Kennedy-Stetson v Beckner, 2019 ONSC 4768

COURT FILE NO.: FS 181/18

DATE: 2019 08 13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Alissa Kennedy-Stetson

Applicant

– and –

Glenn Beckner

Respondent

Aubrey J. Sherman - Counsel for the Applicant

Self Represented

HEARD: July 23, 2019

JUDGMENT

The Honourable Justice James W. Sloan

1The parties entered into a separation agreement on October 6, 2015, with what appears to be some input from a mediator and unfortunately they both declined to get legal advice at that time.

2To the parties’ credit, after discussions in court today, they resolved the access issues with Minutes of Settlement.

3They also consented to the following:

a) the applicant may amend her application within 30 days;

b) the respondent may amend his answer/respond to the amended application within 20 days of his receipt of the amended application;

c) the applicant may file a reply within 15 days of receiving the amended answer; and

d) each party shall maintain a life insurance payable to the other party and the oldest son for the benefit of those children who still require child support. The applicant shall maintain $100,000 and the respondent shall maintain $150,000 worth.

4This motion deals with quantum of child support, arrears of child support, section 7 expenses and arrears of section 7 expenses. There have been no cross-examinations.

What the Court Does Not Know

5The court does not know what resources the applicant has to financially assist her with the children, either from her family or new spouse. The court is not suggesting at this stage that there is an obligation on anyone other than the applicant and respondent to support their children.

6The latest financial statement of the applicant that the court can find, appears to be at Tab 3 and is dated December 29, 2017. It shows total income (including child tax credits) of $39,677.52 per annum with expenses of $78,376.44 per year.

7Therefore, it appears obvious that many of the expenses of daily living are being shared in some fashion with her new husband, who earns $82,000 per year. These expenses would include housing expenses of $2,733.37, utilities of $720 and household expenses of $1,180 for a total of $4,633.37 per month.

8The children are obviously beneficiaries of these expenses being paid.

9The child support guidelines of course take into account such expenses since every household would have them.

Child Support

10At the current time the respondent is not contributing to Nathan’s university education and therefore at this time child support shall continue, on the basis that there are 5 children living with the mother. In this way the respondent will be helping to contribute to Nathan’s post-secondary education.

11Child support based on the respondent’s 2019 income of $113,347 shall continue at $2,873 per month commencing July 1, 2019. (See Schedule “A” attached)

12The issue of the respondent’s contribution towards Nathan’s university education was not argued before me, however when it is resolved, based on the financial circumstances of the parties, the child support payable to mother would likely be reduced, since 4 children would be living with her and not 5.

Arrears of Child Support

13The parties have 5 children between the ages of 10 and 20, with the oldest, Nathan, being in University.

14The parties agree on the line 150 income of the respondent.

15There has been an unfortunate breakdown in the communication between the respondent and Nathan and the respondent has not contributed to the child’s University expenses which commenced in September, 2018.

16The respondent has used some Internet program to calculate his arrears of child support, while the mother’s lawyer has used the familiar DivorceMate calculations which take into account income tax deductions and benefits.

17Where the calculations differ, I prefer those calculated using the DivorceMate software program.

18Therefore, I find the child support arrears are as set out in paragraph 18 of the mother’s affidavit dated March 28, 2019, as follows:

a) 2016 – $948

b) 2017 – $2,633

c) 2018 – $3,780

d) 2019 – $2,205 for 7 months

19Therefore the total arrears of child support as of July 31, 2019, are $9,566.

Arrears of Section 7 Expenses

20For some reason, despite both parties having lawyers for a period of time, it does not appear that they were able to resolve the issue of section 7 expenses and quite frankly, appear to have spent a great deal of time, effort and money and have placed a great deal of information before the court over a maximum $8,755. $8,755 is 70% of the total expenditure made by the applicant.

21In paragraph 21 of her March 28, 2019 affidavit, set forth at Tab 19 of the continuing record, the applicant details the expenses commencing in June, 2014, for music lessons, swimming lessons, gymnastic lessons, tutor instruction and medical expenses not covered by the parties’ group plans, and other memberships or fees for the benefit of the children.

22Based on the applicant’s figures, at 50% the respondent would owe $5,684.12. This figure takes into account items the applicant agreed to remove from her claim at the end of the hearing.

23The applicant submits:

a) The respondent should pay 70% since that is closer to his share, based on the ratio of their incomes,

b) These are the types of expenses the parties incurred on behalf of the children prior to separation and they are set out at page 4 paragraph 16 of their separation agreement, as being the type of expenses which would qualify as section 7 expenses.

24The respondent submits:

a) Whatever he owes should be calculated at 50% since that is the percentage the parties agreed to in the separation agreement. It is his position that there was give-and-take in negotiating the separation agreement, however while give-and-take is not unusual when negotiating an agreement, the court does not have sufficient evidence before it to verify this

b) The applicant should not have incurred these expenses without his agreement pursuant to the separation agreement,

c) Although the parties spent money on these types of children’s activities set out in the separation agreement, that was at a time when they were all living in one home and not running two households with the obvious increase in expenses.

d) The applicant did not provide receipts on a timely basis,

e) In addition, the costs of the children’s activities seems to have risen substantially,

f) He gave some money for the tutor,

g) Because he was not given some of the medical receipts in a timely fashion, he can no longer get reimbursement through his benefit plan,

h) The applicant has not accounted for government programs/grants,

i) Some of the section 7 expenses should be included as part of the guideline child support that he is paying,

j) Based on his financial statement and the fact that child support is not tax-deductible, he is left with net disposable income of $45,516 per year or $3,793 at the end of each month, out of his earnings of his gross earnings of $113,347 which equals 40%. (45,516/113,347)

k) Whatever he pays for section 7 expenses will be deducted from his $3,793/m.

25The separation agreement in the last paragraph under paragraph 16 indicates that the section 7 expenses are to be shared “provided they are both in agreement with the expense”. I would read into this paragraph that such agreement is not to be unreasonably withheld.

26However other than paragraph 16 of the applicant’s affidavit dated March 28, 2019, there is little to assist the court with what efforts the applicant made to obtain the respondent’s consent/agreement.

27In the respondent’s material, he swears that he was not consulted prior to many, if not all of the expenses being incurred, and in particular was not given receipts for medical expenses until they were more than 2 years old. Therefore, he could not submit them to his benefit plan for reimbursement. In particular, he sets out these medical items at paragraph 25 of his April 11, 2019 affidavit at Tab 22.

28Based on the judgment of Justice Fowler Byrne in Mistry v. Mistry, 2019 ONSC 193, if consent is not at least sought, that may very well be fatal to an applicant’s claim for any form of reimbursement. At paragraph 43 she stated:

43… If an order states that prior consent is required prior to a s. 7 expense being incurred and no such consent was sought, then the paying party loses their right to seek reimbursement: see Dover v. Timbers, 2012 ONSC 3230, at para. 98, and Luftspring v. Luftspring, [2004] O. J. No. 1538 (Ont. C.A.), at para. 2.

29The parties agreed to share section 7 expenses on a 50% basis and on the material before me, I see no reason to deviate from that agreement on the section 7 issue.

30I am not prepared to consider section 7 expenses from before January 1, 2016, which means there are 43 months to consider. Based on my mathematics and based on the fact that the parties signed an agreement to split the section 7 expenses 50-50, it appears that the respondent’s potential liability commencing August 1, 2019, for section 7 arrears would be as follows:

a) Music – $837 [879-42] (this works out to $19.46/m over a 43 month period)

b) Swimming – $912.28 [1682.69 -770.41] (this works out to $21.22/m over a 43 month period)

c) Gymnastics – $793.32 [918.32-125] (this works out to $18.45/m over a 43 month period)

d) Other Memberships etc. – $1126.17 (this works out to $46.92m over a 43 month period)

e) Tutors – $617 (this works out to $14.35 per month over a 43 month period.

f) Medical - $460.94 (this works out to $10.72 per month over a 43 months period)

Therefore the total potential liability of the respondent for arrears of section 7 expenses equals $4,746.71.

31There is virtually no evidence before me about whether or not any of the section 7 expenses incurred by the applicant should have been less, because there were subsidies available to the applicant and therefore it is impossible to deal with that allegation made by the respondent.

32Other than the allegation that he was informed of medical expenses past the date where he could get partially reimbursed by his benefit plan, there is no chart showing me which expenses those would be or what the likely reimbursement would be and therefore it is impossible to deal with that allegation made by the respondent.

33Many of the minor items set forth under “other memberships or fees” should be included in the guideline child support being paid. In addition school uniforms are clothing and should be included under the guideline support.

34I do not intend to go through the numerous items claimed by the applicant on a line by line basis, however, based on the fact that she does not appear to have made any attempt to get the consent of the respondent, that she forwarded medical expenses after the time that they could have been submitted to medical plan and based on my comments about other memberships and fees I am prepared to award her section 7 expenses for tutors and medical expenses in the amount of $1,077.94. ($617 + $460.94)

35Although the respondent makes a reasonably good income, because there are five children, his disposable income, including his ability to contribute to major section 7 expenses such as university education diminishes rapidly.

36It appears to this court, aside from necessary medical expenses, that the most important section 7 expense is, and is going to remain, post-secondary education. Contribution to this expense may very well come at the expense of what otherwise might be considered section 7 expenses.

37On the financial information before me, the respondent does not have any expenses in his financial statement that appear unreasonable. The parties would be well advised to take a long hard look at resolving their issues through mediation rather than the court system. This is particularly so, now that the parties appear to be ramping up their claims and preparing to file amended pleadings.

Order

38An order shall issue in accordance with the interim Minutes of Settlement entered into by the parties on July 23, 2019.

39On consent, the applicant may amend her application within 30 days if so advised, and the respondent may file his answer within 20 days of his receipt of the amended application. The applicant may file her reply within 15 days of her receipt of the respondent’s answer.

40On consent, both parties shall maintain a life insurance, the applicant for $100,000 and the respondent for $150,000. The beneficiary of each life insurance policy shall be the other party and the oldest son Nathan.

41Both parties shall provide proof to the other party forthwith of the amount of insurance, the insurance company, the policy number and the beneficiary designation. Each party shall provide proof on an annual basis thereafter, that the insurance remains in good standing which shall include providing the before mentioned particulars.

42Child support shall change on July 1 of each year based on the last year’s income. For 2020, there may not be a change, since the court has used the respondent’s 2019 income for child support calculations commencing July 1, 2019.

43The arrears of child support as of July 31, 2019, are $9,566.

44The arrears of section 7 expenses exclusive of the orthodontic bill for TriCity orthodontics 31st 2019, are set at $1,077.94.

45The total arrears of child support and section 7 expenses ($10,643.94) shall be paid at the rate of $177.40 per month in addition to whatever ongoing child support and section 7 expenses are appropriate. This will retire the arrears over a five-year period ($10,643.94/60).

46This order does not deal with whatever post-secondary expenses may be payable by the respondent.

47If the parties are unable to agree on costs, Mr. Sherman shall forward his brief submissions on costs to me by August 21, 2019. Mr. Beckner shall forward his brief response to me by August 28, 2019. Mr. Sherman shall then forward his reply, if any, to me by September 4, 2019. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca. Cost submissions, excluding bills of costs shall be limited to 5 pages using spacing of 1.5 and 12 pitch font.

James W. Sloan