Court File and Parties

COURT FILE NO.: FC-21-00003-0000 DATE: 2024/04/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MELISSA JACKSON, Applicant AND: GLENN JACKSON, Respondent

BEFORE: Justice M.A. Cook

COUNSEL: Melissa Jackson for Self L. Camarra, Counsel for the Respondent, Glenn Jackson

HEARD: December 1, 2023

Endorsement

[1] The Applicant seeks final orders for the payment of retroactive s. 7 expenses for three of the four children of the marriage, namely Alexander, Callum, and Alyssa, for 2020, 2021 and 2022, together with a final order governing for payment of s. 7 expenses going forward and a divorce order.

[2] The Applicant’s Notice of Motion is dated November 18, 2022. The Applicant’s former counsel prepared it. The Notice of Motion is silent as to the reason or the grounds upon which the Applicant seeks to have the issue of section 7 expenses finally determined by way of interim motion. I can only infer that the Applicant is seeking partial summary judgment on the issue of section 7 expenses.

[3] For the reasons below, I dismiss the Applicant’s motion. This is not an appropriate case in which to grant partial summary judgment. A divorce is not available by way of summary judgment, and I am not prepared to sever the divorce from the collateral issues in circumstances where issues of parenting time and child support remain outstanding. A summary determination of retroactive and prospective section 7 expenses may result in consistent judicial determinations about the income used to fix child support and section 7 expenses. Partial summary judgment will not result in any efficiencies or cost savings for the parties. All issues raised on the motion are triable issues which ought to be reserved to the trial judge.

Background

[4] The parties were married on February 2, 2008 and separated on October 5, 2019. There are four children of the marriage. The eldest child lives with the Respondent, the younger three live primarily with the Applicant. Two of the children living with the Applicant are still minors.

[5] The applicant commenced this application in 2021 seeking, among other things, a divorce, spousal support, parenting orders, retroactive and prospective child support, and equalization of net family property. The only issue that has been resolved by way of a final order related to the sale of the matrimonial home. All other issues in the application remain outstanding.

[6] The application is listed for trial during the trial sittings commencing September 9, 2024.

[7] There is no dispute that the Applicant has incurred and continues to incur section 7 expenses on behalf of the children, nor that the Respondent has accumulated significant arrears in paying his share of section 7 expenses. There are, however, multiple points of disagreement between the parties about the Applicant’s claim for section 7 expenses including:

a. The parties’ respective incomes for each of 2020, 2021, 2022 and 2023; and b. Whether the claimed section 7 expenses claimed are reasonable and necessary.

[8] With respect to income, the parties disagree on what income should be used for assessing section 7 expenses. The Applicant disputes deductions claimed by the Respondent against his gross income, while the Respondent claims that income should be imputed to the Applicant for the purposes of support.

[9] The parties also disagree on what expenses are eligible section 7 expenses. While there are broad categories of expenses not in dispute, including medical and dental expenses, the Respondent disputes that Spanish lessons and costs relating to the children obtaining their motorcycle licenses are reasonable or necessary, and questions the authenticity of some of the proof of payment provided by the Applicant in relation to the children’s attendance at camp. The Respondent further disputes that daycare expenses the Applicant alleges have been paid to the Applicant’s mother were, in fact, paid to the Applicant’s mother and further disputes that the expenses are reasonable or necessary.

[10] The Respondent acknowledges arrears in retroactive section 7 expenses of approximately $10,000 to the end of 2022, but, based on the information before me, it appears that he has not made any interim contribution to these expenses, despite the Applicant advancing this motion and asserting financial hardship.

Rules Governing Partial Summary Judgment

[11] The Applicant, who is currently self-represented, says she is seeking relief because she has been left to pay all of the children’s expenses without contribution from the Respondent. Normally, a litigant in similar circumstances may seek interim relief for contributions to section 7 expenses while the application makes it way through the system. In this case, however, the Applicant is seeking final orders for the payment of retroactive and prospective section 7 expenses, submitting that she is “trying to settle as many issues as possible” before trial.

[12] The Family Law Rules, O. Reg. 114/99 contemplate that final orders can be obtained in one of three ways. First, the parties can settle an issue and consent to a final order disposing of the issue. Second, the Court can adjudicate issues at a trial, whether on a contested or uncontested basis. Third, a party can seek summary judgment by way of motion under r. 16.

[13] The relevant portions of r. 16 of the Family Law Rules, are as follows:

16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

(a) Weighing the evidence.

(b) Evaluating the credibility of a deponent.

(c) Drawing any reasonable inference from the evidence.

[14] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, the Supreme Court of Canada held that “there will be no genuine issue requiring a trial when the motions judge is able to reach a fair and just determination on the merits. This will be the case when the process (l) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[15] The important goals of determining issues in a proportionate, more expeditious and less expensive manner by way of summary judgment can be undermined when a party seeks partial summary judgment. Partial summary judgment does not avoid the need for a trial. When faced with a request for partial summary judgment, the question for the Court becomes whether dividing the determination of the case into several parts will prove cheaper for the parties, get the parties’ case in and out of the court system more quickly and will not risk inconsistent results at the motion and at trial: Malik v. Attia, 2020 ONCA 787 (“Malik”), at para. 62.

[16] In Nemetz v. Reiter-Nemetz, 2022 ONSC 2825 (“Nemetz”), Kraft J. dealt with a motion brought by the respondent wife seeking partial summary judgment dismissing the husband’s spousal support claim. Justice Kraft found that, in that case, the issue of spousal support ought not to be bifurcated from the issue of property division. She found the most important consideration in that case was the risk of inconsistent findings by the judges who would make findings of fact and law on the motion and then at trial. Justice Kraft decided that it was only after the property issues were determined that the condition, means, and circumstances of both spouses would be clear, and the support issues could be appropriately determined.

[17] I find that granting partial summary judgment on the narrow issues of retroactive and prospective section 7 expenses is not appropriate in this case. Doing so would not achieve any efficiencies in this proceeding and would risk inconsistent findings by multiple judges called upon to adjudicate the issues in the application.

[18] First, there can be no efficiencies gained by determining section 7 expenses before determining child support. The sequencing is backwards. In Titova v. Titova, 2012 ONCA 864 the Court of Appeal explained the process as follows:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

[19] The first step of the process outlined in Titova is to calculate each party’s income for child support purposes. What I take from the Applicant’s submission is that she expects any factual findings that I might make on this motion to bind the trial judge. That is not the case: Skunk v. Ketash, 2016 ONCA 841 at para. 35. While a judge disposing of a summary judgment motion may signal her intention to the trial judge that her factual findings should govern the case at trial, the decision rests with the trial judge. If I determined the parties’ income for the purpose of section 7 expenses, on this motion, on the limited affidavit record before me, there is a real risk that the trial judge could arrive at a different conclusion about incomes for the purpose of child support, based on a full record and with the benefit of the parties’ oral evidence about the disputed deductions. Proceeding with partial summary judgment in the circumstances would risk inconsistent decisions being made within this motion and later at trial.

[20] Second, from a practical perspective, partial summary judgment on the narrow issue of section 7 expenses cannot result in these parties moving through the Court system any faster than they are now. The trial is scheduled for the sittings commencing September 2024 and based on the application, remaining issues include the divorce, spousal support, equalization of net family property, parenting time and child support. Resolution of the section 7 expenses on a stand-alone basis would do little to narrow the issues for trial given that the trial judge will need to determine child support and, by extension, the parties’ incomes for support purposes.

[21] Third, I am not persuaded that there is no triable issue as to the Applicant’s claim for section 7 expenses. When apportioning section 7 expenses, the Court is entitled to consider the resources available to the parties and whether they have the means to pay. In Hawkins v. Hawkins, 2019 ONSC 7149 at para. 75, the Court held that it is appropriate to consider the parties’ assets, debts, income distribution, third party resources, support obligations and receipt of support, as well as other relevant factors in apportioning section 7 expenses. Where the expense is not within the means of the parties, the court may limit or deny the recovery of any amount from the other party. In short, determining whether a claimed expense falls within section 7 and, if so, how the expense is apportioned between the parents, is a multifaceted inquiry based on the financial resources and history of the parties and the children. Much of that evidence is not before me but will be available to the trial judge.

[22] Fourth, the record before me does not allow me to dispose of the claim for section 7 expenses in its entirety in any event. The Applicant acknowledges that there is outstanding disclosure regarding her claim for childcare expenses; she uploaded some additional disclosure to Caselines but had not served it prior to the hearing of the motion. The Respondent needs time to receive and consider the evidence and instruct counsel on the claim for childcare expenses. Even if there were compelling reasons to consider granting partial summary judgment, which I have found there are not, the late disclosure would impair the Court’s ability to fully dispose of the retroactive section 7 expense claim in any event. There is no rationale for delivering partial-partial summary judgment.

[23] I am sympathetic to the self-represented Applicant, who has had three of the four children of the marriage in her primary care and, on the Respondent’s own admission, has incurred substantial expenses for them with little or no contribution from the Respondent. The Respondent admits that he owes something on the order of $10,000.00 for retroactive section 7 expenses for the 2020-2022 years yet provides no explanation for not paying any undisputed amounts for the benefit of his children. However, the Respondent’s troubling disregard for his financial obligations to the children does not mean that there are no triable issues relating to the section 7 expenses, and it cannot justify the Court in granting partial summary judgment.

Disposition

[24] The Applicant’s motion is dismissed without prejudice to her advancing the claims for a divorce and payment of retroactive and prospective section 7 expenses at trial.

[25] On consent, the Applicant shall disclose and produce all documentation supporting her claim for childcare expenses paid by her to her mother including, in particular, income tax records for her mother for all years for which the childcare payments are claimed to have been made.

[26] In accordance with r. 16(9)(b), and in light of the Respondent’s admission of the section 7 briefs to the motion record, I direct the parties to come to an agreement about the admissibility of the section 7 briefs at trial, and further direct the parties to include in their trial scheduling endorsement form the agreement arrived at in order to inform trial planning and management.

[27] The parties are strongly encouraged to resolve the costs of the motion between them. If they are unable to come to an agreement, I am prepared to receive brief written costs submissions not exceeding three pages in length, double-spaced, exclusive of costs outlines, dockets, and offers to settle. The Respondent’s submission shall be delivered not later than April 26, 2024. The Applicant’s responding submission shall be delivered not later than May 3, 2024. The Respondent’s reply, if any, shall be delivered not later than May 10, 2023 and shall not exceed one page, double-spaced.

Justice M.A. Cook Date: April 12, 2024