COURT FILE NO.: 3442/15

DATE: 2022/10/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MONICA ANNE CAMPBELL

Applicant

– and –

DAVID WILLIAM CAMPBELL

Respondent

Self-represented

Self-represented

HEARD: October 6, 2022

REASONS FOR DECISION

Ellies R.S.J.

INTRODUCTION

[1] Ms. Campbell moves for an order that Mr. Campbell pay her the sum of $3,127.34 as his proportionate share of their son’s school, health, and sports expenses under s. 7 of the Federal Child Support Guidelines, SOR/97-175 (the "Guidelines"). Mr. Campbell opposes the motion on the basis that their son was an adult at the time the expenses were incurred and that the expenses in question were unnecessary and/or unreasonable, in any event.

[2] For the reasons that follow, Ms. Campbell's motion is allowed.

BACKGROUND

[3] The parties separated in 2014. They have three children. The youngest, David, was born on April 12, 2002. He resides with Ms. Campbell.

[4] David is a hockey player. He was playing for the North Bay Battalion of the Ontario Hockey League (the "OHL") in 2020. While David was playing for the Battalion, he was living away from home and being supported financially by the team. For that reason, on January 28, 2020, Gareau J. ordered Mr. Campbell to pay support for David only for the months of April through to and including August 2020, when he was living at home.

[5] Like most young hockey players, David's future was uncertain in January 2020. Because of that uncertainty, Gareau J. ordered that the issue of child support would be reviewed in September 2020. Gareau J. undertook that review on October 2, 2020. By then, however, David's future was even more uncertain. The onset of the COVID-19 pandemic had caused the OHL to cancel in-person play. As a result, David was residing at home. At the time, the league hoped to resume in-person play as of December 1, 2020. Therefore, the parties agreed, and Gareau J. ordered, that the monthly child support being paid by Mr. Campbell would continue up to December 2020.

[6] However, the parties could not agree on s. 7 expenses. Ms. Campbell sought an order that Mr. Campbell pay his proportionate share of s. 7 expenses for the summer months of 2020. The expenses totalled $3,453.91 and included expenses relating to things such as practice ice time, skate sharpening, and a practice jersey. Gareau J. held that only two of the listed expenses qualified as proper s. 7 expenses: the cost of a personal trainer ($2,000) and that of a gym membership ($450): Campbell v. Campbell, 2020 ONSC 6038, at para. 11. Nonetheless, because Mr. Campbell had agreed to continue paying monthly child support to December, Gareau J. refused to order that Mr. Campbell pay his 88 percent share of these expenses.

[7] Unfortunately, the OHL did not resume in-person play in December 2020, as hoped. Instead, David remained at home in Sault Ste. Marie, waiting for things to change. He enrolled in online courses through Sault College during the 2021 winter semester (from January to April 2021) and got a part-time job stocking shelves at a grocery store. As his coaches requested, he continued to practice and train for the resumption of in-person play. Despite David's hopes, however, the OHL cancelled the season in April 2021.

[8] I am told by Ms. Campbell that David returned to North Bay in August 2021 to play hockey and that he is now playing for the Wellington Dukes Junior A hockey team, in Wellington, Ontario.

[9] Mr. Campbell has not paid any support for David since December 2020.

PRESENT MOTION

[10] In the present motion, Ms. Campbell seeks Mr. Campbell's proportionate share of the following expenses incurred in 2021:

(1) a used MacBook Pro computer ($300)

(2) a software upgrade for the computer ($293.80)

(3) chiropractic treatment for an inflamed Sacro-iliac joint ($460)

(4) a gym membership ($500); and

(5) a personal trainer ($2,000).

[11] The expenses total $3,553.80, of which Mr. Campbell's proportionate share would be $3,127.34.

[12] Mr. Campbell opposes Ms. Campbell's request for two main reasons. First, he does not believe that he should be responsible for any s. 7 expenses because David was an adult at the time they were incurred. Second, even if he is still liable to pay David's s. 7 expenses, he contends that these expenses were unnecessary and/or unreasonable. He submits that the education expenses were not incurred in connection with a full-time program of education and that the hockey expenses ought not to have been incurred because David was struggling as a hockey player.

ISSUES

[13] The issues raised in this motion can be addressed by answering the following two general questions:

(1) Is Mr. Campbell liable to pay any s. 7 expenses for David?

(2) If so, should he be required to pay his proportionate share of the expenses in issue?

ANALYSIS

Is Mr. Campbell liable to pay any s. 7 expenses for David?

[14] Section 7 of the Guidelines defines “special or extraordinary expenses”. The relevant portions of the section provide:

(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:

(c) health-related expenses that exceed insurance reimbursement by at least $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;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[15] Section 7(1.1) of the Guidelines defines "extraordinary expenses" as being:

(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;

(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.

[16] Mr. Campbell submits that, because David was an adult at the time the expenses in question were incurred, he was no longer a child within the meaning of these provisions. I disagree.

[17] The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), defines a "child of the marriage" in s. 2 as follows:

child of the marriage means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

[18] Under the Divorce Act, the age of majority is defined by provincial legislation, where it exists: Divorce Act, s. 2. In Ontario, the age of majority is 18: Age of Majority and Accountability Act, R.S.O. 1990, c. A.7, s. 1. David is over the age of majority. However, in my view, he was still a child of the marriage at the time the expenses at issue were incurred because he was unable to withdraw from his parents' charge or to obtain the necessaries of life.

[19] In the spring and summer of 2021, there was still a prospect that David would have a career in hockey. Indeed, on the evidence before me, there still is. OHL hockey is amateur hockey at its highest level in Ontario. While not every OHL player makes it to the National Hockey League as a pro, not many amateurs make it to the OHL. There is nothing in the record to support Mr. Campbell's view that David was wasting his time waiting for in-person play to resume in the OHL. I conclude, therefore, that it was reasonable for David to pursue his hockey career.

[20] Because of the sacrifices David had already made towards a hockey career and because of the uncertainty surrounding OHL hockey at the time, it was not possible for David to survive without the financial support of his parents. For that reason, he remained a child of the marriage at the time the expenses in question were incurred. Mr. Campbell is, therefore, liable to contribute to them.

If so, should Mr. Campbell be required to pay his proportionate share of the expenses in issue?

[21] The remaining questions are whether the expenses in question were necessary and reasonable.

[22] Mr. Campbell made no submissions, nor did he introduce any evidence, to the effect that the chiropractic treatments were unnecessary or unreasonable. It is difficult to see how they could be, even if they were caused either by playing hockey or by training to do so. Medical treatment does not become unnecessary or unreasonable solely because it results from activities of which we do not approve.

[23] With respect to the expenses relating to David's post-secondary education, Mr. Campbell contends he could have obtained a computer for David without Ms. Campbell spending what she did. However, there is no evidence to support Mr. Campbell's contention.

[24] Mr. Campbell also submits that the courses David took ("Foundations of Exercise Science", "Human Growth and Development for Fitness and Health Promotion", and "Sports Psychology") were not ones that he "would recommend" and were just "an excuse [for him] to remain dependent". Again, I disagree. The courses David chose all related to the career path he was following at the time: hockey. There was nothing unreasonable in these course choices on his part.

[25] With respect to the necessity and reasonableness of the expenses relating to hockey, Mr. Campbell's position again revolves around David's talent as a hockey player. For the reasons expressed above, I conclude that the expenses were necessary to maintain David's competitiveness in the sport. Because there was so much uncertainty surrounding the resumption of in-person hockey at the time the expenses were incurred, there was also nothing unreasonable about them. Like Gareau J. in his October 2020 decision, I believe that the gym membership and the personal trainer were legitimate s. 7 expenses in David's case. Unlike the situation before Gareau J. in October 2020, however, Mr. Campbell is paying nothing in child support and, therefore, there is nothing against which to set off his proportionate share of these and the other expenses at issue.

[26] Thus, in my opinion, all of the expenses in issue are legitimate s. 7 expenses.

CONCLUSION

[27] For the foregoing reasons, I conclude that David was an adult child of the marriage at the time the expenses in issue were incurred and that the expenses are all proper s. 7 expenses. Ms. Campbell's motion therefore is allowed in full. Mr. Campbell is ordered to pay to Ms. Campbell the sum of $3,127.34 within 30 days of the date of this decision.

[28] Ms. Campbell was successful on the motion. Ordinarily, the successful party is entitled to her costs. Ms. Campbell lost a day's pay ($175) in order to participate in the hearing of the motion. A successful self-represented litigant may be entitled to costs where she has foregone an income-earning opportunity. However, those costs do not generally include the time the litigant would have spent if she was represented by a lawyer, such as the time spent attending a court hearing: Tran v. Financial Debt Recovery Ltd., 2000 ONSC 22621, 193 DLR (4th) 168(Ont. S.C.), at para. 51.

[29] Therefore, I make no order as to costs.

M.G. Ellies R.S.J.

Released: October 13, 2022

COURT FILE NO.: 3442/15

DATE: 2022/10/13

ONTARIO

SUPERIOR COURT OF JUSTICE

MONICA ANNE CAMPBELL

– and –

DAVID WILLIAM CAMPBELL

REASONS FOR DECISION

M.G. Ellies R.S.J.

Released: October 13, 2022