Court File and Parties

Court File No.: 49-2008 Date: 2020-03-31 Superior Court of Justice - Ontario

Re: Lisa Diane Ulch (formerly Den Otter), Applicant And: Jeffery John Henry Den Otter, Respondent

Before: Justice R. Raikes

Counsel: Applicant – Self-represented Elli M. Cohen – Counsel, for the Respondent

Heard: January 2, 2020

Endorsement

[1] The respondent brings a motion to change the final orders of McGarry J. dated December 21, 2011 and Morissette J. dated April 22, 2016 dealing with, inter alia, child support and s. 7 expenses. The motion to change was commenced on September 27, 2018.

[2] Both parties argued the motion to change on the basis of the affidavits filed and documents contained in the Continuing Record.

Background

[3] The parties married September 25, 1993 and separated June 2, 2006. They are the parents of four sons: Joshua born September 1994, Jake born May 1996, Jared born January 1998 and Joel born October 2001.

[4] In December 2011, the parties entered into Minutes of Settlement which formed the basis of the final order of McGarry J. That order dealt with custody and provided for a week about care schedule. The order also required the respondent to pay $400 per month to the applicant for child support as a “special arrangement” under s. 15.1(5) of the Divorce Act and s. 9 of the Federal Child Support Guidelines. Paragraphs 25 and 26 of the order dealt with s. 7 expenses and post-secondary education, respectively.

[5] By 2014, the week about arrangements were not happening. The older two sons were living with the respondent and the younger two lived primarily with the applicant. There were also ongoing issues between the parties with respect to s. 7 expenses and child support. More litigation ensued.

[6] On April 22, 2016, the parties entered into Minutes of Settlement to resolve their outstanding issues on a final basis. Those Minutes of Settlement formed the basis of the final order made by Justice Morissette. That order varied the order of McGarry J. as it related to child support, s. 7 expenses and post-secondary education.

[7] The final order of Morissette J. provides that:

• Para. 2 – Child support was terminated for Joshua and Jake.
• Para. 3 – Starting May 1, 2016, the respondent was to pay monthly child support of $743 to the applicant for the younger two children based on imputed income of $50,000.
• Para. 6 - The respondent could not re-adjust his support obligation on a yearly basis unless by agreement or court order. A variation or review was contemplated in the event of a material change in circumstances of the parties or children including the number of children entitled to support or a child attending post-secondary schooling.
• Para. 7 – When a child ceases to be entitled to support under the Federal Child Support Guidelines, the parties will readjust the respondent’s child support obligation for the remaining child of the marriage.
• Para. 8 - If a child is living away from home to pursue post-secondary education, no child support is owing for that child. If the child returns home to live with either parent during the summer school break, the Guidelines will apply to those months for that child.
• Para. 9 - Commencing May 1, 2016, the parties will share equally all special and extraordinary expenses pursuant to Section 7 of the Guidelines.
• Para. 10 - The parties will not re-adjust their equal shares of Section 7 expenses yearly but will do so only as contemplated by para. 6 above.
• Para. 12 - The parties agreed to the following expenses to be shared under Section 7 in addition to any others that may fit under that provision: a. The respondent will pay up to $750 per year for equipment costs plus 1/2 of the registration costs for hockey; b. Driver’s education costs after a 1/3 deduction for the child's contribution; c. Reasonable driver insurance costs after a 1/3 deduction for the child's contribution; d. Hockey up to four (4) tournaments per year. The respondent shall pay up to $450 per year including hotel and meals.
• Para. 13 - The parties will exchange proof of Section 7 special and ordinary expenses within 15 days of the expense incurred and each will reimburse the other their proportionate contribution within 30 days of proof of the expense.
• Para. 14 - Paragraph 26(a)(b)(c)(d) and (f) of the order of McGarry J. dated December 21, 2011 dealing with post-secondary education will continue to apply; however, the obligation to provide s. 7 contributions and support for a child in post-secondary schooling ends when the child gets his first degree or diploma.
• Para. 16 – The respondent was to pay $17,000 to the applicant in full and final satisfaction of any retroactive claim that either party has with respect to child support or Section 7 expenses or with respect to costs of this matter.

[8] Jared started his post-secondary education at Queens University in September 2016. He was home several weekends during his first school year and in the summer between first and second year. He was working at a local grocery store when home. Since September 2017, he has resided in Kingston including during the summers. He visits only occasionally.

[9] Joel started living with the respondent in July 2018. He completed high school in June 2019. He started an apprenticeship in October 2019 when he turned 18. Between July and October, he was living with his father but working full-time with the employer for whom he is apprenticing. He could not start the apprenticeship until he turned 18.

[10] On May 15, 2019, Justice Campbell terminated the respondent’s obligation to pay child support effective July 1, 2018. He directed that any monies held by the Family Responsibility Office (“FRO”) be returned to the respondent. He also ordered the applicant to pay monthly child support to the respondent for Joel commencing June 1, 2019 in the amount of $896 based on her 2018 income of $89,100 in accordance with the Guidelines.

[11] On September 25, 2019, Justice Gorman made a without prejudice consent order terminating child support payable by the applicant on October 31, 2019.

Position of Respondent

[12] The respondent asserts that: a. He owes the applicant $3,857.88 for s. 7 expenses; b. The applicant owes him $2,436 for s. 7 expenses; c. The applicant owes him $6,765 in child support for Joel; d. FRO/the applicant owes him $6,593 in overpayment of child support. As a result, the respondent submits that the applicant owes him $11,936.12.

[13] While the respondent accepts that some of the expenses attached to the applicant’s Response to Motion to Change are appropriate, he takes issue with others. The disputed s. 7 expenses can be grouped in three general categories: 1) expenses incurred before the final order of Justice Morissette; 2) expenses that are not proper s. 7 expenses or exceed the amount specified in Justice Morissette’s order; and 3) expenses for Jared’s post-secondary schooling that need to be discounted to reflect Jared’s 1/3 contribution.

Position of Applicant

[14] The applicant asserts: a. All expenses attached to her Response to Motion to Change were incurred by her for the children and are proper s. 7 expenses; b. Of Jared’s post-secondary expenses, only tuition should be discounted by 1/3; c. She should not have to pay child support for Joel after June 30, 2019 because he had finished high school and was then working full-time; d. Her income reduced significantly in 2019 and the amount of child support should be adjusted to reflect that change; e. Child support for the months of January-April 2019 should be based on her 2018 income, not on her 2017 income; f. The respondent should have paid increased child support for the months of May-August 2017 when Jared was home from school; and g. The respondent should pay the increased amount for child support for the 2016-2017 school year (September 2016-April 2017) because Jared was home almost every weekend.

[15] I will deal first with child support, then s. 7 expenses.

Child Support

[16] The issues related to child support are:

1. Did the respondent overpay child support and, if so, how much?
2. Did the applicant underpay child support and, if so, how much?

[17] Within these issues, the following must be determined: a. Is the respondent required to pay child support for two children during the 2016-17 school year because Jared was home on weekends frequently? b. Is the respondent required to pay child support for two children for the months of May-August 2017 when Jared was home for the summer? c. Is the applicant required to pay child support for Joel from July 1, 2019 to October 2019? d. What amount of monthly child support should be paid by the applicant for Joel in 2019?

[18] I will start with the alleged overpayment of child support by the respondent.

Overpayment by Respondent

[19] The respondent paid child support of $743 per month commencing May 2016 to and including August 1, 2018. He paid child support of $450 per month starting September 2018 to and including July 2019. Thus, he paid $25,754 in aggregate child support during that period.

[20] The respondent asserts that his child support should have reduced to $450 per month in September 2016 when Jared started school at Queens University. It should have further reduced to zero when Joel began living with him in July 2018.

[21] The order of Justice McGarry dated December 21, 2011 states at para. 26(g) and (h): (g) the child support payable under paragraph 24 above ($400 monthly), shall be reviewed (as to all circumstances of the parties and the children then applicable) upon a child commencing post-secondary education if he resides where he is attending school (during the school year) and the provisions of paragraph 24(e) [sic] shall apply relative to same, recognizing that if the parties are contributing towards the post-secondary education expenses that there may not be any support owed by either party to the other for that child; and, (h) if any child of the marriage returns home to reside for the summer months when not attending his post-secondary educational institution, the child support shall then be payable in accordance with paragraph 24 above, for those months or alternatively reviewed if the child or children reside permanently with one of the parties (rather than the shared residence system which is currently being followed).

[22] Paragraphs 24, 25 and 26 (g)(e)(h) of Justice McGarry’s order were varied by the order of Morissette J. In her order, child support payable by the respondent was increased to $743 per month for the two youngest children. By then, the older two children, who had been living with the respondent, were independent.

[23] Paragraph 8 of Justice Morissette’s order deals with what happens if either of the two children went away to school for post-secondary education. In that case, child support for that child stops and only resumes if the child comes home to live with one of the parties during the summer months. The wording of para. 8 could hardly be clearer.

[24] Applying that provision of her order to the facts here leads to the following conclusions:

1. The respondent was not required to continue paying child support for two children instead of one between September 1, 2016 and April 30, 2017. That Jared came home frequently on weekends during that period does not change what was agreed to and incorporated into the order made.
2. For the months of May – August 2017, the respondent was required to pay child support for two children because Jared was home from school residing with the applicant.
3. When Jared returned to school in September 2017, child support should have reduced and stayed at the reduced amount through and including August 2018 because Jared did not come home to stay during that summer or at any point after.

[25] Therefore, the respondent overpaid child support by $5,860 (20 months x ($743-$450)) as it relates to Jared’s post-secondary education.

[26] In addition, FRO continued to deduct child support from the respondent of $450 per month for Joel for the period July 1, 2018 to July 31, 2019. Joel was living with him and, therefore, he should not have paid anything for child support for Joel during that period.

[27] Accordingly, he overpaid child support in respect of Joel by $5,850 (13 months x $450).

[28] The aggregate amount overpaid by the respondent for child support is $11,710 ($5,860 + $5,850).

[29] He has received two refunds from FRO that must be deducted: $3,715 on August 3, 2018 and $2,574 on February 27, 2019. The net amount overpaid for child support is $5,421.

Underpayment by Applicant

[30] It is undisputed that the applicant was obliged to pay child support to the respondent for Joel commencing July 1, 2018 when he started residing with his father.

[31] The first issues to be determined are: (1) what is the end date for child support for Joel, and (2) if the answer to (1) is “October 2019”, should child support for Joel be reduced below the applicable Table amount after June 30, 2019.

[32] Joel finished high school in June 2019. Thereafter, he continued living with the respondent until he turned 18. He was committed to an apprenticeship but could not start that role until he was 18. He worked full-time for the same employer but earned minimum wage. Thus, for nearly 3.5 months, Joel was 17, living at home but working full-time earning roughly $2,000/month.

[33] Section 3 of the Guidelines establishes a presumptive entitlement to child support in the amount specified by the applicable Table. The court's discretion to order an amount of child support that differs from the Table amount is strictly limited and clearly specified. The court may depart from the Table amounts only under s. 17(6.2) - (6.5) of the Divorce Act or under ss. 4, 5, 7 - 10 of the Guidelines: Bates v. Bates, [2000] O.J. No. 2269 (Ont. C.A.), at para. 3.

[34] The onus rests on the party seeking a deviation from the Table amount to establish on clear and cogent evidence that the deviation is in the child’s best interests: Bates. The focus must be on the child’s circumstances, not parental fairness.

[35] Subsections 17(6.2) - (6.5) of the Divorce Act do not apply in these circumstances. The same is true of ss. 4, 5, 7-9 of the Guidelines. Section 10 permits the court to award an amount for child support that is different from the Table amount if the court finds that the spouse making the request would suffer undue hardship otherwise.

[36] Although the applicant has suffered a reduction in her income in 2019, I am not satisfied that she has established that she would suffer undue hardship if required to pay the Table amount, nor has she claimed undue hardship in her Response to the Motion to Change. Her reduced income may impact the amount of monthly support using the appropriate Table, but it does not result in a finding that child support should be suspended entirely as requested.

[37] Further, I am not satisfied on the evidence that it is in Joel’s best interest to terminate child support at the end of June 2019 nor to reduce it on account of his income after July 1. There is simply no evidence on which to conclude that child support was not needed or a reduced amount is appropriate to his circumstances. He may have employment income but he may also have corresponding expenses for work or for the upcoming apprenticeship or otherwise. There is a dearth of evidence.

[38] Accordingly, I find that child support is payable for Joel between July 1, 2019 and October 31, 2019.

[39] The next issue is the amount of child support payable by the applicant.

[40] Typically, child support payable is based on the payor’s line 150 income from the previous year. The applicant is employed by the Huron Perth Health Alliance. She earned $111,608 in 2017. Guideline child support for one child based on income of $111,608 is $1,002 per month. Accordingly, she should have paid the respondent $6,012 in child support in 2018 ($1,002 x 6 months).

[41] The applicant’s 2018 income was $98,145. According to the Guidelines, child support payable in 2019 is $896 per month.

[42] In April 2019, the applicant went on sick leave. She continued to be paid $3,681 biweekly as sick benefits through work. Her last paystub shows that as at August 11, 2019, her year-to-date earnings were $59,869.

[43] When her sick benefits ran out, she applied for employment insurance and received 16 weeks of EI benefits. The total received was $8,320 ($520/week x 16 payments).

[44] She also applied for long-term disability benefits. On December 9, 2019, she received a letter from the disability carrier, Manulife, that she was accepted effective November 26, 2019. As a result, she will have disability insurance payments equivalent to slightly more than one month at the rate of $4,853/month. I calculate the income from the disability insurer in 2019 to be $6,066 ($4,853 x 1.25 months).

[45] The applicant did not take back into income any RRSP savings in 2019. The aggregate of the applicants’ 2019 income from all sources is expected to be $74,255. That amount is a significant reduction in income from that earned in 2018.

[46] I find that child support is payable by the applicant to the respondent for Joel in 2019 for the months of January to and including April of $896 per month based on her 2018 income of $98,145. In April 2019, the applicant’s income was reduced. I fix the monthly child support payable by the applicant for Joel commencing May 1, 2019 to October 31, 2019 at $693 based on income of $74,255.

[47] The child support payable by the applicant for 2019 is $7,562 ($3,584 + $3,978).

[48] The aggregate child support payable by the applicant is $13,574 ($6,012 + $7,562).

[49] The remaining issue is deduction of the amounts actually paid by the applicant. The applicant did not make any child support payment before January 2019. Since then, she has paid to the respondent the sum of $7,734 for child support. The net amount for child support payable by the applicant is $5,840.

[50] I turn next to s. 7 expenses.

Section 7 Expenses

Law

[51] Section 7(1) of the Federal Child Support Guidelines (“CSG”) states:

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expense may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation: a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; b) that portion of the medical and dental insurance premiums attributable to the child; c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; e) expenses for post-secondary education; and f) extraordinary expenses for extracurricular activities.”

[52] “Extraordinary expenses” are expressly defined at s. 7(1.1):

(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means: a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the Court has otherwise determined is appropriate; or b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account: (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the Court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant.

[53] In Titova v. Titov, 2012 ONCA 864, the court set out the analytical framework to be applied at para. 23 as follows:

[23] In awarding s. 7 special and extraordinary expenses, the court calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation.” If the expenses fall under CSG s. 7(1)(d) or (f), the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

[54] Section 7 of the CSG recognizes that payment of Guideline child support may be insufficient to cover the cost of special or extraordinary expenses. Additional amounts, sometimes referred to as “add-ons”, may be ordered to supplement child support.

[55] This provision sets out a two-part test of necessity and reasonableness to determine whether a claimed expense is to be added to the basic child support amount. The expense must be necessary in relation to the child’s best interests and reasonable in relation to the means of the spouses and those of the child and to the family’s spending pattern before separation.

[56] Some expenses, even though related to primary and secondary school education or extracurricular activities, may be considered to be ordinary expenses intended to be covered by the basic table amount payable: McLaughlin v. McLaughlin (1998), 167 D.L.R. (4th) 39 (B.C.C.A.) at para 64. The extraordinary expense must represent an unusual cost not subsumed in the ordinary payments expected by a family with the same means as the parties: Forrester v. Forrester, 1997 CarswellOnt 3212 (Ont. Gen. Div.), at para 8.

[57] In deciding whether a particular expense or the totality of expenses claimed on behalf of children under s. 7(1)(d) and (f) are “extraordinary”, the court should take into consideration the combined income of the parties, as well as the nature and amount of the individual expense, the nature and number of the activities, any special needs or talents of the children, and the overall cost of the activities: McLaughlin, at para 81.

[58] Where the recipient parent seeks retroactive payment of s. 7 expenses, the court may exercise its discretion to relieve against or mitigate undue hardship which may result from such an order: Hulley v. Carroll, 2007 CarswellOnt 7939 (S.C.J.) at paras 24 and 26. In doing so, the court should consider both the criteria in s. 7 of the CSG and the factors laid down by the Supreme Court of Canada in S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231: Baldwin v. Funston (2007), 2007 ONCA 381, 85 O.R. (3d) 721 (Ont. C.A.).

Respondent's Section 7 Expenses

[59] The applicant claims s. 7 expenses payable by the respondent of $13,396.38 (1/2 x $26,792.77). The respondent claims s. 7 expenses payable by the applicant of $2,436 (1/2 x $4,872).

[60] The applicant’s income from 2016 to 2019 was: 2016 - $95,573 2017 - $111,608 2018 - $98,145 2019 - $74,255 (estimated above)

[61] During the same period, the respondent’s income was $50,000 as imputed pursuant to paras. 3 and 6 of the order of Morissette J.

[62] I will deal first with the respondent’s claim for s. 7 expenses. The applicant acknowledges that the respondent has incurred s. 7 expenses. Her objections relate to the following: a. Hockey sticks – Joel has hockey sticks that he left at her place when he moved out. The respondent has provided only a debit receipt for same. After fighting her for years about the boys’ hockey, he suddenly is paying out significant amounts for equipment Joel already had. b. Car insurance – neither parent should have to pay Joel’s car insurance. He has his own vehicle and he should have to insure it. c. Boots – there is no receipt. d. Cell phone – the respondent seeks 15 months at $30/month. She is willing to contribute to this expense but has never seen a receipt. If he provides the bills, she will pay. In any event, Joel should pay his cell phone bill if he was working, i.e. after June 30, 2019.

[63] From the evidence filed, I do not get the impression that the respondent throws money away buying things for Joel that he already has. There is no evidence that the respondent knew about the six hockey sticks at the applicant’s home. The debit receipt is sufficient. The price for hockey sticks these days is absurd but one cannot play without a stick. The earlier orders reflect that hockey was an activity they agreed the children should do. The expense is a proper s. 7 expense.

[64] As for Joel’s car insurance, counsel for the respondent relied on para. 25(g) of the order of McGarry J.; however, para. 1 of the order of Morissette J. provides that her order replaces, inter alia, para. 25 of Justice McGarry’s order. Paragraph 12(c) of her order states:

12. In addition to those set out in Section 7 of the Federal Child Support Guidelines, the following current expenses shall be subject to sharing in accordance with Section 7 and the terms herein: (c) reasonable driver's insurance costs after a one-third deduction from the child to whom the insurance costs are associated; …

[65] Exhibit “D” to the respondent’s December 20, 2019 affidavit is a schedule of s. 7 expenses for which the respondent is seeking reimbursement. The receipts are not attached although I understand from the parties’ submissions that copies of whatever he had were provided to the applicant. The schedule shows that in August 2019, he paid $3,254 for car insurance for Joel. He claims 1/3 of that amount from the respondent. The respondent advises that the vehicle in question is owned by him but driven by Joel to save money on insurance.

[66] The applicant’s objection is fully answered by the para. 12(c) of the order of Justice Morissette. The expense was incurred while Joel was still a child of the marriage. The amount claimed is net of Joel’s 1/3 contribution. That expense is a proper s. 7 expense as previously agreed by the parties.

[67] According to the respondent’s s. 7 expense schedule, he paid $146.89 for “boots for Coop”. No additional explanation is provided. I do not agree that boots are a proper s. 7 expense. Clothing is an ordinary expense covered by the payment of child support.

[68] No receipts have been provided for the cell phone expense claimed. I observe that the respondent objects to various expenses claimed by the applicant because no receipt is provided. Each party claiming an expense bears the onus of proving the expense. The respondent has not met his burden of proof. Moreover, I am not satisfied on the evidence that cell phone expenses are a special or extraordinary expense in this case.

[69] Therefore, the respondent’s proven s. 7 expenses payable by the applicant are $1,812.55.

Applicant's Section 7 Expenses

[70] As mentioned, the applicant claims s. 7 expenses of $13,396.38. At the hearing, she asserted that the amount was $15,285. The applicant attached copies of receipts and/or cheques to her Response to Motion to Change for s. 7 expenses claimed, organized by month, with a hand-written summary at the beginning of each month.

[71] In her affidavit sworn September 19, 2019, the applicant provides a further hand-written schedule of s. 7 expenses claimed. She allocates the expenses into the following categories which are set out across the top of the pages: sports/equipment; school; cell phone; car/transportation; health; miscellaneous; and, orthodontics/covered by insurance. In the far left column, she specified the month and year in which the expenses were incurred. In the far right column she provides the total of the expenses for that month which is the aggregate of the amounts in each of the categories to which the expenses have been allocated.

[72] The respondent takes issue with many of the expenses. At Exhibits “B” and “C” of the respondent’s December 20, 2019 affidavit, he lists the expenses claimed by the applicant, whether he accepts or objects to same, and if objected, the reason for doing so. The applicant did not take issue with the completeness of the respondent’s schedules.

[73] I have reviewed the various tables by the parties and have spent considerable time going through the receipts that are disputed. I have endeavoured to group the expenses by category where convenient.

Timing of Applicant’s Delivery of Receipts

[74] The respondent points out that the expenses claimed by the applicant were incurred years before delivery of her Response to Motion to Change on May 10, 2019. That is when he first saw the expenses claimed and receipts.

[75] Paragraph 13 of Justice Morissette’s order requires that the parties provide receipts of s. 7 expenses within 15 days of the expense incurred. No satisfactory explanation is offered by the applicant for her tardiness.

[76] The respondent does not suggest that the applicant’s expenses should be denied in their entirety for failure to comply but does indicate that certain expenses should be denied for lack of timeliness. Her failure to comply should be given consideration.

[77] The applicant’s failure to provide the expense receipts to the respondent in a timely manner as contemplated by the consent order of Morissette J. is troubling but, in my view, is best addressed through costs. There is no evidence that the applicant’s non-compliance caused such prejudice that the respondent is unable to defend against the claim.

Pre-April 22, 2016 Expenses

[78] The first entry on the Applicant’s Schedule in her September 19, 2019 affidavit indicates “missing receipts 2013 – Feb. 2016”. The total stated is $2,382.09. The following two entries deal with s. 7 expenses incurred in March and April 2016, respectively. The totals for those months are $550.79 and $194.75.

[79] With one exception, these expenses were incurred before April 22, 2016, the date of Justice Morissette’s order. Paragraph 16 of that order clearly states that the payment of $17,000 by the respondent to the applicant for s. 7 expenses is “in full and final satisfaction of any retroactive claim that either party has with respect to child support or Section 7 expenses”. He paid the $17,000.

[80] The applicant offers no reason why that provision does not operate as a complete bar to her claim for s. 7 expenses incurred before April 22, 2016; in fact, when specifically asked during oral submissions, she agreed that those expenses likely were not recoverable. She indicated that she incurred the expenses and felt that he should pay because it was the right thing to do.

[81] Paragraph 16 of Justice Morissette’s order is the result of negotiations that took place between the parties and the agreement they reached. It precludes any claim by either party for past s. 7 expenses upon payment by the respondent of the agreed upon $17,000. It is not open to either party to make a claim for s. 7 expenses incurred before April 22, 2016. That is the bargain they made. That is what the order says.

[82] Therefore, all expenses claimed by the applicant that were incurred before April 22, 2016 are not recoverable.

[83] I mentioned that there was a single exception. On April 22, 2016 the applicant wrote a cheque for $100 for Jared’s soccer. It is not a retroactive expense and the respondent should pay $50 toward that expense.

Jared’s Post-Secondary Expenses

[84] The applicant claims that all expenses incurred for Jared’s post-secondary schooling, except tuition, are to be shared equally by the parties. For tuition only, Jared is expected to contribute 1/3 leaving the balance to be shared; viz. the parties pay 1/3 of Jared’s tuition cost each year. Her s. 7 expense claims for Jared reflect that position.

[85] The respondent asserts that Jared is required to contribute to more than merely tuition. He points to para. 26(b) of the order of Justice McGarry.

[86] Paragraph 26(a) and (b) of Justice McGarry’s order states:

26. The Applicant and Respondent shall share equally, the costs and expenses relative to post-secondary education for the children, and in this regard, the following shall apply: a) the said equal contributions shall include expenses and costs for tuition, books, supplies, school/student fees, moving expenses, medical or other health-related care costs not covered by insurance of the parties, their spouses or school plan, rental accommodation or college residence expense (including meal plans), laptop computer, internet, television and reasonable telephone, provided further that the child remains in full time attendance at such post-secondary educational institution; and, b) the child shall be responsible for 1/3 of the post-secondary educational costs and expense referred to in the preceding subparagraph, subject to the financial ability of that child to contribute to same; the 1/3 share of the child shall be taken first from any available bursaries, student loans, scholarships, employment earnings or lines of credit of the child;

[87] I pause to note that there is no evidence that Jared is financially incapable of contributing his 1/3 share of post-secondary expenses.

[88] The above quoted provisions of Justice McGarry’s order were not changed by the order of Justice Morissette and remain in full force and effect. Accordingly, the applicant is not entitled to claim 50% of the expenses incurred for Jared’s post-secondary education without first deducting 1/3 to account for Jared’s share of those expenses.

[89] The respondent deposes that he has spent $13,950 toward Jared’s post-secondary education; however, no claim is advanced for same. No evidence was provided to confirm such expenditures. Counsel for the respondent merely indicated that the fact of such payments should be taken into account when assessing the reasonableness of the applicant’s claimed s. 7 expenses.

[90] In my view, I am required to determine whether the expense was actually incurred, whether the expense is a proper s. 7 expense and whether any discount should be applied to recognize the child’s contribution to the expense per the terms of the orders made; see for example, driver’s education. That the respondent paid for some of Jared’s post-secondary expenses but is not claiming them is irrelevant to the determination of the questions I must answer for each expense.

Remaining Expenses

Cell Phones

[91] The applicant seeks recovery of cell phone expenses for each of Jared and Joel but, like the respondent, has not attached any invoice or bill for same. Like the respondent, in the absence of a receipt, invoice or proof of payment, the applicant has not met her burden of proof. The expense has not been proven on a balance of probabilities. Further, my finding that cell phones are not a s. 7 expense on the evidence filed applies equally to the applicant’s claim for reimbursement for same.

Clothing, Footwear and Haircuts

[92] She also seeks recovery of numerous expenditures made for clothing, shoes, and haircuts. None of those expenditures are “special” or “extraordinary expenses”. They do not fall into any of the enumerated categories of s. 7 expenses and, as such, are not recoverable as a s. 7 expense.

[93] I do not doubt that the applicant incurred expenses for her sons for clothing, footwear and haircuts. However, such expenses are ordinary expenses covered by her income together with the child support paid monthly by the respondent. Absent an agreement between them that he would pay one-half of such costs over and above child support, they are not recoverable as an add on expense under s. 7.

[94] In August 2016, the applicant claimed an expense for Jared of $273.41 at Winners. The respondent objects to the entirety of the bill. The receipt shows that luggage was purchased (2 x $99.99 plus HST). The balance is for menswear. The luggage expense is a valid post-secondary school expense incidental to Jared attending school away from home. The balance is not a proper s. 7 expense. One third of the cost for the luggage belongs to Jared. The balance is shared equally by the parties. The respondent’s share is $75.33 (($200 + HST) x 1/3).

Sports and Equipment

[95] Both Jared and Joel have been involved in sports at school and in the community. Both parents supported their participation during the marriage and subsequently. I am satisfied that their sports activity expenses are extracurricular activities covered by s. 7 but subject to the order of Morissette J. as it relates to hockey equipment.

[96] The respondent accepts most of the expenses related to sports and equipment. There are a few that he did not accept.

[97] In May 2016, the applicant spent $302.80 at Source for Sports. The respondent indicates that he should not have to pay for a Blue Jays calendar at $96.80 plus HST. A closer review of the receipt shows that the calendar was only $13.19. The rest of the items were baseball equipment. He should pay $144.80 (($302.80 - $13.19) x .5).

[98] In July 2016, the applicant incurred an expense of $49.56 at Sportchek for Joel. A review of the receipt indicates an UnderArmor (U/A) shirt was purchased. I attribute that purchase to equipment for sports.

[99] In July 2016, the applicant incurred another expense at Sportchek of $42.68 for Jared. It appears from the receipt to be the purchase of clothing. It is not recoverable as a s. 7 expense.

[100] In October 2016, the applicant wrote a cheque for $276 to the Warriors for a chicken fundraiser. That expenditure is not a proper s. 7 expense.

[101] In February 2017, the applicant purchased something at Sportchek for Joel for $31.64. It is unclear what was purchased and why. I am not satisfied that it is a proper s. 7 expense.

[102] On November 9, 2017, the applicant wrote a cheque for $100 for “Joel hockey”. The respondent disputes the amount claimed because there is no underlying receipt. I disagree. Like his debit receipt only, the cheque is sufficient. He should pay $50.

Vehicle Insurance, Repairs and Driver’s Education

[103] The expenses claimed by the applicant include car insurance and car repairs/maintenance for a black Honda Pilot. There are receipts for some but not all. Some monies were paid to Dennis Dale for repairs according to one receipt I was able to find in May 2017.

[104] I note that both the order of McGarry J. and the order of Morissette J. deal with driver’s education costs and vehicle insurance costs. The order of Justice Morissette replaces that of Justice McGarry as it relates to s. 7 expenses (para.25). Neither order expressly includes vehicle acquisition or repair expenses incurred for the children as a special expense.

[105] According to the receipts, Joel took his driver’s test in October 2017 and was added to the applicant’s insurance then. The order of Morissette J. provides that Joel is expected to contribute 1/3 to the cost of insurance and driver’s education. An adjustment is required to the applicant’s figures to reflect that contribution.

[106] The respondent objects to the insurance cost claimed in October 2016 because a receipt was not provided. I agree. The applicant provided a receipt for the October 2017 insurance paid. The applicant has not proven payment in 2016. There is no receipt or cheque. The October 2016 insurance expense claimed is denied.

[107] As for the cost to acquire and/or repair/maintain a vehicle for either or both of Jared and Joel, I am not satisfied that such expenses are properly s. 7 expenses. They are not addressed by the order of Morissette J. as driver’s education and insurance are. They do not fit into any s. 7 category and are not an extraordinary expense.

School Expenses

[108] In addition to Jared’s post-secondary school expenses which are addressed above, the applicant claims for various class trips, a school uniform for Joel, and a tuxedo rental for a school prom. The respondent concedes that the tuxedo rental is a s. 7 expense and is recoverable.

Chiropractor, Dental, Orthodontic and Prescription

[109] The applicant claims for chiropractor expenses, a retainer, orthodontic and dental expenses and prescriptions. The respondent does not dispute these items in their entirety; rather, he asserts that all or part of the expenses should have been covered by the applicant’s health and dental coverage. He is prepared to pay his share of the balance net of the insurer’s contribution.

[110] These expenses are special expenses; however, the applicant is only entitled to recover the respondent’s contribution which is to be calculated after health and dental benefits are applied. No information is provided as to whether coverage existed, whether claims were submitted, and what amounts, if any, were paid by the insurer. If claims were not submitted, why not?

[111] In these circumstances, I order as follows:

1. The applicant shall provide the information in the preceding paragraph and documentation evidencing same to the respondent’s counsel within 60 days hereof, failing which the claim for these expenses is dismissed;
2. The respondent shall calculate the amount payable by him (50% of the balance for each item) and remit payment of same together with his calculation within 15 days of receipt of the information. If the applicant has not paid the amount owing from this decision to him by then, he may apply his share as a credit against the monies owing to him; and
3. If there is a dispute as to the amount(s) owing by the respondent, I will remain seized of the issue. The parties should arrange a case conference through the Trial Coordinator to deal with this issue.

Miscellaneous

[112] The following miscellaneous expenses are claimed. I will deal with them in a summary manner below:

1. Jared taxes – there are two entries totaling $150. These are not s. 7 expenses.
2. Passports – there are two entries, one for each child. There is also a passport photo expense. These are not s. 7 expenses.
3. RESP – there is a single contribution of $250 in May 2016. According to para. 26(c)(i)(bb) of Justice McGarry’s order, RESP contributions made by the applicant post-separation inure to her benefit alone vis-à-vis payment of their respective share of Jared’s post-secondary school costs. This is not a recoverable school expense.
4. Saje – in February 2017, the applicant paid $79.05 to Saje. The receipt is very faint and no explanation is provided for this expense. It appears from the receipt to be for a home wellness remedy. I am not satisfied that this is a valid s. 7 expense.
5. Paintball – the applicant claims for a paintball expense for Joel in April 2017. This is not a special or extraordinary expense.
6. Cab expense – The expense is $62 for a cab for Joel. No explanation is provided. I am not satisfied that it is a valid s. 7 expense.

[113] I have calculated the applicant’s s. 7 expenses after adjustments as above. The respondent owes to the applicant the sum of $5,619.40 for s.7 expenses. He may owe more depending on the outcome of the claimed expenses for chiropractor, dental and orthodontic etc.

Conclusion

[114] I order as follows:

1. The applicant shall pay to the respondent the following amounts: a. For arrears of child support for Joel - $5,840 b. For overpayment of child support by the respondent - $5,421 c. For s. 7 expenses incurred by the respondent - $1,812.55.
2. The respondent shall pay to the applicant for s. 7 expenses incurred - $5,619.40.
3. The amount payable by the respondent in (2) may be set-off against the amounts payable by the applicant in (1) above.
4. The applicant shall, within 60 days hereof, provide to the respondent the information/documentation set out in para. 109 above in respect of expenses for chiropractor, dentist, orthodontist, prescriptions and any other medical provider for whom expenses have been submitted for Joel, failing which those expense claims are dismissed.
5. Upon receipt of the information/documentation in (4) above, the respondent shall calculate his 50% share of the balance owing for each such expense and provide that calculation to the applicant within 30 days.
6. If the applicant has not paid the amounts payable to the respondent, he may set-off any amount payable under (5); otherwise, he will remit payment of the amount owing to the applicant for (4) with his calculation.
7. In the event the parties cannot agree on the amounts owing for the expenses in (4) above, they shall notify the Trial Coordinator and arrange a case conference with me.
8. If the parties cannot agree on costs, they may make written submissions not exceeding 3 pages within 30 days hereof.

Justice R. Raikes Date: March 31, 2020