COURT FILE NO.: 99/13
DATE: 2021 01 11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Holly Noelle Meszen
J. K. Heersche, for the Applicant
Applicant
- and -
Peter Meszen
Julia Bradley, for the Respondent
Respondent
REASONS FOR JUDGMENT
Bloom, J.
I. OVERVIEW
[1] Outstanding from the original Application are the issues of child support, arrears of child support, s. 7 expenses, arrears of s. 7 expenses and equalization.
[2] Consolidated with the Application on those issues is the Motion to Change brought by the Applicant in relation to the final order of Justice Seppi dated July 20, 2011; the Applicant seeks sole custody without access to the Respondent, of Mackenzie Noelle Meszen, the daughter of the parties born December 24, 2006. The Respondent in his Response to the Motion to Change also seeks sole custody of Mackenzie Meszen; in the alternative he seeks to maintain the joint custody ordered by Justice Seppi.
[3] Except regarding the question of equalization where the Family Law Act applies, the Divorce Act governs the issues before me.
[4] I intend first to address the question of custody and access which was the central issue in this long, high conflict proceeding.
II. CUSTODY AND ACCESS
[5] The Applicant was born on December 21, 1978, and the Respondent on July 24 of 1970. The parties were married on August 13, 2005.
[6] Mackenzie was born on December 24, 2006.
[7] The parties separated in December of 2009 or in January of 2010; nothing turns on the actual date.
[8] A great deal of evidence was called by the parties on the issue of custody and access. I have considered all of it in detail. However, the closing arguments of the parties defined the matters in dispute in a manner that allows the significant evidence to be summarized relatively briefly, the facts found, and the law applied to them.
[9] Both parties concede the existence of a material change in circumstances since Justice Seppi’s order. The Applicant asserts that the material change in circumstances was any one of a number of factors, including the conflict of the parties, the refusals of Mackenzie to engage in access with her father, and Mackenzie’s treatment by her father which is damaging to her health. Although there is some lack of clarity in the Respondent’s position, since his primary position is that sole custody should be awarded in his favour, his argument as to a material change in circumstances appears to be that parental alienation by the Applicant constituted the material change in circumstances; and that the Applicant should not benefit from that alienation in the order made by this Court.
A. ARGUMENTS OF THE APPLICANT
[10] The Applicant argues that it is in the best interests of Mackenzie that she have sole custody without access by the Respondent; and that, although that order would carry with it such authority, out of an abundance of caution the Applicant be authorized to retain Denise D’Alessandro to counsel Mackenzie and Ms. D’Alessandro be authorized to contact the Respondent as she deems necessary to carry out the counselling.
[11] The Applicant submits that Mackenzie is justifiably frightened of the Respondent whose anger management problems require counselling which he has repeatedly refused; and should not be ordered for that reason.
[12] The Applicant argues that the expert evidence of the professionals adduced supports the inference that it would be contrary to the physical and mental health of Mackenzie to allow access to the Respondent under current circumstances; that he has anger management issues and is operating on the false premise that the Applicant has alienated his daughter from him.
[13] To the contrary, argues the Applicant, Mackenzie is too old to be forced into access with her father against her will; she is happy with her life with the Applicant and her stepfather, and no longer should be subjected to her father’s anger and the stress that his relationship with her has brought.
[14] In that regard, the Applicant also argues that the Respondent’s attitudes and actions in the context of access impair her ability to parent Mackenzie, thus reinforcing the argument that sole custody without access is in Mackenzie’s best interests.
B. ARGUMENTS OF THE RESPONDENT
[15] The Respondent admits that the relationship between himself and Mackenzie is at present fractured, and explains that the Applicant and her family have destroyed that relationship deliberately or otherwise; he alleges that the Applicant has alienated Mackenzie from him. Accordingly, argues the Respondent, sole custody for him should be ordered so that the counselling necessary to rebuild his relationship with his daughter can take place without the destructive effect of the actions of the Applicant and her family.
[16] Alternatively, there should be an order that the joint custody provided for by Justice Seppi remain, but with parallel parenting, and fixed rules stipulated for parenting decisions and communication between the parties.
[17] The Respondent relies heavily on his own testimony, the testimony of friends and relatives about his relationship with his daughter, and the testimony of Greg Martyniuk, a family service worker in the child protection unit of Dufferin Child and Family Services. He attacks the reliability or credibility of the expert evidence relied upon by the Applicant.
C. FINDINGS OF FACT
[18] The thrust of the case for the Applicant was expert evidence from four professionals.
[19] Tina Hinsperger was a clinical investigator with the office of the Children’s Lawyer. She had served in that capacity for twenty years; had taken courses on parental alienation through her employer; and had been involved with high conflict divorces for twenty years.
[20] She became involved with the case on March 24, 2015; had an initial meeting with the Applicant on April 6, 2015 and with the Respondent on April 9, 2015. She made an observational visit to the Applicant’s home on April 26, 2015. On May 17, 2015 she interviewed Mackenzie at her school before making an observational visit to the Respondent’s home.
[21] Mackenzie was refusing to attend access with her father, and access was difficult to conduct.
[22] The witness did not find alienation by the Applicant of Mackenzie. Rather, she found that many of the Applicant’s actions were intended to protect Mackenzie from the real and feared anger of the Respondent; and that Mackenzie aligned herself with her mother, with whom she lived, to avoid conflict between her parents.
[23] In her report of January 14, 2016 the witness recommended that Mackenzie should continue to reside primarily with the Applicant; that the Respondent have access for dinner once per week and a couple of Skype calls per week; that the Respondent have therapy to address anger toward the Applicant and to learn how to improve his behaviour in relation to Mackenzie; and that access be reconsidered only when those clinical goals have been met.
[24] She testified also that reintegration therapy to rebuild the relationship between father and daughter was necessary; and that counselling regarding communication between the parties was necessary.
[25] In her view joint custody was not suitable, because the parties could not communicate. Instead, the Applicant should have custody, since Mackenzie had been living with her.
[26] The evidence of the witness was straightforward, reliable, and credible.
[27] Marcie Goldhar has a Masters of Social Work. She worked in child protection with the Toronto Catholic Children’s Aid Society from 1991 to 1997; and has worked with the Child Review Unit of the government of Ontario which oversees Crown wards, as well as in high conflict cases of custody and access with the Office of the Children’s Lawyer. At present she does mediation and reintegration (also called reunification) therapy, as well as assessments for the courts, both privately and for the Office of the Children’s Lawyer.
[28] The then lawyers on the case before the Court reached out to her to do re-integration therapy. Mackenzie had started in May of 2015 refusing to go for access with her father, citing her fear of his temper as her reason for the refusal. The witness decided to do a clinical intake consultation with the family to see if reintegration therapy was appropriate. She met with the parties and Mackenzie in September and October of 2015.
[29] She testified that she found that reintegration therapy for the Respondent and child was not appropriate, unless he first had therapy for his anger; and that he was angry with the Applicant whom he saw as having alienated his daughter from him.
[30] She found that the Applicant had not engaged in alienating Mackenzie from the Respondent.
[31] In her view there should not be more access for the Respondent until there had been reintegration therapy for him and Mackenzie. She believed that joint custody would be inappropriate because of the poor communication between the parties. She would probably recommend sole custody for the Applicant; it would reduce conflict between the parties.
[32] In her opinion joint custody would be appropriate only if there were a parenting coordinator, but the use of a parenting coordinator with joint or parallel custody in this case would be very difficult given the many problems to overcome.
[33] I do not accept the attack on the witness by the Respondent as not having been retained and not reliable in her evidence. I accept that she gave reliable and credible evidence. Her testimony about the Respondent mirrored the difficulties reflected in the documentary evidence of Dorothy Pedersen and the testimony of Denise D’Alessandro, the other two experts heavily relied upon by the Applicant.
[34] Dorothy Pedersen was a registered psychotherapist and registered professional counsellor. Her evidence was adduced in her written report of September 8, 2017.
[35] She treated the parties and Mackenzie from April to November of 2016 and saw Mackenzie on May 6 and June 7 of 2017.
[36] She wrote in her report that parental alienation is behaviour by one parent intended to cause a child to express hatred and resistance toward the other parent. She also noted that it was not unusual for there to be poor parenting by one parent, and alienating behaviour by the other who is trying to protect the child, as well as to do destructive things. She found that that scenario was replicated in the case at bar with the Applicant being the parent engaging in alienating and protective conduct.
[37] Ms. Pedersen found that the Applicant felt a strong need to protect Mackenzie from the unpredictability, unpleasantness, and inappropriate accusations of her father. The witness found that her actions were misguided and not malicious; and that the Applicant tried hard to do what was best for her daughter, despite the difficulties of the conflict with the Respondent.
[38] Ms. Pedersen was of the view that the Respondent had difficulty parenting a child of Mackenzie’s age, including not understanding the damage his words can do to her; that he would need individual therapy in order to have a meaningful relationship with Mackenzie; and that he would never undertake that therapy voluntarily.
[39] She stated that, while the Respondent is bright and articulate, and can present himself well, when he is anxious a disconcerting side of him appears.
[40] She found that some of the Applicant’s misguided acts have been withholding information about Mackenzie from the Respondent, thereby creating resentment and mistrust in him and teaching Mackenzie to be manipulative. She also noted that the Applicant has, likely as a result of the protracted nature of the conflict between the parties, from time to time expressed disrespect for the Respondent in the presence of Mackenzie.
[41] The witness indicated that only when the Respondent has satisfied a therapist that he is ready, should be there be reintegration therapy to rebuild the relationship between father and daughter.
[42] Denise D’Alessandro is a registered psychotherapist; her clinical expertise includes individual and family counselling, and custody and access assessments.
[43] She was retained to do counselling for Mackenzie, and to make recommendations regarding access. She met in November and December of 2018 with the parties and Mackenzie. In total she spent four hours with Mackenzie.
[44] She testified that she found Mackenzie to be a person who loves her life with her mother, and has a close relationship with her stepfather. Mackenzie is intelligent and respectful according to the witness; she does not like to be disciplined, but expects it when she deserves it.
[45] Mackenzie works hard in her life and has good grades. She has close friends and loves dance.
[46] The witness found that Mackenzie does not want her relationship with her father to move forward. She was offended by his recording her against her wishes, and by his saying mean things to her.
[47] The witness listened to the recording made by the Respondent of an access visit on June 25, 2018 in which there was a confrontation between himself and Mackenzie. She found that the Respondent exhibited dominance, and Mackenzie demonstrated fear of him. According to the witness the Respondent’s approach demonstrated an absence of the love, nurturing, and kindness necessary for a parental relationship.
[48] According to the witness Mackenzie is too old to be told what to do. The witness was of the view that for the sake of Mackenzie’s psychological welfare there should be no access for the Respondent except in a therapeutic setting.
[49] The witness had devised a long-term plan for approximately 18 months to 2 years for Mackenzie and her family to rebuild the relationship between the Respondent and Mackenzie.
[50] The Respondent terminated the witness’s role with the family in late December of 2018. Given her experience with him, she is not optimistic that he will cooperate with any therapist.
[51] The witness did not have enough information to decide whether there had been parental alienation by the Applicant; and viewed Mackenzie’s rejection of the Respondent as justified on the basis of the information she had.
[52] Ms. D’Alessandro expressed her opinion that access for the father is not safe for Mackenzie without therapeutic intervention.
[53] The witness was generally fair. It was obvious, however, that she was not sympathetic to the Respondent; for example, she thought that the Respondent might have been tracking Mackenzie through the cell phone he had given her, without any evidence for that conclusion.
[54] Nevertheless, the witness was very professional in her testimony which I find to be reliable and credible; it is very helpful on the issue of custody and access because of her expertise and recent work with Mackenzie.
[55] The Respondent, himself, testified that he had a strong relationship with Mackenzie when she was an infant, feeding and changing her. He stated that his relationship with her was still strong at the time of separation of the parties. Further, he testified that for the first year after separation the parties still lived in the matrimonial home; and that after Mackenzie moved out with the Applicant access went well.
[56] According to the witness his relationship with Mackenzie was still good until approximately the April-May 2015 period.
[57] He complained that the Applicant has refused to facilitate his obtaining information from those providing extracurricular activities to Mackenzie; and that the Applicant has continually enrolled and withdrawn Mackenzie from those programs without consulting him.
[58] According to him the involvement of the Office of the Children’s Lawyer in around April of 2015 marked the start of the deterioration in his relationship with Mackenzie. He stated that dinner access was good when there were no professionals involved with the access question and the Applicant was not present in the restaurant.
[59] He testified that access was relatively good in the period 2015 to 2016 after Ms. Pedersen’s involvement ended, except when the Applicant or her father were present.
[60] He stated that after the Applicant took from Mackenzie in March or April of 2018 the cellular phone he had given her in January of that year, access deteriorated.
[61] He testified that the quality of access suffered a major blow in May of 2018 when there was a conflict between himself on the one hand and Mackenzie and her mother on the other, about a dance class, of which he was unaware, which conflicted with his access.
[62] A June 25, 2018 confrontation between himself and Mackenzie during access further harmed their relationship. He recorded this incident in which he feels himself to have been victimized by the conduct of Mackenzie. He has had no in person access since the June-July 2018 period.
[63] He testified that he loves his daughter and has tried to keep the conflict between the parties from her.
[64] He testified that the counselling he has had has helped him, but it has made him suspicious and cautious, because some of the professionals dealing with his relationship with Mackenzie have not heard his side of the story before giving a report, including Lynne Fadden, Denise D’Alessandro, Sarah McTaggart, and Marcie Goldhar.
[65] He believes that he has been made a target by counsellors who have been involved with his relationship with Mackenzie. He has been portrayed by them as the one at fault; none of them has condemned Mackenzie’s physical and verbal abuse of him. Only Greg Martyniuk has seen the problem of Mackenzie’s abusive conduct toward him. Mr. Martyniuk also saw lack of communication between him and the Applicant as a hindrance to his relationship with Mackenzie.
[66] He believes that parental alienation by the Applicant is the primary basis for the problems in his relationship with Mackenzie; and that the parties and Mackenzie need intensive counselling.
[67] The Respondent adduced testimony from friends such as Alan and Tina Walker, in a basement apartment of whose home he lives. These witness gave anecdotal evidence of the Respondent not being aggressive with his daughter and of their having a normal father-daughter relationship.
[68] The weakness in that evidence is that it is anecdotal and not based on systematic and professional analysis.
[69] Diane Moniz-Alves has worked with the Respondent since 2004, and has had a romantic relationship with him for approximately five years. I accept her evidence that Mackenzie has reflected on occasion her mother’s hostility to the witness; for example, Mackenzie apologized to the witness for her rudeness, explaining that she was trying to please her mother.
[70] Greg Martyniuk is a family service worker in child protection in Dufferin Child and Family Services. He has worked in the field of child welfare and protection for seventeen years.
[71] He testified that he was involved with the access issue from September to November of 2018 and got to know the situation. He stated that he met with Mackenzie sufficiently to understand that she was anxious or fearful about access visits with the Respondent. She wanted to see the Respondent and to feel safe at that time.
[72] Mr. Martyniuk recommended that there be reunification therapy in parallel with supervised access; that the reunification therapy ideally start with some sessions before the access; that the reunification therapy begin with separate therapy for each of the parties and Mackenzie and then the parties together, and finally all three individuals together.
[73] He recommended that the supervised access begin with supervision by a neutral person and then it could move to a person such as Ms. Moniz-Alves.
[74] The purpose of his recommendations was to rebuild the relationship between Mackenzie and her father. He hoped that ultimately the access could become unsupervised after the completion of the reintegration therapy.
[75] He agreed with the parenting recommendations made by Dorothy Pedersen in her report of September 8, 2017.
[76] He saw no evidence of deliberate parental alienation by the Applicant.
[77] He testified that access could not be forced on a child of Mackenzie’s age.
[78] Mr. Martyniuk was a credible and reliable witness. In my view the only blemish in his testimony was his failure to recognize the anger in the Respondent as testified to by Marcie Goldhar and reflected in the report of Ms. Pedersen.
[79] I will not set out my conclusions on custody and access until I have reviewed applicable legal principles and applied them to the facts. It is, however, appropriate to set out now basic findings of fact regarding the state of the relationship between the parties, and between the Respondent and Mackenzie. They are based on my consideration of all of the evidence, oral and documentary, and particularly the evidence I have reviewed above. Necessarily in the context of applying the law to the facts to reach my conclusions, I will comment again on the relationship between the parties, and between them and Mackenzie.
[80] I find that at present Mackenzie is unwilling to have access with the Respondent and is fearful of him; and that it would be contrary to her mental health to have access forced upon her given her age and wishes. I find that the Respondent does not have the parenting skills to relate in a healthy manner to his daughter at her age; he does not appreciate that his words can and do hurt her, and that he should not be recording his visits with her against her wishes. I have formed my findings of fact as to the relationship between the Respondent and Mackenzie and as to the relationship between him and the Applicant by accepting the evidence of Ms. Hinsperger, Ms. Goldhar, Ms. Pedersen, and Ms. D’Alessandro over that of the Respondent; he lacks self-awareness of the effect of his conduct on Mackenzie and her mother.
[81] The high conflict relationship between the parties since their separation has produced a great deal of stress for Mackenzie. Her mother has not been demonstrated to have alienated Mackenzie from her father. However, the Applicant’s secretive conduct in relation to Mackenzie, often keeping her activities from her father and not consulting him on whether to enrol her in those activities, has aggravated his anger toward the Applicant. The parties cannot communicate.
[82] Mackenzie is happy with her life; she is happy living with her mother and stepfather, has close friends, and is doing well in school.
D. GOVERNING LEGAL PRINCIPLES
[83] In Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 the Court set out the two-step test to be applied on a Motion to Change a custody or access order. First, the Applicant must establish a material change in circumstances. A material change in circumstances is a change in the condition, means, needs, or circumstances of the child and/or the ability of the parents to meet the needs of the child; the change must materially affect the child; and the change must either not have been foreseen or could not have been reasonably contemplated by the judge who made the original order.
[84] If that test is satisfied, then the best interests of the child are the governing factor in making a new order.
[85] In Kaplanis v. Kaplanis, 2005 1625 (ON CA), 2005 O.J. No. 275 (Ont.C.A.) the Court set out principles applicable to the case at bar. First, joint custody is inappropriate where the parties have shown an inability to communicate. Second, the older the child, the more custody and access orders require cooperation of the child and consideration of the child’s wishes.
[86] While there may be jurisdiction to order therapy of an adult party in the context of a custody or access order, Kaplanis, supra points out that carrying out such an order requires the cooperation of the party.
E. CONCLUSION AND ORDER
[87] It is clear to me that having regard to the facts I have found and to all of the evidence, a material change in circumstances has been established since the original order for joint custody by Justice Seppi on July 20, 2011
[88] The protracted and bitter conflict between her parents and the lack of appropriate parenting skills by the Respondent have impacted Mackenzie’s mental health; she wishes to move forward in her life without his having access. Those circumstances constitute a material change in circumstances.
[89] At present it is in Mackenzie’s best interests that her mother have sole custody of her, and that her father not have access. Mackenzie is happy in her life with her mother and her partner. She is doing well in school and has close friends.
[90] At present she does not wish to have a relationship with her father. She is fourteen years old and cannot be forced to have access with her father.
[91] He is angry with the Applicant, and needs counselling to address that anger and to develop parenting skills. Even if I have jurisdiction to order a regime of counselling for him followed by or coupled with reintegration therapy, I will not do so. He has in his own testimony and by his own conduct not demonstrated an ability and willingness to follow the advice that counsellors and therapists may provide. He sees the majority of therapists with whom he has had contact as having blamed him unjustly for the problems in his relationship with Mackenzie.
[92] He has alleged parental alienation to explain those problems. I do not accept that the Applicant has engaged in parental alienation. She has unwisely kept information from the Respondent about Mackenzie’s activities; and has not been welcoming to his new romantic partners. However, her conduct has been a result of exasperation with the protracted conflict between the parties and an attempt by her to protect Mackenzie from hurt by her father.
[93] At present access for the Respondent would not be in Mackenzie’s best interests. It would be contrary to her wishes and detrimental to her mental health.
[94] In summary I order that the order of Justice Seppi of July 20, 2011 is varied as regards custody and access; that all interim orders are set aside as regards custody and access; that the Applicant shall have sole custody of the child, Mackenzie Noelle Meszen born December 24, 2006; and that the Respondent not have access to the child. While the Applicant asked for certain specific orders that confirmed the legal rights of a parent with custody, I do not find it necessary to make such orders. The Applicant will have sole custody with its legal rights.
III. THE ECONOMIC ISSUES
[95] The parties over the course of the lengthy trial agreed on the record on a number of admissions regarding the economic issues. The record contains particularly significant statements of admissions on April 4, 2018, April 10, 2018, July 4, 2019, and October 22, 2019. Further, exhibit K1 and exhibit L were used by the parties in making admissions. I will refer to relevant admissions in addressing the economic issues.
A. EQUALIZATION
[96] The value of the Applicant’s interest in her family trust on valuation date is admitted to be $ 55,530.70.
[97] There are four issues which I must determine in order to make the equalization calculation.
[98] First, based on the evidence of Thomas Arkay I which I accept as credible and reliable, I find that the value of the Applicant’s interest in the family trust as at the date of marriage was as set out in exhibit 7, $ 183,770.00.
[99] Thomas Arkay has been a chartered accountant and certified public accountant since the early 1970’s. He has done work for the family of the Applicant. His oral evidence and exhibit 7, a letter dated July 20, 2016 and written by him, established the value of the Applicant’s interest in the family trust. That value was based on the bona fide offer for the chief underlying asset of the trust made in close time proximity to the date of the marriage. As noted above, the value Mr. Arkay gave for the Applicant’s interest in the family trust at the date of marriage was $183,770.00. The offer to which I have made reference was not implemented by a completed transaction, but is evidence which I accept of the fair value of the chief asset of the trust.
[100] The Respondent asserted that I should adopt a value of that asset based on book value; however, the approach I have accepted is the one argued for by the Applicant, namely to find fair value in the circumstances of the case as discussed in Sartori v. Sartori, 1993 8685 (ON SC), 13 O.R. 3d 710 (Ont. Gen.Div.).
[101] On a second issue, I accept the testimony of Isaac Meszen, brother of the Respondent, that he was owed $10,000 by the Respondent as of valuation date.
[102] Similarly, on the third issue I accept the evidence of Helena Meszen, mother of the Respondent, that he held in trust for her on valuation date $7380.24 for her funeral expenses which he returned to her.
[103] Lastly, I accept the combination of the opinion evidence of Mauro Forte and Michael Candeloro as establishing that the value of the Respondent’s vending machine business was $12,800 as of the date of the marriage.
[104] I further note that the parties now agree that the Respondent owed to Scott Miller on valuation date a debt of $400.
[105] Since the remaining figures on exhibit K1 are agreed by the parties, I can now set out the calculation of the equalization payment owed to the Applicant by the Respondent. I am showing the $7380.24 held by the Respondent in trust for funeral expenses for his mother as excluded property as agreed by the parties on exhibit K1.
Calculation of Net Family Property
Respondent
Value of Property Owned on Valuation Date $142,735.69
Value of Debts and other Liabilities on Valuation Date $15,361.78
Value of Property Owned on Date of Marriage $ 21, 800
Debts on Date of Marriage O
Excluded Property 7380.24
Net Family Property $98,193.67
Applicant
Value of Property Owned on Valuation Date $213,388.85
Value of Debts and other Liabilities on Valuation Date $12,037.80
Value of Property Owned on Date of Marriage $185,582.29
Debts on Date of Marriage $6233.15
Net Family Property $22,001.91
Equalization Payment Owed by Respondent to Applicant $38,095.88
[106] The Applicant requested in oral submissions that the payment of the equalization amount be made within 30 or 60 days of the date of the order. I order that it be paid by the Respondent to the Applicant within 60 days of the date of my order.
B. CHILD SUPPORT AND S. 7 EXPENSES
[107] Exhibit L documents an agreement of the parties, which is that the document establishes the truth of its contents, subject to certain legal arguments raised by the Respondent as to the legal availability for s. 7 purposes of expenditures made by the Applicant and shown in the second to last column of Schedule B of the document.
[108] The parties agree that their income after 2018 until the date of my order was their income as declared for tax purposes for 2018, namely $60,758 for the Applicant and $62,191 for the Respondent. They also agree that child support paid after April of 2018 and until the date of my order was paid at the same rate as shown in exhibit L Schedule B for 2018, and that no s. 7 expenses were paid in that period by the Respondent.
[109] I intend now to set out the arguments of the parties, the governing legal principles, and then apply the law and make orders regarding child support and s. 7 expenses.
(i) Arguments of the Applicant
[110] The Applicant submits that all of the expenses paid by her as set out in the second to last column of Schedule B of exhibit L qualify as s. 7 expenses. She seeks an order that within 30 or 60 days the Respondent pay her the difference between the arrears of s. 7 expenses owed by the Respondent in the sum of $19,118.12 and the overpayment of child support by the Respondent of $2500.00, being $16,618.12 (as shown on Schedule B of exhibit L).
[111] Going forward she seeks an order for table child support for Mackenzie from the date of the order I make, in the amount of $577.00 per month based on the Respondent’s 2018 income of $62,191. The Applicant submits that the amount should be permanently fixed in that order, to be changed only if the Respondent suffers a catastrophic, involuntary drop in income; she seeks that term for the purpose of ending the conflict between the parties, a goal which she argues is in the best interests of Mackenzie. Alternatively, she seeks a permanent order without that term and subject to application of s. 25 of the Federal Child Support Guidelines.
[112] Further, the Applicant seeks an order that commencing on January 1, 2019 the Respondent pay the Applicant $375 per month for s. 7 expenses for as long as Mackenzie is in full time attendance in school, including post-secondary education. The Applicant also seeks that that order be fixed, subject to being changed only if the Respondent suffered a catastrophic, involuntary drop in income. Lastly, she seeks that the Respondent be ordered to pay any arrears in respect of that obligation within 30 days of my order. She justifies the need for the fixed term on the same rationale upon which she relies for the future child support order sought. At present the competitive dance engaged in by Mackenzie is the sole activity for which s. 7 expenses are claimed by the Applicant.
(ii) Arguments of the Respondent
[113] The Respondent disputes the s. 7 expenses claimed by the Applicant on exhibit L on the basis that he did not consent to those expenditures, and on the basis that expenses for extracurricular activities not at the competitive level do not meet the criteria laid down by s. 7 of the Federal Child Support Guidelines.
[114] With respect to the future s. 7 expenses, he disputes the competitive dance expenditure as not reasonable. He also seeks an order that he not be obliged to pay any portion of a s. 7 expense which he has not approved in advance, unless there is a court order authorizing it; and that he must receive a receipt evidencing a s. 7 expense before being obliged to pay it.
(iii) Governing Legal Principles
[115] In Titova v. Titov, 2012 ONCA 864, [2012] O.J. No. 5808 (Ont.C.A.) at paragraph 23 Justice Rouleau for the Court set out the principles governing the recognition of s. 7 expenses:
23 In awarding s. 7 special and extraordinary expenses, the trial judge 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 the separation." If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, 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.
[116] In Hawkins v. Hawkins, 2019 ONSC 7149 Justice Gregson at paragraphs 73 and 74 elaborated on those principles:
73 The onus is on the parent seeking the special or extraordinary expense to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 2005 14132 (ON CA), [2005] O.J. No. 1695, (Ont. C.A.).
74 To determine reasonable and necessary the court in Piwek v. Jagiello, 2011 ABCA 303, [2011] A.J. No. 1074 (C.A.) and Correia v. Correia, 2002 MBQB 236 stated the following factors should be taken into consideration:
1.The combined income of the parties;
2.The fact that two households must be maintained;
3.The extent of the expense in relation to their combined income;
4.The debt of the parties;
5.Any prospect for a decline or increase in the parties' means in the near future; and
6.Whether the non-custodial parent was consulted about the expenses before they were incurred.
(iv) Analysis and Orders
[117] Addressing the s. 7 expenses covered by Exhibit L, I reject his argument that the consent of the Respondent to the expenses was required as a precondition to the ordering of reimbursement. I accept the testimony of the Applicant, born out by the expert evidence, that the high conflict nature of the relationship between the parties made consultation by the Applicant with the Respondent about s. 7 expenses for Mackenzie extremely difficult; moreover, such consultation is a consideration and not a precondition for reimbursement as noted in Hawkins v. Hawkins, supra.
[118] I also reject the argument that only competitive extracurricular activities satisfy s. 7. To the contrary the wording of s. 7 does not support that argument. Moreover, Justice Gray in his interim order of June 4, 2010 in the case at bar in paragraph 3. recognized no such requirement in making an order for s. 7 expenses for gym and swimming.
[119] There was some dispute between the parties as to whether daycare and camp expenses (which were listed on Schedule A of exhibit L) were admitted by the Respondent as falling within s. 7. I find that daycare expenses were subject of that admission; in any event, I find that s. 7 (1)(a) covered both the daycare and camp expenses addressed in exhibit L in view of the needs of the Applicant relative to employment.
[120] As to the future s. 7 expense claimed for competitive dance, I do not accept the $375 monthly sum claimed as reasonable, having regard to the income of the parties. I accept that $200 monthly would be reasonable.
[121] I will now set out my orders on child support and s. 7 expenses.
[122] I order that the Respondent within 60 days pay to the Applicant $16,618.12, the difference between the overpayment of child support and the arrears of s. 7 expenses on exhibit L.
[123] I order that the Respondent pay the Applicant the monthly sum of $200 for s. 7 expenses for Mackenzie’s competitive dance on the first of each month commencing January 1, 2019. Any arrears are to be paid within 60 days of this order. S. 25 of the Federal Child Support Guidelines and any other statutory rules regarding information sharing will govern information sharing between the parties in respect of this s. 7 expense order.
[124] I order that the Respondent pay the Applicant the monthly sum of $ 577 on the first of each month for child support of Mackenzie commencing May 1, 2018. Any overpayment of that sum already made is to be credited to arrears owed by the Respondent under the terms of orders I have made in these reasons for judgment, or repaid within 60 days by the Applicant. Further, I have made this order for monthly child support as well as the order for monthly s. 7 expenses based on the incomes for the parties admitted for 2018, being $60,758 for the Applicant and $62,191 for the Respondent; as noted above, the parties admit that those income figures still apply as of the date of these reasons for judgment. S. 25 of the Federal Child Support Guidelines and any other statutory rules regarding information sharing will govern information sharing between the parties in respect of this child support order.
[125] A support deduction order shall issue to allow enforcement by the Family Responsibility Office of my orders regarding child support and s. 7 expenses.
IV. COSTS
[126] Submissions as to costs are to be made in writing. They are to be of no more than 4 pages in length, excluding a bill of costs. The Applicant shall serve and file her submissions within 21 days from release of these reasons for judgment. The Respondent shall serve and file his submissions within 21 days from service by the Applicant of her submissions. There shall be no reply.
Bloom, J.
Released: January 11, 2021
COURT FILE NO.: 99/13
DATE: 2021 01 11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Holly Noelle Meszen
Applicant
- and –
Peter Meszen
Respondent
REASONS FOR JUDGMENT
Bloom, J.
Released: January 11, 2021