REASONS FOR ORDER

Nature of Motion

[1] The respondent has brought a motion, seeking to confirm the correct amount of child support that she is to pay and attempts to pay to the applicant for the parties’ two younger children, D.M. and I.M. on and after July 1, 2018. The respondent seeks to pay set-off child support for D.M. and I.M. The applicant submits that the respondent is in breach of the final order of Hood, J., dated April 21, 2007 (“Hood final order”) because the respondent ought to be paying full table child support for D.M. and I.M. The applicant has brought a motion for financial disclosure and child support arrears.

[2] By way of brief background, the parties cohabited for about 6 years. They are the parents of 4 children – 2 boys and 2 girls. The boys, G.M. and L.M. (“the 2 older children”), reside solely with the respondent. The girls, D.M. and I.M. (“the 2 younger children”), reside with both parents, pursuant to a parenting schedule set out in the Hood final order; they spend 6 out of 14 nights with the respondent and 8 out of 14 nights with the applicant.

[3] In addition to addressing child support for the years 2014, 2015 and 2016, the Hood final order provided that starting on June 1, 2017, the respondent was to pay spousal support to the applicant and the parties were to pay child support to each other of their line 150 [now, line 15000] incomes from their filed income tax returns and the respondent was to pay spousal support to the applicant at the midpoint between the low and median Spousal Support Advisory Guidelines figures, with the last support payment being made on August 1, 2021; the respondent was to be given credit for various payments she had made during the years 2014-2017, inclusive; and the parties were to exchange their filed tax returns for 2016 by June 30^th^, 2017 and annually thereafter, by June 30^th^, so long as child support or spousal support is payable.

[4] In 2017, the respondent continued to pay full Table child support for the parties’ 2 younger children and the applicant paid full Table child support for the parties’ 2 older children. Commencing in July 2018, the respondent unilaterally changed the way she calculated her child support obligation and began paying child support for the 2 younger children, pursuant to a set-off calculation (based on the applicant’s purported obligation to pay the Table amount of child support for 4 children to the respondent, which she claims is in accordance with s.9 of the Child Support Guidelines, O. Reg. 391/97 (“Guidelines”)). The respondent maintains that she began to pay the set-off amount because of the shared parenting arrangement. The applicant maintains that the respondent has been in breach of the Hood final order since July 2018 because the order did not contain a provision for set-off child support for the 2 younger children.

[5] The three issues on the motions before me are as follows:

a. To determine whether the respondent was in breach of the Hood final order as of July 1, 2018 by paying the set-off amount of child support?

b. To determine the quantum of child support arrears (both monthly support and s.7 expenses) arising from the Hood final order, if any; and

c. To determine whether there is any outstanding financial disclosure under the Hood final order.

[6] Specifically, the respondent seeks the following relief:

a. an order that, commencing August 1, 2021, and on the first day of each following month,

i. the applicant pay the respondent Table child support of $2,264 a month for the four children; and

ii. the respondent pay the applicant Table child support of $4,576 a month for the two younger children.

b. The effect of the above terms is that the support for the 2 younger children would be paid on a set-off basis. These child support amounts are based on the respondent’s 2020 Line 150 income of $358,230 and the applicant’s 2020 Line 150 income of $98,796.

c. An order confirming that there are no arrears of child support or spousal support owing by either party to the other, up to and including July 21, 2021; and

d. An order dismissing all other claims for relief sought by the applicant.

[7] The applicant seeks the following relief:

a. An order that:

i. she pay Table child support to the respondent for the 2 older children living with the respondent in the sum of $1,451 a month, which is Table child support for 2 children, based on her 2020 Notice of Assessment of $98,365; and

ii. the respondent pay child support to her for the 2 younger children in the sum of $4,576 a month, which is Table child support for 2 children, based on the respondent’s 2020 income tax return of $358,230, leaving a net amount payable to her by the respondent of $3,125 a month;

b. An order that the respondent pay outstanding arrears in the amount of $39.00, plus interest in the amount of 3% per annum;

c. An order that the respondent provide payments to her for the respondent’s share of outstanding s.7 expenses, less the applicant’s share of the s.7 expenses owing by the applicant to the respondent;

d. An order that, from January 1, 2021 to August 1, 2021, the respondent shall pay to the applicant spousal support in the amount of $1,925 a month;

e. An order that the respondent provide her Notices of Assessment to the respondent from 2016 to 2020 and annually for as long as child support is payable;

f. An order that the respondent provide documentation supporting the business expenses claimed in calculating her taxable income, including subledgers from 2017 to date and ongoing;

g. An order that the respondent provide the funds she received for the COVID benefit for the 2 younger children;

h. An order that the respondent provide an updated statement for the Canada Student Trust for the 2 younger children; and

i. An order for costs

[8] The Hood final order provides that the parties are to exchange updated income disclosure annually in accordance with s.24.1 of the Guidelines. The respondent has not provided her Notices of Assessment since 2016. It is on this basis that the applicant seeks the disclosure set out above in paragraph 7 through (h), inclusive.

[9] There is no dispute that, as of August 1, 2021, the applicant’s entitlement to spousal support ends pursuant to the Hood final order.

Litigation History

[10] The parties have been engaged in high-conflict and protracted litigation with one another since 2014.

[11] As stated above, the parties had a 16-day trial in the fall of 2016. Hood, J. released his Reasons for Decision and trial judgment on April 21, 2017.

[12] A number of contempt motions were brought by the respondent between the date of the Hood final order and July 2020 which the respondent referenced in her affidavit material, the details of which are unknown by me.

[13] In April 2019, the applicant brought a motion seeking, among other things, financial disclosure from the respondent and enforcement of the property terms set out in the Hood final order. This motion was heard by Stewart, J. on May 22, 2019.

[14] The motions before me began in July 2020, when the respondent brought a contempt motion in order to address the applicant’s alleged continual refusal to comply with earlier court orders and the Hood final order. The claims made by the respondent related to parenting and included police enforcement and a restraining order against the applicant. At some point, the respondent was directed by the court to reconstitute her motion to a motion to change. As a result, on August 27, 2020, the respondent filed a Motion to Change and filed supporting affidavit material in the fall of 2020.

[15] The Motion to Change the parenting terms of the Hood final order is outstanding. Counsel for the respondent advised that the parties have engaged a mediator to attempt to resolve the parenting issues.

[16] The applicant retained counsel in the Fall of 2020 and brought a motion, seeking the relief referred to in paragraph [7] above.[^1]

[17] The parties filed material in support of their respective motions.[^2] The motions were heard by me on July 15, 2021. I reserved my decision. Below is my decision and the reasons for it.

Background Facts

[18] Again, the parties cohabited for about 6 years. They never married. They are the parents of 4 children. The two older children, both boys, G.M. and M.M., reside solely with the respondent. They do not see the applicant. The younger children, twin girls, I.M. and D.M., reside with both parents pursuant to the parenting schedule where they spend 6 nights out of 14 with the respondent and 8 nights out of 14 with the applicant.

[19] The parenting, child support and spousal support provisions set out in the Order of Hood, J., dated April 21, 2017 provide, among other things, as follows:

a. The respondent has sole custody and primary residence of the 2 older children;

b. The applicant has custody and primary residence of the 2 younger children;

c. The parenting schedule, commencing September 2017, is that the children are with the respondent every Wednesday overnight; alternate weekends from Friday, after school to Monday morning, and alternate Tuesday overnights;

d. The parties are to make major decisions regarding the two younger children after consulting with one another. If they are not able to agree, then the applicant is to make the final decision but not implement it until the expiry of 45 days following notification of the applicant’s decision to the respondent;

e. The respondent was to pay 5 months of Table child support for the 2 younger children for 2014, in the sum of $3,337 per month, against which was to be credited $7,500 paid by the respondent in 2014;

f. The respondent was to pay 5 months of spousal support to the applicant for 2014, in the sum of $2,393 a month, against which was to be credited monthly payments of $1,790, disregarding any tax implications, for a net payment of $603 a month;

g. The respondent was to pay child support for the 2 younger children for 2015, based on an income of $186,000 and the applicant was to pay child support for the 2 older children for 2014, based on an income of $45,904. The respondent was to be credited with a lump sum payment of $10,000 that she had made for child support and all child support payments made by her pursuant to the order of Horkins, J., dated January 27, 2015;

h. The respondent was to pay spousal support to the applicant for 2015, based on an income of $186,000 for her and an income for the applicant of $45,904, at the midpoint between the low and median SSAG figures. The respondent was to be credited with a lump sum payment of $10,000 made for spousal support and only payment of $1,790, both disregarding any tax implications and all spousal support payments made by her pursuant to the order of Horkins, J., dated January 27, 2015;

i. The respondent was to pay child support for the 2 younger children for 2016, based upon an income of $186,000, and the applicant was to pay child support for the 2 older children based upon an income of $45,904;

j. Commencing June 1, 2017, the respondent was to pay spousal support to the applicant and the applicant and respondent were to pay child support to each other on the following basis:

i. For 2017 and on a go forward basis, the parties were to use their line 150 incomes (now, Line 15000) from their filed returns;

ii. The spousal support to be paid by the respondent to the applicant was to be at the midpoint between the low and median SSAG figures, with the last support payment being made on August 1, 2021;

iii. The respondent was to be credited for 2017, with all child and spousal support payments made by her pursuant to the order of Justice Horkins, dated January 27, 2015; and

iv. The parties were to exchange their filed returns annually on June 30^th^, for as long as child support and/or spousal support is payable;

k. The applicant’s proportionate share of the children’s s.7 expenses was set at 26% and the respondent’s share was set at 74%, based upon their respective incomes of $61,000 and $78,000 and were to be paid for the activities of hockey, karate, girl guides and camp. No further activities were to be arranged by one party with the expectation of payment from the other, without prior written consent; and

[20] There is no question that this remains a high-conflict case, based on the affidavits filed by both parties in support of their respective motions.

[21] After the Hood final order was released in April 2017, counsel for the respondent at trial provided the applicant’s counsel with support calculations, setting out the amount of child support owing by her client for the 2 younger children based on the children living with the applicant primarily and the respondent paying full table amount child support.[^3] The respondent deposes that her counsel prepared these calculations without the benefit of the applicant’s 2016 income tax return; these support calculations were incorrect; the applicant never responded to these calculations, neither confirming that she agreed that these calculations were correct nor providing her own calculations; as a result, the respondent simply paid the amounts in her lawyer’s calculations.[^4] The respondent proceeded to pay full table child support to the applicant from July 1, 2017 to June 30^th^, 2018, for the parties’ 2 younger children, although she deducted from the full table amount the amount of child support payable by the applicant to her for the 2 older children.

[22] According to the Hood final order, the parties are to exchange their income tax returns annually by June 30^th^. While the Hood final order does not expressly state that the monthly child support is to be adjusted annually as the basis of support, both parties treated the Hood final order as directing them to adjust the monthly child and spousal support payments, based on their line 150 incomes for the prior taxation year. The parties have adjusted the support amounts on a go forward basis as of July 1^st^ each year, based on their respective Line 150 (now, Line 15000) incomes from the prior year. By way of example, commencing July 1, 2018, the respondent used her and the applicant’s respective Line 150 incomes from their 2017 income tax returns to calculate her child and spousal support obligations until July 1, 2019, when the support amounts were readjusted, based on the Line 150 incomes from their 2018 income tax returns.

[23] On June 20^th^, 2018, the respondent sent the applicant her 2017 income tax return and as of July 1, 2018, stopped paying full table child support for the parties’ 2 younger children. According to the applicant, the respondent unilaterally reduced the child support by paying the “set-off” amount of child support for the 2 younger children (calculated by setting off the respondent’s table child support obligation against the applicant’s table child support obligation for the 2 younger children) because of the children’s shared residency schedule. At that time, the respondent also began to pay the applicant an increased amount of spousal support, to comply with the terms of the Hood final order - namely, that she pay spousal support in a sum equal to the mid-point between the low and mid-range set out in the Spousal Support Advisory Guidelines (“SSAGs”) figures - since the child support quantum had decreased as a result of the set-off.

[24] The applicant’s position is that the unilateral reduction in the respondent’s child support payments for the 2 younger children was a breach of the Hood final order, which the applicant asserts provides that each party is to pay the other Table child support for the children in the other parent’s primary residence. She submits that the Hood final order does not reference s.9 of the Guidelines or a “set-off” of child support for the 2 younger children.

[25] On June 30^th^, 2019, the respondent sent the applicant her 2018 income tax return and adjusted the child support based on her 2018 income and the set-off calculation for the 2 younger children. The respondent deposes that the applicant refused to send her 2017 and 2018 income tax returns to the respondent on or before June 30^th^, 2017 and June 30^th^, 2018, respectively, as required by the Hood final order.

[26] From July 1, 2018 onward for a 48-month period, the respondent consistently paid the applicant child and spousal support (in the amounts the respondent calculated to be correct) by way of e-transfer. The applicant, for the most part, refused to accept the support payments.

[27] On May 22, 2019, Stewart, J. heard the long motion brought by the applicant, referred to above in paragraph [13]. Stewart, J. dismissed the applicant’s motion for financial disclosure because the obligation was being fulfilled by the respondent. According to the applicant, the respondent agreed to provide her Notices of Assessment for 2016 and 2017, to provide clarity regarding CRA issues, but she never provided them. According to the respondent, she provided all of the disclosure required of her pursuant to the Hood final order, which, refers to filed income tax returns only.

[28] According to the applicant, she advised the respondent that she did not agree with the set-off child support calculations on more than 12 occasions between May 2019 and July 2020.[^5] She deposes that she was self-represented for approximately two years, during which time she did not accept payment from the respondent of what she claims were incorrect monthly payments because she was concerned that it would prejudice her ability to seek the proper amount of arrears.

[29] After the applicant retained counsel in the Fall of 2020, her counsel advised that the applicant did not agree with the respondent’s child support calculations. The applicant also began to accept the alleged incorrect support payments, based on the advice of her counsel that she could do so without prejudicing her position regarding the support owed to her under the Hood final order.

[30] The Hood final order was not enforceable by the Family Responsibility Office because the order required counsel to calculate the quantum of child and spousal support and did not specify monthly quantums.

[31] After retaining counsel, the applicant sent three requests through counsel - on October 1, 2020, March 3, 2021, and March 30, 2021 - providing spreadsheets outlining and requesting payment for what she calculated to be the outstanding child support arears. The applicant maintains that the respondent ought to be paying full Table child support for the 2 younger children and seeks payment of outstanding child support arrears for 2019 and 2020 and the first half of 2021. The applicant’s position is that the respondent paid the correct amount of child support in 2017 and there were minimal child support arrears in 2018. She only seeks to receive the child support arrears for 2019, 2020 and half of 2021. According to the applicant, she had made several attempts to deal with the arrears, without success: she is in debt, and she requires the payment of these arrears.

The Applicant’s Detailed Position on all Issues

Arrears of Child and Spousal Support

[32] According to the applicant, the total amount of Table child support arrears is $32,365[^6], calculated from January 2019 onward, as follows:

a. Outstanding Table child support for 2019 is $17,076, calculated from January to June 2019,

i. the respondent paid child support in the sum of $598 a month, based on the “set-off” numbers, but according to the Hood final order, the respondent’s table child support obligation was $1,327 a month, based on her Line 150 income of $196,260 in 2017 and the applicant’s line 150 income of $86,775 in 2017; and

ii. from July to December 2019, the respondent paid child support in the sum of $758 a month, based on the “set-off” numbers, but according to the Hood final order, the respondent’s table child support obligation was $2,117 a month, based on her Line 150 income of $269,450 in 2018 and the applicant’s line 150 income of $93,593 in 2018; and

b. Outstanding Table child support for 2020 is $15,438, calculated from January to June 2020,

i. the respondent paid child support in the sum of $758 a month, based on the “set-off” numbers, but according to the Hood final order, the respondent’s table child support obligation was $2,117 a month, based on her Line 150 income of $269,450 in 2018 and the applicant’s line 150 income of $93,593 in 2018; and

ii. Outstanding Table child support for 2020, calculated from July 1, 2020, to and including December 1, 2020, the respondent paid child support in the sum of $463 a month, based on the “set-off” numbers, but according to the Hood final order, the respondent’s table child support obligation was $1,270 a month, based on her line 150 income of $203,952.80 in 2019 and the applicant’s line 150 income of $98,616 in 2019; and

c. Outstanding Table child support for 2021 is $5,649 calculated from January 1, 2021 to July 1, 2021,

i. The respondent paid child support in the sum of $463 a month, based on the “set-off” numbers, but according to the Hood final order, the respondent’s table child support obligation was $1,270 a month, based on her line 150 income of $203,952.80 in 2019 and the applicant’s line 150 income of $98,616 in 2019.

[33] According to the applicant, the respondent overpaid spousal support to her by ($798) from 2019 onward, calculated as follows:

a. For 2019, the outstanding spousal support is $1,896 for the period from January to June 2019. The respondent overpaid spousal support in the sum of $1,058 a month; she should have paid $415 a month, as per the Hood final order.From July to December 2019, the respondent overpaid spousal support in the sum of $1,170 a month; she should have paid $959 a month, as per the Hood final order;

b. For 2020, the respondent overpaid spousal support to the applicant in the sum ($132). For the period from July 2020 to December 2020, the respondent overpaid spousal support in the sum of $495 a month; she should have paid $129 a month; and

c. For 2021, the respondent overpaid the applicant spousal support by ($2,562). For the period from January 1, 2021 until July 1 2021, the respondent overpaid spousal support of $463 a month until June and one payment of $3,328 in July; she ought to have paid spousal support of $129 a month until June and beginning in July she ought to have spousal support in the sum of $1,926 a month.

Outstanding s.7 Expenses

[34] According to the applicant, the respondent is in arrears of reimbursement for her share of the children’s s.7 expenses, in the total sum of $3,424, pursuant to the Hood final order relating to the respondent’s 74% share of the cost of the children’s Girl Guides, hockey, cord blood stem cell storage, dental insurance and dental expenses. It is her position that the Hood final order fixes the parties’ respective proportionate shares of the 2 younger children’s s.7 expenses at 74% for the respondent and 26% for her.

Outstanding Financial Disclosure

[35] As stated above, the applicant seeks copies of the respondent’s Notices of Assessment for 2016 to the current date. The respondent is self-employed. The applicant believes that the respondent’s business expenses have increased and thus also seeks disclosure regarding these business expenses.

[36] Since the Hood final order references s.24.1 of the Guidelines in terms of income disclosure, the applicant submits that she is entitled to the respondent’s Notices of Assessment and the supporting documentation for these businesses expenses, as this is “financial information” necessary for her to determine what the respondent’s child support obligation is.

[37] Finally, the applicant seeks documentation outlining the amount of funds currently in the 2 younger children’s Canada Student Trust. She submits that this account was created while the parties were in a relationship and that, together, they contributed $11,000 to this account.

The Respondent’s Detailed Position on all Issues

Child and Spousal Support Arrears

[38] The respondent’s position is that (a) given that the 2 younger children are in a shared parenting time schedule (the children live with each parent at least 40% of the time), s.9 of the Guidelines applies and the amount of child support payable is calculated by taking the amount in the applicable tables for both the applicant and respondent and not just one parent; (b) failing to apply s.9 when calculating the amount of child support the respondent owes for the 2 younger children would mean treating this family differently than other families with a shared parenting schedule, which is contrary to the Guidelines’ specific purpose of ensuring consistency; and (c) while applying the table amounts for both parents and only paying the difference between them is colloquially referred to as “set-off” child support, it is important to note that this term does not appear anywhere in the Guidelines themselves and the fact that the Hood final order and Reasons do not use this term does not in any way indicate that Section 9 of the Guidelines is to be ignored and the set-off amount is not still appropriate

[39] In terms of section 7 expense arrears, the respondent’s position is as follows:

a. The applicant owes her the sum of $3,458.09 on account of the 2 younger children’s s.7 expenses because the Hood final order set the parties’ proportionate share of the children’s then s.7 expenses at 74% for the respondent and 26% for the applicant. Based on the annual changes in the parties’ incomes, her proportionate share of the children’s s.7 expenses has decreased;

b. The Hood final order sets out at paragraph 12(3) that the 2 younger children’s s.7 expenses are “hockey, karate, girl guides and camp” and that no further activities were to be arranged by one party, with an expectation of payment from the other party, without written consent. Accordingly, the respondent also asserts that cord blood storage is not a legitimate s.7 expense; and hockey for 2020 was cancelled as a result of Covid-19; Thus, there are no monies owing by her for either of these expenses.

Outstanding Financial Disclosure

[40] According to the respondent, she has provided the applicant with the financial disclosure required by the Hood final order and confirmed by Stewart, J. The respondent deposes that she does not yet have her Notices of Assessment for 2017, 2018, 2019 and 2020 because CRA is in the process of re-assessing these previous tax years. The respondent attached a letter from her accountant as Exhibit “Q” to her affidavit, sworn on July 12, 2021, confirming that the Notices of Assessment are not available, and a letter from CRA, confirming that the respondent’s reassessments are held up on account of the applicant trying to claim the four children as dependants and receive tax benefits and credits for the four children for these years. The respondent is prepared to provide copies of her Notices of Assessment to the applicant, once received by her.

[41] With respect to the supporting documentation the applicant seeks from the respondent in relation to her business expenses for 2017 onward, the respondent’s position is that the applicant is not entitled to this information and further, that this disclosure is voluminous, personally intrusive, and difficult for her to provide. The respondent sees the applicant’s request for this documentation as a form of harassment. The Hood final order clearly sets out that the parties are to use their line 150 incomes from their filed returns to calculate the quantum of spousal support the respondent owes the applicant and the child support they each owe each other. The respondent deposes that the applicant attempted to obtain this additional disclosure regarding her business expenses before Stewart J. and her request in this regard was dismissed. Accordingly, the applicant is not entitled to re-litigate this issue.

[42] With respect to the Canada Student Trust, the respondent’s position is that this account is solely in her name and the applicant thus has no entitlement to have any information about this account.

[43] In terms of the Covid-19 child benefit, the respondent’s position is that she was entitled to claim this benefit and did so.

Analysis

Is the respondent in breach of the Hood final order?

[44] The short answer is yes.

[45] In the final order that the trial judge made at paragraph [152] of his Reasons for Decision, he sets out each party’s respective child support obligations for 2014, 2015 and 2016 in subparagraphs (23), (25) and (27), as follows:

“(23) N.M. shall pay five months of child support for D.A.M. and Z.I.M. for 2014, in the amount of $3,337 per month, against which shall be credited $7,500, paid by N.M.

(25) N.M. shall pay child support for D.A.M. and Z.I.M. for 2015 based upon an income of $186,000 and M.A. shall pay child support for D.G.M. and M.G.M. based upon an income of $45,904. N.M. shall be credited with a lump sum payment of $10,000 made for child support and all child support payments made by her pursuant to the order of Justice Horkins of January 27, 2015.

(27) N.M. shall pay child support for D.A.M. and Z.I.M. for 2016 based upon an income of $178,000 and M.A. shall pay child support for D.G.M. and M.G.M. based upon an income of $61,000. N.M. shall be credited with all child support payments made by her pursuant to the Order of Justice Horkins of January 27, 2015.

[46] As for support for the then current year (2017) and onward, he ordered as follows:

(29) Commencing on June 1, 2017 and on the first of each month thereafter, N.M. shall pay spousal support to M.A. and M.A. and N.M. shall pay child support to each other on the following basis;

a) for 2017 and on a go forward basis, the parties shall use their line 150 income from their filed returns;

b) the spousal support to be paid by N.M. to M.A. shall be at the midpoint between the low and median Spousal Support Advisory Guideline figures with the last support payment being made on August 1, 2021;

c) N.M. shall be credited for 2017, with all child and spousal support payments made by her pursuant to the order of Justice Horkins of January 27, 2015;

d) N.M. and M.A. shall exchange their filed returns for 2016 by June 30, 2017 and shall continue to comply with this requirement on an annual basis on or before June 30^th^, so long as child support or spousal support is payable.

(30) M.A.’s proportionate share of section 7 expenses shall be and is hereby set at 26% and N.M.’s share shall be and is hereby set at 74% based upon their respective incomes of $61,000 and $178,000 and shall be paid accordingly upon provision of appropriate documentation and proof of payment for the current activities of hockey, karate, girl guides and camp. No further activities shall be arranged by one party, with the expectation of payment from the other party, without prior written consent.”

[Emphasis Added]

[47] It is clear from Hood, J.’s Reasons for Decision that he was mindful of the fact that the parties’ parenting time with the 2 younger children was a shared parenting arrangement, such that the respondent had parenting time with the children at least 40% of the time. Hood, J. referred to the parenting time as “access”, which was commonplace in 2017. His Reasons provide as follows:

[81] Based upon this schedule the twins will have their primary residence with M.A.. However, M.A. or N.M. shall make the everyday, day-to-day decisions for the twins while they are in her care. Because their access is almost the same, each is to keep the other informed as to the twins’ schooling, including report cards and contact information for the school. (Emphasis Added)

[48] It is clear from the trial judge’s decision that, notwithstanding the parenting-time schedule ordered, Hood, J. ordered the respondent to pay full table child support to the applicant for the 2 younger children. Contrary to the respondent’s submissions, the fact that the court did not mention “set-off” support does not leave it open to the court to order a set-off in place of the full table support obligation, which Hood, J. imposed on the respondent. Paragraph 27 of Hood, J.’s Reasons, most particularly, very clearly supports my opinion that Hood, J. ordered the respondent to pay full table support to the applicant for 2 younger children.

[49] According to the respondent, not to apply a set-off when calculating the amount of child support she owes for the 2 younger children would mean that this family is being treated differently than other families who have shared parenting arrangements, which is contrary to the specific purpose of the Guidelines, namely, to ensure the consistent treatment of spouses and children who are in similar circumstances.

[50] Section s.9 of the Guidelines provides as follows:

Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought. O. Reg. 32/21, s. 3.

[51] The applicant asserts that Hood, J., decided not to apply a set-off calculation for child support for the 2 younger children and, therefore, there is no ambiguity. The respondent maintains that Hood, J. did not consider the shared parenting arrangement and/or s.9 of the Guidelines. The trial evidence and submissions were not before me.

[52] The following facts support my finding:

a. From approximately August 2014 to December 2014, the respondent was working in Kamloops. The children stayed in Toronto with the applicant. Hood, J. ordered the respondent to pay five months of child support for the 2 younger children in the sum of $3,337 a month for 2014, which was the table amount of child support at that time, based on the respondent’s annual income of $269,748 (see paragraph [117] of the Reasons);

b. From January 2015 until the end of April 2021, the children resided with each parent 50% of the time. Nonetheless, Hood, J. ordered the respondent to pay table child support for the 2 younger children for 2015 based on her then income of $186,000, and ordered the applicant to pay table child support for the 2 older children for 2015, based on her then income of $45,904 (see paragraph 152 of the Reasons);

c. Hood J. further ordered the respondent to pay table child support for the 2 younger children in 2016 based on a projected income of $178,000 for the respondent and ordered the applicant to pay table child support for the 2 younger children in 2016, based on her then income of $61,000 (see paragraph 151 of the Reasons);

d. At the time of the trial, the 2 younger children were still residing with both parents equally, pursuant to a 2-2-3-3 schedule. Notwithstanding this, Hood, J. did not order a set-off of child support for the 2 younger children for either 2015 or 2016;

e. Although the trial judge somewhat reduced the amount of time that the children would reside with the respondent, he was live to the s.9 issue. At paragraph [108] of his reasons, he refers to the child support issues relating to the applicant stating, in part, “…Moreover, D.D.M. and Z.I.M. are with N.M. over 40% of the time”; determining the quantum of spousal support, the trial judge noted that support at the low range of the SSAGs created too large a difference in the net disposable income between the two households, while the use of the mid-range did not account for the fact that “there are four children and N.M. has them all close to 50% of the time.”[^7]

f. The applicant is a nurse; The respondent is a doctor. The applicant’s income represented only 20% of the parties’ total incomes in 2015 and 25% in 2016. It was far less than 20% is 2014.

g. It is clear from the trial judge’s Reasons that he considered the factors set out in s.9 of the Guidelines. He had Divorcemate calculations before him, which showed the net disposable incomes in both parties’ houses; he was satisfied that there was a difference between the lifestyles and standard of living of he 2 households. He considered the “means and needs and other circumstances of the parties”. He found that, while their lifestyles had not been extravagant, “where they spent money was on travel and activities for the children.”[^8] To be clear, neither the trial evidence nor closing submissions made at the trial were before me. If the respondent’s position is that evidence was adduced regarding s.9 factors such as the increased costs to her of the shared parenting arrangements relating to the 2 younger children which supported or support a set-off of child support for the 2 younger children, then she ought to have produced proof that she adduced such evidence. She did not. Instead, she essentially submits that once a party meets the 40% threshold “set-off” child support is to be ordered and that the trial judgment authorized her to pay set-off support. That submission is wrong in law.

h. In time-limited the applicant’s spousal support, as opposed to awarding indefinite spousal support, one of the facts that he relief upon was the fact that child support was being paid by each party.

[53] The Contino analysis is meant to apply flexibility and fairness given the overall circumstances of the family, when looking at the condition, means and needs of both parents and the children. A “set-off” is not presumptive.

[54] The seminal case that addresses the analysis required to be undertaken by the court in a s.9 analysis is Contino v. Leonelli-Contino, 2005 SCC 63 (S.C.C.) (“Contino”), in which the Supreme Court of Canada held that the framework of s.9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of child support. The specific language of s.9 warrants emphasis on “flexibility and fairness”. The discretion bestowed on Courts to determine the child support amount in shared custody arrangements calls for acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The case law under s.9 of the Guidelines suggests that the weight of each factor under s. 9 will vary according to the particular facts of each case.

[55] According to the respondent, if section 9 of the Guidelines applies to the 2 younger children in that the payor has the children in her care more than 40% of the time, it or perhaps consistency, automatically requires that set-off support be paid.

[56] I do not agree with the respondent’s above position. Section 9 of the Guidelines does not provide that in circumstances where parents share the parenting arrangements such that each has the children in her respective care at least 40% of the time, child support is to be paid on a set-off basis.

[57] Further, this is not a situation, as the respondent submits, where the Hood final order did not “specify how child support was to be calculated”. The order is clear that the respondent was and is to pay full table amount of child support for the 2 younger children.

[58] At the time of trial, the 2 younger children were following a 2-2-3-3, equal-time-sharing parenting schedule. The Hood final order references this equal time-sharing parenting schedule. Hood, J. did not adjust the child support to be paid for 2015 or 2016 to off-set support on account of the equal parenting schedule. It was open to him to do so and he did not do so.

[59] If the respondent’s position is that he sought an order for set-off child support for the 2 younger children at trial and the trial judge erred in ordering full table support, then the respondent’s recourse was to appeal the judgment. If the respondent’s position is that the trial judge failed to deal with her request for set-off support for the 2 younger children, then she ought to have decided whether her recourse was to appeal the judgment or to return the matter to the trial judge to address the purported oversight.

[60] If the import of the respondent’s position is that the trial judge’s order is ambiguous, I disagree. I am satisfied that the trial judge’s order is clear and unambiguous. He ordered the respondent to pay full table support to the applicant for the 2 younger children. [Again, see, more specifically, subparagraphs [152] (25) and (27)].

[61] The respondent’s explanation for her payment of child support at the full table amount until July 2018 is not convincing. The Hood final order is unquestionably clear as to the incomes on which child support was to be paid until prior to 2017 adjustment. The respondent did not pay the applicant support for any period prior to May 30, 2017, based on a set-off of support for the twins. She needed no information or confirmation from the applicant in order to determine the amounts of child support that were to be paid at least until before May 30, 2017. She could easily have calculated and paid the child support for the 2 younger children on a set-off basis for 2014, 2015, 2016 (and 2017, prior to June 2017, when the 2017 adjustment was to be determined), had she actually believed that the trial judge ordered on the Reasons permitted her to do so.

Section 9(a): Amounts Set Out in the Applicable Tables for Each of the Spouses

[62] Section 9(a) requires that the Court determine the parties’ incomes and calculate the simple set-off amount. The simple set-off is the “starting point” of the s.9 analysis, but the set-off amounts are not presumptively applicable and the assumptions they hold must be verified against the facts. The Court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another.

Section 9(b): Increased Costs of Shared Custody Arrangements

[63] Further, according to Contino, section 9(b) requires that the Court consider the increased costs of the shared custody arrangements. Contino explains that the Court should examine the budgets and actual expenditures of both parents in addressing the needs of the children and determine whether shared custody has, in effect, resulted in increased costs globally because of the duplication of costs in providing two homes for the children. The Court should also consider the ratio of incomes between the parties as the childcare expenses will be apportioned between the parents in accordance with their respective incomes.

Section 9(c): Conditions, Means, Needs and Other Circumstances

[64] Last, section 9(c) allows the Court discretion to conduct an analysis of the resources and needs of both parents and the children. The analysis should be contextual and remain focused on the particular facts of each case. There are three factors to be considered under this subsection:

a. Actual spending patterns of the parents;

b. Ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels and income disparities); and

c. Standard of living for the children in each household.

[65] The Court has discretion to assess the ability of each parent to assume any increased costs of shared custody by considering income levels, disparity in incomes and the assets and liabilities and net worth of each party.

[66] The Court is required to review the child expense budgets and consider both fixed and variable costs. It is possible to presume, in the absence of evidence to the contrary, that the recipient parent's fixed costs have remained unchanged and that his or her variable costs have been reduced only modestly by the increased access. Thus, when no evidence is adduced, the Court should recognize the status quo regarding the recipient parent [in the instance matter, the respondent].

[67] Further, the Court has discretion to assess the ability of each parent to assume any increased costs of shared custody by considering income levels, disparity in incomes and the assets and liabilities and net worth of each party.

[68] The Court has full discretion under s.9(c) to consider “other circumstances” and order the payment of any amount, above or below the table amounts. This discretion, if properly exercised, should not result in hardship. Further, given the broad discretion of the Court conferred by s. 9(c), a claim by a parent for special or extraordinary expenses falling within s. 7 of the Guidelines can be examined directly under s. 9 with consideration of all the other factors. Section 9(c) is conspicuously broader than s. 7.

[69] I have found that the trial judge ordered the respondent to pay full table child support for the 2 younger children. This is not an appeal from the trial judgment nor is it a request by a party that I dispose of an issue that was before the trial judge but not disposed of by inadvertence. To be clear, while the facts to which I have referred in the subparagraphs of paragraph [52] above support were not integral to my determination that the support order relative to the 2 younger children was clear. I have referred to s.9 of the Guidelines and Contino at length to make it clear that the respondent’s submissions regarding the application and interpretation of s.9 is wrong.

[70] Accordingly, the amount of child support the respondent ought to have paid for the parties’ younger two children ought to be calculated as the full table amount of child support for the period from July 1, 2018, when she unilaterally changed the way in which she calculated her child support obligation for the 2 younger children, and onward. Arrears of child support are to be calculated from that point onward.

[71] For even further clarity, neither party brought a motion to change the order of Hood, J. from an order that the respondent no longer be obliged to pay full Table support for the 2 younger children and that a set-off order should be put in place.

Are there arrears of child and spousal support, as well as arrears of Section 7 Expenses arising from the Hood Final Order?

[72] My calculation of the arrears of child and spousal support for 2019, 2020 and half of 2021 is as follows:

a. For the 6-month period from January 1, 2019, to and including, June 1, 2019,

i. the respondent’s Table child support obligation for the 2 younger children was $2,636 a month, based on her Line 150 income of $196,620;

ii. the applicant’s Table child support obligation for the 2 older children was $1,309 a month, based on her Line 150 income of $86,775;

iii. Accordingly, the effect of these obligations is that respondent ought to have paid $1,327 a month in child support. The respondent paid $598 a month in child support, resulting in arrears of child support in the sum of $729 a month for 6 months, totalling $4,374.

iv. The respondent’s spousal support obligation during this same time period was $710 a month (gross), which is the mid-point of the low and median range of the SSAGs. The respondent paid $1,327 a month, resulting in an overpayment of spousal support of ($617) a month for 6 months, totalling $3,702.

v. The total child and spousal support arrears, therefore, for this 6-month period is $672, without considering the income tax implications of spousal support paid.

b. For the 12-months period from July 1, 2019, to and including, June 1, 2020,

i. the respondent’s table child support obligation for the 2 younger children was $3,510 a month, based on line 150 income of $269,450;

ii. the applicant’s table child support obligation for the 2 older children was $1,393 a month, based on her line 150 income of $93,593;

iii. Accordingly, the effect of these obligations is that respondent ought to have paid $2,117 a month in child support, for a total sum of $25,344. The respondent paid child support in the sum of $758 a month for 12 months. However, the applicant only accepted child support payments for 5 of these months, for a total sum of $3,790, resulting in arrears of child support in the sum of $21,554;

iv. The respondent’s spousal support obligation during this same time period was $973.50 a month (gross), which as the mid-point of the low and median range of the SSAGs. The respondent paid $1,170 a month for 12 months, but the applicant only accepted 5 of these payments, for a total sum of $5,850, resulting in arrears of spousal support of $5,832, without considering the income tax implications of spousal support, (calculated as $973.50 X 12 = $11,682 - $5,850); and

v. The total child and spousal support arrears, therefore, for this 12-month period is $27,386, without considering the income tax implications of spousal support paid.

c. For the period July 1, 2020, to and including, June 1, 2021,

i. the respondent’s table child support obligation for the 2 younger children was $2,724 a month, based on her line 150 income of $203,952;

ii. the applicant’s table child support obligation for the 2 older children was $1,456 a month, based on her line 150 income of $98,616;

iii. Accordingly, the effect of these obligations is that the respondent ought to have paid $1,268 a month in child support for 12 months, totalling $15,216. The respondent paid child support in the sum of $463 a month for 12 months but the applicant only accepted child support for 10 months, totalling $4,630, resulting in arrears of child support totalling $10,586.

iv. The respondent’s spousal support obligation during this same time period was $132 a month (gross), which as the mid-point of the low and median range of the SSAGs. The respondent paid spousal support $495 a month for 12 months but the applicant only accepted spousal support for 10 months, totalling $4,950, resulting in an overpayment by the respondent of spousal support of ($2,046).

v. The total child and spousal support arrears, therefore, for this 12-month period is $8,540, without considering the income tax implications of spousal support paid.

d. For the period July 1, 2021 onward,

i. the respondent’s table child support obligation for the 2 younger children was $4,576 a month, based on her line 15000 income of $358,230;

ii. the applicant’s table child support obligation for the 2 older children was $1,451 a month, based on her line 15000 income of $98,365;

iii. Accordingly, the effect of these obligations is that the respondent ought to have paid $3,125 a month in child support for the month of July, 2021. The respondent paid child support of $2,213, which resulted in arrears of child support for this one month in the sum of $912,

iv. The respondent’s spousal support obligation for this one month is $1,926, which is the mid-point of the low and median range of the SSAGs. The respondent overpaid spousal support in the sum of $3,308 for July 2021, resulting in an overpayment by the respondent of spousal support of ($1,382) without consideration for the income tax implications of spousal support.

v. The total child and spousal support overpayment, therefore, for the month of July 2021 this ($470).

[73] Accordingly, on my calculations, the total amount of child and spousal support arrears owing by the respondent to the applicant for 2019, 2020 and the first seven months of 2021, is $36,124. Assuming my calculations are correct, and the respondent has been given credit for any and all child and spousal support payments made by her, the respondent shall pay the applicant these arrears within 30 days.

[74] The applicant’s request for reimbursement of s.7 expenses by the respondent is based on her understanding of the Hood final order – namely, that Hood, J. fixed each party’s proportionate responsibility for the children’s s.7 expenses, with the applicant’s proportion being “set” at 26% and the respondent’s proportion being “set” at 74%.

[75] The language in the Hood final order is as follows:

M.A.’s proportionate share of section 7 expenses shall be and is hereby set at 26% and N.M.’s share shall be and is hereby set at 74% based upon their respective incomes of $61,000 and $178,000 and shall be paid accordingly upon provision of appropriate documentation and proof of payment for the current activities of hockey, karate, girl guides and camp. No further activities shall be arranged by one party, with the expectation of payment from the other party, without prior written consent.[^9] (emphasis added)

[76] Particularly given that the parties have annually adjusted the child and spousal support commencing as of July 1^st^ in each year on a go-forward basis, using their prior year’s incomes (after they have exchanged their respective filed income tax returns), it follows that each party’s proportionate responsibility toward the children’s s.7 expenses is to be adjusted accordingly. Further, paragraph [122] of Hood, J.’s reasons provide as follows:

[122] The parties shall share section 7 expenses proportionate to their income. The current expenses include hockey, karate, girl guides and camp. There was no evidence as to the costs associated with these. For the time being, until further adjustment, the proportion shall be 74% to N.M. and 26% to M.A. based upon their respective incomes of $178,000 and $61,000. (emphasis added)

[77] Going forward, the parties are to share the children’s s.7 expenses proportionate to their combined incomes, calculated at the time that the monthly child support payments are adjusted annually, commencing on July 1^st^ in each year, until and including, June 1^st^ of the following year.

[78] For clarity, based on the parties’ Line 150 incomes in a given year, their respective proportionate responsibility for the children’s s.7 expenses ought to be based on each party’s prior year’s income, calculated as follows:

a. In 2018, the applicant’s proportionate share of the children’s s.7 expenses ought to have been 31% and the respondent’s proportionate share ought to have been 69%, based on the applicant’s Line 150 income of $86,755 in 2017 and the respondent’s Line 150 income of $196,620 in 2017;

b. In 2019, the applicant’s proportionate share of the children’s s.7 expenses ought to have been 26% and the respondent’s proportionate share ought to have been 74%, based on the applicant’s Line 150 income of $93,593 in 2018 and the respondent’s Line 150 income of $269,450 in 2018;

c. In 2020, the applicant’s proportionate share of the children’s s.7 expenses ought to have been 32.5% and the respondent’s proportionate share ought to have been 77.5%, based on the applicant’s Line 150 income of $98,616 in 2019 and the respondent’s Lie 150 income of $203,952.68 in 2019; and

d. In 2021, the the applicant’s proportionate share of the children’s s.7 expenses ought to have been 21.% and the respondent’s proportionate share ought to have been 78.5%, based on the applicant’s Line 150 income of $98,365 in 2020 and the respondent’s income of $358,365 in 2020.

[79] The applicant claims that she is owed section 7 expense arrears by the respondent, in the sum of $3,424. The respondent claims she is owed section 7 expense arrears by the applicant, in the sum of $3,458.09.

Extra-Curricular Activities

[80] In paragraph 34 of the applicant’s affidavit, sworn on May 26, 2021, she deposes that the s.7 expense arrears owing to her by the respondent relate to the cost of extra-curricular activities for the 2 younger children, being Girl Guides, Hockey and Camp. The applicant, however, failed to specify the years in which these expenses were incurred by her. Further, while the applicant attached copies of invoices and proof of payment for these expenses as Exhibits to her May 26^th^ affidavit, the amounts do not add up to the $3,424 she has listed in paragraph 24 of her May 26^th^ affidavit.

[81] Exhibit “L” to the applicant’s May 26^th^ affidavit contains copies of cheques and bank statements to verify the amounts paid by the applicant toward the 2 younger children’s activities. According to the documents contained in Exhibit “L”, the applicant made the following payments toward the 2 younger children’s activities:

a. Girl Guides: she paid the sum of $26 on September 24, 2016; the sum of $129 on April 28, 2017; the sum of $94.85 on September 5, 2017; the sum of $16.00 on September 21, 2017; the sum of $129 on April 17, 2018; the sum of $90 on April 30, 2018; the sum of $16 on April 4, 2019; the sum of $354 on April 8, 2019; $354 on June 3, 2020. The total paid by the applicant toward Girl Guides (according to her copied cheques and credit card statements) for the period 2016 to 2020, was $1,208.85; and

b. Hockey: she paid TLGHA the sum of $750 on September 8, 2020;

[82] The respondent deposes that she has paid for the cost of Camp for the children, which is the largest s.7 expense incurred on behalf of the children. According to Exhibit “O”, attached to the respondent’s July 9^th^ affidavit, the respondent made the following payments toward the children’s Camp fees; Hockey, Girl Guides and Karate;

a. Camp: She paid $7,456.87 for camp fees in 2017 for all 4 children; $3,898.50 for camp fees in 2018 for the 2 younger children; $310.75 for M.M.’s camp in 2018; $4,056.70 for camp fees in 2019; and $4,090.60 for camp fees in 2021.

b. Hockey: she paid $725 in 2019;

c. Girl Guides: she paid $179 in 2017; and

d. Karate for M.M.: she paid $316.50 in 2017; $553.70 in 2018; $666.70 in 2018; $388.72 in 2019; $33.35 in 2019; and $337.35 in 2019.

[83] The applicant deposes in her supplementary affidavit, sworn on July 12, 2021 (“July 12^th^ affidavit”), that the respondent has claimed reimbursement for her 26% share of the camp fees for the 2 younger children to attend camp for a month, but the respondent did not obtain the applicant’s consent for the 2 younger children to attend camp for more than the two-week session they had been attending at the time of the trial. Accordingly, the applicant is not prepared to reimburse the respondent for camp fees beyond the cost of a two-week session.

[84] In the applicant’s July 12^th^ affidavit, she acknowledges that she owes the respondent the sum of $2,938, being her proportionate share which she deposes is “fixed” by the Hood final order at 26% of s.7 expenses for the children, which include Girl Guides, Karate and Camp.

Medical and Dental Expenses

[85] The applicant seeks reimbursement from the respondent for medical and dental expenses she incurred on behalf of the children. These expenses include the cost of cord blood stem cell storage over the past 5 years and dental expenses, which cost her $1,430. Again, she seeks that the respondent reimburse her in a sum equal to her 74% proportionate share, which according to the applicant is “fixed” by the Hood final order.

[86] Neither party addressed the specific question as to whether the cost of cord blood stem cell storage is a s.7 expense to be shared proportionately by the parties, if one party incurs the cost. Particularly in the absence of any evidence as to why the cost of cord blood stem cell storage was incurred in this case, I cannot determine the necessity of the expense in relation to the 2 younger children’s best interests and/or the reasonableness of the expense in relation to the means of the spouses and those of the children and to the family’s spending pattern prior to the separation, all of which I am obliged to do under s.7 of the Guidelines. Accordingly, I am not satisfied that a simple payment by one party for this storage requires the other party to share the cost proportionately even though the receipt provided by the applicant confirms that she paid the annual sum of $90 a year for the past 5 years, in the total sum of $508.50 to store the cord blood stem cells for the 2 younger children. Absent any evidence on this issue, I am not able to fairly adjudicate this issue and I decline to order the respondent to contribute to the cost incurred by the applicant of the cord blood stem cell storage.

[87] The parties were each made aware of their respective positions regarding the claims for retroactive s.7 expenses. The each ought to have provided alternative calculations of the s.7 arrears being sought by them. They did not. Given my findings that (1) the s.7 expenses were to be paid on the adjusted annual proportions; (2) the applicant did not get a refund of the hockey expense that was cancelled as it was applied to the following year; and (3) the evidence did not satisfy me that the cost of the cord blood stem cell paid by the applicant was a s.7 expense under s.7 of the Guidelines, the parties are to calculate the s.7 expenses arrears each owes the other within the next 21 days and the party who owes the greater amount to the other party shall deduct the amount she owes to the other party from the amount of arears she owes and pay the difference to the other party. For clarity, the arrears of monthly child support are payable immediately. Payment of the monthly child support arrears shall not be delayed on the basis that the respondent may be entitled to payment of s.7 expenses or otherwise.

[88] Given the language in the Hood final order, the parties cannot expect to receive financial contributions from the other for section 7 expenses she incurred for activities unless they have obtained the other party’s prior written consent. The order of Stewart, J., dated May 22, 2019, also provided in paragraph 6 that “If any new s.7 expense other than hockey, karate, Girl Guides and camp arises, the respondent must consent to contribution, but impliedly may not unreasonably withhold her consent. Contribution toward s.7 expense should be made within 30 days of delivery of proof of payment”. Accordingly, going forward, payment by either party for the children’s s.7 expenses shall be made within 30 days of delivery of proof of payment s.7 expenses.

Is there Outstanding Financial Disclosure required by the Hood Final Order?

[89] The applicant submits that the respondent has failed to comply with the Hood final order because she has not provided her Notices of Assessment since the trial. The Hood final order provides that from 2017 onward, the parties are to pay child support based on their respective line 150 incomes as reported in each of their filed income tax returns. The obligation for annual disclosure referred to in paragraph 152(d.) of Hood, J.’s Reasons states that “ N.M. and M.A. shall exchange their filed returns for 2016 by June 30, 2017 and shall continue to comply with this requirement on an annual basis, on or before June 30^th^, so long as child support or spousal support is payable.”

[90] There is no reference to an exchange of the parties’ Notices of Assessment in the Hood final order. However, the issued and entered order of Hood, J., sets out in paragraph 26 that “for as long as child support is to be paid, payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Guidelines.” This is a statutory requirement. While the filed income tax returns alone would enable a party to calculate annual adjustments under the order, information referred to in section 24.1 of the Guidelines would clearly be relevant to the issue of whether a change in circumstances has taken pace which would justify a change in the order.

[91] Section 24.1 of the Guidelines provides as follows:

Annual obligation to provide income information

24.1 (1) Every person whose income or other financial information is used to determine the amount of an order for the support of a child shall, no later than 30 days after the anniversary of the date on which the order was made in every year in which the child is a child within the meaning of this Regulation, provide every party to the order with the following, unless the parties have agreed otherwise:

For the most recent taxation year, a copy of the person’s,

i. personal income tax return, including any materials that were filed with the return, and

ii. notice of assessment and, if any, notice of reassessment.

As applicable, any current information in writing about,

i. the status and amount of any expenses included in the order pursuant to subsection 7 (1), and

ii. any loan, scholarship, or bursaries the child has received or will receive in the coming year that affect or will affect the expenses referred to in subparagraph i. O. Reg. 25/10, s. 6.

Notices of assessment

(2) If the person has not received his or her notice of assessment or notice of reassessment for the most recent taxation year by the date referred to in subsection (1), the person shall provide every party to the order with a copy of the notice as soon as possible after the person receives the notice. O. Reg. 25/10, s. 6.

Change in address

(3) If the address at which a party receives documents changes, the party shall, at least 30 days before the next anniversary of the date on which the order was made, give written notice of his or her updated address information to every person required to provide documents and information under subsection (1). O. Reg. 25/10, s. 6.

Failure to comply

(4) If a person required to provide a document or information under this section fails to do so, a court may, on application by the party who did not receive the document or information, make one or more of the following orders:

An order finding the person to be in contempt of court.
An order awarding costs in favour of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceedings.
An order requiring the person to provide the document or information to,

i. the court,

ii. the applicant, and

iii. any other party to whom the person did not provide the document or information when required to do so. O. Reg. 25/10, s. 6.”

[92] Not only does s.24.1 make sense in the context of child support obligations, but the provisions were apparently contained in the draft order, which the parties were to agree on. Anecdotally child support orders made under the Family Law Act will not be issued and entered by the Court office unless s.24.1 is contained in it. Neither party adduced evidence or made a submission to show that she took any step to challenge the inclusive of the s.24.1 obligations in the Hood final order, which was issued and entered in this case. Accordingly, the parties must exchange their Notices of Assessment, among other relevant information, annually. The respondent shall provide her Notices of Assessment for 2017 through to 2020, and annually thereafter.

[93] To the extent that the parties have not complied with s.24.1 since the Hood final order was made, each shall provide any outstanding information/documents that was to be provided by them under s.24.1 after the order was issued and entered within the next 45 days.

[94] The applicant also seeks disclosure of financial records to substantiate the respondent’s business expenses. It is her position that she requires the requested disclosure in order to determine if the expenses are reasonable, to calculate the respondent’s “true” income for child support purposes. The applicant points to the fact that the respondent’s deducted business expenses increased dramatically from what the respondent had claimed in 2013, 2014 and 2015. She relies on section 9 of Schedule III to the Guidelines as the authority under which she is entitled to this disclosure.

[95] Section III of the Guidelines provides a list of adjustments to a spouse’s annual income to ensure that child support is calculated based on a parent’s actual available income. Specifically, section 9 of Schedule III provides as follows:

Net self-employment income

Where the spouse's net self-employment income is determined by deducting an amount for salaries, benefits, wages or management fees, or other payments, paid to or on behalf of persons with whom the spouse does not deal at arm's length, include that amount, unless the spouse establishes that the payments were necessary to earn the self-employment income and were reasonable in the circumstances.

[96] The just-quoted provision related to purported business expenses paid to or on behalf of no arms’ length persons. The applicant adduced no evidence of any knowledge or belief that the respondent was deducting such expenses. Moreover, she seeks production of all of the respondent’s business expenses (not just those mentioned in s.9 of Schedule III to the Guidelines

[97] In the applicant’s notice of motion, dated April 17, 2019, relating to the long motion heard by Stewart, J. in 2019, she sought an order that the respondent provide her with “receipts to substantiate business expenses for 2016 and 2017 for which support payments have been calculated”.[^10] Paragraphs 5 and 10 of the order of Stewart, J., dated May 22, 2019, provide as follows:

The part of the applicant’s motion dealing with financial disclosure by way of provision of income tax returns as ordered by the Honourable Justice Hood in his Order of April 17, 2017 is dismissed as it is being fulfilled by the respondent.
The other issues raised by the applicant are hereby dismissed.

[98] The respondent submits that the applicant’s claim for documents from the respondent to substantiate her business expenses was already litigated and dismissed by the court. As a result, the principle of res judicata applies to it. In the absence of the record before Stewart J. or the reasons given for her order, the reasonable implication is that the request for these documents for 2016 and 2017 was dismissed. Accordingly, this particular issue cannot be re-litigated.

[99] In terms of the applicant’s request for documents to substantiate her business expenses for 2018 onward, this issue has not yet been litigated. There is not doubt that Schedule III of the Guidelines is meant to ensure that a payor’s “true” income can be determined and for self-employed payors, like the respondent, this includes looking at the documents to substantiate her business expenses paid to anyone with whom the respondent does not deal at arm’s length, if there are any such expenses. The respondent is to provide the documents necessary to substantiate her expenses as set out in Schedule III of the Guidelines for 2018, 2019, 2020 and 2021 and for ongoing years thereafter.

[100] With respect to the 2 younger children’s Canada Student Trust account, this account is in the name of the respondent. Neither party provided sufficient evidence about this account to enable me to make a proper determination on this issue. The applicant deposed that she contributed to the funds in this account. The respondent denies this. This account existed at the time of trial. I have no knowledge as to whether it was raised at trial or not. Given the circumstances, I am not able to fairly adjudicate this issue and I dismiss the applicant’s claim for updated copies of this statement on a without prejudice basis.

[101] With respect to the applicant’s request that the respondent to provide her or the children with the funds she received for the COVID benefit for the younger children, again neither party provided the court with sufficient evidence on this matter. The respondent deposed that she applied for a COVID benefit for the 2 younger children because she was eligible to do so. The respondent failed to provide necessary evidence to explain the amount of the COVID benefit she received nor the reason as to why she was eligible to claim such benefits over the applicant. Given the circumstances, I am not able to fairly adjudicate this issue and on a without-prejudice basis, I dismiss the applicant’s request that she or the children receive any funds received by the respondent on account of COVID benefits on behalf of the 2 younger children.

Costs

[102] Both parties seek costs of the motions before me and have submitted Bills of Costs. The applicant seeks costs on a substantial indemnity basis, in the total sum of $8,250.13, inclusive of HST and disbursements. The respondent seeks costs on a full recovery basis, in the fixed sum of $8,500, inclusive of disbursements and HST.

[103] Modern cost rules for family law cases are derived to foster four fundamental purposes: (1) to partially indemnify successful litigants, (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants, and (4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules (“FLRs”).[^11]

[104] The successful party in family law litigation has no automatic right to full recovery of their costs.[^12] However the Rules do provide for an entitlement to full recovery of costs in specific circumstances, including bad faith.[^13]

[105] The touchstone considerations of costs awards are proportionality and reasonableness.[^14] Costs must always be proportional to what is at stake, while reasonableness is assessed based on the parties’ behaviour in relation to the issue, including whether a party failed to accept any offers.

[106] I have considered the provisions of Rule 24 of the FLRs to determine the costs issues. The applicant was successful on the motion in obtaining an order that confirms that (a) the respondent is to pay full Table child support for the parties’ 2 younger children and not a set-off calculation; (b) the respondent is to pay the applicant child and spousal support arrears in the sum of $36,124, not including the s.7 expenses which is still to be calculated; and (c) the respondent is to provide copies of her Notices of Assessment annually, along with her filed income tax returns.

[107] In support of her submission that the Court has the power to decline to enforce the arrears, the respondent submitted that despite being ordered to pay child support for the 2 older children, the applicant has not done so. This is a disingenuous submission. Not only did the trial judge order that such support was to be offset against the child support payable by the respondent to the applicant[^15] but the respondent paid or attempted to pay the applicant.

[108] On the other hand, the respondent was successful in obtaining an order that (a) the parties’ proportionate responsibilities for s.7 expenses is to adjust annually in accordance with the parties’ incomes; and (b) dismisses the applicant’s motion seeking documents substantiating her business expenses for 2016 and 2017 only.

[109] Accordingly, there was mixed success. However, on the whole, the applicant was more successful than the respondent on the most significant issue before me, namely, the monthly child support quantum for the 2 younger children. As such, the applicant is presumptively entitled to a contribution to some of her costs of the motion.

[110] The applicant submits that the respondent ought not to be awarded any costs as a result of her failure to comply with the Hood final order and refusal to respond to the applicant’s support calculations. The applicant asserts that the respondent’s conduct was unreasonable because she refused to engage in any settlement discussions or respond to the applicant’s correspondence. The applicant also alleges that the respondent had agreed to attend open mediation to address the support issues and then cancelled.

[111] Similarly, the respondent submits that the applicant ought not to be awarded costs because of the applicant’s unreasonable behaviour in her repeated failure to comply with court orders; her refusal to accept child and spousal support payments from the respondent; and the applicant’s attempts to re-litigate issues that were previously dismissed.

[112] I find that both parties have engaged in unreasonable conduct. On the applicant’s part, she steadfastly refused to accept child and spousal support payments paid to her over a 48-month period by the respondent, creating a situation where arrears have accumulated unnecessarily. On the respondent’s part, she failed to respond to correspondence sent by the applicant meant to address the difference in the parties’ positions as to the method with which to calculate the child and spousal support set out in the Hood final order, which necessitated further litigation between the parties. Both parties provided some financial disclosure requested by the other party, but not sufficient disclosure, whether that be to substantiate s.7 expenses or income. Neither party’s conduct in my view amounted to bad faith.

[113] Rule 18(14) provides that a party who makes an offer on a motion is entitled to costs to the date the offer was served and full recovery of costs from that date, if: (1) the offer is made at least one date before the motion date, (2) the offer does not expire and is not withdrawn, (3) the offer is not accepted, and (4) the party who made the offer obtains an order as favourable or more favourable than the offer.[^16]

[114] I have reviewed the various offers to settle made by each party. The applicant’s offer to settle, dated July 5, 2021, proposed to resolve the issue of child and spousal support arrears by having the respondent pay the applicant $32,500. I ordered the respondent to pay child and spousal support arrears in the sum of $36,124, which is more than the sum the applicant was prepared to take in her offer. The terms of my order, therefore, are more favourable to the applicant than her offer.

[115] The respondent’s offer to settle, dated April 20, 2021, proposed that she pay the applicant the sum of $17,035, which is much less than what I ordered the respondent to pay in terms of child and spousal support arrears. The respondent’s offer to settle, dated June 16, 2021, offered a lump sum payment of $35,000, less $10,000 for s.7 expenses she claims to have been owed, also a sum less than my order.

[116] I have reviewed the hourly rates of the lawyers and law clerks involved in this matter, as well as their docketed time for the relevant period, and find all of it to be reasonable.

[117] In light of the divided success on the motion, but the applicant was more successful on the main issue before me; the reasonableness and proportionality of the work performed by the applicant’s counsel the respondent should have expected to pay costs, if the applicant succeeded in obtaining an order that confirms the respondent owes full Table child support for the 2 younger children and arrears of child and spousal support from January 1, 2019 onward; the fact that the respondent was successful in obtaining an order that the parties’ proportionate responsibility toward s.7 expenses be adjusted annually in accordance with the changes in the parties’ respective incomes; an order that the respondent pay costs fixed in the amount of $4,000, represents a reasonable and fair contribution by the respondent to the applicant’s costs, inclusive of fees, disbursements and HST, payable within 45 days.

Order

[118] Accordingly, this Court confirms and clarifies:

a. For the period January 1, 2019 to and including June 1, 2019,

i. the respondent shall pay table child support to the applicant for the parties’ 2 younger children in the sum of $2,636 a month, based on her Line 150 income of $196,620 for 2017, with the respondent being given credit for all child support paid by her during this time period;

ii. the applicant shall pay table child support to the respondent for the parties’ 2 older children in the sum of $1,309 a month, based on her Line 150 income of $86,775 for 2017, with the applicant being given credit for all child support payments made by her during this time period;

iii. The respondent shall pay spousal support to the applicant in the sum of $710 a month (gross), in accordance with the Hood final order, with the respondent being given credit for all spousal support paid by her during this time period.

b. For the period July 1, 2019 to and including June 1, 2020,

i. the respondent shall pay table child support to the applicant for the parties’ 2 younger children in the sum of $3,510 a month, based on her Line 150 income of $269,450 for 2018, with the respondent being given credit for all child support paid by her during this time period;

ii. the applicant shall pay table child support to the respondent for the parties’ 2 older children, in the sum of $1,393 a month, based on her line 150 income of $93,593 for 2018, with the applicant being given credit for all child support paid by her during this time period; and

iii. the respondent shall pay spousal support to the applicant in the sum of $973.50 a month (gross) in accordance with the Hood final order, with the respondent being given credit for all spousal support paid by her during this time period.

c. For the period July 1, 2020 to and including June 1, 2021,

i. The respondent shall pay table child support to the applicant for the parties’ 2 younger children in the sum of $2,724 a month, based on her Line 150 income of $203,952.68 for 2019, with the respondent being given credit for all child support paid by her during this time period;

ii. The applicant shall pay table child support to the applicant for the parties’ 2 older children, in the sum of $1,456 a month, based on her line 150 income of $98,769 for 2019, with the applicant being given credit for all child support paid by her during this time period; and

iii. The respondent shall pay spousal support in the sum of $132.00 a month (gross), in accordance with the Hood final order, with the respondent being given credit for all spousal support paid by her during this time period; and

d. For the period July 1, 2021, to and including June 1, 2022,

i. The respondent shall pay table child support to the applicant for the parties’ 2 younger in the sum of $4,576 for the parties 2 younger children, based on the respondent’s line 15000 income in 2020 of $358,230, with the respondent being given credit for all child support paid by her during this time period;

ii. The applicant shall pay table child support to the applicant in the sum of $1,451 for the parties’ 2 older children, based on her line 15000 income in 2020 of $98,365, with the applicant being given credit for any and all child support payments she has made to the respondent during this time period; and

iii. For the months of July 1, 2021 and August 1, 2021 only, the respondent shall pay to the applicant spousal support in the sum of $1,976 a month, with the respondent being given credit for any and all spousal support she has made to the applicant during this time period; and

e. For clarity in accordance with paragraph [119] of the Hood final order, the parent who owes more in child support arrears than the other parent owes under a. - d. above, shall offset the arrears owed to her by the other parent for the periods referred to in a. - d. above against the arrears that she must pay to the other parent for those same periods. Both this amount and the amount that a party owes to the other party either as a result of her having overpaid spousal support for the periods referred to in a.-d. above or underpaid spousal support for the periods referred to a. – d. above shall be paid to the party to whom each amount is owed by way of a lump sum (or two lump sums, if one parent is in arrears of both child support and spousal support under a. - d. above), within 30 days of this order.

f. The parties shall share the children’s s.7 expenses proportionate to their combined incomes. The proportions to be applied to the children’s s.7 expenses incurred during the 12-month period that starts on July 1^st^ of each years shall be based on the parties’ Line 15000 incomes in their filed tax returns for the previous taxation year. Within the next 21 days, each party shall calculate the amount of arrears she claims, if any for the period as of July 1^st^, 2017 and up to and including July 1^st^, 2021 and provide her calculation to the other party. The parties shall agree on the amount of arrears owed by each, if any, within 10 days after both calculations have been delivered and the party who owes the greater amount of arrears on account of s.7 expenses to the other shall, within 30 days after both calculations had been delivered, pay the difference between the two agreed-upon amounts. For clarity, the obligation to pay monthly child support arrears under e. above shall not be affected by the obligations in this paragraph f. Payment of any lump sum payment under the terms of e. above shall not be delayed on the basis that the amount of s.7 arrears has yet to be determined or paid. For absolute clarity, the lump sum, if any payable under this paragraph f. shall be paid independently of the lump sums) payable under paragraph e.;

g. Commencing on July 1, 2021 and until June 30, 2022, the parties shall share the children’s s.7 expenses, set out in the Hood final order, with the applicant paying her proportionate share of 22% and the respondent paying her proportionate share of 78%, based on the parties’ line 150 incomes for 2020. When the parties adjust the child support, effective July 1, 2022, their respective proportionate sharing of the children’s section 7 expenses will be readjusted on a go-forward basis, using their line 15000 incomes reported in their 2020 income tax returns and verified by their Notices of Assessment.

h. Commencing June 30^th^, 2021 and on June 30^th^ annually thereafter, the parties shall exchange copies of their complete income tax returns, filed with CRA, and copies of any and all Notices of Assessment/Reassessment within 7 days of receiving such an assessment.

i. The applicant’s request for documentation supporting the respondent’s business expenses for 2016 and 2017 is hereby dismissed.

j. The respondent shall comply with ss. 9, 10 and 11 of Schedule III of the Guidelines as a self-employed person and shall provide supporting documentation to the applicant for her 2018, 2019 and 2020 within 30 days. The respondent shall provide the applicant with such supporting documentation on an ongoing basis for 2021 and ongoing years by June 30^th^ in each year. If the applicant earns self-employed income in 2021 or future years, she shall comply with this obligation.

k. The applicant’s request for an order for disclosure regarding the Canada Student Trust in the respondent’s name is dismissed, without prejudice.

l. The applicant’s request that the respondent provide her and/or the children with the funds she received for the Covid benefit for the 2 younger children is dismissed, without prejudice.

m. The parties shall each provide the other with copies of all Notices of Assessment/Reassessment she received for 2017 and onward, within 30 days of this order. Each shall provide any Notices of Assessment/Reassessment she received in the future, within 7 days of receiving same from CRA.

n. All other terms set out in the Hood final order shall remain in full force and effect.

o. Unless this order is withdrawn by the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

p. The respondent shall pay the applicant’s costs of this motion, fixed in the sum of $4,000, inclusive of HST and disbursement, within 45 days.

M. Kraft, J.

Date Released: August 10, 2021

[^1]: The applicant’s Notice of Motion dated May 26, 2021. [^2]: In addition to the applicant’s notice of motion, dated May 26, 2021, the applicant filed an affidavit, sworn on May 26, 2021; a financial statement, sworn on May 26, 2021; a supplementary affidavit, sworn on July 6, 2021; a further supplementary affidavit on July 12, 2021; and a Factum, dated July 13, 2021. The respondent filed an affidavit, sworn on July 9, 2021 and a Factum, dated July 12, 2021. [^3]: See Exhibit “A” to the applicant’s affidavit, sworn on May 26, 2020 (“Applicant’s May 26^th^ affidavit”), letter dated July 11, 2017. [^4]: Respondent’s affidavit, sworn on July 9^th^, 2021 (“respondent’s July 9^th^ affidavit), para. 25. [^5]: Applicant’s May 26^th^ affidavit, para. 15. [^6]: Applicant’s affidavit, sworn on July 6, 2021, Exhibit “A”. [^7]: Hood, J.’s Reasons, at para. [167]. [^8]: Ibid, at para. [131]. [^9]: Ibid, at para. 152. [^10]: Attached as Exhibit “C” to the respondent’s affidavit, sworn on July 9^th^,2021, is a copy of the applicant’s Notice of Motion, dated April 17, 2019. [^11]: Mattina v. Mattina, 2018 ONCA 867 at para. 10. [^12]: Beaver v Hill, 2018 ONCA 840, at para. 13. [^13]: See Rule 24(18). [^14]: Beaver v. Hill, 2018 ONCA 840 at para. 12. [^15]: Reasons of Hood, J., at para. [108]. [^16]: Family Law Rules, O. Reg 114/99 at Rule 18(14).

M.A. v. N.M., 2021 ONSC 5468

Case Summary

REASONS FOR ORDER

Nature of Motion

Litigation History

Background Facts

The Applicant’s Detailed Position on all Issues

Arrears of Child and Spousal Support

Outstanding s.7 Expenses

Outstanding Financial Disclosure

The Respondent’s Detailed Position on all Issues

Child and Spousal Support Arrears

Outstanding Financial Disclosure

Analysis

Is the respondent in breach of the Hood final order?

Section 9(a): Amounts Set Out in the Applicable Tables for Each of the Spouses

Section 9(b): Increased Costs of Shared Custody Arrangements

Section 9(c): Conditions, Means, Needs and Other Circumstances

Are there arrears of child and spousal support, as well as arrears of Section 7 Expenses arising from the Hood Final Order?

Extra-Curricular Activities

Medical and Dental Expenses

Is there Outstanding Financial Disclosure required by the Hood Final Order?

Costs

Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legal Tests 1

Legislation 2