Court File and Parties

COURT FILE NO.: 37362/14

DATE: 2021-02-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Natasha Tanya Ondrejech, Applicant

AND:

Christopher Edward Markham, Respondent

BEFORE: Kurz J.

COUNSEL: Shelly Kalra for the Applicant

The Respondent self-represented

Marian Gage, OCL counsel for the children

HEARD: January 27, 2021

ENDORSEMENT

Introduction

[1] This is a motion by the Applicant mother (“the mother”) for the temporary variation of the final parenting and supporting orders of LeMay J. dated March 12, 2015 and Miller J., dated October 15, 2015. It comes within the context of her motion to change those two final orders. The mother seeks the following relief:

1. sole custody and primary residence of the children, [S]; and [A] (collectively “the children”)[^1].

2. The access of the Respondent father (“the father”) to the children to be as recommended by the Office of the Children’s Lawyer;

3. The mother to be permitted to obtain the children’s passports and to travel with them without the Respondent’s consent.

4. The father to pay her table child support of $1,879 per month, based on his 2019 income of $133,300.

5. The father to pay her special and extraordinary expenses under s. 7 of the Child Support Guidelines (“s. 7”) including but not limited to S’s ballet in the amount of at least $1,551 per month which is based on her 2019 income of $55,360 and his proportionate share of 66.5% and a total ballet cost of $28,000 per year.

6. Arrears of table and s., 7 child support to be fixed at $31,936.46;

7. Child support shall be adjusted annually through the Family Responsibility Office with the parties exchanging Income Tax Returns and Notices of Assessments by May 1^st of each year.

Consent Orders of Lemay J. of March 5, 2015 and Miller J. of October 15, 2015

[2] On March 5, 2015, LeMay J. ordered, on a consent and final basis, that the father pay $390 per month in s. 7 expenses. That figure was based on a series of s. 7 expenses, that included $5,233 per year for S’s ballet lessons. LeMay J. ordered that the $390 per month s. 7 payments could be increased up to a maximum of $8,000 per annum or $666.67/per month. The order included a definition of special and extraordinary expenses that includes extraordinary expenses for extra-curricular activities.

[3] The LeMay J. order also allowed for an increase in s. 7 expenses upon the following terms:

Consent required for contribution to extracurricular activities

18. The Respondent father shall only be obliged to contribute to the children’s special and extraordinary expenses for the children [sic] up to an annual total of $8,000 per year, indexed to the all-items Consumer Price Index for the City of Toronto on the anniversary date of this order.

[4] On October 15, 2015, Miller J. ordered on consent that the parties shall share joint custody of their two children. She also ordered that they “shall make important decisions about the children together including decisions about the children’s education [and] … major recreational activities”.

Parenting Consent

[5] Prior to the argument of this motion, the parties, with the able assistance of OCL counsel, Ms. Gage, signed a consent for an order regarding the parenting issues. After reviewing it, I raised some concerns. They redrafted it and signed that consent. Order to go in accord with that second consent.

Table Child Support

[6] With regard to child support, the Respondent father is a fireman with the Toronto Fire Services. He has emailed a photo of a pay stub to Ms. Kalra, showing that he earned $128,608 as of December 24, 2020. Extrapolating that figure from 51 weeks in 2020 and calculating its equivalent over 52 months, I find that the father’s 2020 income for support for 2020 and 2021 is $131,129. Table support on that figure is $1,851 per month.

[7] I note that the order of LeMay J. did not preclude the annual adjustment of table support based on the prior year’s income as is standard under the Child Support Guidelines (“CSG”). Accordingly, commencing January 1, 2021 and continuing on the first day of each succeeding month until further order, the father shall pay temporary child support to the Applicant mother of $1,851 per month for the support of the parties’ two children.

[8] The father shall serve and file an affidavit that contains the December 24, 2020 year-to-date pay stub.

s. 7 Proportionate Sharing

[9] The Applicant mother earned $54,511 in 2020. Accordingly, for s. 7 purposes, the father is responsible for 70.6% of any net s. 7 expenses and the mother is responsible for 29.4%.

S’s Ballet Expenses

[10] The key issue in this motion concerns CSG s. 7 expenses for fifteen-year-old S. She has been involved in ballet since she was a young child. As she has continued in her ballet studies, S has excelled as an artist and a dancer. The evidence before me demonstrates for the purposes of this motion that she is both skilled and talented enough to vie for a professional career. If, in two years, she is able to enroll in the National Ballet School, she will actually be paid for work as a dancer. However, she requires rigorous and professional training to prepare her to audition for and attend the National Ballet School or its equivalent. The cost of that training is increasingly costly. The mother claims that the present cost of those lessons, with the Rajka Kopesic School of Classical Ballet, is about $27,300 per year. She makes no claims for s. 7 expenses for the parties’ other child, A.

[11] The father points out that he may have consented to S attending dance classes when she was younger and remains willing to do so. But he feels that the $27,300 annual cost is too prohibitive, particularly in light of his income, the combined incomes of the parties, the mother’s failure to consult with him about this expense, and the fact that he has had little contact with S, as he and the children are estranged. Further, the father has a second family and another child.

[12] The father claims about $56,000 in debt in his sworn financial statement but provides no further proof of those debts. He also provides no information about the income of his spouse. While the mother speculates about that income, her speculation does not amount to evidence.

[13] The father’s financial statement shows approximately $111,000 in annual expenses, including tax deductions. That means that he has an annual surplus of approximately $17,000. That figure includes the original $390 per month in s. 7 expenses ordered by Lemay J.

[14] A close review of the father’s financial statement discloses the following:

a. $14,838.96 per year of his approximately $111,000 in expenses goes to his pension. That means that that deduction at source is an investment for his benefit; metaphorically going from one of his pockets to the other. Nevertheless, that pension money is not available to him for support.

b. While he says that the home in which he lives is owned solely by his partner and that he merely pays her rent, certain entries in his financial statement belie that assertion. In particular:

i. He sets out that he pays $1,050 per month towards the home’s mortgage. He refers to the total mortgage as a debt in the section of his financial statement that lists his debts. While he does not list the total mortgage debt as his debt, he describes it as his partner’s debt. While setting out the total mortgage amount in describing the debt, he lists his monthly payment towards that mortgage as a payment towards a debt. Of course, the father is self-represented and I have to be careful about making findings in regard to the manner in which he describes the payment. But his financial statement appears to have been prepared by a lawyer and was sworn before one.

ii. The father also pays $384.75/mo. for property taxes and condo fees, $200 per month for repairs and maintenance, all of the home he shares with his partner.

iii. He pays a further $305 per month for utilities on that home.

c. Of the $56,438.29 in debt claimed in his financial statement, $15,000 are to his mother and two unnamed friends. He provides no proof or particulars of those debts. He does not even name the two creditors. The only two arms length debts that he claims are a $24,948.29 line of credit, for which he pays $205 per month on and a $17,000 Canadian Tire Credit card debt, for which he pays $345 per month.

[15] The father fails to fill in the portion of the financial statement that sets out the income of his partner. He also fails to say what percentage of the home expenses are paid by his partner.

[16] The mother takes this information and asserts, without further evidence, that the father has an equitable interest in his partner’s home. In the absence of further evidence, I cannot agree. While superficially, the arrangement between the father and his partner does not look like a mere tenancy (which it is not – they are cohabiting partners), the evidence before me does not allow me for a definitive finding at this stage as to an ownership interest. Perhaps equally importantly, I cannot say that that question of the home’s ownership is relevant to the issues before the court because the father is T-4 employee. There is no issue about him making any undocumented income.

Test for an Interim Variation of a Final Support Order

[17] The test for an interim variation of a final support order is set out in Berta v Berta 2019 ONSC 505. There, after considering a number of authorities, I wrote:

40 In considering all of the above, I believe that the applicable test for an interim variation of a final support order (and by extension a stay of the previous one) requires the moving party to prove:

1. A strong prima facie case;

2. A clear case of hardship;

3. Urgency;

4. That the moving party has come to court with “clean hands”.

Application of Berta Test

[18] In applying the Berta test to the facts of this case, I do not find the mother’s request for retroactive s. 7 expenses to meet the tests of either hardship or urgency. The question of whether the father should have been required to pay the full amount of retroactive s. 7 expenses claimed by the mother, despite the lack of consultation, is a triable issue. It is not urgent and does not, in itself, raise hardship.

[19] That being said, the 2015 LeMay J. order of $390 per month will not allow S to obtain the degree of ballet training that she requires. The mother makes a strong prima facie case that, now that the father has notice of her s. 7 claim, she is entitled to an increase in s. 7 expenses. Her hardship arises from an inability to pay for those increased expenses. The urgency arises from the risk of S being pulled out her classes if the mother cannot pay for them. Having adequate ballet training is clearly in S’s best interests. Despite the lack of prior consultation, which is relevant to the mother’s retroactive s. 7 claims, I cannot say that the mother, now having placed the issue on the table, displays an absence of clean hands.

[20] While I find that she meets the Berta test, that does not necessarily mean that the mother is entitled to all of her claim for prospective s. 7 expenses. The claim still must meet the test for s. 7 expenses set out below.

Determination of Special and Extraordinary Expenses under s. 7 of the Child Support Guidelines

[21] The right to claim special and extraordinary expenses, in addition to table child support is set out in s. 7 of the Child Support Guidelines (CSG”), which states:

7. (1) In a 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) childcare 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.

[Emphasis added]

[22] The term “extraordinary expenses” is defined by s. 7(1.1) of the CSG 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.

[23] Under s. 7(2), the “guiding principle” under CSG s. 7 “is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.” Here, S is unable to make any such contribution.

[24] In Titova v. Titov 2012 ONCA 864, the Court of Appeal for Ontario set out the required steps for determining entitlement and the quantity of s. 7 expenses as follows:

23 In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party's income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation." If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are "extraordinary". Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

[25] The same test applies, with necessary modifications for the more limited evidence available, to interim motions for child support.

[26] The party claiming a s. 7 expense must provide evidence to support the reasonableness and necessity of the expense: Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695, (Ont. C.A.) at paras. 23-26.

[27] Notwithstanding the fact that the guiding principle in determining the amount of an expense is that of proportionate sharing of expenses, the court has the discretion to apportion the expense in a different manner than pro-rata to incomes, depending on the circumstances of the case: Buckley v. Blackwood, 2019 ONSC 6918 at para. 30, citing Salvadori v. Salvadori, 2010 ONCJ 462, [2010] O.J. No. 4425 (Ont. C.J.).

[28] The court has the flexibility to consider the resources available to the parties in determining whether or not they have the means to pay the s. 7 expenses claimed. As Gregson J. wrote in Hawkins v. Hawkins, 2019 ONSC 7149, at para. 75:

The court may consider the parties' capital assets, income distribution, debts, third party resources, access costs, support obligations, receipt of support and any other relevant factor. See Delichte v. Rogers, 2013 MBCA 106. Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. (See Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (SCJ); L.H.M.K. v. B.P.K. 2012 BCSC 435, [2012] B.C.J. 593 (SCJ).

[29] The judge must take into account whether the support payor was consulted in regard to the claimed expense: Park v. Thompson, at para. 26. The amount of discretion that a judge may exercise in the face of non-consultation appears to be fact specific. In Douglas v. Mitchell, [2009] O.J. No. 3371 (S.C.J.), Price J. opined that consultation is just one of many factors to be considered in the determination of the entitlement to claim s. 7 expenses. He wrote at para. 40 that:

As desirable as it is for a custodial parent to consult the non-custodial parent and engage him or her in negotiations on the issue of special expenses before incurring them and applying to the court for an order compelling the other parent to contribute, there are too many factors that may militate against such engagement for the court to make it a pre-requisite for obtaining an order."

[30] Price J. concluded at para. 42 that:

The failure of a claimant spouse to consult the other before incurring a special expense is only one factor for the court to consider in exercising its discretion as to whether to require contribution by the other spouse. It need not be determinative.

[31] In Yeo v. Hutcheson, 2020 ONSC 1256, Minnema J. adopted Price J.’s approach to advance consultation regarding s. 7 expenses. Minnema J. pointed out at paras. 87-88 that s. 7 itself does not require prior consultation for allowable s. 7 expenses. But a failure or refusal by a claiming parent to discuss an expense with the other parent in advance bears on the court’s exercise of its discretion in determining whether it is reasonable. Nonetheless, where factors such as the payor’s persistent default or refusal to cooperate would make consultation meaningless, the obligation to consult can be effectively waived.

[32] On the other hand, if a previous order (and arguably, a separation agreement) requires consultation, the room for judicial discretion narrows considerably. In Mistry v Mistry, 2019 ONSC 193, after considering a number of authorities, Fowler-Byrne J. took a definitive approach to the issue, writing:

43 The court has already considered this issue on numerous occasions. If an order states that prior consent is required prior to a s. 7 expense being incurred and no such consent was sought, then the paying party loses their right to seek reimbursement: see Dover v. Timbers, 2012 ONSC 3230, at para. 98, and Luftspring v. Luftspring, [2004] O.J. No. 1538 (Ont. C.A.), at para. 2.

44 The court has also stated that if the requirement of consent is included in a court order, the parties are entitled to expect that their consent will be obtained: Smith v. Angel, 2014 ONSC 6787, at para. 34. The expectation that consent be obtained in advance will avoid the accumulation of expenses that the paying spouse did not have an opportunity to plan for or consider: Lalande v. Pitre, 2017 ONSC 208, at paras. 108, 113.

[33] Here, each party has cited cases in which a particular request for s. 7 expenses has been accepted or rejected by the court based on the criteria cited above. These cases are fact driven. None are identical to the facts in this case. None are determinative of the facts presently before the court.

Application of the Principles for the Determination of s. 7 Expenses to the Facts of this Case

[34] The father does not question whether S’s ballet classes are, in themselves, a proper s. 7 expense. They are not covered under his table support payments. They respond to S’s special needs and talents. As stated above, ballet training is necessary if S is to be able to attempt to meet her apparently reasonable career goal of becoming a professional ballet dancer.

[35] While conceding those points, the father questions whether the quantum claimed by the mother is reasonable and necessary in the circumstances and whether he should be made to pay more than 70% of their substantial costs, particularly when he was not consulted about their radical increase, as set out in the LeMay J order..

[36] The father suggests that at the very most, he can pay $666.67 per month towards S’s ballet expenses, which represents the $8,000 per year maximum set out by LeMay J. That is a substantial increase from the $391 per month minimum payment ordered by Lemay J. Of course, the LeMay J, order actually calls for a cost of living increase in the ceiling of maximum s. 7 expenses. But no party has raised this issue or provided evidence of what that ceiling would be five years after the order was made.

[37] The father asserts, without evidence that he is staying just a step ahead of bankruptcy. Yet looking at his financial statement, for reasons set out above, I do not find that to be the case. Ms. Kalra asks the court to reject the father’s claims of impending bankruptcy, stating that they are not supported by his own financial statement. She points to his income and the annual surplus in his financial statement, as set out above.

[38] Ms. Kalra also points out that the father fails to disclose to the mother and the court the income his partner earns. While that partner has no support obligation towards the parties’ children, that information would give a better picture of the father’s overall financial situation.

[39] I accept that the father is able to pay the mother more than the $666.67 per month which he is requesting to pay as s. 7 expenses. At the same time, the evidence does not make it clear that the mother has determined whether something less than $27,300 per year will allow S to engage in the type of training she requires.

[40] The receipts that she provides come from the Rajka Kopesic School of Classical Ballet. They include charges for tuition, competitions, costumes, head pieces, and private lessons. In addition there are $200 charges for examinations. The private lessons are charged at between $70-$100 per hour. It would require a trial to sift through all of the receipts and to hear evidence regarding the necessity of all of the expenses claimed. There is no evidence that an attempt was made to determine whether all of the lessons and other ballet expenses are necessary and whether there are any ways in which the expenses could be reduced by discounts, bursaries, etc.

[41] Because he has not been consulted, the father has not been able to have a say in whether a programme, even at the Rajka Kopesic School of Classical Ballet that costs less than $27,300, can fulfill S’s needs.

[42] While the mother argues that if S were going to a professional school, like a law school, the father would not be able to object to the cost, the analogy is not exact. First of all, a professional school would be a second degree and S may in the circumstances be asked to contribute the cost, which is not the case here. Second, if S is injured or cannot otherwise attain her goals, the father will then likely be asked to pay a share of S’s college or university expenses as well. Finally, the father would not have to blindly accept S’s educational choices either. For example if she chose to go to an expensive American university rather than a less expensive Canadian one, the father’s obligations may not extend to the more expensive school

[43] As this is an interim order, and as some information regarding the potential of a less expensive alternative to the plan offered by the mother is not before me, I cannot say with a granular certainty what exact amount the father should pay for s. 7 expenses. But I find that in the circumstances, $1,000 per month is a reasonable amount for him to contribute to S’s dance programme.

[44] The father shall pay this amount on a temporary basis commencing February 1, 2021 and continuing until further order.

[45] I note that the mother seeks alleged underpayment of table child support for the time before this motion was brought. That, like the issue of a retroactive increase in s. 7 expenses is an issue for trial. I note that on November 3, 2020, Coats J. ordered that as a term of the adjournment to January 11, 2021, the father was to pay to the mother the following amounts at the following times:

a) $5,200 within 24 hours;

b) $1,531 per month in unspecified payments commencing December 1, 2020 and continuing on the first day of each subsequent month until further order;

c) $1,879 per month in table support for the parties’ two children, payable on January 1, 2020 and continuing on the first day of each subsequent month until further order.

[46] The father requested that he be reimbursed for any alleged overpayment. I will not make that order. Rather, these payments will be credited to him against any final reckoning of what is owed for child support.

[47] With regard to the expenses of Andrea Barclay’s reconciliation counselling, the father will pay her initial retainer, subject to reimbursement by the parties’ extended health benefits insurers. Any uninsured amount shall be paid proportional to income, as set out above.

Further Terms

[48] The father and the children are presently estranged. The consent portion of my order calls for reconciliation counselling. I cannot today make a finding as to the responsibility of either parent for the present state of the father and children’s relationship. Hopefully Ms. Barclay will assist in that regard.

[49] I am not blind to the concern that if S becomes aware (or more aware than she already is) that the father has resisted the mother’s motion, she will become even more aligned with the mother against the father. However, that risk cannot govern the determination of s. 7 expenses upon the principles that I have considered above.

[50] In order to ensure that this motion does not further harm the relationship between the father and the children, the mother shall not discuss the terms of this order or this litigation with the children. If they ask her any questions regrading those matters, she shall direct them to Ms. Gage, their OCL counsel.

Costs

[51] It appears to me that success in this motion was divided. The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Applicant may submit her costs submissions of up to three pages, double-spaced, one-inch margins, plus and bill of costs/costs outline and offers to settle within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Respondent may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and make no costs order.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Date: February 1, 2021

[^1]: To offer some modicum confidentiality, I have chosen to initialize the names of the children.