COURT FILE NO.: FS-20-00016054

DATE: September 24, 2021

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Karim Karim

AND:

Rubina Mohamed

BEFORE: Madam Justice Shore

COUNSEL: F. Hudani for the Applicant

F. Jamal for the Respondent

HEARD: September 24, 2021

ENDORSEMENT

[1] The Respondent brought this motion seeking an order that the Applicant pay his proportionate share of the child’s s.7 expenses, and specifically:

(a) Tuition for kindergarten/daycare of $4,909 per year;

(b) Tuition for private school of $11,894 for September 2021;

(c) Reading at $87.60 per month (or $1051 per year) and swimming and soccer classes at $25.95 per class.

[2] The Respondent also asked the court to make a retroactive adjustment to child support (going behind the terms of their agreement) because of a failure to gross up the Applicant’s 2017 and 2018 income.

[3] For the reasons set out below, the Respondent’s motion is dismissed but for her claim regarding day-care for the child.

[4] The parties have one child together, age five-years old. The child lives with the Respondent in Malaysia. The Respondent is employed at a day-care center and earns the equivalent of $21,324 CAD per year. The Applicant is a high school math teacher in Toronto. His salary in 2020 was $75,805.35.

[5] In October 2020, the parties reached Minutes of Settlement, and agreed that the Applicant would pay child support in the sum of $707 per month based on his annual income of $75,805. The Minutes also addressed retroactive child support.

[6] The Respondent has registered the child in grade 1 at Cempaka International School for September 2021. The school applies an international curriculum, leading to an international baccalaureate diploma, or A-levels (in England). The school teaches in English, as opposed to Bahasa Melayu (the national language in Malaysia). Tuition at the school start at $11,894 (plus a one time $3,806 registration fee) and goes as high as $18,365 in the higher grades.

Analysis:

[7] Section 7 of the Child Support Guidelines provides as follows:

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

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

(f) extraordinary expenses for extracurricular activities.

Daycare:

[8] I do find that the child-care last year was reasonable and necessary to allow the Respondent to work. Further, the Applicant agreed to contribute to this expense but never made any payments. I am prepared to make an order with respect to payment of the day-care for last year. This order is without prejudice to final determination of the issues at trial as I appreciate that the Applicant’s income and adjustments for costs of living are issues that need to be determined at trial.

[9] The cost of day-care was $4,909. The Applicant’s proportionate share, based on his income of $75,805 and the Respondent’s income of $21,324, is $3,828. I relied on the Supportmate calculation provided by the Respondent in her affidavit materials.

Tuition:

[10] Private school tuition is not reasonable having regard to the incomes of the parties. The Respondent is seeking a contribution of $773 per month. The Applicant’s child support obligation is $707 per month. After paying child support and private school tuition, the Applicant will be left with approximately $2,800 per month for his own living expenses.

[11] At one point during argument, the Respondent submitted that she is living with her parents and she will owe them money for her own expenses. This supports the Applicant’s position that private school tuition is simply not affordable for this family on their current incomes.

[12] In Pomozova v. Mann, the Mother sought contribution from the Father towards expensive private school tuition for the three-year-old child. The Court noted that there was no evidence, aside from the Mother’s own wishes, to suggest that private school was necessary, or that the child had any particular needs that required her attendance at private school at this young age. The Court also noted that there was no evidence about why the child’s needs could not be met at a public school. Private school was not deemed a necessary s. 7 expense: see Pomozova v. Mann, 2008 CarswellOnt 7891 (Ont. S.C.J.), at paras. 122 & 124, affirmed in Pomozova v. Mann, 2010 ONCA 212, at paras. 15-16 and Fiorino v. Fiorino, 2013 ONSC 2445, at paras. 29-30, 35-36.

[13] The Respondent has not met the onus of proving private school is necessary for the child. The child lives in Malaysia with the Respondent and the Respondent has no plans to move. The parties lived in Malaysia following their marriage and the child was born there. The child has never lived in Ontario. The Respondent has not satisfied the court that learning in English is necessary for the child as opposed to learning in the national language of Malaysia. Both the Mother and the Father speak to the child in English so there is no concern about his ability to communicate with the Father in English.

[14] The Respondent also alleges the child will benefit from earning a baccalaureate diploma. However, she has not satisfied the Court that it is necessary for the child to earn this type of diploma. Further, the cost of earning the diploma is significant for the family. The child does not have any specific needs that make this school necessary. The child does not have a history of attending private school because he is just starting his school career. The Applicant advises that the Respondent attended Malaysian public schools and was able to earn a university degree, in English, at Carlton University in Ottawa.

[15] I do not find the tuition to be reasonable or necessary in this case.

Reading, Swimming and Soccer:

[16] With respect to the other s.7 expenses, the Applicant relied on a number of cases for the proposition that the cost for reading, swimming, and soccer are already included in the monthly support amounts. However, in all three cases relied on by the Applicant, the incomes of the payors were significantly higher than the Applicant in this case and therefore the child support was significantly higher and would have included some extra-curricular activities. They are easily distinguishable.

[17] However, I do not find these extracurricular activities to be extra-ordinary and they do not exceed an amount that can reasonably be covered by the child support. I am not prepared to order the Applicant to pay for the activities on an interim or retroactive basis. Again, this is without prejudice to the parties’ positions at trial.

Retroactive adjustment in child support:

[18] In her Notice of Motion, the Respondent was also asking the Court to set aside the parties agreement and increase the retroactive child support owing from the Applicant to the Respondent, because the court and both parties erred by failing to gross up the Applicant’s income when negotiating the agreement with respect to his 2017 and 2018 income.

[19] There were three different positions taken in the Respondent’s materials and submissions:

(1) It was a mistake that no one picked up on at the time;

(2) Counsel forgot to gross it up at the time; and/or

(3) There was material non-disclosure by the Respondent.

[20] The total difference to the retroactive child support owing is $2,152. There are problems with all of the grounds claimed by the Respondent, and I do not find her argument sufficiently persuasive on the evidence before me to make the order requested. This part of the motion is dismissed.

[21] Order to go as follow:

(1) The Respondent’s motion is dismissed except for the issue of the Applicant’s contribution to the child’s child-care in 2020, all on a without prejudice basis with respect to their positions at trial.

(2) The Applicant shall pay the Respondent $3,828, on a without prejudice basis, for his proportionate share of the child’s child-care expenses for 2020, based on an income of $75,805 for the Applicant and $21,324 for the Respondent. The Applicant’s proportionate share is 78% of the total cost of $4909.

(3) If the parties are unable to resolve the issue of costs between them, the Applicant shall file cost submissions, no longer than three pages, plus his bill of costs and any offers to settle. The Respondent shall file her cost submissions, no longer than three pages plus her bill of costs and any offers to settle, within ten business days of receipt of the Applicant’s cost submissions

Date: September 24, 2021