COURT FILE NO.: FC-20-031

DATE: 2021/11/23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joshua Clyde Brophy Applicant

– and –

Carrie Elizabeth Penelope Blair Respondent

Adrienne Curran, for the Applicant

Karla Policelli, for the Respondent

HEARD: August 27, 2021 - Perth

DECISION ON MOTION FOR ARREARS AND ONGOING CHILD SUPPORT AND EXTRAORDINARY AND SPECIAL EXPENSES

Somji J.

Overview

[1] The respondent mother brings a motion for an interim order requesting arrears and ongoing child support and special and extraordinary expenses (“s. 7 expenses”). The mother also requests conditions that delineate parental responsibility for the children’s recreational activities.

[2] The father has been paying child support and s. 7 expenses for the three children since the parties’ separation in 2016 and has agreed to do so going forward. However, he disputes the mother’s calculation of arrears and states he has paid for any shortfall. The father also agrees to pay for his share of the children’s s. 7 expenses relating to childcare, medical, orthodontic, and camps, but cannot afford the children’s recreational activities in addition to child support.

[3] The father has consented to several of the mother’s requests and there will be an order on consent of the parties with respect to those issues.

[4] The outstanding issues on this motion are:

1. Does the father owe child support arrears for 2019?
2. Does the father owe child support arrears for 2020?
3. Does the father owe s. 7 expense arrears for 2020 and 2021 to date?
4. Should the father be required to contribute to the children’s ongoing recreational expenses and if so, by what amount?
5. Should there be an order delineating parental responsibility for participation in the children’s recreational activities such as swim meets and hockey tournaments?

Evidence

[5] Each party has provided a factum in support of their position. I have also relied on the following evidence filed by the parties:

1. Mother’s affidavit dated July 31, 2021, and reply affidavit dated August 19, 2021.
2. Mother’s financial statement dated March 1, 2021.
3. Father’s affidavit dated August 13, 2021, and supplement dated August 24, 2021.

Background facts

[6] The parties were married on March 15, 2006. They had three children: F.B. (13), P.B. (12) and J.B. (8). The parties separated on January 17, 2016 and were divorced on March 15, 2018. The children reside primarily with the mother.

[7] The father has regular parenting time with the two boys P.B. and J.B. on a two-week rotating schedule. He has overnight time with the boys from Friday to Monday on week one and Thursday to Friday on week two. The eldest child, F.B., commenced reunification counseling in March 2021. F.B. has limited parenting time with the father. The father has requested increased parenting time with all the children. Counsel reports that this is a live issue for trial.

[8] The mother is a nurse practitioner. The father is a member of the Canadian Armed Forces. He was regularly deployed for periods of time during the marriage and following separation. In June 2020, he was diagnosed with an Operation Stress Injury, and consequently, he is no longer deployable and may, in fact, be medically discharged.

Orders on consent

[9] At the time of the motion hearing, the father was agreeable to several of the mother’s requests. There will be an interim order, on consent of the parties, that:

a. the father will pay Table child support in the amount of $2,091 per month, in accordance with his 2020 income and the Child Support Guidelines, O.Reg. 391/97 as am.

b. the father will pay his proportionate share of P.B. and J.B.’s childcare expenses for 2020 on a net basis after the tax credit the mother received has been applied;

c. each parent will pay their propionate share of the children’s medical expenses pursuant to section 7 of the Guidelines, including the future orthodontic expenses for the children;

d. each parent will maintain their respective medical and dental benefits for the children, as available to them, and for so long as each child is eligible; and

e. each parent will name the children as beneficiaries on life insurance through their employment as security for the children for as long as they are able.

Does the father owe child support arrears for 2019?

[10] The mother seeks child support arrears in the amount of $5,291.

[11] Following separation in August 2017, the parties entered into a written agreement in which the father agreed to pay child support in the amount of $1,200 per month and 50% of the children’s s. 7 expenses including recreational activities. The parties also agreed that the father would pay 30% of the childcare expenses and the mother would pay 70% but would claim 100% for tax benefit purposes. The parties were not represented by counsel at the time.

[12] Until July 2019, the mother would send the father a monthly financial statement of expenses. She claims that upon receipt of the financial statement, the father would call her, make derogatory remarks towards her, and threaten not to pay. While he always came through on the base child support payment of $1,200, he often refused to pay for some of the children’s expenses, in particular the children’s competitive soccer and swimming.

[13] The mother provided two email examples dated May and June 2019 of the father’s derogatory comments to her which I would agree, on their face, are offensive. However, following another incident in November 2019, and on the recommendation of Family and Child Services of Lanark, Leeds and Grenville, the father has taken steps to reduce conflict with the mother, including completing the Parenting Through High Conflict Separation and Divorce Course. The parties now also communicate through Our Family Wizard Program.

[14] In June 2019, the mother agreed to receive a monthly lump-sum of $2,000 for child support and s.7 expenses, including expenses for the children’s recreational activities. The mother claims this amount was calculated based on the expenses incurred by the children in the previous year and was to be adjusted moving forward. The mother does not deny the verbal agreement which was made without the benefit of counsel. However, she claims she only agreed to the lump sum amount because she was “overwhelmed with verbal and emotional abuse and had to come up with a plan to attempt to mitigate it”.

[15] The mother states at para. 28 of her affidavit that the father owes her child support arrears totaling $5,291. She explains that the father’s income for 2019 was $130,676. This would have resulted in table support of $2,403 per month. The father only paid $2,000/month, and therefore, the father owes her an additional $403/month for a total of $4,836 in child support arrears for 2019. In addition, the father owes her an additional $455 for 2020. Paragraph 28 of the mother’s affidavit states as follows:

28. There are arrears of child support owing:

a. Based on Joshua's 2019 income of $130,676, child support arrears would be $4,836.00 (table support of 2,403, less support paid of 2,000 x 12 months per the attached support calculation, a copy of which is attached hereto at Exhibit "E") plus $455.00 (child support of $91/month for January to May 2021, based on Joshua's 2020 income of $110,843.00, and as per the support calculation attached hereto as Exhibit "C"), for a total of $5,291.00. [emphasis mine.]

[16] This same paragraph is reiterated in the mother’s factum at para. 26.

[17] Counsel for the father points out, however, that at para. 26 of the mother’s affidavit she indicates that she is only seeking child support and s. 7 expenses retroactive to January 1, 2020. If that is the case, the father does not understand the basis of the mother’s request for arrears for 2019. Para. 26 of the mother’s affidavit states:

I am requesting that Joshua pay the Table amount of child support for the three children as well as his proportionate share of the children's special and extraordinary expenses retroactive to January 1, 2020.

[18] At para. 25 of the mother’s factum, counsel reiterates that the mother is only seeking child support retroactive to January 1, 2020. Further, at page 13 of the same factum, which relies on different numbering for paragraphs, it states that the mother is only seeking child support arrears from “the commencement of this court matter…” but does not stipulate what that date is or for which tax year.

[19] I find that I am unable to discern the mother’s claim in this case. The mother’s affidavit and factum clearly stipulate that the $4,836 of child support she is seeking relates to a shortfall of the Table amount owed in 2019. No other explanation or calculation has been provided for the source of the $4,836 in arrears. This would suggest that the mother is seeking arrears retroactive to January 1, 2019. At the same time, the mother’s affidavit and counsel’s factum both stipulate that the mother is only seeking child support retroactive to the period of January 1, 2020. The Notice of Motion also fails to specify for which years retroactive child support is being sought.

[20] Furthermore, neither party referred to the decision in Coluci v Coluci, released in June 2021, where the Supreme Court of Canada revisited the legal framework for determination of a variation in child support and how it should be applied in this case: 2021 SCC 24. For applications to increase support, the new legal framework requires the receiving parent to establish a material change in circumstances which includes a change in the payor’s income. While the onus is on the recipient to show a material increase in the payor’s income, any failure on the part of the payor to disclose the financial information allows the court to impute income, strike pleadings, draw adverse inferences and award costs: Colucci at para 114(a).

[21] Furthermore, once a material change in circumstances in the payor’s income is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase: Colucci at para 73. A recipient is no longer required to demonstrate as a preliminary matter that a retroactive award is appropriate based on the factors set out in D.B.S. v S.R.G., 2006 SCC 37: Colucci at para 73. It is only if an award retroactive to the date of effective notice would be unfair that the court retains discretion to depart from the presumptive date of retroactivity. It is in the exercise of this discretion that the court is to consider the D.B.S. factors also set out in Michel v. Graydon, 2020 SCC 24. These factors are the delay in bringing the application, the circumstances of the children, blameworthy conduct on the payor parent, and whether there would be any hardship on imposing a retroactive order.

[22] Once entitlement of support is determined, the Court is to use the Guidelines in quantifying the proper amount of the support for each year since the date of retroactivity: Colucci at para 114. The court also discretion to reduce the amount of arrears for hardship.

[23] In Colucci, the Supreme Court of Canada was clear that child support will vary. A payor cannot reasonably expect that their support obligations will remain static in the face of material increases in their income: Colucci at para 77. Furthermore, child support is determined on the basis of the payor’s income and the presumptive rule is that the quantum of support will be determined by the Table amounts: s. 3(1) Federal Child Support Guidelines, SOR/97-175, as am.; see also Colucci at paras 34 and 114.

[24] While the parties had verbally agreed in 2019 that the father would pay child support in the amount of $2000/month, the amount fell short of the Guidelines. The shortfall in child support for 2019 was $4,836, not an insignificant amount for any parent. Therefore, notwithstanding that the onus is on the mother who brought the motion to establish the evidentiary basis for a retroactive increase in child support, I find it would be unfair to make a finding on the request for 2019 arrears without further submissions from both counsel on the mother’s entitlement and quantum for arrears under the Colucci framework.

[25] The parties are encouraged to come to an agreement on the issue of the 2019 arrears having considered the legal framework under Colucci. It is unclear from the pleadings whether the mother provided the father with effective notice that she would be seeking additional support, and if not, whether the date of formal notice is required. It is also unclear if the father had informed the mother of his increase in income in 2019, and if not, whether the presumptive date of retroactivity would be the date his income increased. If the matter is not resolved and it was the mother’s intention to seek arrears for 2019 support despite the contradicting paragraphs in the mother’s affidavit and factum, the parties may provide further brief written arguments and affidavit evidence on this issue alone for my further consideration and decision.

Does the father owe child support arrears for 2020?

[26] The mother also requests arrears in the amount of $455 for 2020. This amount is calculated on the basis of the father’s 2020 income which was $110,843 requiring him to pay $2,091/month of Table child support. However, from January to May 2020, the father only paid $2,000 as per the verbal agreement between the parties. This resulted in a shortfall of $91/month for five months and total arrears of $455.

[27] Counsel for the father does not dispute that there was a shortfall for 2020 Table child support. However, the father paid the mother child support arrears in the amount of $1,547 on June 25, 2021, which included the shortfall of $91/month for January 2020 to May 2021. Since May 2021, the father has also continued to pay Table child support of $2,091 calculated on his 2020 income.

[28] The father confirms he received a Pain and Suffering Compensation lump sum payment of $199,391.03 in July 2020 from Veteran Affairs Canada (“VAC payment”). His counsel takes the position that this money is exempt from his income as it is meant to compensate him from his losses as well as provide for his ongoing care. Counsel for the father did not cite any authorities in support of her position that such expenses are exempt. Recent jurisprudence suggests that courts have discretion to include a portion of a lump sum disability award to impute income for the purposes of calculating retroactive child support: Hewitt v Rogers, 2018 ONSC 1384 at paras. 108-109.

[29] On the other hand, the onus is on the mother to establish that an order for retroactive child support should be made for 2020. Counsel for the mother did not provide any arguments claiming that the father’s income for 2020 should be imputed to a higher amount because of the VAC payment, and if so, what the amount should be. The request for child support arrears made no reference to the VAC payment. The mother’s calculation for arrears attributes $110,843 for the father’s 2020 income. Based on that income, the $455 of arrears the mother requested for January to May 2020 have already been paid. Since May, the father has continued to pay the Table amount in accordance with his 2020 income.

[30] The mother’s application for child support arrears for 2020 is dismissed.

Does the father owe s. 7 expense arrears retroactive to January 1, 2020?

[31] Section 7 of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) provides that the court may order a parent to pay for children’s expenses over and above child support. These include, but are not limited to, childcare expenses, medical and dental insurance premiums, health related expenses including orthodontic treatment, extraordinary school expenses, expenses for post-secondary education, and extraordinary expenses for the children’s extracurricular activities. Section 7(1) of the Guidelines state as follows:

7. (1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least of $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[32] The court must consider the necessity of the expense as it relates to the children’s best interests, the reasonableness of the expense in relation to the spouses’ and children’s means, and the family’s pre-separation spending pattern: Titova v Titova, 2012 ONCA 864 at para. 23.

[33] If the extracurricular activity expenses are necessary in relation to the child’s best interest and reasonable in relation to the means of the parents, the court must then determine if the expense also meets the definition of extraordinary under s. 7(1.1) Guidelines. The use of the word extraordinary in s. 7 implies that ordinary expenses are intended to be covered by the basic Table amounts: Titova at para. 28; see also McLaughlin v McLaughlin (1998) 5558 (BC CA) at para. 64. The Guidelines define “extraordinary” as follows:

[25] The Guidelines define “extraordinary” as follows:

1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

[34] In Clancy v Hansman, 2013 ONCJ 622, Justice Sherr reviewed some of the principles derived from the caselaw with respect to claims for s. 7 expenses. They can be summarized as follows: one, the onus is on the parent seeking expenses to prove that they fall within one of the categories under section 7 of Guidelines; two, the list of special and extraordinary expenses under clauses 7(1) (a) to (f) is exhaustive, and if a claim does not fall within any of the listed categories, then it must be dismissed; three, expenses for usual or ordinary extracurricular activities for a family are included in the table amount of support; and four, section 7 expenses involves the exercise of judicial discretion. When exercising its discretion, the court should consider the objectives of the Guidelines, including clause 1(a) which is to establish a fair standard for children and that they benefit from the financial means of both spouses after separation: Clancy at para. 96.

[35] If the expense is unusual or disproportionate to the usual costs for that same activity, then it may be considered extraordinary and warrant an award over and above a child support payment: Greene v Greene, 2017 ONSC 3007, [2017] W.D.F.L. 4107, at para. 120.

[36] The mother seeks an order retroactive to January 2020 that the father contribute to the children’s s. 7 expenses over and above the monthly Table child support of $2,091 he has paid. The mother sets out a list of expenses in her affidavit for childcare, tutoring, laptops, summer camps, orthodontic expenses, competitive hockey, and competitive swimming totaling $12,210.84. She requests the father contribute 47.9% of the costs proportionate to his 2020 income for a total of $5,848.99. Each of these categories of expenses is addressed separately.

Childcare

[37] The father is agreeable to paying for childcare costs for 2020. According to the father, the mother paid $1,775.50 in childcare expenses for the two boys and claimed those expenses on her tax return. Given the mother received the tax credit, the father’s proportionate share of these expenses, based on his 2020 income after the tax credit has been applied, is $285.

[38] The mother requests the father pay 49% of the net amount of childcare costs. However, she has not provided her calculations for how she arrives at the final figure which should also include any subsidies, benefits or income tax deductions or credits she receives: ss. 7(3) and 7(4) Guidelines; see also Bennett v Bonatsos, 2014 ONSC 1048 at paras 31 to 33. I agree with the father’s calculation and find that his contribution after the child tax credit is applied is $285.

Educational expenses: tutoring and laptops for online learning

[39] The mother spent $813.60 for P.B.’s tutoring. She claims the tutoring was suggested by the father himself in the summer of 2020, but he has refused to contribute towards this cost.

[40] The father acknowledges he suggested that P.B. attend tutoring. However, he states he did so because he was aware that the mother was obtaining grants from the Ontario government towards the children’s educational expenses. He understood the mother’s grant was for $2,400. He takes the position that the tutoring expenses should come from the grant money received.

[41] Given that it was the father who suggested tutoring, the father should have confirmed with the mother his expectation that it would be paid for by Ontario grant money, and if not, whether he would nonetheless contribute. Furthermore, I find P.B.’s tutoring expenses can be considered extraordinary expenses as defined in 1.1 of the Guidelines for the following reasons: 1) Both parents agreed that P.B. would benefit from the tutoring; 2) it was a significant cost in comparison to common school fees that might be covered by child support; 3) the overall cost for tutoring is reasonable and affordable given the combined income of the parents; and 4) some of the cost can be offset by the educational grants received. For all these reasons, the father is ordered to contribute to the costs of tutoring in the amount discussed below.

[42] The mother purchased a laptop for F.B. in September 2020 and two laptops in January and March 2021 for the boys for a total of $1,418.22. The mother explains that she had to purchase the laptop for P.B. as the father refused in December 2020 to allow P.B. to take his Chromebook to her home. This required her to buy another computer so he could continue with online schooling.

[43] The mother acknowledges she received grant money totaling $2,400 for 2020 and 2021. She states in her Reply affidavit that she used $600 of the grant money received in May 2020 to purchase a new laptop, printer, and tablet for the children. The mother received an additional $600 of grant money in December 2020 and $1,200 in April 2021. She does not specify how this money was spent.

[44] The father states he inquired with the mother on March 21, 2020, when the schools closed down due to COVID-19, whether she needed to buy any devices for the boys, and she indicated she did not. The mother responded at the time that the boys had laptops. However, the mother explains in her Reply affidavit that the family laptop was subsequently damaged. Since the children were schooling online and from home during the pandemic, they all required functioning laptops which is why she purchased additional ones.

[45] The father states that he also spent money on laptops at his residence to avoid the transfer and damage of devices back and forth between residences. He is not claiming those.

[46] The caselaw on whether computer equipment is mixed. The court has recognized that school supplies, including a computer, can be a reasonable s. 7 expense depending on the nature of the program the child is pursuing: Reyes v Rollo, 2001 28260 (ON SC), 24 R.F.L. (5th) 120, at para. 99. In Phelan v Verni, 2013 ONSC 2893 at para 53, the father sought to have money spent on a laptop recognized as an extraordinary expense and the court agreed it should qualify as a s. 7 expense. In contrast, in Kelly v Kelly, 2017 ONSC 7609 at para 59, the court rejected the father’s request to have laptops recognized as a s. 7 expenses because the father failed to establish that new laptops were necessary and that the children could not use their old ones.

[47] In this case, I find that while it might seem like the purchase of four laptops in one year is excessive, many families were required throughout 2020 and 2021 to purchase additional computer equipment to ensure their children could continue with online schooling during the COVID-19 pandemic. These laptops were unexpected expenses that arose in unprecedented times. The mother has provided an explanation for why the multiple purchases were necessary. I find these costs should be shared by both parties in proportion to their income over and above any child support.

[48] I accept that the mother used the grant money of $600 in May 2020 to purchase a family laptop, printer, and tablet for the children. However, this still leaves $1,800 of grant money that the mother has not accounted for. The total costs for tutoring and three additional laptops was $2,231.92. I agree with the father that the grant money should be used for tutoring and laptops. However, there remains a shortfall of $431.82. Notwithstanding that the father also incurred expenses for computers, I find the shortfall should be shared by the parties in proportion to their income. The father is ordered to pay $215 for those educational expenses.

Summer camps

[49] The mother requests contribution for the children’s summer camps. Each of the boys attended hockey camps in June 2021 and F.B. attended soccer and volleyball camps for a total cost of $1,492. The mother acknowledges the father indicated he would be applying for grants through the military to help with these costs but points out that he has not yet contributed financially for any of these expenses.

[50] The father indicated to the mother in a text dated June 30, 2021, that he was approved for a $1,500 grant through Support the Troops and that he would provide her the money once received. Given the father will be receiving grant money to pay for the camps, that money should be attributed in its entirety for the cost of the children’s camps and not just the father’s share. There will be an order that the father will provide the mother the $1,500 in grant money from Support the Troops within seven days of receipt to compensate her for the cost of the camps that she paid upfront. It does not appear that there should be any shortfall between the costs of the camps, but if there is, it should be divided between the parties in proportion to their 2020 incomes and the mother should be paid the shortfall within seven days of the receipt of the grant money.

[51] The father explains the grant money is not provided every year and an annual application is necessary that requires proof of payment and attendance at the camp. While this explains the delay in receiving and paying the mother for his contribution, it remains unfair for the mother to shoulder the full costs of camps until such time as grants are approved and received. Parents are usually required to register and pay for camps in early spring. Going forward, if both parents agree to their children attending summer camps, the parent who registers should forward proof of payment to the other parent and the other parent should pay their share in proportion to their income within thirty days. This avoids either parent from carrying the costs of camps alone for extended periods of time. If grant money is subsequently received, the parents can reconcile their contributions accordingly.

Competitive hockey for 2020 and 2021

[52] The cost of the children’s participation in competitive sports is the primary area of contention between the parties. Both boys are enrolled in competitive hockey and the daughter is enrolled in competitive swimming. The mother argues the father should contribute towards half of these costs as special and extraordinary expenses over and above his monthly child support.

[53] According to the mother’s list of expenses, the total cost for the boys’ hockey in 2020 was $2,904.04 and consisted of the following:

• Registration fees P.B. $710
• Player fee P.B. $225
• Tournament hotel P.B. $307.34
• Tournament hotel P.B. $326.70
• Holding fee J.B. $25
• Holding fee P.B. $25
• Holding fee J.B. $605
• Summer session P.B. $60
• Installment fee P.B. $420
• Session 1 fees P.B. $200

[54] The total cost for the boys’ hockey in 2021 to date, not including the summer camps, is $396.24 and consists of the following:

• Hockey session 2 fees P.B. $125
• Hockey initial installment fee J.B. $246.24
• Hockey competitive tryout fee P.B. $25

[55] The mother takes the position that these are sports in which the children have historically participated and from which the children derive great benefit. She states that at no time did the father indicate to her that he was not consenting to the children’s participation in these activities. Furthermore, the sports’ expenses she is claiming do not represent the entire cost of the children’s activities. She has incurred additional costs for travel to tournaments, hockey equipment, leadership camps, and online learning which she is not claiming.

[56] The father takes an entirely different position on the necessity and affordability of competitive hockey. He supports his boys’ involvement in hockey and acknowledges they benefit from it by learning teamwork and building self-confidence, but he believes these skills can be developed through house league hockey. He claims he was not aware of P.B.’s coaches recommending him for competitive hockey. He points out that the costs of competitive hockey are considerably more than house league, and include for example, five tournaments a year estimated at $500/weekend. The father states that he simply does not have the means to pay for competitive hockey on top of his monthly child support and other s. 7 expense obligations.

[57] With respect to the 2020 and 2021 hockey expenses, the father indicates that the mother enrolled P.B. in competitive hockey on the basis of their verbal agreement in 2019 that his monthly lump sum of $2,000 was to include payments for that activity. With respect to J.B., the father states that his house league hockey should be covered by monthly child support.

[58] Finally, the father disagrees that the mother is the only parent who has incurred costs that are not being shared. He provides examples of costs he incurred for taking F.B. to a swim meet and P.B. to a hockey tournament in 2019 that he did not claim.

[59] The question to be addressed is whether the hockey expenses constitute extraordinary extracurricular activities that should be paid over and above child support.

[60] The determination of whether competitive hockey constitutes an extraordinary expense will vary depending on the circumstances of each family. As with many extraordinary expenses, it requires consideration of the financial means of the parties, whether it is reasonable for the parties to spend such money on competitive hockey, and the necessity for the expenditure. In Watt v Watt, 2011 ONSC 1279, the court did not recognize the expenses for competitive hockey to be reasonable or necessary. The court found that while participation in sports has benefits, it can be accomplished by engaging in such activities at the recreational/community level: Watt at paras. 45-47.

[61] In contrast, the court found in Hall v Riddock, 2017 ONCJ 352 that elite hockey was necessary and in the children’s best interests given they had participated in competitive hockey for years: at para 41. In that case, the parents combined income was approximately $352,000. Their separation agreement indicated that the father had been paying special expenses annually ranging from $5000 to $33,000: Hall at para 5.

[62] I do not find that the mother has established that competitive hockey is necessary for P.B. The mother claims that competitive hockey was recommended by a coach and the father approved this activity. The father denies this. In order to determine if this is an activity that is necessary in the child’s best interests, the court requires further information about the circumstances under which P.B. was enrolled in competitive hockey and whether he was identified to have a special talent. I do not find the evidence filed establishes this and that which has been presented is disputed. Furthermore, as the father indicates, many of the benefits of hockey can be obtained through house league hockey which is considerably less expensive and more affordable for the parties.

[63] I am also not satisfied on the evidence presented to date that the costs of competitive hockey of approximately $3,300 for 2020 and 2021 are reasonable in relation to the means of the parents. The father’s 2020 income was $110,850 and the mother’s income was $122,409. Given the level of income, the parties could likely have absorbed the cost of some level of hockey as they did in the past if they had the benefit of a dual income household. However, the father is presently paying approximately $25,000 yearly in child support for all three children. The mother earns more than the father and receives the government grants and tax credits. While the father has re-partnered and benefits from the efficiencies of that dual income household, he is left with 31.1% net disposable income at the end of the month to cover all his monthly expenses to support a second family. With that remainder, he has agreed to pay for childcare, camps, and educational expenses above child support. The father has also been informed that over the next few years he will be paying up to $10,500 for his portion of the children’s orthodontic expenses.

[64] Part of the challenge in this case is that there is insufficient information to ascertain the true costs of competitive hockey. The mother argues the cost difference between house league and competitive hockey is not significant. However, her figures compare J.B.’s novice house league fees ($860) with P.B.’s pee wee competitive fees ($1,150) and suggest a difference in base fees of approximately $300. It would be more helpful for the court in understanding costs if the figures compared the costs of house league and competitive hockey and for each of the levels the boys are presently enrolled in. The mother’s figures also do not include the number of tournaments and the anticipated costs for those tournaments, training camps, player fees, holding fees, jerseys, or equipment. The father estimates that in addition to the base registration fees, competitive hockey would require potentially five tournaments for each child at a cost of $500/tournament. This is consistent with the mother’s expenses for 2020 where the hotel costs alone for each tournament were between $300 and $350. This would add another $5,000 in tournament fees if both boys were to play competitive hockey.

[65] Furthermore, even if there was sufficient evidence to establish that the hockey expenses were extraordinary expenses, the mother has not established that the father consented to pay for the costs of P.B.’s competitive hockey or J.B.’s house league hockey over and above the $2,000 lump sum payment the parties agreed to in 2019. In fact, the texts at Exhibit C of the father’s affidavit suggest that the $2,000 lump sum was to be inclusive of activities. In the texts, the father expresses concerns about the additional costs of P.B. playing competitive hockey and his ability to afford additional expenses. The father inquired with the mother about how much it would cost, and she replied she did not know. It is unclear if the text represents the whole of the conversation as between the parties on the subject. Nonetheless, unlike in the case of Hall, I am not satisfied that the father consistently supported the children’s participation in hockey at the competitive level. The evidence presented suggests the contrary.

[66] I find that the mother has not established that the costs for P.B.’s competitive hockey for 2020 and 2021 were necessary or reasonable and constitute extraordinary expenses that should be paid over and above the father’s child support. I also agree with the father that the base fees for J.B.’s house league hockey costs can come from child support, and the mother has not established that there was an agreement that it would not. The request for arrears for hockey expenses is denied save for the costs of the tournament fees discussed below.

[67] When exercising its discretion to grant or deny a s. 7 expenses, the court must consider what is fair and in the best interests of the children and ensure that they continue to benefit from the financial means of both spouses after separation. The evidence filed to date establishes that the boys have always played some hockey over the years and that both parents have taken the boys to hockey tournaments and paid themselves for the associated costs of tournaments. Therefore, notwithstanding that the mother signed P.B. up for competitive hockey and the father believed that all associated costs would come from child support, it was unreasonable to expect the mother would also be paying for all additional costs for travel and accommodation for hockey tournaments. For this reason, there will be an interim order that the father will pay for his share of the costs of P.B.’s tournaments for 2020 claimed by the mother. The total amount claimed is $634 and the father’s approximate proportionate share is $317.

[68] Finally, in coming to the decision that the father should pay for the educational expenses, summer camps, and hockey tournament costs discussed above, I have taken into consideration that the father did a receive a lump sum VAC payment for 2020 and, consequently, the hardship for these discrete amounts is not as severe as it might have been in 2019 as well as for the coming years when he anticipates his income will decrease upon his discharge from the military.

Competitive swimming for F.B.

[69] The mother also requests the father to contribute to half the cost for F.B.’s competitive swimming which she estimates at $3,787.52 for January 2020 to present. The mother has not provided any breakdown of these expenses.

[70] The father states he consented to swimming as long as it was provided for in the $2,000 monthly support amount. The father points out that there is no evidence that he consented to expenses for swimming at the competitive level except for an email where he agreed to extra practices for $25.

[71] The father takes the same position with competitive swimming as he does with competitive hockey. He is agreeable to his children’s participation in these activities so long as they are affordable and come from his child support. The costs for swimming have been escalating and are likely to go up as the province opens up and swimming meets start up again. He argues the cost is not sustainable in the long term.

[72] The mother indicates that there is no comparable swimming club for F.B. where they live. She states that if the father was not agreeing to competitive swimming, he should have informed her when they were discussing increasing costs for practice fees.

[73] The mother has not provided any information that competitive swimming is necessary and reasonable. No clear information has been provided as to when F.B. started swimming, if she has a special talent, what the associated costs are, what portion constitutes registration fees, practices, and tournaments, and whether these fees have escalated over the years. In these circumstances, it is difficult for the court to assess if the expense is necessary or reasonable: Watt at paras 40-41.

[74] Where an activity has been one that the children have participated in in the past, it is expected that parents will not withhold consent unreasonably for the children’s participation in those activities. However, there is also a responsibility on the receiving parent to keep the payor parent reasonably informed of those costs should they escalate. In this case, there is no evidence that the mother obtained consent for the costs of swimming over and above practice fees, that she made it clear to him that these expenses were to be over and above child support, or that she kept the father reasonably informed of the costs of competitive swimming: Hall at para 46. The father understood that swimming expenses would be paid from child support and his consent was premised on that agreement.

[75] I find the mother has not provided sufficient evidence to warrant a retroactive order of the costs for competitive swimming as an extraordinary expense.

[76] Had the tournament expenses for swimming been clearly delineated, an order for sharing of those costs could have been considered as it was done for hockey tournaments given that it would be unreasonable for a parent to expect that on top of the swimming fees, child support could also cover travel and accommodation to meets. That information was not provided.

Should the father be ordered to pay for recreational activities as part of s. 7 expenses going forward?

[77] The mother seeks an interim order retroactive to July 1, 2021, that the father shall pay going forward 52.1% of the children’s s. 7 expenses based on his 2020 annual income of $120,663. The mother would pay the remaining 47.9% based on her annual income of $110,843.

[78] The father has consented to an interim order requiring him to pay for s. 7 expenses related to childcare, orthodontic expenses, and medical expenses going forward.

[79] However, the father does not agree to pay for the children’s recreational expenses over and above Table child support because his consent to the children’s participation in these activities was based on an understanding that the costs would come out of his monthly payment.

[80] As discussed earlier, the father has provided evidence that he cannot presently afford to pay for the additional costs of recreational activities, particularly for competitive hockey and competitive swimming. Furthermore, the father anticipates he will be medically discharged from the military and will be entering into vocational training at which time he estimates his income will be reduced to $69,300.

[81] I find that there is no basis upon which to compel the father on an interim basis to pay for the children’s competitive sports going forward. The total costs of these recreational activities such as competitive hockey and competitive swimming have not been clearly delineated, and as indicated by the father, are likely to increase as tournaments and swim meets resume post-pandemic. To the extent that the father has consented to the present enrollment of the children in these activities, such consent was premised on the parties 2019 agreement that the cost would be included in child support.

[82] The dilemma, of course, is that both the boys are presently signed up for the 2021-2022 hockey season. As already noted, regardless of whether they were playing house league or competitive, it is anticipated that there will be additional costs for travel and participation in tournaments and the mother should not bear all those costs alone. Therefore, there will be an interim order that the parents will share the costs for each child to attend three hockey tournaments for the 2021-2022 hockey season. If the mother wishes for the children to attend any additional tournaments, she will have to pay for those costs.

[83] There will be a similar condition that the parents will share the costs of F.B.’s swim meets for the 2021-2022 season in proportion to their income.

[84] Thereafter, the parents are encouraged to come to a clear agreement on which level of hockey each of the boys will play, an estimate of the associated costs of the boys’ participation in hockey including tournament costs, and their respective contributions in proportion to their incomes taking into consideration any fitness tax credits a spouse may be entitled to. The parents are encouraged to come to a similar agreement in relation to F.B.’s continued participation in swimming, the associated costs, and what they might each reasonably be able to pay over and above child support.

[85] This ruling does not absolve the father of responsibility for paying for the children’s participation in any sports activities going forward. As already discussed, the children have participated in sports throughout their lives from which they have benefited. It is understood that the costs for some recreational activities are to be paid from child support: Clancy at para 97. Other specialized recreational activities may involve higher fees and include additional costs, such as for tournaments, and parents would be expected to share those types of costs over and above what might come out of child support. I note also that the father has suggested activities for the boys such as boxing. Should the children be enrolled in any additional recreational activities, the parents should come to a clear agreement on how those activities will be paid for in advance of enrollment.

[86] The parents are encouraged to also discuss and come to an agreement on other s.7 expenses. The father has agreed to pay for summer camps, tutoring, and educational expenses over and above child support. These expenses are likely to recur in the future. The mother should not be required to pay for them alone, but the parents need to communicate clearly on what those activities are so that each parent can organize their finances accordingly.

[87] Finally, it is clear from the pleadings that the issue of parenting time remains in dispute. Depending on how that matter resolves, it could impact the quantum of child support payable by the father. If the father is paying less in child support, he would have more funds available to pay for the children’s recreational activities and s. 7 expenses could be revisited accordingly.

Should there be an interim order delineating parental responsibility for participation of in certain of the children’s recreational activities such as swim meets and hockey tournaments?

[88] The mother has suggested that she be solely responsible for taking F.B. to her swim meets. The father disagrees. The mother’s suggestion was well intended given the father and F.B. are currently in reunification therapy and in taking F.B., she would be bearing the tournament costs.

[89] I do not find, however, that there is any basis to order the father on an interim basis no to take F.B. to swim meets. The father should have this opportunity provided F.B. is equally agreeable. The child’s wishes, in consultation with the views of the reunification counsellor, should be strongly considered. The activity may prove beneficial to the father and F.B. in renewing and developing their relationship.

Order

[90] If the parties intend to adjudicate the issue of 2019 arrears, the materials should be filed with the court and brought to my attention by December 10, 2021. Otherwise, counsel shall prepare a draft interim Order consistent with my decision for my review and signature by that same date.

Costs

[91] The father is the successful party on this motion. The father consented to and resolved a number of issues prior to the motion, including the issue of 2020 child support arrears. It is unclear why some of these issues proceeded to adjudication. The contradictions in the mother’s materials made it difficult for the father to respond adequately to the claim for 2019 arrears. Furthermore, even though the father was ordered to pay for some s. 7 expenses, he was successful on the principle issue in dispute which was the s. 7 expenses for extracurricular activities.

[92] If the parties are unable to settle the issue of costs, costs submissions can be filed. They shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The father shall file his submissions by December 3, 2021, the father by December 17, 2021, and the father will have until December 22, 2021 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Somji J.

Released: November 23, 2021

COURT FILE NO.: FC-20-031

DATE: 2021/11/23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joshua Clyde Brophy Applicant

– and –

Carrie Elizabeth Penelope Blair Respondent

DECISION ON MOTION FOR ARREARS AND ONGOING CHILD SUPPORT AND EXTRAORDINARY AND SPECIAL EXPENSES

Somji J.

Released: November 22, 2021