COURT FILE NO.: 3324/15-01
DATE: 2021-04-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALLYSON CHRISTINE CRAIG
Applicant
– and –
DOMINIC NIRO
Respondent
Self-Represented
Self-Represented
HEARD: March 23, 2021
GAREAU J.
REASONS ON MOTION
[1] Before the court is a motion brought by the respondent, Dominic Niro, in which he claims section 7 (extraordinary expenses) from the applicant, Allyson Christine Craig, with respect to their children, Nicholas Niro, born July 2, 2002, and Danica Niro, born September 18, 2005.
[2] The motion brought by Mr. Niro is found at Tab 11 of Volume 3 of the Continuing Record.
[3] The most current court order that governs the relationship of the parties is a final order granted on July 3, 2019. This order was made pursuant to written minutes of settlement executed by the parties.
[4] The order provides for a week about sharing of parenting time between the mother and the father. Paragraph 7 or the order provides that Mr. Niro pay monthly child support to Ms. Craig for the two children, on a differential calculation based on the respective incomes of both of them. The child support provided in the order is $989.00 per month based on the applicant having an annual gross income of $94,897.00, and the respondent having an annual gross income of $169,700.
[5] With respect to the children’s activities and section 7 expenses, paragraph 9 of the order provides for this in detail as follows:
- With respect to activities:
(a) the parties will contribute to the children’s special or extraordinary expenses on a pro rata basis and the applicant shall contribute 36% and the respondent shall contribute 64%.
(b) each child shall be limited to one “rep” category activity. Currently Nicholas is in high school hockey and Danica is in rep hockey.
(c) the party shall pay these expenses directly to the third party providing the activities to the children.
(d) a party will only contribute to the other expense if the party’s consent to the expense in advance, in writing. Neither parent shall unreasonably withhold consent.
(e) the parties shall consult with one another before a new activity is undertaken and no new activity shall be undertaken without the other party’s consent, which consent shall not be unreasonably withheld.
(f) if team fundraising results in a decrease in the child’s expense related to an activity, the decrease in the child’s expense shall be credited to both parties and shall be applied against each pro rata share of the expense.
[6] The claim for section 7 expenses made by Mr. Niro fall under three categories.
(a) Sports related
(b) Cell phone expenses
(c) School expenses
[7] The amount being claimed by Mr. Niro from Ms. Craig, being her 36% as set out in paragraph 9 of the July 3, 2019 order is as follows:
(a) $4,890.56 – sports related
(b) $2,953.54 – cell phone
(c) $1,263.62 – school expenses
[8] In response to a question asked of him by the court during submissions, Mr. Niro acknowledged that there was no discussion with Ms. Craig about these expenses before they were incurred.
[9] With respect to the particulars of the expenses, Mr. Niro sets this out in a flow sheet related to all expenses for the children, some dating back to 2016, which is attached to his affidavit sworn on November 2, 2020. Some of the expenses are for things such as “rain ponchos at Wonderland”, “Beluga encounter”, “belt and bath bombs for Danica from Winners”, and a haircut for the child Nick for his hockey pictures to be taken.
[10] Ms. Craig responds in her affidavit sworn on December 2, 2020, by calling such expenses “frivolous spending/gifting” by the respondent and by stating that what the respondent is asking her to do is reimburse him for gifts that he has purchased for Nicholas and Danica. Ms. Craig claims that she has purchased items for the children as well and that the children have always had school supplies and clothing, purchased by both of their parents. Ms. Craig also deposes in her affidavit that she has paid her pro rata share of all section 7 expenses as ordered and those that have been agreed to in writing with Mr. Niro. Ms. Craig also claims that she has borne some expenses without any contribution from Mr. Niro, such as the child Nicholas’ travel and medical expenses related to his Crohn’s disease diagnosis.
[11] Mr. Niro’s response to Ms. Craig’s allegations is that they are fanciful assertions that are unsubstantiated and untrue. Mr. Niro and Ms. Craig are no strangers to the court. There has been a plethora of proceedings in which they have been involved since they separated over six years ago. Despite the passage of time there is much animosity and mistrust between the two of them.
[12] This, perhaps, explains the detailed provisions as set out in the order of July 3, 2019. The parenting arrangements set out in the order are detailed so the opportunities for uncertainty and confrontation between the parties can be minimized. The same can be said for paragraph 9 of the July 3, 2019 order. The mechanics of how section 7 expenses are triggered and how payments are made are particularized in great detail in paragraph 9 of the order that governs the parties.
[13] Paragraph 9 provides that the children are limited to “one rep” category activity, that these expenses be paid by the parties directly to the third party providing the activity and that “a party will only contribute to the other expense if the party’s consent to the expense in advance, in writing.” Any new activity undertaken is to be consented to by the parties before a section 7 payment is contemplated, as all set out in paragraph 9 of the July 3, 2019 court order.
[14] The cell phone expenses incurred by Mr. Niro were not agreed to in advance by Ms. Craig. The cell phones were purchased for the children and the related expenses incurred for the benefit of Mr. Niro, as acknowledged by him in paragraph 3 of his affidavit sworn on November 2, 2020. Given this and the uncertainty of whether a cell phone expense is in fact a legitimate section 7 expense, Ms. Craig should not be expected to be responsible for a portion of this expense.
[15] Undoubtedly, both parents have purchased school clothing and supplies for the children when each have had the children in their care. Clothing and school supplies are not, in my view, a section 7 expense but are rather subsumed in expenses paid for by the parties when the children are in the care of each parent and subsumed in the ongoing payment of child support.
[16] As to the expenses related to hockey, there is no evidence before this court that these expenses were agreed to in advance by the parties or that demands were made by third parties providing the sporting activities to the children. Therefore, the prerequisites required to trigger the payment of section 7 expenses as provided for in paragraph 9 of the July 3, 2019 order have not been established.
[17] Some of the expenses claimed by the respondent pre-date the July 3, 2019 order. In my view, payment for these expenses should have been provided for in the July 3, 2019 order and negotiated as to their payment at the time minutes of settlement were executed by the parties and the July 3, 2019 order was made.
[18] For the aforegoing reasons, the respondent’s claim for reimbursement by the applicant for section 7 expenses for school clothing and supplies, cell phone expenses and sports related expenses is dismissed.
[19] The motion brough by the respondent, Dominic Niro, at Tab 11 of Volume 3 of the Continuing Record is dismissed on a without cost basis.
Gareau J.
Released: April 7, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALLYSON CHRISTINE CRAIG
- and –
DOMINIC NIRO
REASONS on motion
Gareau J.
Released: April 7, 2021