Court File and Parties
COURT FILE NO.: FC-16-FO-000564-0001
DATE: 2019/10/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RACHEL ELIZABETH BEXON, Applicant
AND:
JASON ROBERT McCORRISTON, Respondent
BEFORE: Justice D.A. Broad
COUNSEL: Anna L. Towlson, Counsel for the Applicant
Brian R. Kelly, Counsel for the Respondent
HEARD: October 1 and 2, 2019
ENDORSEMENT
Background
[1] This case proceeded as a trial in respect of a Motion to Change brought by the Applicant to vary the terms of a Separation Agreement entered into between the parties on August 20, 2012 (the “Separation Agreement”) respecting custody, access and child support for the two children of the marriage now aged 13 and 11 (the “children”). The parties married on December 11, 1999 and separated on June 30, 2012.
[2] The Separation Agreement (negotiated and implemented by the parties without the assistance of counsel) provided for “week-about” parenting time of the parties with the children, with exchanges on Sundays at 5:00 p.m.. The Separation Agreement also set forth detailed access arrangements for sharing time with the children on vacations, holidays and special occasions. The Separation Agreement provided for no child support to be paid by either party “based upon the fact that the parties spend similar amounts of time with the children” provided that, should the schedule change, “child support shall be reviewable at any time.”
[3] In her Motion to Change issued in the Ontario Court of Justice (the “OCJ”) on June 30, 2016, the applicant sought sole custody of the children, with liberal and generous access to the respondent to include, but not be limited to, alternate weekends and mid-week visits as agreed upon, taking into account the views and preferences of the children. She also sought child support pursuant to the Federal Child Support Guidelines (the “Guidelines”) with payments to start on August 1, 2016.
[4] In his Response to the applicant’s Motion to Change the respondent sought joint custody based upon a shared parenting schedule and that the applicant pay child support in accordance with the Guidelines, or, in the alternative, that the applicant and/or the respondent shall pay child support in a sum commensurate with the Guidelines based upon their respective line 150 incomes. He also sought an order that the parties proportionally share special and extra-ordinary expenses based upon their respective line 150 incomes.
[5] The Office of the Children’s Lawyer (“OCL”) agreed to become involved in order to ascertain and represent the children’s views and preferences. The parties agreed that the children, through their counsel, expressed a desire to spend more time with the applicant before and after school during the week in which they resided with the respondent.
[6] On March 2, 2018, with the assistance of OCL counsel, the parties entered into partial Final Minutes of Settlement resolving the parenting issues which were incorporated into the Order of Justice Neill of the OCJ providing, inter alia, for the following:
(a) the children shall be in the care of the applicant and the respondent respectively in alternate weeks on a week-about schedule with exchanges to take place on Fridays at 4:00 p.m.;
(b) the children “shall be in the care of their mother each weekday morning before school and shall go to school/bus stop from their mother’s residence. The respondent shall deliver the children to the applicant’s residence on his way to work in the mornings during his scheduled week about with the children;”
(c) the children shall also be in the care of their mother after school until the father collects them on his way home from work during his week-about with the children;
(d) the child Amelia shall attend Doon Public School in the fall of 2018 and shall be at her mother’s before and after school;
(e) the children shall continue with their extracurricular activities with the applicant taking the lead with regard to the children’s baseball involvement and the respondent taking the lead with regard to the children’s ringette involvement;
(f) the applicant shall continue to arrange the children’s medical care;
(g) the respondent shall arrange for the children’s dental care;
(h) the applicant “shall remain the children’s first contact person at the school and the first to be called if the children require assistance or to be picked up;”
(i) both parties shall have the right to request and receive information from all third party service providers involved with the children; and
(j) both parties shall inform each other when medical (applicant to inform) and dental (respondent to inform) appointments are scheduled, and both shall inform the other of the outcome of the appointment with the third party professional.
Issues
[7] As a result of the settlement of the parenting issues, incorporated into the Order of Neill, J. March 2, 2018, the only remaining issue for determination in respect of the Motion to Change and Response to the Motion to Change relates to child support.
[8] The dispute between the parties concerns the question of whether the respondent exercises a right of access to, or has physical custody of, the children for not less than 40 per cent of the time over the course of the year, such that section 9 of the Guidelines is invoked.
[9] S. 9 of the Guidelines provides as follows:
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of the year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for home support is sought.
[10] For the purpose of the determination of whether the respondent has physical custody of the children for 40 per cent or more of the time over the course of the year, the parties accepted the accuracy of the calculations produced by the applicant respecting the relative times the children spent with the applicant, the respondent and in school for the period March 2, 2018 to September 20, 2019.
[11] The parties also agreed that if the time the children routinely spend in school is credited to the applicant, the children would be considered to be with her 63% of the time (including the time the children spend with her before and after school during the respondent’s weeks with the children) and with the respondent 37% of the time. If the time the children spend in school is to be treated as neutral, the children would be considered to be with the applicant 53% of the time and with the respondent 47% of the time.
[12] Thus, the threshold issue is whether the time the children spend in school is to be considered time with the applicant or to be considered neutral. In the former case, the respondent will be required to pay child support in accordance with s. 3(1) of the Guidelines. In the latter case, s. 9 of the Guidelines is engaged and the court must determine the amount of child support to be paid, and by which party, by taking into account the factors enumerated in the section.
The Parties’ Incomes
[13] The evidence confirmed that the parties had the following relative line 150 incomes over the period subsequent to their separation to 2018:
| YEAR | APPLICANT | RESPONDENT |
|---|---|---|
| 2012 | $110,927 | $77,538 |
| 2013 | $98,474 | $49,429 |
| 2014 | $107,050 | $63,949 |
| 2015 | $116,741 | $35,428 |
| 2016 | $115,362 | $58,220 |
| 2017 | $106,899 | $64,557 |
| 2018 | $101,569 | $63,756 |
[14] It will be seen that the respondent’s average income for the most recent three years of $62,177.66 was 57.6 percent of the applicant’s average income of $107,943.33 over the same period. The respondent’s 2015 income appears to have anomalous when compared to his income in the previous year and in the subsequent three years. This correlates to a period when the respondent was unemployed.
[15] When considering only the years 2017 and 2018, when the respondent’s income was relatively stable, his average income in those years represented 61.5 percent of the applicant’s average income.
[16] From December 2016 to September 2018 the applicant paid child support, on an off-set basis, to the respondent in the sum of $650.00 per month.
Calculation of Time Spent with the Children
(a) Guiding Principles
[17] The Court of Appeal in the case of Froom v. Froom, 2005 3362 (ON CA), [2005] O.J. No. 507 (Ont. C.A.) held that there is no universal way to determine the 40 percent threshold under s. 9 and that courts should avoid rigid calculations but consider whether physical custody is truly shared.
[18] It is accepted that the onus rests on the parent seeking to invoke section 9 of the Guidelines to establish care of the child or children more than 40 precent of the time (see Huntley v. Huntley, 2009 BCSC 1020 cited by Sloan, J. in Barnes v. Carmount, 2011 ONSC 3925 (S.C.J.) at para. 44).
[19] In the case of Sirdevan v. Sirdevan, [2009] O.J. No. 3796 (S.C.J.) Graham, J. held at para. 16 that a parent exercises a right of access to, or has physical custody of the children during the periods the children are nominally in his/her care whether they are in his/her immediate presence, in the care of the nanny he employs, or at school or swimming lessons or any other activity while he/she is responsible for their well-being and that every case must be determined on its own facts.
[20] Justice Graham noted that the court should avoid an inappropriately rigid interpretation of s. 9.
[21] Czutrin, J. confirmed in the case of L.(L.) v. C.(M.), 2013 ONSC 1801 (S.C.J.), that the relevant period is the amount of time a child is in the care and control of the parent, not the time that the parent is physically present with the children. He echoed the observations of Graham, J. that this includes the time the child spends in other activities and places, including school, so long as the parent claiming that time is the parent who, during that period, is “responsible for their well-being.”
[22] Czutrin, J. L.(L.) v. C.(M.)noted at para. 39 that, in line with the foregoing approach, a custodial parent will be credited with the time that a child spends sleeping or at school, except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent’s home. In that case the mother was granted custody and primary residence of the child and the father exercised access only. It is noted that L.(L.) v. C.(M.) did not involve a situation, as in the present case, where the parents share a joint custody and parenting time on a week-about arrangement.
[23] The reasoning of Czutrin, J. in L.(L.) v. C.(M.) was followed with approval by Gauthier, J. in Arlt v. Arlt, 2014 ONSC 2173 (S.C.J.) in a case involving interim custody, access and child support.
[24] It is clear that responsibility for a child’s well-being while in school need not be assigned to only one parent, but rather may be shared, particularly in a joint custody and shared parenting time arrangement, with the result that the time spent in school may be found to be neutral for the purpose of s. 9. That is what was found by Sloan, J. in the case of Barnes v. Carmount at para. 74, involving a situation where the parents agreed to share joint custody accompanied by a detailed parenting plan allocating parenting time on a 14-day rotating schedule. In making this finding Sloan, J. relied on criteria derived from the case of Ferguson v. Ferguson, (2005) 2005 PESCTD 16, 12 R.F.L. (6th) 304 (P.E.I.S.C.).
[25] At paras. 36 and 37 of Ferguson, Taylor, J. made the following observations:
The consensus thus far appears to be that the test is who is responsible for the children during school time, with the hours going to the custodial parent where that responsibility cannot be determined on the evidence.
There are many facts which could help to determine who is responsible for dealing with the school, and who would be called by the school in the event of an emergency or if anything happened which required the school to contact a parent. These could include:
a) whether one or both parents' names are on a list at the school. (In practice, however, I expect most schools would ask, even demand, the names and numbers of both parents.);
b) the relative availability and proximity of the parents during school hours;
c) who enrolls the child;
d) who goes to the parent-teacher meetings;
e) who signs the report card;
f) who pays the bill (in the case of a daycare);
g) who signs the notes to the teacher;
h) who responds to telephone or written messages from the teacher or the school.
No doubt there are other telltale facts.
[26] It appears that, in determining the time that a parent is responsible for his/her children, the court should take into account, in addition to the hour by hour or day by day calculation, the intention of the parents.
[27] In the case of Jebb-Waples v. Waples, 2014 ABQB 26 (Alta Q.B.) Veit, J. stated as follows at para. 4:
In determining whether a parent is parenting 40% of the time, and therefore entitled to a determination of whether an adjustment should be made to child support obligations, a court should look at the actual amount of time each parent is parenting the children, that is taking responsibility for the children, and also to the intention of the parties.
[28] At para. 33 Veit, J. elaborated on the foregoing, making reference to the case of Duckett v. Duckett, 2013 ABQB 635 (Alta. Q.B.), as follows:
As distasteful as it may be to engage in what amounts to an accounting for time spent with children, I remain of the view that, in the thankfully relatively few situations where the amount of time each parent has with their children is disputed, the only course is for the court to assess, on an hour by hour basis, which parent is doing what for the children […]. I also agree with the reasoning in Duckett to the effect that, in making any such calculation, the court should take into account the intention of the parents.
[29] In Duckett, Poelman, J. at para. 24 had regard to the separation agreement between the parties and found that the evidence clearly established that the parties intended to implement a shared parenting arrangement with the financial implications that would normally result from a set off under s. 9 of the Guidelines.
[30] The principles outlined by Veit, J. at para. 4 of Jebb-Waples v. Waples, including the principle that the court should look at the intention of the parties in addition to the actual amount of time each parent is taking responsibility for the children, were cited with approval by Lemon, J. in McGillen v. McGillen, 2015 ONSC 6547 (S.C.J.) at para. 32.
(b) Evidence of the Applicant re School Involvement and Responsibility
(i) Applicant’s Evidence
[31] The applicant testified that since 2009 she has been employed as a Professor of Accounting at Fanshawe College at London, Ontario. Initially she was required to be on campus for “contact time” with students between 10 and 16 hours per week. The rest of the time she was able to spend at home with the children prior to their entering full-time attendance at school and before and after school. The applicant’s employment position evolved such that she became able to carry out much of her teaching responsibilities through online courses. In her most recent semester she was engaged in three hours of face-to-face time with students and ten hours online.
[32] Because of the nature of her working arrangements the applicant is available to attend at the children’s school during school hours and participate in field trips. She described herself as being extremely involved in the children’s school, attending all parent-teacher conferences, volunteering for field trips and in nutrition activities and being a member of the Parent Council, including serving as treasurer in the past.
[33] She also works as a fitness instructor for a health club. Historically this had involved up to fifteen hours a week however it has now been reduced to five hours per week.
[34] The applicant testified that after the children began attending school the respondent requested that his mother provide before and after school care during his weeks. As things progressed the applicant offered to care for the children before school and began to look after them after school as well during the respondent’s weeks, as the children had begun complaining about the time they were spending in the car. The children spent a half hour with the applicant in the morning before the bus, and a half hour after school. The parties also agreed to change the exchange date from Sundays to Fridays at 5:00 p.m.. The applicant described the changes as a “fairly natural evolution” as the respondent’s mother was looking to be relieved of the responsibility for before and after school care. Eventually the respondent’s mother became ill and the applicant took over the care of the children after school.
[35] The applicant testified that if the school needed a parent to attend for an issue involving one of the children the school would call her first. Prior to the March 2, 2018 Order, if she received such a call during the week in which the children were with the respondent she would call him, however this would often result in a delay. Since the March 2018 Order the school contacts her and she takes care of the issue. She indicated that this happens 10 to 15 times per year.
[36] The applicant testified that she believes that she should be able to sign required consent forms for children to participate in school outings and field trips. There has been no disagreement with the respondent with respect to whether permission should be granted for the children to participate in school activities.
[37] The applicant indicated that she believed that the respondent has attended two school field trips since the children started school and she is not aware of him volunteering at the school.
[38] The applicant stated that she and the respondent each pay for the cost of school trips which take place in their respective weeks with the children. She stated that she paid for the occasional meals provided at school through the school cash portal but she is unaware of any such meals being purchased by the respondent. The respondent does provide lunches for the children during his weeks.
[39] The applicant testified that on school mornings during the respondent’s weeks he drops the children off at her residence within five minutes of Amelia’s school bus time notwithstanding the applicant’s request that he arrive earlier. The younger child Blake stays with the applicant until her school bus at 9:00 a.m.. Amelia arrives back at her residence at 3:14 p.m. and Blake at 4:05 p.m.. The respondent picks the children up from her residence during his weeks between 5:00 and 5:30 p.m.
[40] The applicant stated that at the beginning of the current school year she registered herself as the first contact with the school, with her mother as second contact and the respondent as the third contact. She stated that the respondent has always been noted as a contact for the school.
(ii) Respondent’s Evidence
[41] The respondent testified that he does attend parent-teacher meetings. In the current school year he attended the initial “meet and greet” event with the teachers. He stated that every year he goes into the school to ensure that he is on the list as a contact person. He indicated that three years ago he confronted the administrative staff challenging their system by which only one primary designated contact was permitted. He stated that he has requested the administrators to call him with any issues involving the children and stated that subsequent to his conversations with the school they have called him.
[42] The respondent testified that he has volunteered at the children’s schools. At their previous school Crestview he volunteered at two or three events. At the current school Brigadoon he attended evening events and has also acted as a parent volunteer at the Grade 4 ski days.
(c) Discussion
[43] On a preliminary basis, it appears from the evidence that, upon a consideration of the factors in Ferguson, the applicant has greater “responsibility” for the children while they are at school during the respondent’s week with them. Because she works mostly from home she is more available and proximate in the event of a call from the school and, by agreement, as reflected in the March 2, 2018 Order, she is designated as the first contact for the school. The applicant does attend all parent-teacher meetings, although the evidence indicated that the respondent has attended such meetings but not with the same frequency.
[44] However, I accept the principle represented by Jebb-Waples and Duckett that, in making the determination of whether a parent has the children in his/her care for 40% or more of the time, the court should take into account the intention of the parties in addition to the actual amount of time each parent is taking responsibility for the children.
[45] I find that in the context of the case at bar, the intention of the parties is particularly relevant as the parenting arrangements, represented by the Separation Agreement and the Minutes of Settlement implemented by the March 2, 2018 Order, were developed by the parties themselves, rather than having been imposed by the court, and thus represented expressions of their mutual intention.
[46] As indicated above, the parties specifically provided for a joint custody and equal parenting time arrangement. They also stipulated for no child support to be paid “based upon the fact that the parties spend similar amounts of time with the children.”
[47] As things evolved, de facto changes took place with respect to before and after school care for the children to reflect changes in the schools the children attended, busing issues and the lack of availability of the respondent’s mother to provide care during the respondent’s week with the children.
[48] The applicant’s motion to change was initiated, on her evidence, to address two issues – (1) both children were expressing a desire to spend time with the applicant before and after school during their weeks with the respondent in order to cut down on their time travelling by car, and (2) one child had expressed a desire for the applicant to be responsible for making medical care decisions for her.
[49] In their Minutes of Settlement leading to the March 2, 2018 Order, the fundamental character of the Separation Agreement in respect of parenting remained intact, this is, it remained as a shared parenting week-about arrangement. In my view, there was no common intention, expressed in the Minutes of Settlement or in the evidence at trial, that the respondent be relieved of any responsibility for the children while they were at school during their weeks with him. He remained responsible for the children along with the applicant. The facts that the applicant’s work arrangement made it more convenient and appropriate for her to be the first contact for the school and allowed her to volunteer at the school more frequently during school hours, and that the children spend time with the applicant before and after school to reflect their views and preferences, do not detract from the reality that the parties do share responsibility for the children at school. They also share responsibility for the children at home and in their extra-curricular and sports activities, as well as the responsibility for interacting with the children’s health care professionals.
[50] In my view, the court is not called upon to find that the involvement of each parent with the children’s school be equal in all respects for there to be shared responsibility for the children while at school. It would be highly unusual, if not impossible, for such equality to exist. It is sufficient that each parent’s responsibility for the children while at school is real and meaningful.
[51] The respondent was noted as a contact for the school in each academic year, not only in his weeks with the children but also during the applicant’s weeks. He does attend school functions including teacher conferences and has volunteered at field trips and school ski outings. He provides the children’s lunches during his weeks.
[52] In my view, responsibility for the children at school was and continues to be shared by the applicant and respondent, albeit not equally, such that, for the purposes of the calculation called for under s. 9 of the Guidelines, the children’s time at school is to be considered neutral. In the result I find that the respondent exercises a right of access to, or has physical custody of, the children for not less than 40 per cent of the time over the course of the year and that child support is therefore to be determined on the basis of the factors in s. 9 of the Guidelines.
[53] The Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63 (S.C.C.), set out comprehensively the various factors the court is to consider when determining the amount of support to be paid in a shared custody situation under s.9 of the Guidelines.
[54] The principles derived from Contino were very usefully summarized by Sinclair Prowse, J. in G. (C.N.) v. R. (S.M.), 2007 BCSC 822, at paras. 21 to 26 as follows:
The objective of the Guidelines underlies this analysis — namely, that a fair standard of living be provided for the children and that there be a fair contribution from both parents. To achieve this objective in shared custody situations, the language of s. 9 "warrants emphasis on flexibility and fairness" (para. 39). It requires "the acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case" (para. 39).
Specifically, under s. 9(a), the court is required "to take into account the financial situations of both parents (instead of the sole income of the spouse against whom the order is sought, as in s.3)" (para. 40). The calculation of this set-off amount is the starting point, not the end of the inquiry.
This set-off amount "does not take into account actual spending patterns as they relate to variable costs or the fact that fixed costs of the recipient parent are not reduced by the increased spending of the payor parent" (para 48). The Guideline amounts "are an estimate of the amount that is notionally being paid by the noncustodial parent; where both parents are making an effective contribution, it is therefore necessary to verify how their actual contribution compares to the Table amount that is provided for each of them when considered payor parents" (para. 50). To do this analysis, full consideration must be given to the last two factors under s. 9.
At para. 51, the Supreme Court of Canada provided that "[t]he court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another".
Under s. 9(b), the court is to consider all of the payor parent's costs (including housing, food, and any other expense of the child). This section recognizes that the "total cost of raising children in a shared custody situation may be greater that in situations where there is sole custody" (para. 52). Under this section, the court will "generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes" (para. 52). Furthermore, the court must consider what are the additional costs incurred by the payor parent. Specifically, the court must consider "the budgets and actual child care expenses of each parent. These expenses will be apportioned between the parents in accordance with their respective incomes" (para. 53).
As far as s. 9(c) is concerned, factors such as the ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels, and income disparities) and the standard of living for the children in each household must be considered.
[55] With reference to subsection 9(1), the respondent provided child support calculations on a set-off basis for the years 2013 to date. The following are the calculations for the period from the date of the applicant’s Motion to Change June 30, 2016 to August 31, 2019:
| Year | Applicant’s Line 150 Income | Applicant’s Table Child Support Obligation | Respondent’s Line 150 Income | Respondent’s Table Child Support Obligation | Applicant’s Monthly Set-Off Obligation | Total Applicant’s Set-Off Child Support |
|---|---|---|---|---|---|---|
| 2016 (6 mos) | $115,362 | $1,603 | $58,220 | $865 | $738 | $4,428 |
| 2017 | $106,899 | $1,500 | $64,557 | $959 | $541 | $6,492 |
| 2018 | $101,569 | $1,491 | $63,756 | $971 | $520 | $6,240 |
| 2019 (8 mos) | $101,569 | $1,491 | $63,756 | $971 | $520 | $4,160 |
| Total set-off to Aug. 31, 2019 | $21,320 | |||||
| Paid by Applicant Dec. 2016 to Sept. 30, 2018-$650 x 22 mos. | ($14,300) | |||||
| Total Arrears to Aug. 31, 2019 | $7,020 |
[56] In conducting the required analysis with respect to subsections 9(b) and 9(c) the court is hampered by the fact that neither party submitted an itemized budget setting out their child-related expenses.
[57] With respect to subsection 9(b), the parties each claimed to have regularly made expenditures for the children’s clothing, and personal requirements such as toiletries, school supplies and the like. This was the only evidence supporting the existence of duplication of child expenses resulting from the shared parenting arrangement. There was no evidence led to support the existence of duplication of housing costs or other costs aside from clothing and personal items.
[58] The applicant maintained that she has shouldered the “lion’s share” of the cost of clothing, toiletries, school supplies and personal items for the children, which she estimated at 80%. She bases this on her personal observations of the children and the clothing which they have worn.
[59] The respondent disputes that there is a significant disparity between the applicant’s spending on the children’s clothing and other requirements, and states that the children have a complete wardrobe and supply of personal items in his home.
[60] Based upon the evidence I find that that the applicant’s expenditures on clothing and personal items for the children do exceed that of the respondent, however I am unable to apply a reliable ratio to their relative expenditures on those items.
[61] With respect to section 9(c), the applicant shows on her Financial Statement dated August 12, 2019 total monthly income from all sources of $10,658.49 and net monthly income of $8,392 (excluding the deduction for “deferred leave” of $4,620.72). Her expenses are shown at $3,813.82 for a monthly surplus of $4,578.19, again without considering her voluntary deduction of “deferred leave.”
[62] The respondent shows on his November 29, 2018 Financial Statement monthly income from all sources of $5,439.75 and a net monthly income of $3,546.42. His expenses are $3,703.85, for a net deficit of $157.43.
[63] The applicant shows a net worth (assets over liabilities) of $681,110.55 whereas the respondent shows a net worth of $391,672.17, representing a ratio roughly commensurate with their relative incomes.
[64] Based upon the overall situation of the parties and, in particular, their relative disposable incomes and net worth, I do not find it appropriate nor fair to reduce the applicant’s child support obligation below the set-off amount based upon the Tables, notwithstanding that the applicant supports more of the cost of the children’s clothing, toiletries, school supplies and personal items. I find that given the disparity in the parties’ relative incomes, the applicant has a greater capacity to bear those expenses.
[65] The evidence indicated that the applicant’s income will be reduced during her one-year sabbatical from her employment as a faculty member to $85,000 per annum for the period September 1, 2019 to August 31, 2020. Her set-off child support obligation should be reduced accordingly during that period to $430 per month.
[66] Neither party claims arrears of s. 7 expenses and they both propose that they share section 7 special and extraordinary expenses in proportion to their respective incomes.
[67] I do not see any basis to order the applicant to pay set-off child support on a retroactive basis earlier than the date of issuance of the Motion to Change.
Disposition
[68] On the basis of the foregoing, it is ordered as follows:
(a) The Applicant shall pay arrears of child support on a set-off basis for the period July 1, 2016 to August 31, 2019 in the sum of $7,020, plus arrears of child support for the period September 1 to October 31, 2019 in the sum of $860, totalling in all the sum of $7,880, to be paid in 36 equal monthly instalments of $218.89 on the first day of each month commencing November 1, 2019;
(b) The applicant shall pay ongoing set-off child support in the sum $430 per month on the first day of each month commencing November 1, 2019 to August 1, 2020;
(c) The applicant shall pay ongoing set-off child support in the sum $520 per month commencing September 1, 2020;
(d) The applicant and the respondent shall pay s. 7 special and extraordinary expenses for the children in proportion to their respective incomes;
(e) For as long as child support is to be paid, the applicant and the respondent shall provide updated income disclosure to the other each year within 30 days of the anniversary of this order in accordance with s. 24.1 of the Child Support Guidelines; and
(f) Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.
Costs
[69] The parties are strongly urged to agree upon costs. If they are unable to do so, the respondent may make written submissions as to costs of the proceeding within 14 days of the release of this Endorsement. The applicant has 10 days after receipt of the submissions of the respondent to respond. The respondent shall have 5 days thereafter to deliver brief Reply submissions. Each party’s initial written submissions shall not exceed four double-spaced pages, exclusive of Bills of Costs, Offers to Settle, and authorities. Any Reply submissions by the respondent shall not exceed 2 double-spaced pages. All submissions shall be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
D.A. Broad J
Date: October 21, 2019