COURT FILE NO.: 15-402
DATE: 20210331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sheila McDonald
Applicant
– and –
Perry Thompson
Respondent
P. Gardner, counsel for the Applicant
Self-Represented
A. Bellefeuille, counsel for OCL
HEARD: March 15, 2021
Lacelle, J.
REASONS FOR RULING (MOTION TO CHANGE)
Introduction
[1] The Applicant, Ms. McDonald, brings a motion to change the final order of Justice Lafrance-Cardinal dated April 12, 2017. This order was imposed on consent of both parties. The Applicant asks the court to order new terms relating to parenting, table child support, and s. 7 expenses. The Respondent opposes the changes sought.
[2] Following my review of the evidence and given the legal principles at issue, I am persuaded, on a balance of probabilities, that only certain changes to the final order should be made. These are my reasons for my ruling.
The history of the motion
[3] The Applicant brought her Motion to Change in November of 2018 (the Respondent was served with the motion on November 21, 2018). The first appearance in court on the motion was on January 8, 2019. At the first appearance, the Respondent was given an extension of time until January 28, 2019 to file his responding documents. While he filed a Response to Motion to Change on January 31, 2019, the Financial Statement he provided was incomplete. It was sworn on January 31, 2019.
[4] A case conference was scheduled for May 13, 2019. The Respondent did not serve and file a brief. A date for the hearing of the motion was set.
[5] The motion was scheduled to be heard on September 3, 2019. On that date, the Respondent requested and received an adjournment of the motion to permit him to retain counsel since the issues before the court involved the parenting order and the best interests of the children. At that time, the parties also consented to an order requesting the appointment of counsel for the children.
[6] The motion was again scheduled to be heard on March 6, 2020. By that time, counsel for the children had been appointed. The matter was converted to a case conference since it was the first appearance by counsel for the children. The Respondent did not attend nor call in to the conference as he had told counsel he would. The matter was adjourned to permit a case conference to be held with the Respondent’s participation.
[7] Following the disruption to court proceedings as a result of the pandemic, the case conference was scheduled for August 24, 2020. The Respondent did not attend. At that time, counsel for the children informed the court that the parties had met with her for a disclosure meeting in February 2020. The Applicant advised that since that time, the Respondent had not agreed to sign any minutes of settlement. Given the failure of the Respondent to attend, the Applicant was given leave to schedule the hearing of her motion. The Respondent was advised by the court in its endorsement on that date that he should consider his position on all matters at issue and communicate his position to the Applicant’s counsel. He was informed of the costs consequences that might follow were he to ignore the proceeding.
[8] The motion was finally scheduled for hearing on March 15, 2021. Both parties attended by teleconference, as did counsel for the children. The Respondent confirmed he had filed no documents for the motion aside from his Response to the Motion to Change and his Financial Statement, both of which were filed in early 2019.
The material change in circumstances
[9] The children involved in this case are now 17 and 15 years old.
[10] The evidence on the motion is that the children have been in the Applicant’s primary care since September 2017 (in S.’s case) and September 2018 (in Z’s case). The Applicant indicates that these changes occurred to facilitate the children attending a certain school.
[11] The original order provided for a shared custody arrangement. I am satisfied that this change in living arrangements constitutes a material change in circumstances that allows for re-consideration of the appropriate order in regards to parenting and table child support. I will address s. 7 expenses later in these reasons.
The parenting terms
The positions of the parties and counsel for the children
[12] The Applicant seeks to vary the joint custody order regarding final decision-making to permit her to have the sole decision-making responsibility. In support of that change, she cites a history tending to show that the Respondent is either not responsive to her attempts to communicate about issues affecting the children, and instances where he has withdrawn his consent to an issue or claimed not to have given it. Alternatively, the Applicant would accept retaining a joint custody designation provided the new order provides her with the authority to make the final decision in the event of a dispute, or in the event the Respondent does not respond to her attempts to discuss whatever is at issue. The Applicant also seeks to confirm that the children shall be primarily resident with her and that the shared parenting order no longer applies.
[13] The Respondent says he has been excluded from decision-making and that in effect, the Applicant has been making the decisions for the children for some time without his input. Going forward, he does not want to be entirely cut out of this role in the children’s lives. He suggests that the Applicant’s motion is an effort to alienate him from the children. However, he makes no submissions suggesting the shared parenting time set out in the original order should continue.
[14] Counsel for the children reports that the children are very mature, well-spoken, and that they do not appear to be influenced by either parent. The children spoke positively about both parents. They are happy with their current parenting routine and the time they spend with each parent. Counsel suggests that it would be in the children’s best interests to continue with joint decision-making by the parents, but to permit the Applicant to have final decision-making authority. Counsel suggests that a time frame for communicating about issues and a requirement to communicate using My Family Wizard would be of assistance to the parents in making decisions in the children’s best interests.
Analysis and findings
[15] There is no dispute as to the fact that each of the children is now primarily resident with the Applicant. While the circumstances that led to this change may not be agreed to by the parties, it is not clear on this evidentiary record that it is the result of efforts by the Applicant to alienate the children from their father, as he suggests. Certainly, there has been a great deal of conflict between the parties about what activities are appropriate for them, and this difference to the approach to these issues may have played a part in the children’s preferences about where their primary residence would be. The Respondent appears to recognize that the children have preferred to be in the care of their mother to facilitate their activities, school attendance, and social contact with friends.
[16] With respect to decision-making, the Applicant has provided detailed evidence about some of the difficulties that she has experienced. I have no reason to reject her evidence on these issues and I accept it. For instance, there was an occasion where the Applicant had obtained the Respondent’s consent to travel with the children in the United States, but the Respondent called the police when the children were not returned to his care in accordance with the regular schedule. The CAS and police became involved. The CAS closed its file and confirmed in its reporting letter to the Applicant that the Respondent indicated he had forgotten about the prior agreement with the Applicant which was recorded on My Family Wizard.
[17] Another problem arose in relation to getting passports for the children. The Applicant recounts that the Respondent denied signing the children’s applications, leading federal authorities to question the authenticity of the applications. The Applicant, who is employed by a bank, was very concerned about the prospect of a fraud charge and its impact upon her employment. Her counsel tells the court that the difficulties with the issuance of passports for the children also required a motion to sort out. Because of these and other difficulties in their communications, the Applicant requests sole decision-making authority for the children going forward. I note, however, that the draft order provided by her counsel (subsequent to the hearing of the motion) includes terms that reflect her alternative position that final decision-making responsibility would also be in the children’s best interests.
[18] On the issue of responsibility for decision-making, I agree with the Applicant’s alternative position and the position taken by counsel for the children about the appropriate changes to the original order. Provided the Applicant has the authority to make a final decision, the children will not be harmed by a legal limbo where they risk missing opportunities for things like counselling or travel because the parents have not been able to coordinate or communicate a joint position. The conflict between the parents is such that I find that it is in the children’s best interests that one parent have the authority to make the final decision on issues where they disagree. The children will be primarily resident with the Applicant and it makes sense that she have the authority as the final decision-maker. I find this is in the children’s best interests.
[19] However, preserving an order that permits both parents to have the opportunity to have input about what decisions are in the best interests of the children emphasizes that the Respondent is not to become a marginal figure in the children’s lives. He is the father to the children. His input into decisions that affect them matters, to him, and more importantly, to the children. Accordingly, while the order shall be changed to provide for final decision-making authority to the Applicant and will confirm her home is the primary residence for the children, it will not provide for sole decision-making responsibility. I find the latter order would not be in the best interests of the children.
[20] Insofar as the order for the Respondent’s parenting time is concerned, I am satisfied that the order sought by the Applicant is in the children’s best interests given the ages of the children and the input from their counsel about their views and preferences. The proposed terms regarding the Respondent’s parenting time accord with the recent history of the time the children are spending with him. I am not persuaded that the children have been inappropriately influenced in respect of their views and preferences. The evidence confirms that the children are still regularly spending time with their father and that the relationships remain intact. Given the age of the children, I give their views and preferences as to the structure for their parenting time with the Respondent significant weight.
[21] In the event it is not already clear, I also find that an order confirming the Applicant’s residence shall be the primary residence for the children is in the children’s best interests, although technically this is not a change since the original order already gave the Applicant this designation for tax purposes. I confirm that I find that the shared parenting arrangement set out in the original order is no longer in the children’s best interests. In this regard, I consider the recent status quo and the input from their counsel that they are happy with this arrangement and this is their preference.
[22] As for communication between the parties, they have previously been directed to use My Family Wizard. It has not been used successfully and so I do not mandate its use again in my order given the costs involved. However, I do think the parties are best served by ensuring that where they communicate about the children, they do so in writing. They may choose the form of written communication that suits them best.
[23] Where major decisions are to be made, I agree that some timelines are helpful. I direct that the Respondent shall respond to the Applicant within three days after he is notified by her of any major decisions to be made on behalf of the children.
[24] In summary, I find the following parenting terms are in the children’s best interests:
The Applicant shall have primary care and residence and final decision-making responsibility for the children. The Applicant shall notify the Respondent in writing of any major decisions to be made regarding the children, except for emergency decisions. The Respondent shall respond in writing within three (3) days. Following consultation and discussion with the Respondent (if he responds in writing), the Applicant may make the final decision.
Notwithstanding the terms of clause 1, the Applicant shall not be required to obtain the Respondent’s consent to travel with the children, or to obtain passports for them. The Applicant shall notify the Respondent of any travel plans with the children outside of the country.
The Respondent shall have liberal and generous parenting time with the children upon reasonable notice to the Applicant, to include alternate weekends for both children and an additional weeknight for Z., while taking into consideration the children’s views, preferences and pre-existing schedules or commitments. Should a child’s activity be scheduled during the Respondent’s parenting time, he shall bring the child to the entire event or activity.
Child support (including s. 7 expenses)
The background
[25] The final consent order of April 12, 2017 provided for no child support payments since the parties’ incomes were similar and they shared parenting time with the children. Additionally, since it was agreed that the Applicant would receive all child tax benefits and other government funds available for the support of the children, the Applicant would be fully responsible for paying the children’s s. 7 expenses.
[26] The Applicant’s counsel informed the court that the Applicant then re-partnered, and as a result of her household income, she no longer receives the same amount in benefits and had to repay a retroactively assessed overpayment of those benefits. There is no evidence before the court on that issue, aside from documents contained in the Applicant’s financial statement. These documents do not permit the court to assess the financial impact on the Applicant of re-partnering since no information is available as to what she was receiving at the time of the original order.
[27] The children are both identified as being on the autism spectrum and have been involved in various activities. The final court order recognizes that the Applicant was also receiving disability tax credit amounts.
[28] On October 10, 2018, the Applicant wrote to the Respondent and requested that he assist in paying some of the expenses for the children. In her email, she indicates that she receives just over $400 monthly from the child tax credit. She points out to the Respondent that she has costs associated with activities, as well as costs for “school uniforms, agendas, school trips, hair cuts and such”. She points out to the Respondent that table support for 2 children based on an income of $52, 000 is $800 per month. She writes: “I am not talking about $800 a month plus half of all extracurricular and school costs but I am looking for some financial help. You must realize how ridiculous it is that you make more than me, have 2 kids, and pay for absolutely nothing”. She asks the Respondent to come up with a fair number for the amount he will contribute to their children’s support. The Applicant tells the Respondent that the court would award her retroactive support and half of all child related costs, without consideration of what she receives from the child tax credit.
[29] The Applicant received no response to this email.
The parties’ positions
[30] The Applicant argues that the Respondent should have been paying table child support from the time each child became primarily resident with her. She seeks an order setting ongoing child support and establishing arrears for the years 2017-2020. The Applicant also seeks an order for ongoing s. 7 expenses and arrears from 2017-2020.
[31] The Respondent resists the orders sought by the Applicant. In his view, the children are enrolled in excessive and unaffordable extracurricular activities. He acknowledges that the added time the children spend at their mother’s house to facilitate their activities, school attendance, and social contact with friends, gives rise to the consequence that the Applicant and her new partner have added expenses. In his response to the motion to change, he says he would be “willing to negotiate a fair amount to help offset these costs”, but that having to pay table amount child support and s. 7 expenses would place undue hardship on him and his fiancée. He says the financial orders sought by the Applicant will make it impossible for him to keep working because he has the expense of driving an hour to work and requires funds to sustain his employability.
Guidelines child support
[32] The Respondent’s Financial Statement dated January 31, 2019 did not include any income tax returns or Notices of Assessment. It did include pay stubs from December 2018 and T4 slips from 2017 and 2016.
[33] The Respondent did not respond to the request to admit which set out that his income was as follows: $59, 868.04 in 2016; $59, 955.07 in 2017; and $63, 983.77 in 2018.
[34] The Applicant requests that ongoing child support be ordered based on the Respondent’s 2018 income.
[35] The Respondent’s Financial Statement is dated and incomplete. While he has made submissions about hardship, he has not filed any current financial statement or provided evidence which would justify a finding of hardship within the meaning of that term as defined in s. 10 of the Child Support Guidelines.
[36] Further, the evidence he has filed gives rise to real questions about his financial circumstances. For instance, the Respondent claims an amount in his monthly expenses for property taxes but lists no properties in his assets. His assets do include a relatively new ATV valued at $3000.00. There is no evidence that any debt repayment (total debts of $10, 574.42 are claimed) relates to debt incurred to support the parties or children while they cohabited, or to earn a living. The Respondent lists no details regarding a pension plan, yet the T4 slips he attaches to his financial statement confirm RPP contributions of $4329.08 in 2017 and $2369.22 in 2016. I find that the information the Respondent has provided is incomplete and unreliable. Further, the information that has been provided does not justify a finding of hardship.
[37] I find that the best evidence available to the court about the Respondent’s income is as indicated in the request to admit. The figures are generally consistent with the incomplete financial statement filed by the Respondent. In assessing the claim for child support, I adopt the figures from the request to admit to determine the Respondent’s annual income.
[38] Given my conclusion that a hardship claim is not supportable on this evidence, I find that the Respondent must pay table child support for the benefit of his two children, who are now primarily resident with the Applicant.
[39] Therefore, commencing March 1, 2021, the Respondent shall pay monthly child support in the amount of $974.56 to the Applicant for the benefit of the children based on his 2018 income of $63, 983.77.
Child support arrears
[40] With respect to arrears for child support, the court must consider whether it is appropriate to make a retroactive award.
[41] By way of background, I note that the undisputed evidence is that the child S. started living primarily with the Applicant in September of 2017. Z. joined his sister and was primarily resident with the Applicant from September of 2018.
[42] The Applicant raised the issues of support for the children in an email to the Respondent dated October 10, 2018. The motion to change was served November 21, 2018.
[43] The terms of the final order of April 12, 2017 are also relevant. The final order (clause 11) sets out that at that time the parties earned roughly the same income, and no child support was payable on that basis. The order also provided that income disclosure was to be made by the parties commencing June 1st, 2017 and that if there was any discrepancy that warranted a child support order either parent could bring a motion to vary. The Respondent did not dispute the facts in the request to admit, which state that his income was higher than that of the Applicant and he should have paid her offset Guidelines support up to and including the month of August 2017.
The legal principles
[44] I consider the law as it is set out in D.B.S. v. S.R.G., 2006 SCC 37, and the further directions on how to assess a request for retroactive child support in the recent case of Michel v. Graydon, 2020 SCC 24. In this case, the Applicant is asking the court to retroactively assess child support to the date that S. became primarily resident with her. This was 13 months before the Applicant sent an email to the Respondent raising the fact that he was contributing nothing to his children’s financial support and that this was unacceptable.
[45] Michel identified a number of important principles from D.B.S, including the following (see para. 10 of Michel):
- Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child's parents (para. 38);
- Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);
- The child support owed will vary based upon the income of the payor parent and is not confined to furnishing the "necessities of life" (paras. 38-45);
- Retroactive awards are not truly "retroactive", since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);
- Retroactive awards are not confined to "exceptional circumstances" or "rare cases" (para. 5); and
- In determining whether to make a retroactive award, the payor parent's interest in certainty in his/her obligations must be balanced with the need for "fairness and ... flexibility". A court should consider whether the recipient parent's delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (para. 133).
[46] Michel has added or emphasized the following principles which are also relevant to the analysis of whether a retroactive award is appropriate:
- When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of a payor parent's neglect (para. 31);
- There is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parent’s indifference to their child support obligations. This is not to say that hardship is required to ground an award for retroactive child support, as there is also nothing exceptional about relief that creates a systemic incentive for payor parents to meet their obligations in the first place (at para. 31);
- Just as an order of child support is intended to provide children with the same standard of living they enjoyed when their parents were together (D.B.S. at para. 38), an order of retroactive child support provides an (albeit imperfect) remedy where that does not occur. Courts are not to be discouraged from defending the rights of children when they have the opportunity to do so (para. 31);
- Retroactive child support awards will commonly be appropriate where payor parents fail to disclose increases in their income (at para. 32);
- At any given point in time the payor parent has the information required to determine the appropriate amount of child support owing, while the recipient parent may not. Since the payor parent is the one who holds the cards, and where there has been inadequate disclosure, the recipient parent will not be well-positioned to marshall the case for variation (at para. 32);
- Failure to disclose material information is the cancer of family law litigation (at para. 33);
- Payor parents are typically well aware of their obligation as a parent to support their children and are subject to a duty of full and honest disclosure. The payor parent’s obligation to disclose changes in income protects the integrity and certainty afforded by an existing order or agreement respecting child support. Absent full and honest disclosure, the recipient parent — and the child — are vulnerable to the payor parent’s non-disclosure (at para. 33);
- The failure to disclose income information constitutes blameworthy conduct within the meaning of D.B.S. (at para. 34);
- The date of the effective notice to the payor parent is not relevant when a payor parent has engaged in blameworthy conduct, irrespective of the degree of blameworthiness (at para. 36).
Analysis and findings
[47] With respect to the D.B.S. factors, I note that there is no evidence to explain why the Applicant delayed in bringing her motion to change to seek a new child support order. However, this issue is of considerably less significance (if it is relevant at all where blameworthy conduct is found) given the relatively limited time at issue (e.g. 13 months from the time of the material change to notice to the Respondent that the Applicant was claiming child support), and the evidence of blameworthy conduct by the Respondent during that time frame.
[48] I also consider the hardship the Respondent’s failure to pay child support has caused for the children or the Applicant. The record is clear that the Applicant’s annual income has been significantly less than that of the Respondent and that the children have special needs. The Applicant states in her change information form that she struggles to cover the costs associated with caring for the children. I find that the absence of the funds owed to the Applicant for the benefit of the children have caused hardship that has been unfair to the Applicant and the children.
[49] Given that it should have been clear to the Respondent that child support would be payable by him when one of the children began to live primarily with the Applicant, and that he had failed to make the necessary income disclosure and adjust the offset child support before the change in primary residence, I find that the Respondent engaged in blameworthy conduct. As noted in D.B.S., and more recently confirmed in Michel, parents have a responsibility to ensure that their children are receiving an appropriate amount of support. Where, as in this case, the children have special needs, that responsibility is even more acute.
[50] That the circumstances underlying the original order had changed would have been abundantly clear to the Respondent as of September 1, 2017. There is nothing unfair about a retroactive award to that date. Given all the circumstances in this case and the law as set out in D.B.S. and Michel, I find that a retroactive award to the time that S. became primarily resident with the Applicant is appropriate and fair.
[51] For the period of January 1, 2019 to December 31, 2019, based on the best evidence of the Respondent’s 2018 income of $63, 983.77, the monthly amount payable by the Respondent was $974.56 for two children. This results in arrears payable by the Respondent to the Applicant for 2019 of $11, 694.72 ($974.56 x 12 months).
[52] For the period of four (4) months between September 1, 2018 to December 31, 2018, based on the best evidence of the Respondent’s income for 2017 ($59, 955.07), the monthly payable by the Respondent was $913.90 for two children. This results in arrears payable by the Respondent to the Applicant for child support in 2018 of $3, 655.60 ($913.90 x 4 months).
[53] For the remaining months of 2018 (e.g. January 1, 2018 to August 31, 2018), only one child was primarily resident with the Applicant while the other shared time equally between the parties. For these eight (8) months, the Respondent shall pay to the Applicant arrears of $3, 727.20 based on offset support of $465.90 monthly. This is based on the Respondent’s 2017 income of $59, 955.07 (which results in monthly payment to the Applicant of $913.90 monthly for two children) minus the payment of $448.00 monthly owed by the Applicant to the Respondent monthly based on support for one child and the Applicant’s 2017 income of $48,400.00.
[54] Finally, for the four (4) months from September 1, 2017 to December 31, 2017 when S. was living with the Applicant, the Respondent’s child support arrears are fixed at $1,838.16 based on offset support of $460.00 monthly. The offset support is based on the Respondent’s 2016 income of $59, 868.04 which results in guidelines support of $912.54 monthly (for two children) less $453.00 monthly based on the Applicant’s 2016 income of $49,100.00 and the guidelines support payable (for one child).
[55] In summary, as of February 28, 2021 arrears in child support payable by the Respondent to the Applicant for the benefit of their two children are fixed in the amount of $20, 915.68 to be repaid at the rate of $300.00 per month commencing March 1, 2021, in addition to ongoing support, until repaid in full.
[56] I confirm that while the Applicant’s materials for the motion rounded up the figures relating to the Respondent’s income, I have used the precise income figures listed in the request to admit for these calculations.
Section 7 expenses
[57] The Applicant originally sought an order that on a prospective basis, the s. 7 expenses for the children shall be capped at $7, 000.00 annually. In her draft order, she revises that figure and suggests that expenses be capped at $4, 000.00 (e.g. $2, 000.00 per child annually). She requests an order requiring the Respondent to pay her $166.67 per month, enforced by the Family Responsibility Office.
[58] The Applicant seeks a separate term in the order to address payment of the child Z.’s orthodontic treatment. She seeks an order that the Respondent pay $154.17 monthly for the months between November 1, 2019 and October 1, 2021, when the treatment will end. This payment represents 50% of the costs of $7, 400.00 divided into 24 month installments. She proposes that the Respondent may then submit proof of his payments to his insurance provider and any reimbursement owing shall be payable to him directly by his provider.
[59] The Applicant seeks an order for arrears of $15, 428.37 for s. 7 payments for the years 2017-2020, and requests that they be repaid at the rate of $250.00 per month. She seeks arrears for each year as follows:
a. In 2017, 50% of annual receipts of $11, 935.61 = $5, 967.81; b. In 2018, 50% of annual receipts of $7, 742.20 = $3, 871.10; c. In 2019, 50% of annual receipts of $9, 501.37 = ($4, 750.69 - $353.50 paid = $4, 397.19); and d. In 2020, 50% of annual receipts of $2, 906.60 = $1, 453.30.
[60] With respect to the evidence in support of the orders sought, the Applicant’s motion to change information form states that the children are on the autism spectrum and need physical activities to help them. In that form, the Applicant states that she struggles to cover all the costs on her own. The form includes a summary of expenses for the children which lists swimming, competitive basketball, trampoline, lacrosse, school uniforms, city bus passes, and extended health premiums.
[61] The Applicant attaches receipts to various affidavits showing sums spent on behalf of the children. There is no further information about the activities relating to the expenses, which include, amongst other things, air fare to Vancouver from Ottawa for both children, clothing expenses, minor school expenses (e.g. $15 for a school musical), and receipts from organizations related to the children’s extracurricular activities. The Applicant also attaches a letter confirming the total fees for Z.’s orthodontics treatment. There is no evidence about the activities and expenses incurred on behalf of the children while they cohabited with both parents. There is no evidence beyond what is contained in the motion to change form about why the expenses are necessary and reasonable, or how they meet the definition of “extraordinary” (for expenses apart from the orthodontics).
[62] The Respondent opposes the orders sought. He says that the Applicant uses the children’s autism diagnosis as justification for excessive and unaffordable extra-curricular activity. He says that no report relating to the diagnosis of the children suggests the need for extra-curricular activity as a means of treatment, particularly travelling to play competitive sports. He argues that the Applicant has ignored the terms of the original order and has enlisted the children in excess of the 2 sessions per week it contemplated. He states that the Applicant’s “intentions to provide our children with everything in the world although noble is not practical or always possible”. He says payment of these expenses would cause hardship to him and his fiancée.
The law
[63] Section 7 expenses relate to special or extraordinary expenses related to the support of a child and are paid above and beyond the child support table amount.
[64] Section 7 expenses must fall within the prescribed list of expenses in paragraphs 7(1)(a) to (f) under both the federal and provincial child support guidelines. Not every expense incurred on behalf of a child will qualify.
[65] The list of s. 7 expenses includes “extraordinary expenses for extracurricular activities” (s. 7(1)(f). “Extraordinary expenses” are defined in the guidelines. Section (1.1)(a) is applicable here. It defines “extraordinary expenses” as expenses that exceed those that the parent requesting the amount can reasonably cover, taking into account that parent’s income and the amount that parent would receive under the applicable table (where table amount has been found appropriate).
[66] In considering whether an expense is a s.7 expense, a court will consider the evidence relating to the details about the expense (including the need for it and its reasonableness) having regard to the child support table amount, the parties’ incomes, the special needs or abilities of the child, and/or other relevant factors.
[67] The onus is on the party who seeks contribution for the expense to show that it falls within s. 7 of the guidelines.
The terms of the original order
[68] With respect to s. 7 expenses, the original order provides as follows:
a. Clause 3: The parties agree that the children will be entitled to two periods of extra curricular activities per week at any given time, right now it’s gymnastics for Z. twice a week, and swimming for S. once a week and art for S. once a week. … b. Clause 4: It is agreed that the father will attend the children’s dentist office and orthodontist office to make arrangements for the extra 20% to be paid off his benefits as the mother has coverage for 80%. Any amount not paid by either of their plans will be shared equally between both parties; c. Clause 5: The mother will be responsible to organize the children’s dentist and orthodontist. She will also organize S.’s counselling; d. Clause 13: The s. 7 expenses of the children are presently all paid by the mother in consideration of her obtaining the full child tax credit and disability tax credit for both children.
Analysis
[69] While it is clear that there has been a material change in circumstances that justifies a new child support order and a retroactive assessment of table child support owed, it is not clear that this conclusion also applies on the issue of s. 7 expenses.
[70] With respect to the expenses for Z.’s orthodontic work, that issue was contemplated in the original order. I am not persuaded that any change that has occurred since warrants a new term to address payment for the orthodontic work. The original order continues to apply and the parties are to follow it. A motion to enforce that order may be brought if necessary.
[71] With respect to the “extraordinary expenses” for which the Applicant has submitted receipts, I have no additional evidence that permits me to fairly assess the extent to which the Applicant has paid for s. 7 expenses which meet the definition of “extraordinary”, or whether such expenses could be said to be outside of the scope of the terms both parties agreed to in the original order.
[72] I also note that while the Respondent would have had fair notice of the change in his guidelines child support obligations when one of the children started to reside primarily with the Applicant, I am not satisfied that any issues with the terms of the order as it pertained to s. 7 could reasonably have been known to him until the Applicant asked him to contribute to the children’s support in October of 2018.
[73] Considering the evidence and the circumstances, including the terms of the original order, I am not satisfied that a retroactive order for s. 7 expenses is appropriate. I am also not satisfied that it is appropriate to make a new s. 7 order to address ongoing expenses. This is because I am not satisfied that there has been a material change in circumstances that warrants a departure from the original terms, and also because I have insufficient evidence to craft an order that would be fair. This is particularly so considering that the Respondent is now required to pay table support and has been assessed arrears to pay for the years to which the s. 7 argument applies.
[74] It may be that the children will pursue post-secondary education. In that event, nothing in this ruling should be taken as foreclosing the Applicant’s right to bring a motion to change to address expenses the children may incur for post-secondary education.
[75] In the result, the Applicant’s request to change the original order as it relates to s. 7 expenses, and award retroactive s. 7 expenses, is dismissed.
Additional issues
[76] The final order from April 2017 recognized that the Applicant was paying all carrying costs associated with the matrimonial home, even though she was not living in it. These costs remain outstanding between the parties. For a period of time, the Respondent has been paying $150.00 every two weeks towards these costs. The Applicant requests an order formalizing this arrangement.
[77] Further, costs orders have since been made against the Respondent. He has not made any payments towards these sums. The Applicant seeks to address these costs in this proceeding as well.
[78] These costs are all reflected in the court record for this file. The orders sought by the Applicant are therefore granted as follows:
- In consideration for having signed all required real estate transfer and/or mortgage forms, the Respondent’s full and final obligation to the Applicant with respect to their jointly-owned property is fixed in the amount of $12, 300.00 as of 1 September 2019. This amount includes one (1) outstanding costs order and two (2) previous orders related to carrying costs of the jointly-owned home, one of $200.00 per month and another for a further $300.00 per month.
- The Applicant shall be paid $300.00 monthly, commencing March 1, 2021 and each month thereafter until the entire $12, 300.00 is paid in full.
Conclusion
[79] Accordingly, the Applicant’s motion is allowed in part and as set out above on the issues of parenting and table child support. The Applicant’s motion as it pertains to s. 7 expenses is dismissed.
[80] If the parties are not able to resolve the issue of costs for the motion, submissions of no longer than 3 pages (plus attachments) may be submitted to my attention. The Applicant shall have 30 days from today to file her submissions. The Respondent shall have a further 10 days from receipt of the Applicant’s submissions to respond, failing which, the court may consider the issue of costs on the basis of the materials filed to that point.
The Honorable Justice Laurie Lacelle
Released: March 31, 2021