COURT FILE NO.: FS-12-0198-004
DATE: 2022-10-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tamara Dawn Kuzyk
Applicant
- and -
Michael James Simeoni
Respondent
COUNSEL: K. Hagman, for the Applicant B. Shanks, for the Respondent
HEARD: September 8, 2022, at Thunder Bay, Ontario
BEFORE: Mr. Justice F. Bruce Fitzpatrick
Decision On Motion
[1] The Moving Party, Michael James Simeoni (hereinafter the "Father"), seeks an Order which requires the Responding Party, Tamara Dawn Kuzyk (hereinafter the "Mother"), to pay her proportionate share for their sons' hockey registration costs for the 2022-2023 season.
[2] The Mother and Father were married on May 19, 2007 and separated on June 24, 2012. The couple has two sons, Evan dob May 9, 2008 and Alex dob September 23, 2011. Upon separation the parties engaged in protracted litigation. They settled matters after one day of a scheduled multi-day trial in April 2016. Minutes of Settlement were incorporated into a Final Consent Order issued by Pierce J., dated April 13, 2016 (the "Final Order").
[3] Both Evan and Alex are talented hockey players. Evan is particularly good for his age. Both play hockey at the “select” level. Alex currently plays AA. Evan has played AAA for the past six years.
[4] The parties are agreed about a split of fees for Alex’s hockey for the 2022-23 season. The parties do not agree about Evan’s hockey fees and expenses.
[5] The Mother has consented to Evan playing AAA for the 2022-23 season. The mother has conceded that AA hockey expenses for Alex are “extraordinary expenses” within the meaning of section 7(1)(f) of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”). The Mother submits AAA hockey expenses for Evan are not extraordinary expenses.
[6] The affidavits of the parties make a wide-ranging variety of allegations. Both parents depose how excellently they have parented their sons. Both parents make significant disparaging remarks about the conduct of the other parent and the poor parenting choices the other parent made before separation and after separation. Time has not healed the wounds in this family.
[7] Both affidavits give detailed evidence about financial circumstances, both of the affiant and the other parent. The information is conflicting in my view. This is significant because the Mother submits she cannot afford to pay for Evan’s AAA expenses and the Father submits she can and should.
[8] In my view, all the material filed on this motion violates both the letter and the spirit of the September 13, 2021 Province-Wide Notice to the Profession Regarding Family Law Cases (the Notice). The parties brought this matter on a regular motion day. Regular motions have limits to amount of material that can be filed according to the Notice. The Notice restricts the length of materials that can be filed on motions to one primary affidavit that is not more than 12 pages in length. Father’s primary affidavit of May 2, 2022 is 16 pages containing 98 paragraphs. Mother’s first responding affidavit of June 10, 2022 is 18 pages containing 100 paragraphs. Father’s reply affidavit of June 27, 2022 is 12 pages and 106 paragraphs. The Notice says reply is limited to 5 pages. All the exhibits filed by the parties exceed the normal expectation set out for such filings in the Notice of 10 pages.
[9] I repeat this only to observe that these parents are not playing by the rules in pressing forward with this matter. In this case, based on the materials filed, these parents seem intent on rehashing the past, clouding the future and spending money litigating issues that to some may seem relatively trivial. AAA hockey by design is for the few and the elite. It does not make it any less important to the children concerned. However, the Court is a system open to all and it is a finite resource. This matter needs to be tried if the parties cannot come to an agreement themselves.
[10] I appreciate the parties have tried to mediate. It did not work and they are back to Court. Protection of the interests of children who cannot advocate for themselves is always a paramount concern of our system. However, the Court has only so much time when it is apparent that the conflict at issue is objectively at the periphery of what is in the best interests of Evan.
[11] The issue of hockey expenses is not a new one for these parents. The issue was dealt with squarely in the Final Order at paragraph 29. This paragraph was entitled “Extra-curricular Activity Costs”. This is contrasted with the preceding paragraph in the judgment which was entitled “Special/Extraordinary Expenses”.
[12] Paragraph 29 provided, among other things, “House league hockey and hockey at an “A” level or less shall not be considered extraordinary.” The order is silent on the issue of AA or AAA hockey.
[13] Of interest is the fact that the extraordinary expenses paragraph 28 commences with the words “Subject to paragraph 29 herein…”
[14] In argument, counsel for Father characterizes this motion as being one for summary judgment, as if the Final Order clearly and expressly contemplated that AAA hockey was accepted by the parties as an extraordinary expense. On a plain reading of the Final Order there is not such wording. Summary judgment is not an appropriate characterization of this motion.
[15] While the Mother has conceded AA hockey of Alex is “extraordinary” and is prepared to contribute in accordance with the sharing formula contemplated by the Guidelines, I do not take that concession as being determinative as to whether or not AAA hockey should also be considered “extraordinary”. I see them as two very different things particularly because of the decidedly greater cost of AAA hockey. Alex’s annual registration fees for AA are estimated to be $1,200.00. Evan’s annual registration fees for AAA are estimated to be $11,000 - $12,000. Simple math tells me AAA hockey is ten times more expensive than AA hockey.
[16] Section s. 7(1)(f) of the Guidelines defines extraordinary expenses as those that exceed those that the requesting parent can reasonably cover.
[17] Evan did not play AAA prior to separation. The program was not available at the time for children of his age. Nevertheless, post separation, and post the Final Order, the Father has been able to cover Evan’s expenses for the past six years that Evan has been playing AAA. On its face this suggests that the AAA expense is something he can himself reasonably afford without contribution from the Mother.
[18] Among other authorities cited, counsel for the Father relies on the decision of Quinn J. in Myke v. Myke [2000] O.J. No. 2056. This was a decision after a trial. Important to note that while Quinn J. at paragraph 15 noted that the expense of elite hockey can be an extraordinary expense, a full reading of the paragraph and the next paragraph in the judgment is instructive. Quinn J. wrote:
15 I state the obvious when I say that expenses with respect to day care, orthodontic treatment and post-secondary education are specifically addressed in s. 7(1)(a), (c) and (e), respectively. As well, the expense of elite hockey can be the type of expense contemplated by s. 7(1)(f). However, although all four expenses raised by the wife qualify, by their nature, as s. 7 expenses, they do not automatically lead to an order for add-on support. There are certain evidentiary obligations under s. 7 which must be met. In the circumstances of this case, there are four express matters to be proved by the wife and one which may be more implied than express.
16 The express evidentiary requirements are set out in s. 7(1) and (3). In accordance with the opening words of s. 7(1) the wife must prove:
-the necessity of the expense;
-that the expense is in the best interests of the children;
-that the expense is reasonable having regard to her means, the means of her husband and the family's spending pattern prior to separation.
[19] There were other competing authorities from the Superior Court cited by the parties as to whether or not competitive hockey is or is not an extraordinary expense. It is clearly a family specific issue.
[20] In this case it seems to me that this contest is really not about the best interests of Evan. I am sure the Father is going to make sure he plays AAA this year one way or the other. I accept he is very good. This is Thunder Bay. This town produces fabulous hockey talent.
[21] This contest is a continuation of the apparent desire of these two parents to do whatever they can to bend the other to their will. This is evident from the many irrelevant assertions made in the respective affidavits made on this motion.
[22] The awarding of section 7 expenses involves an exercise of discretion by the Court. I decline to exercise my discretion on this motion to award the Father section 7 expenses on the basis of the material filed on this motion.
[23] I am not satisfied that the Father has made out on the materials filed that AAA hockey is an extraordinary expense. This is because he cannot get past the first aspect of the test in section 7(1)(f). The expenses for the past six years have not been ones he cannot reasonably cover.
[24] Motion dismissed. In the circumstances I do not think it appropriate to award costs. If an order is required to give effect to the portion of the motion that was agreed regarding Alex the parties may submit to my judicial assistant a draft order approved as to form and content for my signature on or before November 10, 2022.
[25] I further order that no party may bring any further motions in this matter without leave of the Court. The matter has meandered well off course at this stage. The parties need to reassess where this case is going. The next step in the process will be a 30 minute case conference scheduled on a mutually convenient day at which point the parties may put forward their respective proposals for further events in this litigation, if any.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: October 11, 2022
COURT FILE NO.: FS-12-0198-004
DATE: 2022-10-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tamara Dawn Kuzyk
Applicant
- and -
Michael James Simeoni
Respondent
DECISION ON MOTION
Fitzpatrick J.
Released: October 11, 2022