the week–on / week-off schedule for Daniela and Abigail.

6The twins later refused to continue the shared parenting regime and they have been primarily under the care of their father since December 2017. The mother brought another motion returnable on March 1, 2018 seeking to maintain the order of Justice Kane. That motion was ultimately heard by me on September 6, 2018 and a further consent order was signed. That order sought to introduce some overnight visits between the twins and their mother and to increase access between Andrea and her father. I seized myself of the matter.

7Problems persisted and no overnight visits were taking place as ordered, although the twins were having access to their mother for a few hours twice a week. At a case conference held on December 5, 2018, I requested a Voice of the Child Report. That request was declined given the assistance that had already been provided by the OCL. The parties sought a further case conference before me on March 6, 2019 and the parties agreed that Andrea would remain primarily in the care of her mother and that Abigail and Daniella would remain in the care of the father. The parties came to an agreement on most of the issues. I invited the parties to attempt a resolution of these issues, and absent any further agreement, I would accept short written submission and decide any items in dispute.

The Applicant’s Position

8The Applicant acknowledges that she presently owes the Respondent an outstanding amount of $1,826.00 for the child support he overpaid to her while the children, Daniella and Abigail, were residing in his care.

9The Applicant seeks reimbursement from the Respondent for his share of the following special and extraordinary expenses in the total amount of $1803.54. This sum is broken down as follows:

1. 59% of Andrea’s competitive soccer for 2016 – 2018: $1594.83
2. 59% of Abigail’s orthodontic consultation with Dr. Kuzmicz: $206.50
3. 59% of post to coverage costs for counselling fees with Sally Bleeker: $51.62 (x2)
4. the Applicant’s share of 41% of Daniella’s volleyball program: $101.03

10The Applicant claimed the sums in her affidavit material. She proposes to offset this amount against the amount owed to the Respondent which represents a nominal difference of $22.46 owing to the Respondent.

11She maintains that the claims are justified for the following reasons:

1. Abigail and Daniella both benefited from engaging in sports programs which were consistent with their talent and interests;
2. The extracurricular activity expenses fall within the annual budget set out in the consent to the final order of Justice Polowin specifically allowed at paragraph 26 for a budget of $1200 per child per year for extracurricular activities;
3. The expenses are within the financial means of the parties. She notes that the Respondent has earned an income of almost $90,000 in 2017 and has disclosed a T4 with an income of $93,416 for 2018. Both parties have re-partnered since separation and are now living two income households. Neither party has pled that there is a situation of hardship.
4. Payment of these expenses will not require any further payment on the part of the Respondent as these claims will simply be offset against the child support overpayments already made.

12As for the Respondent’s objections that he was not properly consulted and did not see receipts or that he objected to the expenses being incurred, the Applicant argues the following:

1. The Respondent unreasonably refused to consent to these expenses given that there was a clear protocol and budget set out in the final order.
2. Receipts for the expenses were provided to the Respondent and were made exhibits to the Applicant’s motion materials.
3. The Respondent would have been aware of his children circumstances and of their ongoing activities. Specifically, he would have been aware that Andrea had been playing soccer with the same team for years and that Daniel and Abigail were being referred to an orthodontist and that they may require orthodontic treatment. He was also aware that the children had attended counselling with Sally Bleeker as the parties have consented to do.
4. The Respondent previously sought proof of the Applicant husband’s insurance coverage as he took the position that this available health or dental insurance could be made available for the children. The Applicant responds that her husband is not a party to these proceedings and is not compelled to use his insurance for her children; particularly when the Respondent objects to his presence when Daniella and Abigail are having access with their mother.

13Finally, the Applicant submits that even if the parties’ communications regarding the incurring and sharing of s. 7 expenses was less than ideal, this should not relieve the Respondent of his responsibility to share the costs of legitimate and justifiable expenses for his daughters.

Position of the Respondent

14The Respondent seeks changes to paragraph 11 of Justice Polowin’s order to permit longer periods of access during the summer months. At present, the final order allows for two weeks. The Respondent would like to see that increased to three weeks so that the twins could visit their grandparents in Spain where they have an apartment. He claims the four weeks is needed for such a holiday as his parents are getting older and may not have that apartment much longer.

15He claims that he is owed $2,520.29 in child support as of this date and has provided a spreadsheet to set out his calculations. He claims that he compromised and agreed to reduce the balance owing to him to $1,826.00 as of January 2019 in the interest of settlement. Given the Applicant’s current position, the Respondent has provided new calculation and he claims that the Applicant now owes him $1,987.46 net of any sums owed by him.

16He submits that the parties had expressly agreed upon limits to the contributions to special and extraordinary expenses and that they would consult with one another. He repeats that the Applicant incurred some of these expenses unreasonably and without notice.

17He notes that some receipts for expenses incurred in the past were only sent to him within the preceding weeks. He takes issue with the amounts claimed and he claims that the receipts for the services of Sally Bleeker do not clearly identify that these services were being provided for the children.

18He repeats that the Applicant’s husband should try to have his existing health insurance plan cover any part of an expense relating to the twins.

19He argues that the Applicant is better able to afford the additional expenses as she has more disposable income.

Conclusion

20I find that the Applicants’ claim for s. 7 expenses in the amount of $1,803.54 is reasonable. I also agree that the Applicants new husband is not required to provide his health insurance coverage to the twins given the lack of any parental relationship.

21While communications between the parties was far from ideal, this is not determinative. The question is ultimately whether or not these expenses were reasonably incurred and for the benefit of the children.

22I decline to make any further change to the final order with respect to summer access as requested by the Respondent father. There is no trip planned and I am satisfied that two weeks is sufficient time for a visit to Spain. The grandparents do not reside in Spain and the twins have regular contact with them here.

23I accept the Respondent father’s position that he had agreed to reduce his claim for overpayment of child support in the interest in settling the matter, and that given the lack of agreement, he is not precluded from claiming the full amount he has overpaid. I accept his calculations as to the amount of overpayment as well as his claim for payment of s. 7 expenses for a total claim of $3,653.09 less the Applicant’s claim for s. 7 expenses resulting in a total owed to him in the amount of $1,849.55 less any credits for child support reimbursement paid by the Applicant. If I have erred in my calculations, counsel can provide with further submissions if they cannot resolve this issue.

24The Applicant reserved the right to make costs submissions if I agreed to her position on the set-off issue. The Respondent argues that there should be no order as to costs. Once again, if the parties cannot resolve this issue, they can provide further brief submissions.