COURT FILE NO.: FC-16-2373-3
DATE: 2022/02/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RASBDEL LEYVA RODRIGUEZ
Moving Party
– and –
KIMBERLEY ROBERSTON
Responding Party
Self-represented for the Moving Party
Self-represented for the Responding Party
HEARD: February 11, 2022, in writing.
decision
Audet J.
[1] This matter is proceeding under the Interjurisdictional Support Orders Act, S.O. 2002, C.13, and Rule 37 of the Family Law Rules.
BACKGROUND
[2] The parties were married on May 24, 2005 and separated on June 1, 2014. They have two children, S.L., born October 2006 and M.L. born March 2013. On May 6, 2016, the parties signed a comprehensive Separation Agreement settling all issues between them. At that time, the father had advised that he was moving to Florida and this move was contemplated in the agreement. The agreement provides that the mother has sole custody of the children, who were to reside primarily with her, and that the father had access to them as set out therein. The agreement also provided for the payment by the father to the mother of $500 per month in child support for the two children based on an anticipated income of $31,900 for the father.
[3] The father moved to Florida shortly after the agreement was signed. On November 8, 2016, the respondent mother, Ms. Roberston, filed the Separation Agreement with the court for the purpose of enforcing it pursuant to section 35 of the Family Law Act, R.S.O. 1990, c. F.3, as amended. The child support provisions of the Separation Agreement are since being enforced by the Family Responsibility Office and its equivalent agency in the United States.
[4] On April 3, 2020, the father brought a motion to reduce his child support obligations and arrears accrued under the 2016 agreement. He claimed that his income had decreased and that his living expenses were too high. There was no explanation as to why his income had decreased, as alleged. There was no affidavit explaining why and on what basis accrued arrears should be reduced. While he had provided three recent pay stubs as well as his 2019 U.S. Individual Income Tax Return (which did not support his assertion that his income had decreased), he had not filed a sworn financial statement or his 2018-2017 Income Tax Returns (required under Ontario rules and legislation).
[5] In response to the father’s motion to change, the mother filed her own motion to change seeking an increase of child support as of 2020, based on the father’s pay stubs which suggested a much higher income than the income upon which the father’s support obligations were based back in 2016. In addition, she sought a contribution to the children’s special and extraordinary expenses for the year 2019 onward. However, no information or evidence was adduced to quantify the amounts allegedly incurred for the children on account of special and extraordinary expenses.
[6] In light of the above, I made the following interim order:
The mother shall, within 30 days, file with the court a detailed affidavit setting out the specifics of all special expenses incurred by her for the two children or that she intends to incur in the future, and for which she claims a contribution from the father. Proof of the amounts paid or that she anticipates to pay in the future shall be provided;
A copy of all of the mother’s responding materials shall then be provided to the father who shall have 30 days within which to provide a response/reply, if any. The father’s response shall include, at the very least, the following:
a. A sworn financial statement;
b. Copy of his 2017-2018 Income Tax Returns;
c. Proof of income earned in 2020;
d. A sworn affidavit explaining why his income has decreased, if at all, the efforts he has made to secure more gainful employment, why arrears accrued since 2016 should be reduced, and any other evidence relevant to the claims before the court;
e. The mother will then have 15 days to provide a brief reply, if necessary, by way of a sworn affidavit.
[7] Following that interim order, the mother provided the court with all the information she was ordered to produce. The father, however, did not file any additional materials. After a second review of the materials, additional information was requested from the mother, with notice to the father, and the mother complied with my subsequent request for information. The father did not file any further materials.
THE FATHER’S MOTION TO VARY CHILD SUPPORT AND RESCIND ARREARS
[8] The father having failed to provide any information allowing this court to assess his claims, his motion to vary child support and to rescind arrears is hereby dismissed.
THE MOTHER’S MOTION TO ADJUST SUPPORT RETROACTIVELY
The father’s income
[9] The evidence provided by the father to support his motion to vary his child support confirms that at the time he filed his motion, being April 2020, he was working as a pipe fitter, and that his base salary was $49,920 US per annum. His 2019 U.S. Individual Income Tax Return for 2019 confirms that he earned $47,965 US that year, which is consistent with the employment income he claimed to be earning in 2020.
[10] The three most recent pay stubs provided by the father show that by February 15, 2020, he had earned year-to-date wages of $9,434 US. When annualized, this would result in a yearly income of $81,761 US for 2020, assuming that the father worked throughout the year at the same rate. If the weekly income shown on the father’s three most recent paystubs are averaged ($1,224 US), and then annualized, the father’s yearly 2020 employment income would be in the range of $63,000 US.
[11] In addition to this, the father’s 2019 tax return shows that he also operates a business called Premier Quality Construction, which that year generated $13,000 US in business income. From that income, the father deduced $31,893 US in business expenses, which reduced his overall tax liability by $18,663 US. A look at his business expenses suggests that many of his business expenses (or part thereof) for tax purposes are likely personal expenses such as the use of his vehicle, business-at-home deductions, meals and cell phone. The deduction of “business” expenses which are twice the amount of business income earned that year results in significant tax savings for the father.
[12] The father has not provided the additional financial disclosure that I had ordered him to provide, and from that I draw an adverse inference that the additional information would have supported a higher income than what he claims to be earning in 2019 and 2020. In light of all of the above, I deem the father’s income for the years 2019, 2020 and onward to be $65,000 US. The average US to Canadian exchange rate in 2020 was 1.3415 according to the Bank of Canada, and as a result, the father’s income for child support purposes is $87,975 CAN for all relevant years.
The mother’s income
[13] The mother has filed a sworn financial statement in which she indicates that she is on a medical retirement from her employment (she was diagnosed with General Anxiety Disorder in 2016, as well as with Lupus). She receives pension benefits, CPP benefits as well as long-term disability insurance benefits. In any event, her total income in 2019 was $65,054, in 2020 it was $49,856, and in 2021 it will be $41,285.
Basic child support
[14] Based on the father’s deemed income of $87,975 per annum, he should be paying $1,325 CAN in basic child support per month, in accordance with the Ontario Tables of the Federal Child Support Guidelines, retroactively to January 1, 2020 and onward.
Special and extraordinary expenses (section 7 expenses)
[15] The mother has provided evidence of all special and extraordinary expenses incurred by her for the two children since 2019 to the end of 2021. Most of those expenses were incurred for S.L., who is a child with very special medical needs. She was diagnosed with Celiac Disease and anemia, with ADHD with very short-term working memory, and in 2019 with tonic clonic/grand mal epilepsy. She had a chronic ingrown toenail which required surgery, she underwent orthodontic treatments in 2020, and in 2021 she began counselling with a psychologist. S.L. has needed tutoring since she was in grade 4, and last year M.L. needed tutoring as well.
[16] The mother obtained dental health coverage in 2021 (before that the children’s dental expenses were not covered by a dental plan) and the children were covered as beneficiaries under her health insurance plan. The mother provided a three-year summary of all medical and health (excluding dental) expenses paid by her for the children, including the portion paid by the insurance. For simplicity purposes, I have determined that all of the children’s expenses for the years 2019 to and including 2021 would be shared in proportion to the parties’ income using $87,975 for the father and $52,065 for the mother (representing the average of her income over those three years). The father’s proportionate share is therefore 60% and the mother’s proportionate share is 40%
[17] I have accepted as legitimate section 7 expenses the following:
The portion of dental expenses for both children, including orthodontic expenses for S.L., which was not covered by an insurance plan;
The portion of prescribed medication, glasses and other health expenses for both children which was not covered by the mother’s health plan (this includes the cost of CBD medication for S.L.’s grand mal seizures, which was prescribed to her by her paediatric neurologist and physician to help control her tonic clonic seizures, but which is not covered by the mother’s health plan because it is not yet FDA approved);
The cost of a tutor for both children.
[18] The mother also sought additional expenses which are not, in my view, proper section 7 expenses. For instance, the higher cost of gluten-free food is not a special expense, nor is the cost of food supplements or the children’s cell phones. These expenses are covered by the basic child support paid by the father. In addition, I am not prepared to require the father to contribute to the costs of past extracurricular activities unless proper receipts confirming the amounts paid are provided.
[19] Finally, the mother seeks a contribution to M.L.’s extended daycare program ($1,295 for 2019, $1,280 for 2020, and roughly $300 per month for 2021), and summer camps for the entire month of August 2021. I have not allowed those expenses for the following reasons:
The mother is not currently working outside of the home and, therefore, the necessity of this expense is questionable;
All of these childcare expenses are deductible from the mother’s income taxes and, therefore, the net cost of same (which has not been provided) would be minimal;
The special expenses that I am requiring the father to contribute to are already quite significant.
[20] Based on the above, I am requiring the father to contribute to the following past section 7 expenses for the children:
2019
2020
2021
S.L.
Dentist
$347
$360
$119[^1]
Orthodontist
$360
$5,500
M.L.
Dentist
$814
$164
$28[^2]
[21] For both children for all three years:
Health and medical expenses (in accordance with the SunLife letter dated December 2, 2021 found at Exhibit B of the mother’s affidavit sworn January 14, 2022, Tab 3 of Volume 2 of the Continuing Record, plus the cost of S.L.’s CBD medication), totalling $5,321;
Tutoring for both girls: $5,410.
[22] The total of all s. 7 expenses for the two children for the past three years, therefore, is $18,423. The father’s contribution to these expenses is set at $11,054.
[23] On an ongoing basis, the father shall contribute 68%[^3] of the cost of the following special and extraordinary expenses for the children:
The portion of dental, medical and health expenses not covered by the mother’s dental and health insurance plans, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, prescription drugs, glasses and contact lenses (including S.L.’s CBD medication);
Tutoring.
ORDER
[24] Based on all the above, I make the following final order:
Beginning on January 1, 2020, the applicant father shall pay to the respondent mother child support in the amount of $1,325 CAN per month for the two children, based on a deemed income of $87,975 (CAN) per annum, as set out in the Ontario Tables of the Federal Child Support Guidelines.
The applicant father’s proportionate share of the children’s special and extraordinary expenses for the years 2019 to and including 2021 is set at $11,054 CAN.
On an ongoing basis, the applicant father shall contribute 68% of the cost of the following special and extraordinary expenses for the children:
a. The portion of dental, medical and health expenses not covered by the mother’s dental and health insurance plans, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, prescription drugs, glasses and contact lenses (including S.L.’s CBD medication);
b. Tutoring.
Madam Justice Julie Audet
Released: February 11, 2022
COURT FILE NO.: FC-16-2373-3
DATE: 2022/02/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RASBDEL LEYVA RODRIGUEZ
Moving Party
– and –
KIMBERLEY ROBERSTON
Responding Party
decision
Audet J.
Released: February 11, 2022
[^1]: The total cost, before insurance reimbursement, was $687. [^2]: The total cost, before insurance reimbursement, was $216. [^3]: This is based on the father’s deemed income of $87,975 CAN and the mother’s 2021 annual income of $41,285 CAN.