Court File and Parties

COURT FILE NO.: 361/18 DATE: 2022-03-16 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN: Jodi-Lynn Maude Pennington Applicant – and – Dale Allan Pennington Respondent

Counsel: Self-represented, for the Applicant Elizabeth Porter, Counsel for the Respondent

HEARD: January 18, 21, 24, 25 and 26, 2022

THE HONOURABLE JUSTICE J. W. SCOTT

REASONS FOR JUDGMENT

[1] Jodi-Lynn Pennington and Dale Allan Pennington married on June 21, 2003. They have two children, Ethan who was born on March 5, 2006, and Haley who was born on August 28, 2008. Their date of separation is in dispute with the applicant alleging it occurred in 2009 and the respondent taking the position that the correct date is February of 2012.

Pleadings and Order History With Respect to the Current Application

[2] To understand the outstanding issues, it is helpful to review the pleadings of the parties as well as the temporary and final orders that have been made to date.

[3] Jodi-Lynn Pennington, on her own, filed an application in this court against the respondent, Dale Allan Pennington, on or about June 7, 2018. The application specifically requested:

1. A divorce;
2. Table child support for their children, both under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am. and the Family Law Act, R.S.O. 1990, c. F.3, as am.;
3. Child support on account of s. 7 expenses under both the Divorce Act and the Family Law Act;
4. Custody of the children under both the Divorce Act and the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am.;
5. Health and dental coverage;
6. Life insurance;
7. Disclosure of the respondent’s home address; and
8. Costs.

[4] The respondent, represented by counsel, in response to the applicant’s claims, filed his answer on or about July 24, 2018. This document indicates that he was not opposed to a divorce, the request for table child support, or items 5, 6 and 7 above, but was opposed to the remaining claims. He specifically counter-claimed for:

1. A divorce;
2. Custody (joint) of the children under both the Divorce Act and the Children’s Law Reform Act;
3. Access to the children under both the Divorce Act and the Children’s Law Act;
4. Equalization of the net family property; and
5. Costs

[5] On page four of his answer, in the section that requires a party to set out facts supporting their claims, it reads, “Please see Affidavit of Dale Pennington.” Apparently, he filed with his answer an affidavit. I am uncertain as to why that was done rather than simply completing the answer form as required. The document was accepted by the court office and it is in the continuing record. In that affidavit there is a section that reads:

Equalization of Property/Matrimonial Home

19. The date of separation is February 1, 2011. Dale has been paying well over the ongoing child support for the two children over nine years.
20. Dale takes the position, that even though Jodi, is the sole owner of the matrimonial home at 10 Guy Road St. Catharines, ON. he has for seven years, either paid or partially paid down Jodi’s mortgage over seven years.
21. Thus, Dale takes the position that Jodi holds the matrimonial home, by way of constructive trust or resulting trust, for both Dale and Jodi.
22. Thus, Dale requires compensation from Jodi, for his contributions to the matrimonial home upkeep, mortgage, taxes etc. from 2011 onward.
23. Thus, a calculation must be made from 2011 onward, showing ongoing Child Support each year payable by Dale, and the net amount to be attributed to the mortgage pay down.

[6] While no reply was filed by the applicant with the court, apparently one was served on counsel for the respondent. That form is in the document brief of the respondent (exhibit #6).

[7] There have been no written amendments to any of the pleadings.

[8] Between the time of filing of the pleadings and the time of trial in January of 2022, some issues have been addressed on both a temporary and final basis.

[9] On September 11, 2018, the court severed the corollary issues from the claim for divorce and ordered that the divorce could proceed on an uncontested basis by way of affidavit filed by either party. Apparently, the applicant attempted to do that on her own but, according to her, she was advised, erroneously, by the family court office that she would have to wait for the trial. On January 26, 2022, following the submissions on behalf of the parties at the conclusion of the trial, the court did order that the divorce be granted. It became effective 31 days later.

[10] Temporary child support for the children was also established on September 11, 2018, requiring the respondent to pay $1,112.00 monthly for them based on an annual income of $73,203.00 and the Child Support Guidelines. This commenced on October 1, 2018.

[11] On September 11, 2018, an order requesting involvement of the Office of the Children’s Lawyer was made. They did become involved and counsel was appointed on behalf of the children.

[12] On June 26, 2019, a temporary without prejudice order was made that Ethan would reside on an alternating weekly basis with each of the parties.

[13] On August 15, 2019, amongst other issues, a temporary without prejudice order was made whereby Ethan was placed in the sole custody of the respondent and Haley in the sole custody of the applicant. Terms relating to access were also included. No change was made to the child support order at that point.

[14] Although on January 31, 2020, at the trial scheduling conference, an order was made that the respondent could amend his pleadings on or before February 14, 2020, so as to include a claim for overpayment of child support, this does not appear to have been done. Instead, on January 26, 2021, the court ordered that for purposes of trial, rather than a formal amendment to the pleadings, the respondent shall be permitted to proceed with a claim that he has overpaid child support and/or a claim for unjust enrichment. This was said to be in the alternative to a claim for an equalization payment. The order further noted that the applicant was disputing these claims.

[15] On September 20, 2021, a final order was made addressing all parenting issues and, as well, dealing with any health benefits for the children that either parent might have through employment.

[16] With the parenting issues resolved, the remaining issues at the start of the trial were financial in nature relating to child support and equalization or generally an interest in the property at 10 Guy Road in St. Catharines.

10 Guy Road

[17] The respondent claimed that 10 Guy Road was the matrimonial home. The applicant did not agree. The applicant’s position has no basis in law. While the Court will be addressing this property in more depth later in these reasons, to argue that it was not a matrimonial home as title was registered to the applicant and the parties were not happy together when they lived there is a most unreasonable position for the applicant to take. The definition of a matrimonial home is defined in s. 18 of the Family Law Act:

Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

[18] No matter whose separation date is used, the family lived at 10 Guy Road together. The legislation does not impose any criteria with respect to how they were getting along.

Date of Separation

[19] As noted in para. 1 of these reasons, the date of separation is not agreed upon between the parties. The applicant maintains it was August of 2009 while the respondent’s position is that it was February of 2012.

[20] On some of the remaining issues, the difference between the parties’ dates does not impact. In that regard I note that the respondent has requested that his claim for equalization be withdrawn. When asked why he was withdrawing that claim he seemed to suggest that the reason was the claim was minimal. As s. 7(3) of the Family Law Act sets a limitation period of six years after the day the spouses separate (and there is no reasonable prospect that they will resume cohabitation), even if the respondent is correct in his claim that the date of separation was February of 2012, he is beyond the six-year limitation period. Consequently, his decision to not proceed with any equalization claim, in the Court’s view, did not really amount to much of a concession. I should add that all his original documents filed in 2018 set out that the date of separation was 2011. Not until he was in the witness box was that amended. I do not understand why the counsel he had at the time he initially filed would have even included an equalization claim in the face of those dates.

[21] Neither the applicant’s date of 2009 nor the respondent’s date of 2012 impact on the trust claim per se. The applicant seemed to suggest in her reply submissions that there was a six-year limitation period to this type of claim. That is incorrect. This type of claim is governed by s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, which provides a ten-year limitation period. Consequently, whether the date of separation was 2009 or 2012, with the respondent’s claim being made in 2018, it is not barred as a result of a limitation period: see Chee-A-Tow v. Chee-A-Tow, 2021 ONSC 2080, at para.195. On a similar note, I note the comments of the Court of Appeal in Bakhsh v. Merdad, 2022 ONCA 130, at para. 14 where it stated:

And it does not follow that the expiration of time to bring an equalization claim entails the expiration of a constructive or remedial trust claim. Equalization claims and equitable trust claims remain distinct.

[22] The date of separation will be relevant, however, for considering the child support issues, particularly the respondent’s claim that he has overpaid child support and should be reimbursed.

[23] Separation in the context of family law litigation presumes that cohabitation no longer exists. Pursuant to s. 1 (1) of the Family Law Act, “cohabit” means to live together in a conjugal relationship, whether within or outside marriage. Cohabiting is something more than simply sharing the same address. Parties may not be cohabiting even if living under the same roof. Separation has been described as the point in time when either party regards the relationship as being at an end and by his or her conduct demonstrates that this is a settled intention. A much-cited case addressing the issue of cohabitation and determination of whether parties are spouses under the legislation is Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376. In that case, Kurisko J. reviewed a considerable bank of law relating to cohabitation and listed areas that he considered relevant to determining whether a spousal relationship exists. These considerations are equally important when deciding the question of whether and/or when a separation actually has occurred. Found at para. 16 of this decision, the list entails:

(1) SHELTER: (a) Did the parties live under the same roof? (b) What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation?

(2) SEXUAL AND PERSONAL BEHAVIOUR: (a) Did the parties have sexual relations? If not, why not? (b) Did they maintain an attitude of fidelity to each other? (c) What were their feelings toward each other? (d) Did they communicate on a personal level? (e) Did they eat their meals together? (f) What, if anything, did they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on special occasions?

(3) SERVICES: What was the conduct and habit of the parties in relation to: (a) Preparation of meals, (b) Washing and mending clothes, (c) Shopping, (d) Household maintenance, (e) Any other domestic services?

(4) SOCIAL: (a) Did they participate together or separately in neighbourhood and community activities? (b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5) SOCIETAL: What was the attitude and conduct of the community towards each of them and as a couple?

(6) SUPPORT (ECONOMIC): (a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? (b) What were the arrangements concerning the acquisition and ownership of property? (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) CHILDREN: What was the attitude and conduct of the parties concerning children?

[24] Generally speaking, neither of the parties to this proceeding offered evidence to address the majority of these questions. As a result, little is known in the way of details as to exactly when and what changes occurred in their relationship.

[25] For the most part, aside from her statement that the parties separated in August of 2009, the applicant relied on documentation. She starts by referencing a separation agreement that she and the respondent signed in 2009 (tab 1 in exhibit #4). The agreement appears to be a printed form with specifics written in. While the respondent testified it was prepared by the applicant, it is dated and signed by both parties on July 27, 2009. There is a witness “J.D. Hatcher” but this person was not called to testify.

[26] In the preamble, the agreement states that the parties “agree to live separate and apart and have lived apart since 29 day of Aug 2009.” In the application filed in this current proceeding, Ms. Pennington identifies the separation date as August 29, 2009 as well. However, for some reason in that same application at page three, she indicates that the parties had not made a written agreement dealing with any matter involved in this case. In her testimony the applicant maintained that the date of separation was August of 2009 but added that the respondent did not move out of the home until January or February of 2010. When asked under cross-examination as to why the parties entered into the separation agreement, the applicant testified that as the respondent was intending to claim bankruptcy she “didn’t want him to take me down with him.” The respondent in his testimony as well confirmed that the plan was that he was going to file for bankruptcy and the applicant was afraid that the creditors would go after the house. I find that the hope of the parties was the agreement would protect their home from any claims. When the respondent did file for bankruptcy in October of 2009, he did not list any interest in the home. This is consistent with the desire of the parties to protect it from any claims. The bankruptcy itself will be dealt with later in these reasons.

[27] The next documents referred to by the applicant were the Marital Status Change forms submitted by the parties to CRA (tabs 3 and 4 in exhibit #4). The applicant filed her form on or about September 1, 2010 setting out her separation date as July 27, 2009. The form signed by the respondent on or about December 2, 2010, indicates a separation date of August 29, 2010. The applicant testified that it was she who had completed the form, including the date, signed by the respondent. No explanation was offered as to why she would have inserted the 2010 date. She further agreed when being cross-examined that the separation dates were “all over the place” particularly as they related to the CRA. When the respondent was questioned about this form he indicated that although the parties were not really separated at the time, he signed the form. His position was it was executed so that the applicant would be able to get a higher child tax credit. The form itself does set out that in some situations a party may become eligible for additional CCTB and/or GST/HST credit payments.

[28] There are many pieces of correspondence within the applicant’s exhibit book that reflect that the respondent continued to use 10 Guy Road as his address long after 2009 and, in fact, past February of 2012. According to exhibit #6, the respondent did not change the address on his driver’s licence until May of 2012.

[29] On February 17, 2012 the respondent was served at 40 Spruce Street in St. Catharines with court documents pertaining to another family law matter. This is his mother’s address and, according to the respondent, this was where he and his son Zack were residing. The respondent’s evidence was that the parties separated at the beginning of February 2012 when the applicant refused to allow his son Zack to live with them at 10 Guy Road and, as a result, he and Zack moved in with the respondent’s mother. Consequently, service on him at Spruce Street is consistent with the timelines he suggests.

[30] In 2016 the parties completed a joint application for a divorce (tab 2 in exhibit #4). Although it shows a court file number of 440/16, apparently the application was not issued and did not proceed. The applicant provided a copy to the court at trial as it was signed by both parties and showed a separation date of August 2009. The application did not reflect that there had been any separation agreement entered into between the parties. The respondent offered no explanation for the date shown; he only indicated it had been completed by the applicant. When questioned about the application, he reiterated again that the parties had separated in February of 2012 but had maintained a good relationship over the next few years. It was his view that by 2016 they would not be getting back together and so the divorce should proceed. It was his understanding that the matter did not go forward as it was incomplete, which was the same explanation provided by the applicant. When asked what was missing, he indicated the separation agreement, the agreement about child support and equalization of the house.

[31] On the evidence before the court, I do have difficulty in accepting that the agreement dated July 27, 2009 supports a separation date for August of that year. It is clear from the evidence that both parties were concerned about the pending bankruptcy and wanted to protect the home and family from the possibility of losing that asset. In fact, in section 11 of the agreement this property was identified as an asset that would be the applicant’s both in ownership and possession. There is no evidence that the quantum of child support as set out in the agreement was being paid. At that time the applicant was not employed, only the respondent. There is no reference in the agreement to the pool loan that was entered into just the month prior. This “contract” appears to have been set up for purposes other than organizing the parties’ affairs on separation; more specifically, it was an attempt to protect the Guy Road property.

[32] Turning next to the various documents with the CRA, I would point out that whatever date is acceptable to them for tax purposes is not conclusive for defining a separation date under the Family Law Act. I do accept that there was a reason for the parties, particularly the applicant, to vigorously pursue the change from married to separated in order to increase the child tax benefit. However, the desire to increase that benefit could be relevant for either a separated parent or someone in a relationship who just wanted to increase the amount being paid to them. I cannot make a definitive finding as to the reason in this case.

[33] No claim is being made by the applicant for any adjustment to support with respect to the years prior to 2012. Noting that the applicant was for the most part unemployed between 2009 and 2012 and that the household expenses were continuing to be met by the respondent from his employment income and noting the lack of information that should have been provided to address those considerations set out in Molodowich, for purposes of this decision, I will treat the separation date as being February of 2012.

The Impact of the Respondent’s Bankruptcy Claim

[34] The respondent filed for bankruptcy in October of 2009.

[35] The respondent’s position in this proceeding is that he has a property interest in 10 Guy Road through a resulting trust established at the time of purchase. On the purchase history of Guy Road, I take no issue with that argument based on s. 14 of the Family Law Act and the facts of this case. It is noted that after moving into the home renovations were done as well that included work and funds provided by the respondent.

[36] The parties were joint owners of their former matrimonial home at 44 Taylor Street in St. Catharines. They decided to purchase 10 Guy Road with a closing date of April 27, 2007. In order to do that, they required bridge financing as the Taylor Street property was not closing until May 1, 2007. That was arranged. According to the testimony of the respondent, which I accept, in order to get the best possible interest rate, they acted on the advice of their mortgage broker to place most, if not all, of their debt into the name of the respondent thereby improving the applicant’s credit rating to a higher number. Consequently, the mortgage and the house went into the applicant’s name. This was not done to avoid creditors or for any illegal reason. Nor is there evidence that would lead the court to conclude that this was a gift to the applicant.

[37] It is not disputed that when the respondent filed for bankruptcy in October of 2009 he did not list his interest in the property at 10 Guy Road. Neither did he list the mortgage on the property nor the pool loan he had signed for in June of that year.

[38] Counsel on behalf of the respondent acknowledged that her client should have disclosed his interest in the property but argues that because of the exemption under the Execution Act, R.S.O. 1990, c. E.24, it likely does not matter.

[39] Presumably she is relying on s. 67(1) (b) of The Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, which sets out that “any property that as against the bankrupt is exempt from execution or seizure in the province where the property is situated and within which the bankrupt resides” is not property divisible to the creditors under the Bankruptcy Act. Pursuant to s. 2(2) of the Ontario Execution Act, the principal residence of a debtor is exempt from forced seizure or sale by any process at law or in equity if the value of the debtor’s equity in the principal residence does not exceed the prescribed amount. The current prescribed amount by regulation 289/15 is $10,783.00 and that is the amount counsel referenced in her argument.

[40] The problem with that argument is that in 2009, as far as I have been able to ascertain, a principal residence was not listed as an exemption under the Execution Act and that would be the timeframe that should be employed when looking at this issue now. The legislative change to include the principal residence exemption appears to have been enacted toward the end of 2010. Initially, the prescribed amount was $10,000.00 and it was not until December of 2020 that it increased to $10,783.00.

[41] Assuming the exemption was not in place then in 2009, the respondent should have included what he now asserts to be his interest in the property as a consequence of a resulting trust. Failure to do that impacts on the claim he raises now.

[42] The respondent indicated in his testimony that he was discharged from bankruptcy nine months after filing, which would be July of 2010. The date may be July 24, 2010 based on tab 36 in exhibit #4, although the deemed taxation of the trustee’s accounts and deemed discharge of the trustee do not appear to have occurred until the end of December 2010.

[43] Even if an argument could be made that the exemption came into force prior to the respondent’s discharge and that it should be considered, there would still be difficulty with this position. No evidence has been introduced that would assist the court in determining what the value of the property at 10 Guy Road was in 2009 and consequently what the equity of the parties might have been at that juncture. When the respondent was asked in-chief what the equity in the property was when he filed for bankruptcy, he suggested it was not much, perhaps around $50,000.00. He did acknowledge however that he really did not know. I attach no weight to his speculation.

[44] What we do know is that the home was purchased for $195,000.00 in 2007. There was a $1,000.00 down payment. Aside from that, after taking into account the mortgage advance, to close the deal approximately $12,139.00 was required. Those funds came from the sale of the Taylor Street property ($8,750.00 bridge loan repayment and $3,389.00 cash). Consequently, equity in the property at that point would have been approximately $13,139.00. From the mortgage statements filed at tab 14 in exhibit #4, we know that principal was paid in 2007 of $933.00, in 2008 $4,135.00 and in 2009 approximately $3,485.00 as of the end of September. Adding these figures to the 2007 numbers, the total equity in October 2009 would be $21,692.00 without taking into account any potential increase in the property value that might be attributed to renovations that the respondent worked on in the home, such as the bathroom. Consequently, the respondent’s equity in 2009 would have been at least $10,846.00 plus one-half of any increase in value as a result of the renovations. Those numbers would have exceeded the exemption even if it had been applicable.

[45] I would find that the lack of disclosing this interest in the property at the time of the respondent’s bankruptcy prevents him from going forward with his current claim.

[46] The respondent’s claim for $15,000.00 based on a trust interest and/or unjust enrichment is dismissed.

Child Support Calculations

[47] The applicant is of the view that the respondent’s income is higher than what is reflected on his income tax return. She stated that throughout her testimony and, also provided to the court pictures that she believed corroborated her belief. At the end of her testimony however, she indicated that she recognized that she did not have sufficient evidence on that issue and simply requested that the respondent’s support obligation be based on the income reflected on his tax returns. If that was going to be the position of the applicant, she should not have spent time at trial on this issue. One hopes that by the time of trial only those issues being seriously pursued will be what the court hears about in testimony.

[48] The respondent’s position is that he has overpaid child support based on the child support guidelines. Counsel on behalf of the respondent requested that on the assumption that any money is owing to the respondent by the applicant on account of his claim for $15,000.00 for the resulting trust and overpayment of child support, $30,0000.00 be attributed to his future child support for Haley. She further submits that as each parent now has one of the children with them a set-off approach should be used in the calculation of the ongoing and future child support payments. With respect to the respondent’s income, counsel submitted that the court should employ an averaging approach for the respondent based on his last three years of income.

[49] Financial arrangements between these parties can only be described as extremely casual over the years. Looking at the situation since February of 2012, we see cash and cheque payments. Numbers are not consistent in amount. The respondent testified that in fact he had provided a number of blank signed cheques to the applicant and she would check with him before inserting the number. One would have thought that if the parties were intending to establish child support in accordance with the guidelines it would have been a fairly simple process to provide a series of post-dated cheques with a consistent number as payment.

[50] With respect to identifying the monies received by the applicant from the respondent, most were acknowledged without dispute. In those areas where the respondent claimed to have written a cheque in a greater amount than the applicant acknowledged, based on the bank records as to what went through the respondent’s account, I prefer the evidence of the respondent. In so doing, I note the respondent has provided the court with some cheques that verify his evidence as to what was paid and not the deposits claimed by the applicant (exhibit 5). While the applicant suggests it is not possible to take a cheque to the bank and request some of the money be paid in cash and the balance deposited, I do not accept that explanation. With respect to the suggestion that some of the monies were paid back to the respondent by the applicant, any such payment was denied by the respondent and the applicant acknowledged that she had no evidence to support her assertions. This is similar to the situation relating to some of the cash payments where the respondent suggested more had been paid but without proof, he was not pursuing any more than what was acknowledged by the applicant.

[51] The respondent admitted in his testimony that he had looked at the Child Support Guidelines (although he did not identify when) and further stated that he “exceeded” the required payments.

[52] The concept of child support guidelines presumably should not have been new to the parties. It is referenced in the original document signed by them in 2009. As no income was inserted for the respondent, one cannot say whether it was a factor when they wrote “$500” in section nine. Nonetheless, the respondent in 2012, and likely up to 2016, simply agreed and provided to the applicant “what she needed.” He testified that it was child support and added that the applicant did not want spousal support as she did not want to claim income.

[53] In April of 2017, the parties signed a letter that read:

Ethan and Haley Pennington reside full time with Jodi Pennington at 10 Guy Rd in St. Catharines.

And I Dale Pennington pay child support in the amount of $1261.00 monthly.

[54] I am not clear as to why or for whom that letter was written. When Mr. Pennington was asked by his counsel as to why payments in 2017 were less than in previous years, he responded that “we finally figured out what table support should be.”

[55] Interestingly, the applicant cross-examined the respondent on why he had not made a claim alleging overpayment of child support when they completed their joint divorce application in 2016 and he indicated that was because the parties were getting along then. There is no suggestion that he was unaware of this potential claim. Rather it was a decision on his part not to pursue it.

[56] There is no basis on the evidence before the court for any retroactive adjustment to be made going back to 2012. The parties had an arrangement that worked for them whereby the respondent provided monies to the applicant. He described these monies as being for “child support”. The existence of the Child Support Guidelines does not limit a parent to paying only that amount. In this case, I would conclude that the respondent willingly paid these monies to the applicant as support even though they were above the amounts set out in the Child Support Guidelines.

[57] Case law would suggest there is an ability on the part of a court to retroactively adjust child support paid, most frequently up to three years. As a result of the letter written in 2017, I am prepared to consider the request for retroactive adjustment from that year forward.

[58] Leave was granted to the respondent in January of 2020 to amend his pleadings to include his claim for reimbursement of overpayment of child support. The pleadings were not amended but in January of 2021 the court simply allowed this claim to be included without formal amendment. While 2017 is in keeping with three years prior to when leave to amend was granted, it is also consistent with the letter written in 2017 and the testimony of the respondent that at that point the Child Support Guidelines were known and the expectation was they would be employed.

[59] Applying the income of the respondent for the years 2017 and 2018 and the Federal Child Support Guidelines tables that existed both before and after November 2017 and based on a payment date of the first of each month, I would make the following findings:

YEAR INCOME MONTHLY PAYMENT TOTAL OWED TOTAL PAID 2017 $73,204 $1,080 (Jan-Nov) $11,880.00 $1,112 (Dec.) 1,112.00 $16,324.00 2018 $84,175 $1,273 $15,276.00 $13,890.50 Total: $28,268.00 $30,214.50 Credit to respondent: $ 1,946.50

[60] With respect to the year 2019, there are three separate calculations. The first six months both children were with the applicant. On June 26, 2019, the order provided that Ethan, on a temporary basis, would spend alternating weeks with each parent. That lasted until the middle of August, approximately two months. At that point, the order further changed placing one child with each of their parents.

[61] As a result of the above, the calculation for 2019 will reflect the following:

YEAR INCOME MONTHLY PAYMENT TOTAL OWED (by respondent) TOTAL PAID 2019 $85,802(resp) $1,295 (Jan-June) $7,770.00 $34,026 (appl) $1,003 (July-Aug) $2,006.00 $507 (Sept-Dec) $2,028.00 $10,220.50 Total: $11,804.00 $10,220.50 Underpayment $-1,583.50

[62] As a result of the foregoing, as of December 31, 2019 for the years 2017, 2018 and 2019, the respondent overpaid child support in the amount of $363.00 and that amount shall be credited to him.

[63] For the year 2020, it appears that the respondent’s income was $77,416.00 and the applicant’s income was $43,377.30, as acknowledged by her in the witness box to counsel for the respondent. Consequently, based on the Federal Child Support Guidelines, Haley being with the applicant and Ethan being with the respondent and applying the set-off approach which I find to be appropriate, the respondent would owe to the applicant a set-off amount on account of child support of $323.00 for the months of January through December of 2020. ($722.00 monthly owing by the respondent less $399.00 monthly owing by the applicant.)

[64] Commencing in January of 2021, pursuant to the Federal Child Support Guidelines, based on Haley being with the applicant, Ethan being with the respondent, and using the 2021 estimated income of $80,000.00 for the respondent and the 2021 estimated income of $38,375.00 for the applicant, on a set-off approach the respondent shall pay the applicant on account of child support $405.00 monthly due on the first of each month commencing January of 2021. ($745.00 monthly owing by the respondent less $340.00 monthly owing by the applicant.)

[65] Any payments made by the respondent since January 1, 2020 shall be credited on account of the payments required for 2020, 2021 and 2022 as set out above. In the event that there is a credit in the respondent’s account as a result of payments made between January of 2020 and now, payments on account of child support shall be suspended until the credit is depleted.

[66] The court has used the annual income of the respondent for each specific year. I do not accept the submission that an averaging approach should be employed.

Section 7 Expenses

[67] The applicant has requested that the respondent contribute 65 per cent towards the s. 7 expenses that remain unpaid for the 2018 and 2019 years plus 65 per cent towards the costs of the braces for Haley. Although the respondent’s percentage in 2018 was actually somewhat higher, the applicant has indicated that she is content with the 65 per cent figure.

[68] The specifics of the activity claims are $175.00 for Brock swimming; $190 for CYO Basketball; $125.00 for Port Welland Soccer and $97 for a Brock summer camp. These total $587.00 making the respondent’s share $381.55. These expenses should be shared and the respondent shall pay the applicant $381.55 for them. In the event no payment is made directly to the applicant, she shall notify the Family Responsibility Office of this amount and it may be enforced by them as a s. 7 expense.

[69] With respect to the braces for Haley, there does not appear to be an argument that the respondent should be contributing. Timing has been the primary issue with the respondent initially saying he would start paying in the fall, which he did not do. At trial he indicated that he could likely start paying in March of this year. With respect to the braces, the respondent shall contact the orthodontist and make arrangements to commence payments for his share of the work. If the amount remaining to be paid is less than 65 per cent, he shall reimburse the applicant for the monies she has previously paid to the orthodontist. These arrangements shall be completed on or before April 29, 2022.

[70] Counsel also submitted that the applicant should contribute to the football expense for Ethan. Her share is said to be $89.25. The applicant takes the position that as this is an activity through the school, it is not a s. 7 expense. She is incorrect. This is not a nominal expense such that one might see for a “buy out” day or “pizza day.” There are activity expenses that do come up with respect to school that fall into the category of a s. 7 expense. An expense of $255.00 for football belongs in that classification. However, it is not clear to me that Ethan in fact did participate in football as the respondent seemed to indicate he did not have the funds. Neither was there any receipt produced at trial to verify this expenditure. Consequently, I make no specific order for that expense at this time.

[71] Going forward, however, the Court orders the parties to share s. 7 expenses, as defined in the Federal Child Support Guidelines, in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. The parties shall not incur any expense for which they are requesting a contribution without the consent of the other party, such consent not to be unreasonably withheld.

Miscellaneous

[72] So long as there is an obligation to provide child support, each party shall provide to the other a copy of their income tax return as filed, on or before May 15 of each year and a copy of their notice of assessment, or re-assessment if applicable, within ten days of receipt. The first exchange of this information shall occur in 2022 with respect to the 2021 income.

[73] Leave is granted to the respondent to withdraw his claim for equalization.

[74] In her application the applicant did request that there be an order with respect to life insurance. No evidence has been presented to the court on this issue. There shall be no order with respect to the claim for life insurance at this time. Of course, this does not prevent the respondent from ensuring that coverage exists.

Costs

[75] In the event that following this decision costs continue to be an issue that cannot be resolved, written submissions, not exceeding five pages in length, excluding any bill of costs or case law, should be filed by the applicant no later than March 29, 2022; by the respondent no later than April 12, 2022; and any reply by April 19, 2022. Submissions should be sent to the attention of the judicial assistants at the Superior Court of Justice in St. Catharines or, if filed electronically, to St.Catharines.SCJJA@ontario.ca.

[76] If no submissions are received, the issue of costs will be considered resolved and there will be no order on account of costs.

[77] Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the support order shall be paid to the director, who shall pay them to the person to whom they are owed.

[78] This order bears post judgment interest at the rate of two per cent per annum effective from the date of this order. Where there is default in payment, the payment in default shall bear interest only from the date of default.

Scott J. Date: March 16, 2022