Court File and Parties

BRAMPTON COURT FILE NO.: FS-21-100776

DATE: 20240913

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Susanna Lagtapon Applicant

– and –

Junipero Lagtapon Jr. Respondent

COUNSEL:

Eva Iacobelli, for the Applicant

Stephanie Tadeo, for the Respondent

HEARD: March 5, 6, 7, April 24, and June 13, 14, 2024.

JUSTICE C. PETERSEN

INTRODUCTION

[1] The parties in this family law case separated in April 2021, after a 30-year relationship and almost 24 years of marriage. They have two children. Although both children are now adults, they remain "children of the marriage" within the meaning of s. 2(1) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.).

[2] Their daughter, E.D., is 19 years old and enrolled in university studies. She lives on her own during the academic year and resides with her mother during the summer. The parties anticipate that, when she graduates, she will become financially independent. However, they agree that she cannot yet withdraw from their parental charge due to her full-time pursuit of post-secondary education. She is therefore currently still entitled to child support.

[3] Their son, X.E., is 22 years old. He has a profound developmental disability that causes him to function intellectually at the level of an elementary school child. He completed a seven-year program at a high school for which he received a Certificate of Achievement, but he did not obtain an Ontario Secondary School Diploma. He now attends a day program for adults with developmental disabilities. His primary residence is with his mother, but he has regular parenting time with his father on Tuesday evenings from 6:00 PM to 9:00 PM, and alternating weekends from 6:00 PM on Friday to noon on Sunday.

[4] X.E. requires almost constant supervision, except when he is sleeping. The parties agree that he is unable to withdraw from their parental charge due to his disability. He is therefore still entitled to child support, despite having reached the age of majority four years ago. Although the parties both have hopes and dreams for his ongoing development and growth, they anticipate that he will never be able to live independently.

[5] X.E. can contribute to a limited extent to his own living expenses and to the cost of his activities. He receives monthly benefits from the Ontario Disability Savings Plan (ODSP). He also qualifies for Passport funding from the provincial government, which reimburses the cost of community services and resources that foster independence and community participation in adults with developmental disabilities.

ISSUES

[6] To their credit, the parties have resolved many of the issues between them, including the sale of their matrimonial home, equalization of their net family properties, the parenting schedule for X.E., the amount of child support payable by Mr. Lagtapon for E.D., and the termination of that support obligation.

[7] With respect to parental decision-making, which at this point applies only to X.E., the parties consented to the following final orders made by Justice André on April 7, 2022:

1. The Applicant Mother shall have sole decision-making responsibility, with meaningful consultation with the Respondent Father, over the children. . . .

2. The Applicant mother shall undertake meaningful consultation from the Respondent father regarding all major decisions, which include but are not limited to the following topics:

(a) religion

(b) education

(c) major non-emergency health care; and

(d) extra curricular activities.

3. If the parties cannot reach consent between themselves on major decisions affecting [X.E.], the Applicant Mother shall make the final decision and provide notice to the Respondent father.

[8] The following are the outstanding issues for me to decide:

(a) Which party should have ownership and control over X.E.'s Registered Disability Savings Plan (RDSP) and the children's Registered Education Savings Plan (RESP)?

(b) What are the parties' respective incomes for child support purposes?

(c) What monthly amount of child support must Mr. Lagtapon pay for X.E.?

(d) What amount, if any, does Mr. Lagtapon owe Ms. Lagtapon in retrospective child support?

(e) Should the Court order Mr. Lagtapon to obtain life insurance to secure his child support obligations?

(f) What amount, if any, does Mr. Lagtapon owe Ms. Lagtapon for reimbursement of special child-related expenses?

(g) What orders should be made regarding the parties' contributions to the children's ongoing special expenses?

(h) Should the court make orders with respect to non-harassment and restrict communications between the parties?

(i) What order, if any, should be made for costs of this trial?

ANALYSIS

(a) Which party should have ownership and control over X.E.'s RDSP and the children's RESP?

Background

[9] The parties opened RESPs for each of the children when they were very young. A RESP is a long-term savings account designed to incentivize and assist people to save money for a child's future post-secondary education. Taxes on income earned on contributions to the account are deferred until the income is withdrawn, and annual government grants are paid to the account based on contributions deposited in the account. The RESP funds can be used to finance the beneficiary's education after high school. If the beneficiary does not continue their education right after high school, the RESP can stay open for a number of years in case they pursue post-secondary education later. The RESP funds can be withdrawn at any time and used for other purposes, but in that case, the government grants must be repaid.

[10] In or about 2016, the parties decided to combine the two RESP accounts into a joint RESP for both children. They did this because it became apparent that X.E. would not be able to enroll in university due to his disability, so he likely would not require all the funds in his account. There were more savings in his account than in D.E.'s account because he is older, and his account had been open longer. The parties knew that E.D.'s university education would probably cost more than any post-secondary education that X.E. pursued and they were aware of the possibility that X.E. may not pursue any post-secondary education. They wanted to preserve the financial benefit of the government grants in his account, so they combined it with E.D.'s account to give them flexibility in the use of the funds.

[11] The parties also opened a RDSP account for X.E. many years ago. A RDSP is designed to assist individuals with disabilities to save for their long-term financial security. Similar to a RESP, government grants are deposited to the RDSP based on the account holder's contributions (and the beneficiary's family net income). A maximum of $3,500 in matching government grants can be made in any given year, up to $70,000 over the beneficiary's lifetime. Contributions can be made to the plan up to the point where the beneficiary is 59 years old. Regular withdrawals from the plan must begin in the year that the beneficiary turns 60. If money is withdrawn sooner, some of the government grants may have to be repaid.

[12] Both the RESP and RDSP accounts are in Mr. Lagtapon's name. He managed the accounts during the marriage, but both parties made contributions to the savings for their children. As discussed later in this judgment, Mr. Lagtapon also made contributions to X.E.'s RDSP post-separation, using ODSP benefits paid to X.E. Ms. Lagtapon claims that the transfer of ODSP funds into the RDSP account was done without her knowledge or consent. Based on the evidence at trial, including correspondence between counsel, I find she knew about the transfers, but did not explicitly consent to them.

[13] Some of the RESP funds have been withdrawn and used to pay for E.D.'s university expenses. The parties agree that the RESP account had a balance of approximately $78,000 and the RDSP account had a balance of approximately $25,600 on the date of their separation. Bank records show that the RESP account had a balance of $64,742.80 as of December 31, 2023. The RDSP account had a balance of $49,995.29 as of August 31, 2023.

The Parties' Positions

[14] The parties disagree about how the RESP funds should be used. Mr. Lagtapon believes that $12,500 annually should be withdrawn to help pay for E.D.'s university tuition and residence expenses, and the remainder should be left in the account for X.E.'s benefit. Ms. Lagtapon believes that all the money in the RESP account should be used to pay for E.D.'s university expenses, because X.E. will never be able to attend university or college.

[15] Mr. Lagtapon believes that X.E. may eventually be able to enroll in a vocational or apprenticeship program (such as forklift training) that would qualify for RESP funding. Therefore, he wants to reserve some of the funds in the RESP account for X.E. Alternatively, he takes the position that, if X.E. never enrolls in an eligible post-secondary educational program, the remaining funds in the RESP should be rolled over into X.E.'s RDSP. Such rollovers are permitted without penalty after 30 years from the date that the RESP account was opened, so the government contributions to the RESP account would not be lost. They would simply be transferred to the RDSP account. The parties were not aware of this rollover option at the time that they consolidated the children's RESP accounts into one joint account.

[16] Currently, Mr. Lagtapon controls the RESP account because it is in his name, but he consults Ms. Lagtapon before making any withdrawals. Ms. Lagtapon is asking the court to order that both registered bank accounts be transferred to her name alone, and that she have exclusive control over how the funds are disbursed and used. She wants to withdraw over $26,000 from the RESP to reimburse herself for tuition and education costs that she has incurred on E.D.'s behalf. She relies on s. 10(1)(a) of the Family Law Act, R.S.O. 1990, c. F.3, to argue that the court has jurisdiction to determine a question as to the ownership of the RESP and RDSP accounts, even outside the context of equalization of net family properties.

[17] Mr. Lagtapon submits that ownership of the accounts should not be changed and that the parties should retain joint decision-making authority with respect to the use of the funds in both accounts.

Analysis

[18] In family law proceedings, RESPs are generally treated as property belonging to the account holder, or as property belonging to the parties in proportion to their respective contributions. RESPs are generally not treated as assets belonging to the children, held in trust by the account holders: Labatte v. Labatte, 2022 ONSC 4787, at paras. 48, 50, 51.

[19] In some cases, however, the actions of the account holder lead to the conclusion that the RESP is being held in trust for the beneficiary: Labatte v. Labatte, at paras. 52-54. The existence of a trust requires proof of three elements: (1) certainty of the settlor's intention to create a trust, (2) certainty of the property that is the subject of the trust, and (3) certainty of the object of the trust, namely the identity of the beneficiary: Corvello v. Colucci, 2022 ONCA 159, at para. 7.

[20] These three certainties have been established in this case. The parties discussed the purpose of the joint RESP when they created it. Mr. Lagtapon, as the account holder, had a clear settled intention to use the money exclusively for the children's benefit, to finance their post-secondary education, to the extent possible. The property in the trust is readily ascertainable; it consists of the money in the account. The beneficiaries are explicitly identified as X.E. and D.E. The RESP account is therefore held by Mr. Lagtapon in trust for the children. They are the true (beneficial) owners of the funds in the account.

[21] Similarly, the RDSP account is held by Mr. Lagtapon in trust for X.E.'s benefit. The account was created with the sole purpose of providing for X.E.'s long term financial security. Mr. Lagtapon has clearly expressed a settled intention to use the funds exclusively for that purpose. X.E. is the true (beneficial) owner of the savings in the RDSP account.

[22] The dispute between the parties is therefore not really about who should own the registered accounts. Rather, it is about who would be the most suitable trustee to administer the accounts. The court has inherent jurisdiction in respect of trusts and must decide this issue with the beneficiaries' welfare in mind: Labatte v. Labatte., at para. 58; Maimone v. Maimone, 2009 CarswellOnt 2909, at para. 56.

[23] Ms. Lagtapon argues that the purpose of the RESP account is to finance the children's post-secondary education and that is not happening with the account under Mr. Lagtapon's control because he will not agree to withdraw more funds to pay for E.D.'s university expenses. She further argues that it would be impractical to leave the RESP account under joint management, because joint decision-making has proven to be impossible.

[24] Mr. Lagtapon testified that he is not refusing to withdraw funds for E.D.'s education, he simply wants to limit those withdrawals to $12,500 annually and preserve the remainder of the funds for X.E.'s use. The documentary record substantiates this claim. Mr. Lagtapon believes that co-management of the funds is possible but is being blocked by Ms. Lagtapon's unreasonable resistance to communicating with him.

[25] The children's welfare depends on the efficient, timely and sensible administration of the RESP funds. Based on the totality of the evidence at trial, I find that the parties are incapable of jointly managing the RESP accounts without serious disagreement and resulting conflict. They have dysfunctional communications and divergent financial priorities. Ms. Lagtapon also harbours resentment and distrust toward Mr. Lagtapon. It is therefore not in the children's best interests to order co-administration of the RESP account. The same applies to X.E.'s RDSP account.

[26] Although Ms. Lagtapon has sole decision-making responsibility with respect to parenting decisions (subject to meaningful consultation with Mr. Lagtapon), that does not necessarily mean she should have control over these registered long-term savings accounts. Based on the evidence at trial, I find that Mr. Lagtapon has a better understanding of how the RDSP account works, and of how to maximize the financial benefit of the government grants. He should therefore retain control over the RDSP account because he is most capable of administering the funds in a manner that promotes X.E.'s financial interests.

[27] Mr. Lagtapon is also committed to ensuring that the RESP savings are used equitably for the benefit of both children. Although the parties combined the children's RESP accounts in recognition of the fact that X.E. may never be able to pursue post-secondary education, there is no evidence that they agreed the funds in the joint account would be used exclusively to finance E.D.'s education. X.E. remains a named beneficiary on the account. The parties therefore have a fiduciary obligation to protect his interests.

[28] Ms. Lagtapon's plan to exhaust the RESP funds on E.D.'s university education expenses would benefit her (Ms. Lagtapon) by reducing the amount of expenses that she is required to pay out-of-pocket under s.7 of the FCSG. It would also benefit E.D., but it would do so at the expense of X.E. Notably, Ms. Lagtapon's plan would benefit a child who has strong career prospects and a bright financial future, at the expense of a child who is financially vulnerable because of his profound disability.

[29] The court must make an order that protects both beneficiaries' interests. I find that giving Ms. Lagtapon administrative control over the RESP account would not be in X.E.'s best interests.

[30] I therefore order that the RESP and RDSP accounts shall remain in Mr. Lagtapon's name. He shall have sole decision-making responsibility with respect to the administration of the funds. He must keep Ms. Lagtapon apprised of any deposits to or withdrawals from the RESP and RDSP accounts, and he must provide her with a copy of bank statements showing the account balances at the end of each calendar year.

(b) What are the Parties' Respective Incomes for Child Support Purposes?

Parties' Positions

[31] I am required to determine the parties' respective incomes in 2021, 2022 and 2023 for the purpose of calculating their proportionate contributions to the children's s.7 expenses, and to decide the child support issues in this case. As set out below, the parties agree on some of the applicable income amounts, but dispute others.

Analytical Framework

[32] The determination of income for child support purposes is governed by the Federal Child Support Guidelines, SOR/97-175, (FCSG). In summary:

(a) The starting point is the amount listed at line 150 of a party's T1 General income tax return, followed by a determination of whether adjustments should be made to any amounts declared in the sources of income set out under the heading "Total income" in the tax return (FCSG, s.16). Adjustments are set out in Schedule III to the FCSG, which deals with the treatment of dividends, capital gains, capital losses, capital cost allowances, and business investment losses, among other sources of income and deductions. Where a party has incurred a non-recurring capital or business investment loss, the court may choose not to apply the provisions of Schedule III and adjust the amount of the loss to arrive at an amount that the court considers fair and appropriate (FCSG, s. 17(2)).

(b) If the court is of the view that the usual approach under s. 16 of the FCSG is not the fairest way to determine a party's income, the court may consider the party's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income, or receipt of a non-recurring amount during those years (FCSG, s. 17(1)).

(c) If a party is a shareholder, director or officer of a corporation, and the court is of the view that the usual determination of income under s. 16 of the FCSG does not fairly reflect all the money available to the party for the payment of child support, then the court may include in their income all or part of the corporation's pre-tax income or an amount commensurate with the services that the party provides to the corporation (FCSG, s. 18(1)).

(d) The Court may impute income to a party in a variety of circumstances, including where a party is intentionally unemployed, or where a party unreasonably deducts expenses from their income (FCSG, s. 19(1)(a)(g)). The reasonableness of an expense is not solely governed by whether the deduction is permitted under the Income Tax Act (FCSG, s. 19(2)).

Determination of Ms. Lagtapon's Income

Background

[33] Ms. Lagtapon worked for the same company for many years during the parties' marriage, and for two years after they separated. In 2021, 2022 and part of 2023, she was a T4 employee. Her employment was terminated in April 2023. She continued to receive her regular paycheque up until September 2023, then was paid a lump sum pursuant to a negotiated settlement with her former employer. At the end of the trial in June 2024, she had yet to secure new employment.

2021

[34] Line 150 of Ms. Lagtapon's 2021 T1 tax return shows a total income of $221,385, which was principally derived from her employment. The parties agree that $221,385 is the amount of 2021 income that should be used to decide the child support and s.7 issues in this case.

2022

[35] Line 150 of Ms. Lagtapon's 2022 T1 tax return shows a total income of $200,386. Once again, this amount is almost entirely comprised of employment income. However, it includes $5,000 that she withdrew from a Registered Retirement Savings Plan. She did not ask the court to exercise its discretion to exclude the RRSP funds from the calculation of her 2022 income pursuant to s. 17 of the FCSG, and I find that no unfairness is caused by including it. The parties agree that, for the 2022 calendar year, her income for child support purposes was $200,386.

2023

[36] Ms. Lagtapon's 2023 income is in dispute. Her 2023 T1 tax return was not yet available when she testified during the trial (in March 2024). There is, therefore, no line 150 income amount for the court to use as a starting point for the determination of her 2023 income.

[37] Ms. Lagtapon submitted a T4 slip from her former employer, which cover her earnings from January to September 2023, in the amount of $145,834. However, she candidly disclosed that she received a total of $180,729 from her former employer in 2023, inclusive of a negotiated severance payment. There is no evidence that she had any other sources of income that year.

[38] Ms. Lagtapon argues that the court should accept $180,729 as her 2023 income for child support purposes, because that is what she actually received from her former employer that year. Mr. Lagtapon submits that the court should impute a higher income to her based on intentional unemployment.

[39] The court may impute income to a party if it finds that the party is intentionally unemployed, unless the party's unemployment is required by the needs of a child or by the reasonable educational or health needs of the party (FCSG, s. 19(1)(a)). Proof of bad faith is not a necessary element of intentional unemployment: Drygala v. Pauli, (2002) 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), at paras. 29-36. In other words, the court is not required to conclude that a party is deliberately unemployed for the specific purpose of evading child support obligations. A party may be imputed income in any circumstances where their unemployment is self-induced, unless it is justified by the needs of a child or by the reasonable educational or health needs of the party: Thompson v. Thompson, 2013 ONSC 5500, at para. 99.

[40] There is no evidence that Ms. Lagtapon quit her job or that she engaged in any wrongful conduct that gave her former employer cause to terminate her employment. Mr. Lagtapon argues that she has nevertheless been intentionally unemployed since April 2023 because she has not been making diligent efforts to secure new employment. Based on her earnings history, he submits that she had the capacity to earn at least $200,000 in 2023. He asks the court to impute such an amount to her.

[41] Every parent has a duty to actively seek reasonable employment opportunities that will maximize their income potential, so that they can contribute financially to the support of their children to the best of their ability: Thompson v. Thompson, at para. 99; Verhey v. Verhey, 2017 ONSC 2216, at para. 35. When imputing income based on intentional unemployment, a court must consider what is reasonable in the circumstances. The relevant factors include, but are not limited to, the spouse's age, education, experience, skills, health, and previous earning history: Drygala v. Pauli, at paras. 45-46; Lavie v. Lavie, 2018 ONCA 10, at para. 32; Verhey v. Verhey, at para. 35.

[42] Ms. Lagtapon's curriculum vitae reflects that she was employed by the same company for almost 15 years, in a variety of positions. Prior to that, she was employed by a different company for 8 years. She is now 53 years old, has considerable work experience, and has marketable program-management skills. There is no evidence of health-related issues that would impede her employability. She is not pursuing any education. Her unemployment is not required in order for her to care for X.E. because he attends a day program for adults with developmental disabilities. Yet she remained unemployed at the end of this trial (in June 2024), 14 months after her previous employment was terminated.

[43] Ms. Lagtapon testified (in early March 2024) about her efforts to secure new employment. She sent out two applications in late October 2023 and two in mid-December 2023, from which she obtained one interview, but no job offers. She then intensified her job search efforts in 2024 and sent out eleven applications in the first three weeks of January. She testified that she has had further interviews and continues to be actively seeking employment in her field. I accept her evidence on this issue as credible.

[44] Ms. Lagtapon admits that she was not looking for a new job between mid-April 2023, when her employment was terminated, and late October 2023. As noted above, her former employer was paying her full salary until September 2023. She testified that she began her job search after she accepted a severance package from her former employer in September 2023 because to do otherwise would have jeopardized the payments she was receiving. I find this to be reasonable in the circumstances. She actively began her job search as soon as she reached a deal with her former employer. There is no basis to conclude that she was intentionally unemployed in 2023. Imputation of a 2023 income higher than $180,729 is therefore not warranted.

[45] I make no finding with respect to any intentional unemployment in 2024.

Conclusion

[46] In summary, I have concluded that Ms. Lagtapon's income for child support purposes was:

$221,385 in 2021

$200,386 in 2022; and

$180,729 in 2023.

Determination of Mr. Lagtapon's Income

Background

[47] From approximately 2010 to 2022, Mr. Lagtapon was employed by a bank. During part of that period, he also earned income teaching project management courses at a local college. The teaching was part-time work (3 hours/semester) and was not consistent. He usually taught one to three classes per year and was paid hourly.

[48] Mr. Lagtapon quit his job at the bank in 2022 and became self-employed doing project management consulting work. His business model is to work as an independent contractor. He executes fixed-term contracts with clients, with negotiated hourly rates and typically a capped number of hours per week. His compensation and expenses fluctuate depending on the terms of each contract. His work is somewhat precarious because of the risk of short notice of termination of a contract by a client, which occurred to him recently in February 2024. He is therefore constantly networking and searching for new clients or new contracts to grow the business and maintain a steady stream of revenue. He has been operating this business successfully for almost 2 years and has been earning more income than he did as a bank employee. However, given the very recent inception of the business, and the competitive nature of the market, it is impossible to predict what his future earnings will be.

[49] Mr. Lagtapon is currently not teaching at the college, but he has had another new source of income for over a year. When he purchased his home in 2022, he renovated the basement to create a rental unit. In March 2023, he signed a one-year lease with tenants for $1800/month, then renewed that lease for 6 months in March 2024.

2021

[50] Line 150 of Mr. Lagtapon's 2021 T1 tax return shows a total income of $166,068, principally derived from his employment. The parties agree that this amount should be used as his 2021 income for child support purposes.

2022

[51] Mr. Lagtapon's 2022 income for child support purposes is in dispute. Ms. Lagtapon submits that the court should set it at $340,912. Mr. Lagtapon submits that it should be set at $254,393. For the reasons explained below, I find that neither of these amounts is consistent with the evidence or the FCSG.

[52] Line 150 of Mr. Lagtapon's 2022 T1 tax return shows a total income of only $103,404. He declared $133,406 as employment income from the bank, $4,646 as employment income from the college, $4,646 in investment income, $872 of taxable dividends, and $5,324 of capital gains, but his total income was substantially less than the sum of those amounts because he also declared a negative rental income of -$42,707.

[53] Mr. Lagtapon purchased his house in October 2022. He did not have any tenants during that calendar year. He was renovating the basement unit to prepare it for rental. He therefore had no rental income in 2022, but he deducted $42,707 of expenses relating to the unit from his other sources of taxable income. Of that amount, $40,773 pertained to the renovation costs. The remaining rental expenses were interest and bank charges (a portion of his mortgage costs) and utilities servicing the basement.

[54] Ms. Lagtapon challenges the deduction of the rental expenses. She argues that, since no rental income was generated in 2022, no rental expenses should be permitted. She relies on Burrell v. Robinson, 2009 CarswellOnt 3748, at para. 5.

[55] The facts of this case differ from those in Burrell v. Robinson, where the father owned two investment properties that he was not renting out. In those circumstances, the court did not permit him to reduce his income by deducting the costs of maintaining the investment properties. In contrast, Mr. Lagtapon incurred costs associated with his basement renovation precisely because he was intending to rent it to generate income, and that rental income will be factored into the calculation of his child support obligations in 2023 and thereafter. The only reason the expenses were incurred in a year in which there was no rental income is because he happened to purchase his home in October 2022, and it took a few months to complete the renovations before the unit could be listed for rent. In these circumstances, it would be unfair to preclude Mr. Lagtapon from deducting any expenses associated with the basement unit.

[56] The deducted expenses must, however, be reasonable. Ms. Lagtapon challenges their reasonableness. After considering all the evidence and the submissions of the parties, I have concluded that some of the rental expenses were unreasonably deducted by Mr. Lagtapon in calculating his income for child support purposes. I make this finding for the following six reasons.

[57] First, there were no tenants living in the basement unit in 2022, so it is unreasonable to deduct a portion of the cost of Mr. Lagtapon's utilities or a portion of his mortgage interest expenses as rental expenses that year. No one else was using the utilities and no part of the mortgaged property was occupied by anyone other than Mr. Lagtapon and his son.

[58] Second, Mr. Lagtapon deducted significant expenses that would have been incurred even if he was not intending to rent the basement unit. For example, he deducted a mortgage broker's fee ($2,000) and an application fee for mortgage insurance on the property ($8,000). He would have incurred these expenses when he purchased the property regardless of whether he was intending to rent the basement unit. Similarly, many of the renovation costs would have been necessary even if he was not intending to rent the basement unit. For example, Mr. Lagtapon testified that flooring had to be replaced in the basement due to water damage. He would have needed to address the water damage even if he was not renovating the basement for a tenant to occupy. Similarly, he testified that he was required to repair a leaky toilet in the basement washroom. It would have been necessary to repair the leak even if he was not intending to rent the basement unit. In addition, he stated that other plumbing in the basement needed to be changed so that the washing machine could operate properly. He uses the washer/dryer, so that plumbing expense would also have been necessary regardless of whether he rented the basement unit. Furthermore, he deducted the cost of replacing shelving in the basement laundry room, which he uses. Moreover, Mr. Lagtapon claimed the expense of replacing a fireplace insert in his own bedroom (in the upstairs portion of the house) because damage to the insert was creating a gas leak in the basement. He would have been required to repair the gas leak even if he was not intending to rent the basement unit. Finally, Mr. Lagtapon deducted the expense of moving his own belongings into the house because (i) he simultaneously moved some of his sister's belongings to use them to stage the basement unit when he listed it for rent, and (ii) he owned large tools that he had to move because he was using them to do renovations in the basement. He would have had to move his belongings, including his tools, regardless of whether he was renting the basement. There is no evidence of the proportionate cost of moving only the staging items, nor is there evidence of what happened to those items after the basement unit was rented (and whether he still retains them for his own use).

[59] Third, some of the rental expenses are capital expenses that enhance the value of the property and have a long-lasting effect (e.g., new flooring, a new kitchen). Those expenses should have been amortized over time rather than being deducted in full in the 2022 year.

[60] Fourth, some of Mr. Lagtapon's evidence with respect to the rental expenses is simply not credible. For example, he claimed the cost of yard waste bags as a rental expense on the basis that he needed the property to look good to attract potential tenants. Based on the evidence at trial, I reject the implausible insinuation that he would not have cleaned up his yard had he not been intending to rent the basement unit. Moreover, he was not listing the basement unit for rent in the fall of 2022, which is when he purchased the yard waste bags. Mr. Lagtapon also claimed expenses relating to the replacement of wood flooring and stairs going down to the basement. He said that work was required for the safety of his tenants. I find this evidence to be implausible because he denied that he would have been required to do the repairs for his and his son's safety had he not rented the basement unit. He said X.E. "could just be careful" on the stairs. This suggests that there was no genuine safety issue necessitating repairs for the tenants' benefit.

[61] Fifth, some of the rental expenses claimed by Mr. Lagtapon are only tangentially related to the basement unit. For example, he claimed $655 for the cost to replace a windshield on his vehicle that broke when he was doing errands during the process of renovating the basement. He also claimed the cost of a snow fence on his property to cordon off his two large dogs. He stated that this was a rental expense because his tenants have access to the back yard, and he does not want them to be confronted by the dogs when they go outside to smoke.

[62] Sixth, Mr. Lagtapon had no explanation for some of the rental expenses he claimed. For example, he claimed a Home Depot expense of $784 for, among other things, ¾" maple wood. He said he had no idea what that was for. He also claimed Amazon expenses for an iPad stylus pen and protective case. He could not explain how these items related to the basement renovations.

[63] For all the above reasons, I conclude that a substantial portion of the rental income loss reported at line 126 of Mr. Lagtapon's 2022 T1 tax return should not be deducted for the purpose of calculating his gross income for child support that year.

[64] Based on his testimony and the documentary evidence filed, I accept that he incurred some legitimate renovation expenses associated with improvements to the basement unit so that it could be rented. Upon review of all the evidence, I estimate that an amount of $30,000 was unreasonably deducted from his income. That amount will be added to his line 150 income in calculating his gross income for child support purposes in 2022.

[65] Ms. Lagtapon submits that the amount of unreasonably deducted rental expenses must be grossed up using Mr. Lagtapon's marginal tax rate (53.53%) when imputing income to him for child support purposes. I disagree. The correct approach is simply to add back to his total income the portion of rental expenses that was unreasonable deducted.

[66] Mr. Lagtapon also earned self-employment income from his new business in 2022. He began his first contract on June 27, 2022, and continued working under that contract for 12 months. He had no other clients that year. His corporation's T2 tax return for the fiscal year ending May 31, 2023 shows a taxable income amount of $185,521, a portion of which was generated between June 27, 2022 and December 31, 2022.

[67] Prior to trial, Mr. Lagtapon was ordered by the court to produce an expert income valuation report for 2022. He did so, but not in accordance with the timetable set by the court. He delivered the report to Ms. Lagtapon on the eve of trial, too late for her to hire her own valuator to review and respond to the report. However, she did not object to its admissibility and did not request an adjournment of the trial.

[68] The report was prepared by Patrick McCabe, a Chartered Business Valuator. Mr. McCabe was hired in January 2024 to complete an assessment of Mr. Lagtapon's 2022 and 2023 personal income for child support purposes. He testified about his findings during the trial. He was duly qualified as an expert in income determination, and I have no concerns about his impartiality.

[69] Mr. McCabe calculated Mr. Lagtapon's 2022 income for child support purposes to be $254,393. In his calculation, he included all sources of income reported by Mr. Lagtapon between line 101 and 150 of his 2022 T1 tax return, including the loss of $42,707 in rental income, $30,000 of which I have found to be unreasonably deducted. He made appropriate adjustments for capital gains in accordance with Schedule III of the FCSG. He also included an estimate of Mr. McCabe's 2022 self-employment income.

[70] Mr. McCabe testified that he could not make a conclusive determination of Mr. Lagtapon's 2022 self-employment income because he did not have enough documentation to do so. He explained that he began by calculating the corporate pre-tax income generated by Mr. Lagtapon's company during the period from June 27 to December 31, 2022. He asked Mr. Lagtapon for the company's 2022 corporate bank account statements but did not receive them. Had the bank statements been provided, Mr. McCabe would have compared deposits to the account with amounts of income declared on the company's T2 corporate tax return to confirm that they were the same. Instead, he had to rely on an excel spreadsheet prepared by Mr. Lagtapon to calculate the gross consulting fees generated by Mr. Lagtapon's company that year. He arrived at the figure of $131,973 based on the available information. I find no error in his calculations.

[71] Mr. McCabe then subtracted the company's operating expenses from the fees generated by Mr. Lagtapon's services. He said he asked Mr. Lagtapon for the company's General Ledgers, but he did not receive them. Mr. Lagtapon testified that there are no General Ledgers for his company. He said he provided Mr. McCabe with the transactions that would ordinarily be used to create a General Ledger, which he thought was sufficient for Mr. McCabe's purposes.

[72] Mr. McCabe testified that the absence of General Ledgers made it difficult for him to confirm the timing of expenses claimed by Mr. Lagtapon on the T2 corporate tax return. He was required to rely on the information contained in the T2 tax return. He estimated the company's operating expenses in 2022 by pro-rating (for six months of 2022) the total operating expense listed on the company's T2 tax return for 2022-2023. He arrived at an estimate of $35,480. Ms. Lagtapon argues that he made a mistake in his calculation, but I find no error.

[73] Mr. McCabe therefore concluded that the pre-tax income generated by Mr. Lagtapon's corporation in 2022 was $96,493 ($131,973 - $35,480). He allocated that entire amount to Mr. Lagtapon's personal income. He assumed all the company's pre-tax income was available to Mr. Lagtapon as a self-employed contractor because Mr. Lagtapon is not required to retain cash to purchase equipment in his line of business, and he has no employees.

[74] I agree with Mr. McCabe's approach. Mr. Lagtapon provides professional services. His business is not capital intensive. He is the sole employee of the corporation, and he does not outsource any of the work. In these circumstances, the entire amount of pre-tax corporate income should be imputed to him pursuant to s.18(1) of the FCSG.

[75] Mr. McCabe also imputed additional income to Mr. Lagtapon based on personal use of expenses incurred by the company. I agree that this should be done. Subsection 19(1)(g) of the FCSG permits an imputation of income when a party has personal expenses paid by his business: Halliwell v. Halliwell, 2017 ONCA 349, at para. 100.

[76] Mr. McCabe testified that he estimated the proportion of the company's expenses that were personal instead of business-related based on discussions he had with Mr. Lagtapon and on his experience conducting income assessments for other self-employed professionals. He used an estimate of 15%, which I find to be reasonable in the circumstances. He then grossed up that amount and added it to Mr. Lagtapon's self-employment income.

[77] Mr. McCabe estimated $20,000 for personal expenses paid by the company. Ms. Lagtapon argues that the amount should be $28,662. Her counsel submits that, had Mr. Lagtapon delivered his expert report in a timely way, she would have called her own expert valuator to critique Mr. McCabe's approach and to provide a different opinion with respect to Mr. Lagtapon's self-employment income. Specifically, she submits that her valuator would have calculated the personal expenses differently and would have arrived at an amount of $28,662. She urges me to adopt this figure, because the only reason she did not have time to obtain an expert report from her valuator is because Mr. Lagtapon did not comply with the court-imposed timetable for serving his income valuation report. Be that as it may, the only expert evidence before me is Mr. McCabe's testimony and report. Ms. Lagtapon could have requested an adjournment of the trial to retain her own expert, but she chose not to. There is no evidentiary basis to accept Ms. Lagtapon's alternate calculation of personal expenses. Moreover, her counsel's cross-examination of Mr. McCabe did not convince me that I should reject his opinion on this issue. I accept his estimate.

[78] Mr. McCabe testified that, in his opinion, it is appropriate to gross up the personal expenses that were paid by the company in order to account for the value of the taxable benefit effectively received by Mr. Lagtapon. To explain this, he provided the following example. If a self-employed individual travels at his company's expense and, at the same time enjoys a personal vacation, the travel cost associated with the personal vacation should be added back to the corporate pre-tax income that is allocated to the individual, as well as an associated gross-up amount. In other words, the amount that the individual would have had to earn on a pre-tax basis in order to pay for that vacation should be imputed to him as income for child support purposes. This approach is consistent with the FCSG: Riel v. Holland, 2003 CanLII 3433 (ON CA), 2003 CarswellOnt 3828, at paras. 31-36. Mr. McCabe correctly used Mr. Lagtapon's marginal tax rate of 53.53% to gross up the personal expenses paid by the company.

[79] As noted earlier in this judgment, Mr. McCabe's estimate of Mr. Lagtapon's total 2022 income for child support purposes is $254,393. For the reasons set out above, I adopt his calculation of the self-employment portion of Mr. Lagtapon's income. I also adopt the adjustments he made for capital gains. However, I do not agree that the full rental income loss of $42,707 claimed at line 126 of Mr. Lagtapon's 2022 T1 tax return should be accepted without adjustment. I have rejected $30,000 of those rental expenses as unreasonably deducted. I will therefore impute $30,000 of additional income to Mr. Lagtapon to compensate for that. Consequently, I conclude that his total gross income for child support purposes in 2022 was $284,393 ($254,393 + $30,000).

2023

[80] At the time of trial, Mr. Lagtapon had not yet filed or prepared a 2023 T1 tax return or a 2023-2024 T2 corporate tax return. He argues that the court should set his 2023 income (for child support purposes) at $254,393, which is the total income calculated by Mr. McCabe for 2022. In other words, he submits that his 2022 income should be used for both 2022 and 2023 in the absence of up-to-date evidence of his 2023 earnings.

[81] I disagree with Mr. Lagtapon's position for three reasons. First, I have concluded that his income for child support purposes in 2022 was higher than $254,393. Second, he had rental income in 2023 that was not available to him in 2022. Third, it would not be appropriate to use his 2022 income for 2023 because there was a significant change in his employment circumstances in 2023. Specifically, he was fully self-employed throughout the calendar year and no longer had any T4 employment income.

[82] Ms. Lagtapon argues that the court should set Mr. Lagtapon's 2023 income at $274,000, comprised of an estimated $256,000 in self-employment income, plus $18,000 in rental income (i.e., 10 months x $1,800). I also disagree with this approach. The $256,000 amount is derived from Mr. McCabe's report, where he provided – only "for illustrative purposes" -- an estimate of the normalized corporate pre-tax income realized by the company for the 11-month period from June 27, 2022 to May 31, 2023. This is not a reliable figure to use to estimate Mr. Lagtapon's income for the 2023 calendar year because there were changes to the terms of Mr. Lagtapon's client contracts that affected his earnings from June 1, 2023 to December 1, 2023.

[83] Mr. McCabe expressed some preliminary observations about Mr. Lagtapon's 2023 income, but he did not try to forecast Mr. Lagtapon's corporate earnings or calculate his personal income for child support purposes that year. His observations were based on the documents available to him. He reviewed the lease that Mr. Lagtapon signed with his tenant, and the client contracts under which Mr. Lagtapon was providing consulting services in 2023. He also reviewed a spreadsheet summary of Mr. Lagtapon's billings in 2023. Mr. McCabe noted that the gross fees generated by Mr. Lagtapon's services, pursuant to the terms of the client contracts in effect in 2023, was $259,128, and the gross rental income for that year was $18,000 ($1,800/month for 10 months). This is the best evidence available to the court.

[84] Mr. McCabe was unable to determine or estimate the company's operating expenses in 2023 because he did not have the requisite information or documentation to do so. The fiscal year-end for Mr. Lagtapon's company is in May, so financial statements, tax returns, and General Ledgers are not yet available for the period covering June to December 2023. However, Mr. McCabe testified that he would expect the business-related expenses to be roughly the same in 2023 as they were in 2022 because similar professional services were being provided by Mr. Lagtapon in both years. That assumption is reasonable, and I adopt it.

[85] As noted earlier in this judgment, the company's operating expenses for the period from June 27, 2022 to December 31, 2022 were $35,480. Prorated for a full 12-month period, I estimate that the operating expenses in 2023 were twice that much (i.e., $70,960). Deducting the operating expenses from the gross consulting fees generated, I estimate that the company's pre-tax net income in 2023 was $188,168 (i.e., $259,128 - $70,960). Pursuant to s. 18(1) of the FCSG, that full amount should be allocated to Mr. Lagtapon as income because of the (non-capital intensive) nature of his business and the fact that he does not outsource any of his work or pay any employees.

[86] Furthermore, additional 2023 income must be attributed to Mr. Lagtapon to account for his ongoing personal use of expenses paid by the corporation (e.g. vehicle expenses, travel expenses, meals and entertainment expenses). In 2022, Mr. McCabe estimated those personal expenses to be $20,000 between June 27, 2022 and December 31, 2022. Pro-rated over 12 months in 2023, I estimate that Mr. Lagtapon benefitted from personal use of $40,000 of expenses paid by the company that year. Those expenses should be grossed up to account for the reduction in income taxes paid by Mr. Lagtapon. Using a 53.53% marginal tax rate, I therefore attribute income in the amount of $74,724 to Mr. Lagtapon for these personal expenses (i.e., $40,000 ÷ 0.5353).

[87] Mr. Lagtapon did not adduce evidence of rental expenses in 2023. Consequently, the full amount of $18,000 in rental income should be attributed to him, without deductions. There is no evidence that he had any other sources of income in 2023.

[88] I therefore calculate his 2023 gross income for child support purposes as follows:

Self-employment income $188,168

Imputed income for personal expenses $ 74,724

Rental income (10 months) $ 18,000

Total income $280,892

Conclusion

[89] In summary, I have concluded that Mr. Lagtapon's income for child support purposes was:

$166,068 in 2021

$284,393 in 2022, and

$280,892 in 2023

Parties' Proportionate Contributions

[90] Many of the orders in this case will require the parties to contribute to child support and child-related expenses in proportion to their respective incomes. Based on the above income determinations, the parties' proportionate contributions shall be calculated in accordance with the following percentages:

2021[^1] Ms. Lagtapon: 57% Mr. Lagtapon: 43%

2022[^2] Ms. Lagtapon: 41% Mr. Lagtapon: 59%

2023[^3] Ms. Lagtapon: 39% Mr. Lagtapon: 61%

[91] The 2023 percentages will be used for the first three months of 2024.

(c) What monthly amount of child support must Mr. Lagtapon pay for X.E.?

Parties' Positions

[92] I have been asked to determine the amount of child support that Mr. Lagtapon must pay for X.E. effective April 1, 2024. Ms. Lagtapon submits that he should be ordered to pay $859 monthly, being 60.3% of $1,425, which is the shortfall between X.E.'s monthly budget of $2,370 and his ODSP monthly income of $945. The proposed percentage is based on Ms. Lagtapon's calculation of the parties' 2023 incomes.

[93] Mr. Lagtapon's position is that he should pay only $180 in monthly child support for X.E., being 56.1% of the shortfall between X.E.'s monthly budget of $1,582 and $1,308 available to X.E. as monthly ODSP income. The proposed percentage is based on Mr. Lagtapon's calculation of the parties' 2023 incomes.

[94] For the reasons set out below, I have concluded that neither of the amounts proposed by the parties is appropriate.

Analytical Framework

[95] The quantification of child support payments is governed by s. 3 of the FCSG. The presumptive rule for children under the age of majority is that the amount of a child support order equals: (a) the amount set out in the applicable provincial Table, and (b) the amount, if any, determined under s.7 of the FCSG for special and extraordinary child-related expenses.

[96] The FCSG Tables list predetermined child support figures calculated based on the premise that parents spend a fixed percentage of their income on their children. The applicable Table amount in any given case is a function of the income of the paying parent and the number of children they support. The Table amount applies equally to children over the age of majority who have not withdrawn from their parents' charge unless the court considers this presumptive approach to be inappropriate.

[97] In this case, the parties both submitted that using the presumptive Table amount would not be an appropriate approach to determining the monthly child support that Mr. Lagtapon should pay for X.E. I agree. The jurisprudence is replete with cases in which courts have concluded that a different approach should be adopted for individuals like X.E., who are over the age of majority but remain dependent on their parents due to a disability, despite receiving substantial disability-related government benefits: Senos v. Karcz, 2014 ONCA 459, at paras. 58, and 64; Weber v. Weber, 2020 ONSC 4098, at para. 78-79; Pulyk v. Bucknell, 2020 ONSC 7929, at para. 19; Auliffe v. Neely, 2020 ONSC 1615, at paras. 141-142; and Morden v. Kelly, 2019 ONSC 4620, at para. 55; Schultz v. Lassiter, 2022 ONSC 292, at para. 22.

[98] Where the court concludes that the presumptive "Table" amount of child support for an adult child is not appropriate, s. 3(2)(b) of the FCSG stipulates that the Court may order a different amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. The jurisprudence makes it clear that s. 3(2)(b) of the FCSG is to be applied in a manner that achieves an equitable balancing of financial responsibility between the child, the child's parents, and society: Jefic v. Jefic (Grujicic), 2022 ONSC 7240, at para. 80; Auliffe v. Neely, at para. 142; and Morden v. Kelly, at para. 55.

[99] Courts have considerable discretion in choosing the approach to be used to quantify child support under s. 3(2)(b). Different approaches have been adopted in different cases: Auliffe v. Neely, at paras. 142-145. The parties in this case both proposed using a budgetary approach, namely calculating X.E.'s total average monthly living expenses, deducting his monthly disability benefits, then apportioning the shortfall between them in proportion to their respective incomes. I agree with this budgetary approach because it takes into account X.E.'s condition, means and needs, as well as the financial ability of each party to contribute to his support, as required by s. 3(2)(b) of the FCSG. It also achieves a fair balancing of financial responsibility between X.E., his parents, and the state.

[100] Although the parties agree on the approach to be adopted to quantify child support payments for X.E., they disagree about the amount that should be budgeted for X.E.'s monthly living expenses, and about the amount of disability benefits that should be deducted from his budgeted expenses to calculate the shortfall that they must share in proportion to their incomes. I must therefore decide these issues.

Determination of X.E.'s Reasonable Living Expenses

[101] Ms. Lagtapon originally proposed a monthly budget of $2,870 for X.E.'s living expenses, but she changed her position during the trial and ultimately submitted that $2,370 should be the budget allocation. Mr. Lagtapon submits that $1,582 is a more reasonable budget.

[102] X.E. does not pay rent to live with his mother. However, she incurs housing costs on his behalf. The parties agree that those costs should be allocated to X.E.'s budget of living expenses. According to her sworn Financial Statement, Ms. Lagtapon's mortgage payments are approximately $3,200 monthly. She also pays property taxes ($720 monthly) and property insurance premiums ($120 monthly) to maintain her home. Her total property carrying costs are therefore $4,040 monthly ($3,200 + $720 + $120). She incurs $540 monthly for home utilities, including water, electricity and heat.

[103] Ms. Lagtapon lives in a 4-bedroom home. A portion of her property carrying costs are attributable to X.E. because she could presumably downsize to a smaller (and less expensive) home if he did not live with her. In my view, it is reasonable to allocate 15% of those costs to X.E. ($4,040 x 0.15 = $606).

[104] Because X.E. consumes approximately half of the utilities in the home during the months when E.D. is away at university, and approximately one third of the utilities when E.D. is at home, it is reasonable to allocate 40% of Mr. Lagtapon's average monthly utility costs ($540 x 0.4 = $216) to him.

[105] I have therefore budgeted a total of $822 monthly for housing for X.E. ($606 + $216).

[106] I have not budgeted any amount for internet and cable television subscriptions because Ms. Lagtapon testified that X.E. rarely watches television, and because she would incur those same expenses even if X.E. was not living with her.

[107] For food (including groceries and meals outside the home), I have accepted Ms. Lagtapon's proposed amount of $500 monthly. The $350 amount proposed by Mr. Lagtapon for X.E.'s meals is unrealistically low in today's economy.

[108] For X.E.'s clothing expenses, I accept Mr. Lagtapon's proposed amount of $150 monthly as reasonable. Ms. Lagtapon proposed $200/month, which is somewhat high considering that X.E. is not required to have a work-related wardrobe. I accept Ms. Lagtapon's proposed amount of $20/month for the cost of X.E.'s linens (e.g., bed sheets, towels, etc.).

[109] I allocated $50 monthly for personal toiletries, vitamins, and non-prescription medicines, an amount that falls between the amounts proposed by the parties. I budgeted $35/month for haircuts based on the evidence presented.

[110] I accept Mr. Lagtapon's budgeted amount of $150/month for X.E.'s entertainment expenses. The $300 amount proposed by Ms. Lagtapon is excessive. Similarly, I accept Mr. Lagtapon's budgeted amount of $50/month for miscellaneous spending money and reject Ms. Lagtapon's proposed amount of $100 as excessive. Ms. Lagtapon included the cost of gifts (to third parties) in X.E.'s personal spending budget. In my view, gifts are not a necessary living expense.

[111] Ms. Lagtapon budgeted a monthly amount of $60 for gas to cover X.E.'s transportation expenses, excluding his travel to and from his day program (which will be addressed later in this Judgment). X.E. engages in some activities outside the home, but there is no evidence to support the claimed amount of transportation costs. X.E. does not have regular appointments other than speech therapy, which is done remotely on-line, so there are no travel costs associated with that therapy. I have therefore allocated only $30/month for transportation.

[112] I have not allocated any amount for vacations (requested by Ms. Lagtapon), because such costs are luxuries rather than basic living expenses.

[113] After reviewing all the evidence and considering the parties' submissions, I have concluded that a reasonable monthly budget for X.E. is $1,807, broken down as follows:

Accommodations $ 822

Meals $ 500

Clothes $ 150

Linens $ 20

Personal care products $ 50

Haircuts $ 35

Entertainment $ 150

Spending money $ 50

Transportation $ 30

Total $1,807

Determination of X.E.'s Own Means of Support

X.E.'s Previous ODSP Benefits

[114] X.E. started receiving ODSP benefits in August 2020, while he was still enrolled in high school. At that time, the parties agreed that the money would be saved for X.E.'s future use. The benefits were deposited directly into X.E.'s bank account, then the money was transferred to Ms. Lagtapon's account. It is unclear to me, based on the trial record, where the funds ultimately ended up, but there appears to be no dispute that, during the marriage, the money was invested for X.E.'s benefit.

[115] X.E.'s bank records show that he initially received $896 monthly in ODSP benefits. That amount increased to $996 in February 2021.

[116] At some point after the parties separated in April 2021, Mr. Lagtapon began e-transferring the ODSP funds from X.E.'s bank account to his own account. He testified that he would then invest the money for X.E. by depositing it into either X.E.'s RDDP or X.E.'s Tax-Free Savings Account (TFSA). He explained that he made the maximum allowable contributions to those accounts in order to maximize both the government's contribution to the RDSP and the tax advantages of the TFSA. He stated that Ms. Lagtapon never told him that she needed those ODSP funds to cover X.E.'s living expenses.

[117] Mr. Lagtapon testified that he withdrew and invested $8,900 in ODSP funds between May 2021 and September 2021. Ms. Lagtapon claims that he withdrew a total of $12,352 between May 2021 and April 2022. She said she does not know what happened to the ODSP money that he transferred to his account.

[118] I have concluded that both parties are mistaken about the period when the ODSP funds were withdrawn by Mr. Lagtapon. Based on the documentary record, including the transaction history for X.E.'s bank account, I find that Mr. Lagtapon made 8 transfers of $996 from X.E.'s bank account between August 31, 2021 and May 2, 2022, as well as one transfer in the amount of $884. He therefore received a total of $8,852 of X.E.'s ODSP benefits during that period.

[119] I have no reason to doubt or reject Mr. Lagtapon's testimony that the money was deposited to X.E.'s RDSP and TFSA accounts.

[120] Mr. Lagtapon does not dispute Ms. Lagtapon's claim to these ODSP funds since she was paying X.E.'s daily living expenses during the relevant period. He has offered to withdraw the funds from X.E.'s RDSP and TFSA accounts and pay the money to her. Ms. Lagtapon seeks an order that he be solely responsible for any penalty or cost consequence of withdrawing funds from the RDSP, since he unilaterally decided to deposit some of the funds to that account. I note that the record establishes that he tried to consult Ms. Lagtapon about the investment but received no response from her.

[121] I am not confident, based on the limited evidence put before me, that it is possible to withdraw funds from the RDSP account. If it is possible, there will almost certainly be a negative impact on the government contributions to the account. There is no reason why Mr. Lagtapon should be required to make up the lost government grant.

[122] Considering all the above, I make the following order: Mr. Lagtapon shall pay Ms. Lagtapon $8,852 from either or both of X.E.'s RDSP and TFSA investment accounts within 10 days of the date of this Judgment. I leave it to his discretion to determine the amounts to be withdrawn from each account in order to make this payment. If it is financially advantageous to withdraw all the money from only one account, he may do so.

X.E.'s Current ODSP Benefits

[123] Commencing in May 2022, the government began paying X.E.'s ODSP benefits directly to Ms. Lagtapon. The parties agree that this arrangement should continue because X.E. resides principally with her and the money is required to pay for his living expenses. An order will issue accordingly.

[124] X.E. currently receives $945.25 monthly in ODSP benefits. This amount includes $924 for "board and lodging" and $71 as a "special boarder allowance", minus $49.75 that is deducted to recover overpayments that were previously made to him. Between August 2020 and February 2023, the provincial government inadvertently paid X.E. a work-related benefit for which he was not eligible. The government eventually noticed the error and corrected it. To recover the overpayments that were made, the government started deducting approximately $50 at source from X.E.'s monthly ODSP benefits cheque. These deductions continue and are anticipated to last a total of three years.

[125] Ms. Lagtapon submits that the court should use the actual amount received by X.E., namely $945, as his monthly income in the calculation of the parties' respective child support obligations. Mr. Lagtapon argues that a total income of $1,308 should be imputed to X.E. in the calculation, because that is the maximum available ODSP benefit. The evidence in the record establishes that the only reason X.E. does not receive the maximum benefit is because Ms. Lagtapon does not charge him rent.

[126] Ms. Lagtapon explained that she does not charge X.E. rent because she would be required to declare the rental income and pay tax on it. At the end of trial, on June 14, 2024, the parties consented to a Final Order that included the following term: "The Applicant will maximize all available tax programs and credits for the household ensuring that these are optimally utilized to generate the largest financial benefit subject to the Applicant not incurring personal tax consequences related to such funding, i.e. the ODSP Room and Board Funding being characterized as rental income and taxable to the Applicant."

[127] Mr. Lagtapon testified to his belief that the provincial government would not require proof that Ms. Lagtapon is declaring rental income on her taxes in order for X.E. to qualify for the maximum ODSP benefit. The implication is that she should tell the Ontario government that X.E. is paying her rent in order to maximize X.E.'s ODSP benefit, but not report the rental income on her personal tax return. The Court cannot endorse such a proposal, which involves either misrepresentation (to the Ontario government) or federal tax evasion. Moreover, the assumption that this plan would work is speculative at best.

[128] Mr. Lagtapon argues that there would be no misrepresentation and no tax evasion if Ms. Lagtapon charged X.E. only a small amount of rent. He submits that, if a person rents a room in their home to a boarder below market value, the Canada Revenue Agency (CRA) treats that as a cost sharing arrangement and does not deem the money paid by the boarder to be taxable rental income. He argues that Ms. Lagtapon could therefore charge nominal rent to X.E. to maximize his ODSP benefits, while not incurring any tax liability for rental income. Regardless of whether she charges X.E. rent, Mr. Lagtapon submits that the maximum allowable monthly ODSP benefits ($1,308) should be imputed as income to X.E. because those benefits are notionally available to him.

[129] Mr. Lagtapon adduced evidence from the CRA website to support his submissions. The website states that, if a person charges their child a small amount for upkeep of their house or to cover the cost of groceries, that should not be reported as income and rental expenses cannot be claimed in those circumstances to report a net rental loss and reduce the amount of income taxes paid by the individual. The point conveyed by the website is that a person cannot claim a rental loss to reduce their tax liability by renting property to a family member for less money than they would charge a stranger. Mr. Lagtapon argues that this information substantiates his position that Ms. Lagtapon could charge X.E. a nominal amount and not declare it as rental income. Without better evidence, I am not persuaded that he is correct. Even assuming (without making a finding) that he is correct, there is no evidence before me that the Ontario government would accept that such an arrangement renders X.E. eligible for the maximum ODSP benefit of $1,308 monthly. I cannot impute income to X.E. without an evidentiary basis.

[130] In the circumstances, the fairest and most reasonable approach is to fix X.E.'s income based on the actual amount of ODSP benefits that he receives, rather than speculating about the amount he could receive in different circumstances.

[131] However, I am not going to reduce his monthly income ($995) by $50 to account for the repayments he is making to the Ontario government. He is still receiving the benefit of $995 monthly, he is just using a portion of it to repay a debt. Moreover, the entire balance owing to the Ontario government for the overpayments that he received in 2020-2023 can be discharged by Ms. Lagtapon in a lump sum payment using the $8,852 in ODSP funds from 2021 and 2022 that Mr. Lagtapon has agreed to pay her. If that lump sum repayment is made to the government, the $50 reduction in X.E.'s monthly benefits will cease, and he will receive $995 monthly in ODSP benefits. I leave it within Ms. Lagtapon's discretion to determine whether or not to discharge the balance owing with a lump sum payment.

[132] X.E. has no source of income other than his ODSP benefits.

[133] For the above reasons, I conclude that X.E.'s current income is $995 monthly.

Conclusion

[134] The shortfall between X.E.'s current average monthly living expenses ($1,807) and his current income ($995) is $812. The amount of child support payable by Mr. Lagtapon commencing April 1, 2024 will be calculated based on his proportionate share of that shortfall.

[135] I agree with the parties that their respective 2023 incomes should be used for the purpose of calculating their current proportionate shares. I have already determined that Ms. Lagtapon's share is 39% and Mr. Lagtapon's share is 61%. Consequently, effective April 1, 2024, Mr. Lagtapon must pay Ms. Lagtapon $495 per month in child support for X.E ($812 x 0.61 = $495).

[136] I have taken into consideration the fact that Mr. Lagtapon consented to an order (dated June 14, 2024) requiring him to pay $1,450 monthly in child support for E.D. from May to August 2024 and from May to August 2025 (during the summer breaks from her university studies, when she will be living with Ms. Lagtapon). He will therefore be obligated to pay a total of $1,945 for both children during those summer months. Based on his income, I am confident that he has the financial ability to make those payments. The parties have consented to an order that child support for E.D. will cease on May 1, 2026, when they anticipate she will complete her undergraduate studies.

Annual Income Disclosure

[137] Both parties seek orders requiring mutual income disclosure within 30 days of the anniversary of the date of this judgment. Such an order is unnecessary because paragraph 12 of a June 14, 2024 final consent order states: "For as long as child support is to be paid, the payor (and recipient, if applicable), must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order in accordance with Section 24.1 of the Child Support Guidelines."

[138] I order that Ms. Lagtapon shall immediately disclose to Mr. Lagtapon if there is a change in the amount of X.E.'s ODSP benefits.

(d) What amount, if any, does Mr. Lagtapon owe Ms. Lagtapon in retrospective child support?

Amount of Child Support Paid since Separation

[139] The parties agree that any amount of retrospective child support should be calculated from September 1, 2021 to March 1, 2024 (i.e., the month in which the trial began). They also agree that Mr. Lagtapon must be credited with the amounts of child support that he already paid. Those amounts are not in dispute.

[140] Mr. Lagtapon started paying child support in November 2021. He paid $884 per month from November 2021 to August 2022 (10 months x $884 = $8,840). He paid a total of $5,498 between September 2022 and December 2022.[^4] He paid no child support from January to April 2023 and paid $1,421 per month from May to August 2023 (4 months x $1,421 = $5,684).

[141] Consequently, Mr. Lagtapon paid a total of $20,022 ($8,840 + $5,498 + $5,684) between September 1, 2021 and August 31, 2023. He has paid no child support since September 2023.

Parties' Positions

[142] Ms. Lagtapon claims that Mr. Lagtapon owes her a total of $45,908 in retrospective child support. Mr. Lagtapon submits that he owes only $2,050.

[143] The parties consented to an order dated June 14, 2024, stipulating that Mr. Lagtapon will pay $1,450 per month in child support for E.D. from May 1 to August 1, 2024 and from May 1 to August 1, 2025. The consent order also stipulates that no child support was payable for E.D. between September 2023 and April 2024, because she was living away from home at university. Ms. Lagtapon acknowledges that, similarly, no child support was payable for E.D. from September 2022 to April 2023, which was E.D.'s first year of university studies.

[144] Ms. Lagtapon argues that Mr. Lagtapon should be ordered to pay the full FCSG Table amount of child support for two children for the period from September 1, 2021 to April 30, 2022. Thereafter, she submits that he should be required to pay the Table amount of support for E.D. during summer months. For X.E., she argues that the "budgetary" approach to calculating monthly child support (under s.3(2)(b) of the FCSG) should only be applied from May 2022 onward, because Mr. Lagtapon was in receipt of X.E.'s ODSP benefits until April 2022.

[145] Mr. Lagtapon agrees that the FCSG Table should be used to determine the child support payable for E.D. during months when she was not attending university, but he submits that the "budgetary" approach (under s.3(2)(b) of the FCSG) should be applied to calculate the child support payable for X.E. throughout the entire period from September 1, 2021 to the date of trial.

[146] The parties' respective "budgetary" calculations of child support for X.E. produce vastly different results for reasons already discussed above. Ms. Lagtapon submits that Mr. Lagtapon should have been paying $866/month for X.E. from May 2022 onward, and $860 for X.E. from January 1, 2023 onward. Mr. Lagtapon takes the position that he should have been paying only $180 monthly in child support for X.E. from September 1, 2021 to the date of trial.

Determination of Child Support for E.D. from September 2021 to March 2024

[147] Both parties propose that the FCSG Table amount be used to calculate Mr. Lagtapon's child support obligation for E.D. during the months that she was not attending university. Neither party invoked s. 4(b) of the FCSG to argue that the Table amount would be inappropriate based on the fact that Mr. Lagtapon's income exceeded $150,000 in 2021, 2022 and 2023. The Court is therefore not required to consider whether a deviation from the Table amount should be applied to the portion of Mr. Lagtapon's income that exceeded $150,000. The presumptive rule of using the FCSG Table amount should be followed in the circumstances: Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 SCR 250, at paras. 42-43, and 52.

[148] Mr. Lagtapon's income in 2021 was $166,068. The Table amount of child support for one child based on that income is $1,415 per month.

[149] Mr. Lagtapon's income in 2022 was $284,393. The Table amount of child support for one child based on that income is $2,267.

[150] Mr. Lagtapon's income in 2023 was $280,892. The Table amount of child support for one child based on that income is $2,241.

[151] The amount of child support that ought to have been paid for E.D. prior to the commencement of the trial is therefore $32,760, calculated as follows:

September 2021 to December 2021 4 months x $1,415 = $ 5,660

January 2022 to August 2022 8 months x $2,267 = $18,136

May 2023 to August 2023 4 months x $2,241 = $ 8,964

Total: $32,760

Determination of Child Support for X.E. from September 2021 to March 2024

[152] I agree with Mr. Lagtapon that the "budgetary" approach should be used to calculate the amount of his child support obligation for X.E. from September 1, 2021 onward. Although X.E. attended high school up until June 2022, he was an adult by September 2021 and was receiving ODSP benefits. As previously discussed, in these circumstances, it would not be appropriate to apply the FCSG Table amount of support.

[153] The fact that Mr. Lagtapon withdrew and invested the ODSP funds from August 2021 to May 2022 is irrelevant because I have ordered him to repay Ms. Lagtapon the full ODSP amount of $8,852.

[154] Neither party suggested that a different budget should apply for X.E.'s expenses in 2021-2023 than what is budgeted for his expenses currently. The amount of X.E.'s ODSP benefits has not changed since February 2021 (except for the deductions for the overpayment discussed above). I have already calculated the shortfall between X.E.'s average monthly living expenses and his income to be $812.

[155] Mr. Lagtapon's proportionate share of this shortfall between September 2021 and March 2024 is as follows:

2021 43% of $812 = $349 $349 x 4 months = $ 1,396

2022 59% of $812 = $479 $479 x 12 months = $ 5,748

2023 61% of $812 = $495 $495 x 12 months = $ 5,940

2024 61% of $812 = $495 $495 x 3 months = $ 1,485

Total: $14,569

[156] The amount of child support that ought to have been paid for X.E. prior to the commencement of trial is therefore $14,569.

Conclusion

[157] For the reasons set out above, Mr. Lagtapon ought to have paid a total of $47,329 ($32,760 + $14,569) in child support for both children between September 1, 2021 and March 1, 2024. In fact, he paid a total of $20,022. I therefore order him to pay Ms. Lagtapon the difference. He must pay $27,307 in retrospective child support.

(e) What amount, if any, does Mr. Lagtapon owe Ms. Lagtapon for reimbursement of special child-related expenses?

Analytical Framework

[158] The apportionment of special child-related expenses is governed by s. 7 of the FCSG, which states:

(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:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(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;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[159] This list of special child-related expenses is exhaustive: Delichte v. Rogers, 2013 MBCA 106, 37 R.F.L. (7th) 81, at para. 27. Absent an enforceable agreement between the parties, the court has no jurisdiction to order a spouse to contribute to child-related expenses that do not fall within one of the categories enumerated in s. 7(1): Clarke-Hunter v. Hunter and Clarke, 2021 ONSC 1152, at para. 320.

[160] A party who claims reimbursement of a child-related expense has the onus of proving that the expense falls within one of the clauses of s. 7(1): Park v. Thompson (2005), 2005 CanLII 14132 (ON CA), 77 O.R. (3d) 601 (C.A.), at paras. 21-25; Delichte v. Rogers, at para. 27. That party must also prove that the claimed expense is both necessary and reasonable, having regard to the parties' financial circumstances and spending pattern prior to separation: Luciani v. Luciani, 2017 ONSC 5209, at para. 31; Clarke-Hunter v. Hunter and Clarke, at para. 320.

[161] The criterion of "necessity" under s. 7(1) of the FCSG encompasses not only the necessaries of life, but also things that promote a child's health and aid their growth and development: Delichte v. Rogers, at para. 35. The criterion of "reasonableness" must be determined in relation to the parties' means and their pre-separation pattern of spending. The court must consider all the parties' financial means, not just their incomes. This requires consideration of the global financial circumstances of the family, including the cost of maintaining separate households, support obligations to other parties, income stability, capital assets, third party resources and debt load: Delichte v. Rogers, at paras. 38 and 39.

[162] For expenses related to an educational program that meets a child's special needs (s.7(1)(d)) and expenses associated with a child's extra-curricular activities (s.7(1)(f)), the party making the claim must prove that the expenses incurred were "extraordinary." The meaning of an "extraordinary expense" is defined in s.7(1.1) of the FCSG as follows:

(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; or

(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.

[163] In determining the amount of a s.7 expense to be apportioned between the parties, the court must "take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense" (FCSG, s. 7(3)). Any available subsidies, benefits, or income tax deductions or credits must be factored into the calculation regardless of whether the subsidy, benefit, deduction, or credit was actually claimed.

[164] Once the reasonable and necessary s.7 expenses have been identified and the amounts of those expenses have been calculated, the court must determine how to apportion the expenses between the parties. The guiding principle is that the expenses should be "shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child" (FCSG, s.7(4)).

Parties' Positions

[165] Ms. Lagtapon is seeking court orders for reimbursement of expenses that she incurred on the children's behalf. She asks the court to permit her to withdraw $24,642.85 from the children's RESP as reimbursement of post-secondary education expenses that she paid for E.D. She also asks the court to order Mr. Lagtapon to pay her $6,383.86, which she claims is his outstanding share of expenses that she incurred on X.E.'s behalf.

[166] I have already ruled that Mr. Lagtapon shall have sole discretion over the amounts to be withdrawn from the RESP account. I have also explained why I agree with Mr. Lagtapon that the RESP funds should not be exhausted on E.D.'s university expenses, leaving no RESP savings for X.E. However, if Ms. Lagtapon can demonstrate that Mr. Lagtapon's proportionate contribution to E.D.'s reasonable and necessary education expenses from September 2021 to the date of trial amounts to $24,642.85, then she will be entitled to reimbursement of that amount, just not from the RESP funds.

[167] Mr. Lagtapon contributed to the children's special expenses, but he admits that he still owes Ms. Lagtapon money for some expenses she incurred. However, he argues that he owes her only $2,268.96 for E.D.'s education expenses, and that he owes her nothing for X.E.'s retrospective expenses. He submits that tax credits and benefits were available to Ms. Lagtapon to defray some of the costs. He disputes the reasonableness and necessity of many of the claimed expenses, argues that he should not be required to contribute to expenses that Ms. Lagtapon incurred without consulting him, and disagrees with Ms. Lagtapon about the amount that E.D. should be required to contribute to her own education expenses.

[4] The parties agree that any claims for reimbursement of retrospective expenses should be calculated from September 1, 2021 to March 31, 2024. Orders pertaining to prospective s.7 expenses (effective April 1, 2024) will be addressed later in this judgment.

X.E.'s Past s.7 Expenses

Passport Funding

[168] X.E. is eligible to receive up to $5,000 annually in Passport funding from the provincial government. The Passport program assists adults with developmental disabilities to become more involved in their communities and to live as independently as possible. Expenses must be incurred and submitted to the government for approval before any funding is received.

[169] In the past, Mr. Lagtapon submitted claims for Passport funding on X.E.'s behalf. Mr. Lagtapon received the funds and transferred them to Ms. Lagtapon to reimburse expenses she incurred on X.E.'s behalf. Ms. Lagtapon has taken these transfers into account in calculating the amount she claims is owed to her by Mr. Lagtapon.

[170] On June 14, 2024, the parties consented to an order to transfer X.E.'s Passport Funding Benefit account/profile to Ms. Lagtapon's name alone. She now has control over the Passport funding. She will be responsible for submitting receipts for reimbursement and will receive the reimbursement. The consent order requires her to keep Mr. Lagtapon apprised of all activity regarding the Passports funds.

[171] The Passport funds are one of the means by which X.E. is able to contribute to his own special and extraordinary s. 7 expenses. I have not considered his ODSP benefits in determining what contributions he should make to his own s.7 expenses because the ODSP funds will be fully exhausted on his daily living expenses.

Tax Credits

[172] Before determining each of Ms. Lagtapon's s.7 claims, I will address Mr. Lagtapon's arguments about tax credits.

[173] First, Mr. Lagtapon submits that his contribution to X.E.'s expenses should be substantially reduced to account for the financial benefit that Ms. Lagtapon receives from claiming a caregiver tax credit. In 2022, she claimed a tax credit of $7,525. At the time of trial, she had not yet filed her 2023 tax return, but she would be eligible to make a similar claim for that year, and for the 2024 year.

[174] Subsection 7(3) of the FCSG stipulates that, in determining the amount of a s. 7 expense, the court must take into account any tax credits "relating to the expense" and any eligibility to claim tax credits "relating to the expense." The caregiver tax credit does not, in my view, relate to any of X.E.'s s.7 expenses, which consist of dental care costs, speech therapy, psychotherapy, camp fees, and day programming fees.

[175] Ms. Lagtapon is eligible for the caregiver tax credit because X.E. depends on her for support due to his intellectual disability. The caregiver tax credit recognizes that a dependent adult child requires extensive help for their personal needs due to their disability. Ms. Lagtapon is eligible for the tax credit because of the assistance that she provides daily to X.E., who lives with her most of the time. This tax credit is unrelated to the s.7 expenses for which she is seeking reimbursement.

[176] Mr. Lagtapon also argues that his contribution to X.E.'s expenses should be reduced to account for the fact that Ms. Lagtapon could receive a financial benefit by claiming X.E.'s disability tax credit on her personal income tax return. The disability tax credit is transferable. Ms. Lagtapon has not claimed it in the past. Instead, the credit has been claimed on X.E.'s tax return. Ms. Lagtapon's overall household would benefit financially if she claimed this credit instead of X.E. because her income is significantly higher than his, so the value of the credit would be greater. Ms. Lagtapon provided no explanation for why she has not made this claim.

[177] Mr. Lagtapon produced a calculation showing that Ms. Lagtapon would have paid $1,333 less in income tax in 2022 had she claimed X.E.'s disability tax credit in addition to the caregiver tax credit. There is no evidence of the impact that the disability credit would have had on her tax owing in 2021 or 2023, but it is reasonable to assume that it would have been similar because her income was similar in all three years. Due to minor fluctuations in her income, it may have been slightly higher or lower in each of those years, but on average, she would have paid about $1,333 less in income tax annually had she claimed X.E.'s disability tax credit.

[178] The disability tax credit is designed to offset some of the extra disability-related costs incurred by people with disabilities or their supporting family member. It therefore relates to some of the expenses incurred on X.E.'s behalf, notably the expense of his Saturday social skills program, his Summer Camp program, and his regular day program. All these programs are specifically designed for people who have intellectual disabilities. I will therefore take into account Ms. Lagtapon's eligibility to claim this tax credit when I determine the amount of the related expenses to be apportioned between the parties.

Dental Care Costs

[179] Ms. Lagtapon paid $47 in 2022 for a visit that X.E. made to the dentist. Her health insurance covered most of the cost. She is seeking an order for Mr. Lagtapon to pay her his proportionate share of the uninsured amount. This is the only claim she has made relating to X.E.'s dental care costs.

[180] Subsection 7(1)(c) of the FCSG refers to health-related expenses, including dental care expenses, "that exceed insurance reimbursement by at least $100 annually." Ms. Lagtapon's claim therefore does not qualify as a s.7 expense. No order will be made with respect to this expense.

Speech Therapy Costs

[181] X.E. attends speech therapy on a regular basis. This is a necessary health-related expense under s.7(1)(c) of the FCSG. Any portion of the expense that is not covered by the parties' health insurance must be shared in proportion to their incomes, after taking available tax credits into account.

[182] Ms. Lagtapon proposes that the amount of the uninsured speech therapy fees be reduced by 15% to account for an available medical tax credit. I agree with this approach.

[183] No claim was made by Ms. Lagtapon with respect to any speech therapy costs in 2021.

[184] In 2022, the portion of X.E.'s speech therapy fees not covered by the parties' insurance was $930. Reduced by 15%, the amount to be shared by them in proportion to their incomes was $790 ($930 x .85). Mr. Lagtapon was responsible for 59% of that amount, namely $466 ($790 x .59). The record shows that he paid a total of $636 toward the therapy costs that year.[^5] He therefore overpaid by $170 ($636 - $466).

[185] In 2023, X.E.'s speech therapy fees totaled $3,371. Ms. Lagtapon's insurance covered a portion of the fees ($732) during the first three months of the year. The amount not covered by insurance was $2,639 ($3,371 - $732). Reduced by 15%, the amount to be shared between the parties in proportion to their incomes is $2,243 ($2,639 x .85). Mr. Lagtapon is responsible for 61% of that amount, namely $1,368 ($2,243 x .61). He paid a total of $1,019 toward the speech therapy costs that year.[^6] He therefore underpaid by $349 ($1,368 - $1,019).

[186] In the first three months of 2024, X.E.'s speech therapy fees totaled $124. No insurance was available to cover any portion of those fees. Reduced by 15%, the amount to be shared between the parties in proportion to their incomes is $105 ($124 x .85). Mr. Lagtapon is responsible for 61% of that amount, namely $64 ($105 x .61). Ms. Lagtapon acknowledges that he paid $69 toward the speech therapy in February 2024. He therefore overpaid by $5.

[187] In summary, for the period from September 2021 to March 2024, Mr. Lagtapon owes Ms. Lagtapon $174 for X.E.'s speech therapy expenses ($349 - $170 - $5).

Counselling and Psychotherapy Costs

[188] After the parties separated in 2021, Mr. Lagtapon proposed that X.E. see a counsellor to help him cope with the separation. Ms. Lagtapon was skeptical about whether X.E. would be capable of engaging meaningfully in counselling. Mr. Lagtapon found a social worker named Nicole Callander who had expertise working with clients with special needs. X.E. attended virtual sessions with her monthly for over a year, commencing in the fall of 2021. Mr. Lagtapon participated in the counselling. Initially, Ms. Lagtapon refused to participate in the sessions, but she later agreed.

[189] There is no dispute that Ms. Callander's counselling fees constitute a necessary and reasonable health-related expense under s.7(1)(c) of the FCSG. Both parties recognize that X.E. benefitted from the counselling. The fees were largely covered by Ms. Lagtapon's health insurance benefits, but a small balance was paid by the parties. Ms. Lagtapon acknowledges that, once the available medical tax credit is factored into the calculation of this s.7 expense, Mr. Lagtapon slightly overpaid his share in 2023.

[190] The evidence in the record shows that a total of $248 was paid to Ms. Callander in January and February 2023. Ms. Lagtapon's insurance reimbursed $223 of that amount, leaving a balance of $25. Reduced by 15% to account for the available tax credit, the total uninsured expense was only $21 ($25 x .85). Mr. Lagtapon's 61% share of that expense was $13 ($21 x .61). Ms. Lagtapon acknowledges that he paid $26. He therefore overpaid by $13. He will be credited with this amount.

[191] The more significant dispute over X.E.'s therapy expenses relates to the fees charged by a different counsellor who began working with X.E. in March 2023. Parental conflict had intensified between the parties, and it reached a crisis point in early 2023. X.E. was not having any parenting time with his father. The conflict between the parties was negatively affecting him. His physician recommended that he receive in-person psychotherapy, which Ms. Callander was unable to provide. Mr. Lagtapon searched and found a psychologist named David Rockman, and the parties mutually agreed to retain Mr. Rockman.

[192] Initially, Mr. Rockman's fees were partially covered by Ms. Lagtapon's health insurance. The parties shared the expense of the uninsured portion of his fees up until August 2023, when Mr. Lagtapon refused to continue paying the bills. He had disagreements with Mr. Rockman, some related to increases in billing and others related to Mr. Rockman's approach to the therapy, which Mr. Lagtapon found to be unstructured and disorganized. Mr. Rockman ultimately ceased communicating with Mr. Lagtapon, but X.E. continued to attend for psychotherapy sessions and Ms. Lagtapon paid the full cost. By that point, she no longer had health benefits coverage because of the termination of her employment.

[193] Ms. Lagtapon did not share Mr. Lagtapon's concerns about Mr. Rockman. However, at the time of trial (March 2024), the parties were working together to explore engaging the services of a different psychotherapist for X.E.

[194] There is no question that Mr. Rockman's therapy fees are reasonable and necessary health-related expenses covered by s.7(1)(c) of the FCSG. The parties jointly engaged his services because they thought it would be in X.E.'s best interest. Mr. Lagtapon's subsequent disagreements with Mr. Rockman are not a valid reason to unilaterally decide to stop contributing to the cost of X.E.'s psychotherapy.

[195] Since the date of Justice André's April 7, 2022 order, Ms. Lagtapon has had sole parental decision-making authority with respect to major non-emergency health care decisions affecting X.E. She was required to consult meaningfully with Mr. Lagtapon before making such decisions, which she did in this instance. Indeed, she agreed to retain the psychologist recommended by him. She was not obligated to change psychologists because of Mr. Lagtapon's subsequent dissatisfaction with Mr. Rockman. Mr. Lagtapon was not entitled to refuse to contribute to X.E.'s ongoing psychotherapy expenses just because he wanted to change therapists. To condone such behaviour would undermine the court order that granted Ms. Lagtapon sole decision-making authority. It would allow Mr. Lagtapon to use financial means to exert pressure on Ms. Lagtapon in order to get his way when they disagree over parenting issues.

[196] The parties each paid Mr. Rockman directly in May and June, 2023. In addition, the trial record indicates that Ms. Lagtapon paid a total of $2,280 to Mr. Rockman between March 26, 2023 and August 19, 2023. She was reimbursed $920 through her health insurance. She acknowledges that the balance of $1,360 should be reduced by 15% to account for the available medical tax credit. The amount of the s. 7 expense to be allocated between the parties is therefore $1,156 ($1,360 x .85). Mr. Lagtapon's 61% share of that amount is $705 ($1,156 x .61). He transferred a total of $427 to Ms. Lagtapon to put toward this expense,[^7] so he underpaid by $278.

[197] Between September to December 2023, Mr. Rockman's fees totaled $950. Ms. Lagtapon paid the entirety of this expense. Reduced by 15% to account for the available medical tax credit, the amount to be allocated between the parties is therefore $807 ($950 x .85). Mr. Lagtapon's 61% share, which he owes to Ms. Lagtapon, is $492.

[198] In summary, for the period from January to December 2023, Mr. Lagtapon owes Ms. Lagtapon $757 ($278 + $492 - $13) for X.E.'s psychotherapy expenses (with credit for his overpayment of Ms. Callander's fees).

[199] The parties made no claims with respect to therapy expenses pre-dating or post-dating 2023.

Saturday / Summer Camp Costs

[200] Ms. Lagtapon seeks an order for partial reimbursement of fees she paid to an agency called K & R Learning Centre for Autism. X.E. started attending K & R in or about August 2020, before the parties separated. He went on Saturdays during the school year and on weekdays during the summer break. X.E. continued to attend this program after the parties separated. The program is designed to enhance social skills for people with a range of developmental disabilities. The cost of the program was $120/day.

[201] Ms. Lagtapon refers to the K & R program as "group therapy". Based on the evidence at trial, I do not believe that is an accurate characterization of the program. Unlike X.E.'s speech therapy and psychotherapy, the K & R program does not constitute a health-related expense under s.7(1)(c) of the FCSG.

[202] However, the cost of the K & R program qualifies as an extraordinary expense for extra-curricular activities within the meaning of s.7(1)(f) of the FCSG. I make this finding for the following reasons. The cost is necessary insofar as the program promotes X.E.'s social development. The cost is reasonable in relation to both the parties' current means and their pre-separation pattern of spending. The cost exceeds an amount that Ms. Lagtapon could reasonably be expected to cover alone, taking into account her income and the relatively modest amount of child support that I have ordered Mr. Lagtapon to pay. Finally, the program responds to X.E.'s specific disability-related needs.

[203] Mr. Lagtapon must therefore reimburse Ms. Lagtapon for his proportionate share of these expenses. He takes the position that he should not be required to reimburse her for fees paid to K & R in 2021 because the invoices submitted by Ms. Lagtapon for Saturday programs in 2021 do not have the year printed on them. The disputed invoices list specific months and dates when X.E. attended, but the year is omitted. They are printed on the K & R letterhead, in the identical format as the 2022 invoices, minus the year. I am satisfied that the invoices are authentic. There is no dispute that X.E. attended the program on Saturdays in 2021. I believe that Ms. Lagtapon received the undated invoices and paid the amounts in question. Mr. Lagtapon's concern about the missing year on the 2021 invoices is not a valid reason to exempt him from liability for his share of this expense.

[204] The trial record shows that X.E. attended the K & R Saturday Camp program from September to December 2021. His Passport funding had already been exhausted earlier that year. Ms. Lagtapon paid a total of $1,580 to K & R for the programming. I will reduce this amount by $1,333 to account for Ms. Lagtapon's eligibility to claim X.E.'s disability tax credit, which she ought to have done. Mr. Lagtapon should not be required to pay more for X.E.'s programming because of her failure to apply for available tax credits.

[205] Consequently, the amount of the s. 7 expense relating to X.E.'s 2021 Saturday Camp fees is $247 ($1,580 - $1,333). Mr. Lagtapon's 43% share of that expense is $106 ($247 x .43).

[206] In 2022, X.E. continued to attend the Saturday Camp program and he also attended a Summer Camp program at K & R for two weeks in July and one week in August. Passport funding (in the amount of $2,640) was used to pay a portion of the cost. The remaining portion paid by Ms. Lagtapon was $2,160. Reduced by $1,333 to account for Ms. Lagtapon's eligibility to claim X.E.'s disability tax credit, the amount of this s.7 expenses in 2022 is $827 ($2,160 - $1,333). Mr. Lagtapon's 59% share is $488 ($827 x .59).

[207] The K & R program costs were fully covered by Passport funding in 2023. There is no evidence that X.E. attended K & R in 2024.

[208] In summary, for the period from September 2021 to March 2024, Mr. Lagtapon owes Ms. Lagtapon $594 ($106 + $488) for X.E.'s Saturday Camp and Summer Camp program expenses.

Day Program Fees

[209] The most contentious issue between the parties with respect to X.E.'s special expenses relates to the cost of the day program that he has been attending at New Horizon, since September 2023.

[210] New Horizon is an organization that offers specialized programs for adults with intellectual disabilities, to help them become more involved in their community and to promote their independence. Among other things, it offers instruction on life skills, such as meal planning and preparation. It also offers opportunities for work experience. As part of his programming at New Horizon, X.E. stocks shelves at a grocery store and organizes clothing at a thrift store, under the supervision of a program leader. He is also involved in other educational, fitness and artistic activities.

[211] New Horizon operates out of the same building as K & R Centre for Autism. Some of X.E.'s friends from the K & R Saturday Camp and Summer Camp started attending New Horizon's day program at the same time as X.E., in the fall of 2023. Ms. Lagtapon testified that the transition from high school to the day program was made easier because of X.E.'s familiarity with the location, staff on site, and other participants.

[212] The evidence in the trial record establishes that Ms. Lagtapon unilaterally decided to register X.E. for the New Horizon day program. She informed Mr. Lagtapon of her decision, but she did not consult him beforehand. He was not supportive of her decision. He felt that she chose New Horizon simply because it was familiar to her and to X.E., without making any effort to canvass other options for post-secondary vocational and life skills training, including programs that might be eligible for RESP funding.

[213] Ms. Lagtapon adduced evidence of the current cost for X.E. to attend New Horizon. The fees are $1,520 monthly for four days per week, excluding extra costs for social outings, cooking fees, and gym membership fees. Passport funding can be used to defray some of these costs. The program does not qualify for RESP funding.

[214] Initially, Ms. Lagtapon registered X.E. to attend New Horizon three days per week. He was, at that time, delivering a community newspaper on a volunteer basis to acquire work experience, but when the paper ceased printing, Ms. Lagtapon decided to increase X.E.'s attendance at New Horizon to four days per week. This occurred in November 2023. Mr. Lagtapon was not consulted about this decision.

[215] In addition to attending the day program at New Horizon, on the weekends when X.E. was in his father's care, he participated in a hockey program tailored for people with intellectual disabilities. On the weekends when he was in his mother's care, he attended a Saturday program at New Horizon.

[216] Mr. Lagtapon testified that he does not oppose a day program for X.E., but he has concerns about the suitability of New Horizon. His main concern, however, is the amount of time that X.E. spends there. Mr. Lagtapon stated that attending five days per week (i.e., four weekdays and Saturday) basically amounts to "institutionalization" of his son.

[217] Mr. Lagtapon feels that two days per week at New Horizon would be reasonable. He would like X.E. to participate in different programming on other days, preferably with a focus on vocational training. The parties disagree on whether X.E. has the aptitude to pursue any vocational training or other education.

[218] By the end of the trial (in June 2024), the parties were considering alternative day programming for X.E., but no decision had yet been made about whether X.E. would return to New Horizon in the fall of 2024.

[219] I make no finding about the suitability of New Horizon. Regardless of whether it is the optimal agency for X.E., the cost of the day program qualifies under s.7(1)(d) of the FCSG as an extraordinary expense relating to an educational program that responds to X.E.'s special needs, taking the parties' respective means and pattern of pre-separation funding into account. It is not for me to determine, in the context of this trial, whether Ms. Lagtapon chose the best available or most affordable day program for X.E. She has sole parental decision-making authority. It is within her ultimate discretion (subject to meaningful consultation with Mr. Lagtapon) to decide which program(s) X.E. will attend, and how frequently he will participate. I will not interfere with the exercise of her discretion in that respect.

[220] The issue before me is not the wisdom of her parenting decisions. Rather, it is the issue of whether Mr. Lagtapon should be ordered to pay his proportionate share of the expenses she incurred at New Horizon (after deducting any Passport funding used to defray the expenses). Ms. Lagtapon is not entitled to be reimbursed any s.7 expense unless she demonstrates that the expense was both necessary and reasonable.

[221] Mr. Lagtapon does not seriously dispute the necessity of day programming for X.E. The parties agree that X.E. requires some type of programming for persons with disabilities in order to promote his wellbeing. He needs to socialize, to remain physically and mentally active, and to continue to develop his independence to the extent possible. He needs to do this in an environment that is safe and where staff are sensitive to his unique needs. Even if there are other more suitable programs for X.E. (an issue about which I make no finding), the expense incurred at New Horizon qualifies as a "necessary" s. 7 expense.

[222] The central issue in dispute is therefore the reasonableness of the expense, which must be assessed in the context of changes to the parties' financial circumstances since their separation. They have both lost their health insurance coverage. Ms. Lagtapon has been unemployed for over a year. Mr. Lagtapon's new business is doing very well, but his income is somewhat precarious. They have the added expense of having to maintain two households. I therefore agree with Mr. Lagtapon's suggestion that it would be wise for the parties to investigate other options for X.E. that are either less expense than New Horizon, or that could be funded using RESP savings. That alone does not, however, render the New Horizon expenses unreasonable.

[223] Mr. Lagtapon is willing to contribute to the cost of New Horizon programming from September 2023 to March 2024, but he argues that attendance four days weekly was excessive, and he therefore objects to paying his proportionate share of the full fees incurred. He further argues that he should not be required to reimburse Ms. Lagtapon for s.7 expenses that she incurred without consulting him. I infer that, had she consulted him, he would have agreed to register X.E. two days per week at New Horizon, at least on a temporary basis.

[224] In assessing the reasonableness of a s.7 expense, courts have taken into consideration whether the parent who incurred the expense consulted the other parent prior to doing so: Luftspring v. Luftspring, 2004 CanLII 16869 (Ont. C.A.), at para. 2; Park v. Thompson, at para. 23; Correia v Correia, 2002 MBQB 172, at para. 24; Clarke-Hunter v. Hunter and Clarke, at para. 322; Bandyopadhyay v. Chakraborty, 2021 ONSC 5943, at para. 297; Makhmadaliev v. Marasulova, 2023 ONSC 6938, at para. 35. A lack of consultation before incurring a s. 7 expense will not automatically preclude apportionment of the expense between the parties, but it may be given significant weight in the exercise of the court's discretion, depending on the circumstances. In some cases, courts have reduced a payor spouse's contributions to an expense due to the other spouse's lack of consultation, rather than dismissing the s. 7 claim: Pepin v. Jung, [1997] O.J. No. 4604 (G.D.), at para. 14; Delichte v. Rogers, at paras. 44 and 92-95.

[225] In this case, consultation prior to incurring the disputed expenses at New Horizon was particularly important because Justice André's April 7, 2022 order requires Ms. Lagtapon to engage in meaningful consultation with Mr. Lagtapon before making major decisions about X.E.'s education and extra-curricular activities. In the circumstances, Ms. Lagtapon cannot reasonably expect Mr. Lagtapon to be required to pay a proportionate share of all the program expenses that she unilaterally incurred. To require Mr. Lagtapon to pay his share of the full New Horizon fees would effectively reward Ms. Lagtapon for ignoring Justice André's order.

[226] Based on the totality of the evidence, I find that Mr. Lagtapon should be required to pay his proportionate share of the cost of X.E. attending New Horizon two days per week from September 2023 to March 2024. Had Ms. Lagtapon engaged in meaningful consultation with Mr. Lagtapon before registering X.E. four days weekly, I would have ordered him to pay his proportionate share of the full cost.

[227] The evidence in the record establishes that Ms. Lagtapon paid a total of $4,975 to New Horizon for X.E.'s programming in the fall of 2023. X.E.'s Passport funding had been exhausted earlier in the year. For part of the fall, X.E. was attending 3 days per week, and for part of the time, he was attending 4 days per week. He also attended on some Saturdays. Based on the available evidence, I estimate that the cost of attending only two days weekly would have been $2,760 for 3 months. New Horizon fees incurred by Ms. Lagtapon in excess of that amount are not reasonable s. 7 expenses because of her failure to consult Mr. Lagtapon beforehand.

[228] Mr. Lagtapon must contribute his proportionate share to a reasonable amount of New Horizon fees. In determining that amount, I must take into account the disability tax credit that was available to Ms. Lagtapon in 2023. I previously found that she would pay about $1,333 less in income tax if she claimed X.E.'s disability tax credit in 2023. I will therefore deduct $1,333 from the cost of attending New Horizon two days per week to calculate the amount of the s.7 expense to be shared between the parties ($2,760 - $1,333 = $1,427).

[229] Mr. Lagtapon is therefore responsible for 61% of $1,427, namely $870. He paid Ms. Lagtapon a total of $1,183 in three installments for these 2023 expenses.[^8] He therefore overpaid by $313.

[230] In the first 3 months of 2024, the New Horizon fees were approximately $1,840 per month. For reasons already explained above, Mr. Lagtapon is only required to pay his proportionate share of what it would have cost for X.E. to attend 2 days per week. I have already estimated that the cost of attending twice weekly would have been $2,760. His 61% share of that amount is $1,684 ($2,760 x .61 = $1,684). In fact, he paid an average of about $412 monthly, for a total of $1,236.[^9] He therefore owes Ms. Lagtapon a shortfall of $448 for his share of this s.7 expense in January through March 2024.

[231] Mr. Lagtapon must therefore pay Ms. Lagtapon a total of $135 ($448 - $313) for his share of the New Horizon day program fees from September 2023 to March 2024.

Transportation Costs to New Horizon

[232] X.E. is incapable of taking public transit or otherwise travelling independently. Ms. Lagtapon has therefore investigated various transportation services that are suitable for individuals with intellectual disabilities. In the fall of 2023, she decided to hire a service called TransHelp to transport X.E. to and from New Horizon. She incurred costs exceeding $700 for this service between September 2023 and March 2024. She asks the court to order Mr. Lagtapon to pay his proportionate share of these costs.

[233] Ms. Lagtapon did not consult Mr. Lagtapon before engaging this service. She informed him that X.E. would be taking TransHelp for the benefit of gaining more independence. Mr. Lagtapon does not object to X.E. using TransHelp if necessary, but he argues that Ms. Lagtapon incurred an unnecessary expense because she has been unemployed since April 2023 and could drive X.E. to and from his day program.

[234] This claim is denied for several reasons. First, Ms. Lagtapon has not persuaded me that the TransHelp expense falls within one of the categories in s. 7(1) of the FCSG.[^10] Second, she has not demonstrated that the expense was necessary; she could have driven X.E. instead. Third, the expense was not reasonable because it was incurred without any prior consultation with Mr. Lagtapon.

Conclusion

[235] In summary, Mr. Lagtapon must pay Ms. Lagtapon $ 1,660 for X.E.'s past s.7 expenses, broken down as follows:

Dental Care $ 0

Speech Therapy $ 174

Counselling and Psychotherapy $ 757

Saturday/Summer camps $ 594

New Horizon Day Program $ 135

TransHelp $ 0

Total: $1,660

E.D.'s Past s.7 Expenses

[236] As noted previously, Ms. Lagtapon claims to be owed $24,643 as reimbursement of Mr. Lagtapon's proportionate share of s. 7 expenses that she incurred on behalf of E.D. She has the burden of proving that the disputed expenses fall within one of the categories listed in s.7, and that they are necessary and reasonable expenses.

Health Care Expenses

[237] Ms. Lagtapon paid $67.80 for the uninsured portion of psychotherapy and online counselling expenses for E.D. in 2022. Mr. Lagtapon's 59% share of that expense is $40 ($68 x .59). He paid Ms. Lagtapon $45.20 for this expense in or about March 2023. He therefore overpaid by $5.

[238] Ms. Lagtapon paid $466 for E.D.'s medical expenses in January 2023. This includes the uninsured portion of the cost of two dental visits, and $270 for an examination by an optometrist in January 2023. Mr. Lagtapon's 61% share of this expense is $284 ($466 x .61). He has not reimbursed Ms. Lagtapon any amount for this expense.

[239] Consequently, Mr. Lagtapon owes Ms. Lagtapon $279 ($284 - $5) for E.D.'s medical expenses incurred in 2022 and 2023.

Tuition and Residence/Rent

[240] The parties agree that E.D.'s tuition fees, residence fees, and rental accommodation costs (while living away at university) are all "expenses for post-secondary education" within the meaning of s.7(1)(e) of the FCSG. Mr. Lagtapon acknowledges that he must contribute his proportionate share to those expenses, after E.D. makes a reasonable contribution herself. The parties disagree on what E.D.'s contribution should be.

[241] E.D. has some means to contribute to her own post-secondary expenses without having to incur student loans. She was awarded a $2,500 scholarship in her first year of university. She has been working the past few summers and has earned employment income. Moreover, she is one of the beneficiaries of the RESP account and has access to those savings.

[242] E.D.'s first year of university studies was in 2022-2023. The evidence in the record establishes that her tuition and residence costs, after deducting her scholarship, amounted to $20,476 for that academic year. Mr. Lagtapon argues that this expense should be reduced because Ms. Lagtapon could have claimed E.D.'s tuition tax credit on her tax return. He asks the court to deduct the amount of money that would have been gained had Ms. Lagtapon claimed the credit instead of E.D. (based on Ms. Lagtapon's higher income).

[243] In determining the amount of a s.7 expense, s. 7(3) of the FCSG requires me to consider "any eligibility to claim [an]… income tax deduction or credit relating to the expense." The tuition tax credit relates to E.D.'s education expenses. Like X.E.'s disability tax credit, E.D.'s tuition tax credit is transferable to her parents. However, unlike X.E., who cannot manage his own finances due to his disability, E.D. is a competent adult who is entitled to make her own decisions about her finances. Ms. Lagtapon would only be eligible to claim the tuition credit if E.D. consented to transfer it to her. There is no evidence of E.D.'s consent in the 2022 or 2023 tax years. I note that Mr. Lagtapon could also have claimed the tuition tax credit if E.D. consented to transfer it to him. In the circumstances, it would not be appropriate to reduce the tuition expense based on eligibility for a tax credit that neither party claimed. (If there were evidence that the tuition tax credit had been transferred to and claimed by Ms. Lagtapon, it would be appropriate to reduce the tuition expense by the amount of tax savings she obtained.)

[244] Of the $20,476 in tuition and residence fees for E.D.'s first year of university, a total of $12,500 was paid using RESP savings.

[245] E.D. worked in the summers prior to attending university, but she earned minimal income. According to her T1 tax returns, her total income was $3,334 in 2021 and $3,318 in 2022. She therefore had limited means to contribute to her education expenses apart from the scholarship money and RRSP funds. It would not be reasonable, in the circumstances, to expect her to make a greater financial contribution during her first year of university, given her parents' substantial incomes in 2022 and 2023.

[246] Ms. Lagtapon paid the balance of $7,976 that was not covered by E.D.'s scholarship and RESP funds ($20,476 - $12,500). Mr. Lagtapon transferred $2,500 to her on December 1, 2022 and $1,089 on January 9, 2023. He therefore contributed a total of $3,589 to E.D.'s tuition and residence costs in her first year of university.

[247] In 2022, Mr. Lagtapon's proportionate share of s.7 expenses was 59%. In 2023, it was 61%. I will therefore use a blended rate of 60% to calculate his proportionate share of E.D.'s 2022-2023 tuition and residence fees. His share of this expense was $4,786 ($7,976 x .6). He paid $3,589. He therefore owes Ms. Lagtapon $1,197 toward tuition and residence fees for E.D.'s first year at university.

[248] In her second year, E.D.'s tuition fees and her rental accommodation costs (from May 2023 to March 2024) totaled $20,500. Ms. Lagtapon paid most of this expense but was partially reimbursed by RESP funds and e-transfers from Mr. Lagtapon.

[249] There is conflicting evidence about the amount of money that Mr. Lagtapon withdrew from the RESP to pay toward E.D.'s tuition and rent in her second year of university. Mr. Lagtapon testified that he withdrew $6,275 and transferred those funds to Ms. Lagtapon. Ms. Lagtapon testified that he transferred only $2,975 from the RESP savings to her on November 3, 2023.

[250] Mr. Lagtapon kept meticulous records of all his e-transfers. The documentary record includes proof of e-transfers to Ms. Lagtapon in the amounts of $1,500 on October 12, 2023, $2,374 on October 16, 2023, and $2,975 on November 3, 2023. The text messages associated with these e-transfers make it clear that the money was withdrawn from the RESP account and was to be used for E.D.'s tuition and rent. This documentary evidence establishes that Mr. Lagtapon withdrew a total of $6,849 from the RESP account in the fall of 2023 and transferred it to Ms. Lagtapon to pay toward E.D.'s tuition and rent.

[251] Mr. Lagtapon's position is that $12,500 annually should be withdrawn from the RESP account to pay for E.D.'s education expenses. I have already ruled that he has sole discretion over the use of these funds, subject to his fiduciary duty to act in the children's best interest. The difference between $6,849 and $12,500 (i.e., $5,651) will therefore be withdrawn from the RESP account and transferred to Ms. Lagtapon to partially reimburse her for the tuition and rental payments that she made. Mr. Lagtapon must make this withdrawal and transfer forthwith.

[252] Only $8,000 of E.D.'s tuition and rent expenses in 2023-2024 was not covered by the RESP savings ($20,500 - $12,500). I have discretion under s.7(4) of the FCSG to deduct a contribution that could be made by E.D. toward her own education before allocating the remaining amount between the parties in proportion to their incomes.

[253] E.D. worked during the summer between her first and second years of university and earned a gross income of approximately $15,000. Mr. Lagtapon takes the position that she should be required to contribute 1/3 of her net income to her own university expenses. Ms. Lagtapon disagrees. E.D. currently pays for her own utility bills while she is away at university, and Ms. Lagtapon feels that is a sufficient contribution.

[254] Given the substantial income earned by E.D. in the summer of 2023, I find it reasonable to reduce the tuition and rental expenses by $4,000, representing her expected contribution to her own education costs. The net s. 7 expense is therefore $4,000. Mr. Lagtapon's 61% share of this expense is $2,440. The record establishes that he transferred $425 to Ms. Lagtapon for E.D.'s education expenses on November 17, 2023. He therefore owes Ms. Lagtapon a balance of $2,015.

Tutoring Expenses

[255] E.D. experienced academic challenges during her first year of university, so she hired a tutor to assist her. Ms. Lagtapon paid the tutor's fees, which amounted to $2,700 between the fall of 2022 and the fall of 2023.[^11] The tutoring fees qualify as "expenses for post-secondary education" under s.7(1)(e) of the FCSG. They are reasonable, considering the parties means, and necessary to maximize E.D.'s prospects of success in her studies. Mr. Lagtapon must therefore pay his proportionate share of these expenses. Using a blended 60% rate, I calculate his share to be $1,620. He transferred $202 to Ms. Lagtapon as a contribution to these expenses on April 27, 2023. He therefore owes her the difference of $1,418.

Other Education Expense Claims

[256] Ms. Lagtapon claims reimbursement for a variety of other expenses that she argues are for E.D.'s post-secondary education, totaling in excess of $3,200 in 2022 and in excess of $3,000 in 2023. Mr. Lagtapon disputes the majority of these claims on the basis that they are not education-related, are unnecessary, or are unreasonable. However, he is willing to contribute his proportionate share of the cost of E.D.'s textbooks, laptop computer, and reasonable grocery expenses, despite the fact that Ms. Lagtapon did not consult him about any of those costs.

[257] I have concluded that many of the s.7 expenses claimed by Ms. Lagtapon are not "for post-secondary education" as required by s.7(1)(e) of the FCSG, and they do not fall within any of the other categories enumerated in s.7(1). For example, she claims reimbursement for $385 for driver's education courses for E.D. This is not a s.7 expense and Mr. Lagtapon is not required to contribute to it.

[258] Some of the disputed expenses are for furnishings for E.D.'s residence room and rental apartment, which are indirectly related to her post-secondary education because she needs a furnished place to live while away at university. However, many of these expenses are discretionary rather than necessary. For example, Ms. Lagtapon spent the following amounts on items for E.D.: $79 on a mattress protector; $112 on a duvet; $119 on a duvet cover in E.D.'s first year of university, then $291 for another duvet in her second year of university; $385 on business attire; over $1,000 on bathroom accessories and other home décor items (such as an area rug, mirror, decorative pillows, and "shelf décor"). This is not an exhaustive list. Ms. Lagtapon has not established that these were necessary expenses. Mr. Lagtapon is therefore not obligated to contribute to them.

[259] Other expenses incurred to furnish and equip E.D.'s residence room and rental apartment were necessary. For example, Ms. Lagtapon bought E.D. a bed, desk, desk chair, end table, lamp, and kitchen table and chairs. She purchased most of these items second-hand and paid modest prices for them. The amounts of the expenses are reasonable, but the manner in which they were incurred was not. Ms. Lagtapon made no effort to consult Mr. Lagtapon about any of them. He might have been able to source some of the items at no cost (e.g., from family or friends).

[260] Mr. Lagtapon made efforts to communicate with Ms. Lagtapon to discuss a budget for E.D. Ms. Lagtapon ignored him. It is unreasonable for her to expect him to pay a proportionate share of the costs of items she purchased in circumstances where she refused to engage in any prior consultation about budget. If the court ordered Mr. Lagtapon to pay a proportionate share of these expenses, it would reward Ms. Lagtapon's unreasonable behaviour.

[261] I will therefore only order Mr. Lagtapon to pay a proportionate share of E.D.'s food costs, textbooks, and computer. The MacBook cost $1,255. The total textbook cost during her first two years of university was approximately $1,120. A reasonable estimate of her food costs is $500/month (the same amount that was budgeted for X.E.'s food). For the periods from September 2022 to April 2023, and September 2023 to March 2024, her food expenses (while away at university) therefore total $7,500.

[262] The above reasonable and necessary s.7 expenses amount to $9,875 ($1,255 + $1,120 + $7,500). Using a blended rate of 60%, I calculate Mr. Lagtapon's share of these expenses to be $5,925.

[263] Mr. Lagtapon transferred $214 to Ms. Lagtapon on September 12, 2022 and $307 on March 7, 2023 to contribute toward E.D.'s s.7 expenses. He is therefore credited with $521. He owes Ms. Lagtapon the difference of $5,404 ($5,925 - $521).

Conclusion

[264] In summary, Mr. Lagtapon must pay Ms. Lagtapon $9,116 for E.D.'s past s.7 expenses, broken down as follows:

Health Care Expenses $ 279

Tuition and Residence Fees $2,015

Tutoring Expenses $1,418

Other education expenses $5,404

Total: $9,116

(f) What orders should be made regarding the parties' contributions to the children's ongoing special expenses?

Consent Order in Effect

[265] On the last day of trial, June 14, 2024, the parties consented to a Final Order that includes the following terms:

5. Any section 7 expenses for [X.E.], in addition to the current expenses set out… below, shall be discussed and agreed to prior to either party incurring the expense, such consent not to be unreasonable withheld, and once agreed, to be covered on a pro-rata basis.

6. [X.E.]'s current section 7 expenses shall include:

a. Speech therapy;

b. Day Programming at New Horizon;

c. TransHelp; and

d. Mental Health Therapy.

8. The Applicant will maximize all available tax programs and credits for the household ensuring that these are optimally utilized to generate the largest financial benefit subject to the Applicant not incurring personal tax consequences related to such funding, i.e. the ODSP Room and Board Funding being characterized as rental income and taxable to the Applicant.

Parties Positions

[266] To supplement the above consent order, Ms. Lagtapon is seeking an order fixing the amount of X.E.'s current special expenses at $1,711.72 monthly and requiring Mr. Lagtapon to pay his proportionate share of those expenses in addition to the base monthly child support he is required to pay. This figure includes the cost of X.E. attending New Horizon four days per week and a summer camp with the same agency for a minimum of two weeks annually. Ms. Lagtapon has accounted for the Passport funding in her calculation of the net cost of X.E.'s New Horizon programming.

[267] Ms. Lagtapon is also seeking an order for Mr. Lagtapon to pay his proportionate share of the cost of psychological therapy for X.E., after deducting a 15% medical tax credit from the total expenses.

[268] Finally, Ms. Lagtapon seeks an order for the parties to share on a pro-rata basis certain expenses that E.D. is likely to incur during her university studies, after depletion of any available RESP funds.

[269] Mr. Lagtapon acknowledges his obligation to pay his proportionate share of the children's reasonable and necessary s.7 expenses. However, he submits that the court should not fix a monthly amount for his contribution to X.E.'s expenses because that will effectively deprive him of any meaningful input into parenting decisions made by Ms. Lagtapon. As discussed later in this Judgment, Ms. Lagtapon has a history of not consulting Mr. Lagtapon before incurring s.7 expenses on the children's behalf.

X.E.'s Ongoing Expenses

[270] The decision whether to include a fixed amount for s.7 expenses in a child support order under s.3(2)(b) of the FCSG is discretionary.

[271] I can appreciate Mr. Lagtapon's concern about the court setting a fixed amount for X.E.'s s.7 expenses because of Ms. Lagtapon's history of making unilateral decisions about the children without consulting him at all, let alone meaningfully. Fixing the amount of X.E.'s s.7 expenses could perpetuate this pattern.

[272] However, Mr. Lagtapon already agreed -- in consenting to the June 14, 2024 order -- that X.E.'s current s.7 expenses shall include his speech therapy fees, the expense of day programming at New Horizon, TransHelp costs, and mental health therapy fees. He agreed to this knowing that X.E. currently attends New Horizon's day program four days weekly and takes TransHelp to commute between Ms. Lagtapon's home and New Horizon. Mr. Lagtapon therefore has had meaningful input into the decision to continue to incur these costs, and he has agreed that they constitute s.7 expenses to be shared on a pro-rata basis, and the court has made an order to that effect (with both parties' consent).

[273] X.E.'s speech therapy and psychotherapy fees are not constant. Those expenses vary depending on the frequency of X.E.'s sessions. However, the cost of attending New Horizon four days weekly and the cost of TransHelp are fixed. It is therefore reasonable and appropriate to make an order for Mr. Lagtapon to contribute to these expenses on a fixed monthly basis, for as long as X.E. continues to attend New Horizon.

[274] The evidence in the trial record establishes that the base rate for attendance at New Horizon's day program four days per week is $1,520 monthly. The most recent invoice from New Horizon shows extra fees for the cooking program ($84), gym membership ($14), and social outings ($80). The total monthly cost of X.E.'s current day programming is therefore $1,698. I have not included the fee for the Saturday program or Summer Camp at New Horizon because Mr. Lagtapon did not consent to those being s.7 expenses in the June 14, 2024 order. Pursuant to the terms of the consent Order, the parties must "discuss and agree to" those expenses before they are incurred, otherwise they will not be shared on a pro-rata basis.

[275] The cost for TransHelp to transport X.E. to and from New Horizon is $120 per month. The total fixed monthly expense is therefore $1,818 ($1,698 + $120). Mr. Lagtapon's 61% share of this expense is $1,109 ($1,818 x .61).

[276] Consequently, I order that Mr. Lagtapon must pay Ms. Lagtapon $1,109 monthly, effective April 1, 2024, for every month that X.E. attends day programming at New Horizon four days weekly. Ms. Lagtapon shall reimburse Mr. Lagtapon 61% of any Passport funding she receives to defray these costs. She shall also reimburse him 61% of the amount of any tax savings she obtains from claiming X.E.'s disability tax credit (see paragraph 8 of the consent order cited in paragraph 265 above).

[277] In accordance with the consent order dated June 14, 2024, effective April 1, 2024, Mr. Lagtapon shall pay 61% and Ms. Lagtapon shall pay 39% of X.E.'s speech therapy and mental health therapy costs (after deduction of any available tax credits). Mr. Lagtapon shall pay 61% and Ms. Lagtapon shall pay 39% of all other agreed-upon s.7 expenses.

E.D.'s Ongoing s.7 Expenses

[278] The parties agree that they must contribute on a pro-rata basis to E.D.'s post-secondary education expenses. I have already ruled that their respective contributions effective April 1, 2024 shall be 61% for Mr. Lagtapon and 39% for Ms. Lagtapon.

[279] The parties also agree that E.D.'s post-secondary education expenses include her tuition, tutoring, rent (on a 12-month basis, even though she only lives in the apartment during the academic year), textbooks or other necessary supplies for her studies, and food.

[280] The parties disagree about the amount of expense that is reasonable for E.D.'s food budget, about the amounts at which various expenses should be capped, about the extent to which E.D. should be required to contribute to her own expenses (beyond paying for her utilities), and about the extent to which RESP funds should be used to pay some of the expenses.

[281] In addition, Mr. Lagtapon seeks an order requiring the parties to discuss and agree upon E.D.'s expenses before incurring them, similar to paragraph 5 of the June 14, 2024 consent order with respect to X.E.'s expenses. Ms. Lagtapon seeks an order capping certain expenses annually, with no requirement to consult before expenses are incurred.

[282] I have already ruled that Mr. Lagtapon has sole discretion over the amount of RESP funds to be used to finance E.D.'s education annually, subject to his fiduciary obligation to act in both children's best interest.

[283] It makes no sense to require prior consultation and agreement of the parties before incurring the expense of E.D.'s tuition fees, tutoring fees, or the cost of her textbooks and other necessary supplies. The tuition fees are fixed by the university and are non-negotiable. E.D. will purchase textbooks and supplies based on her course requirements. The parties agree that the tutoring is necessary to promote E.D.'s academic success and the tutoring fees are set by the tutor. E.D. will determine the extent to which she requires ongoing tutoring. This is not a matter for the parties to decide.

[284] I have already ruled that a reasonable budget for food is $500/month for the 8 months that E.D. is away at university. E.D.'s rent is currently $950 per month, effective May 1, 2024, payable on a 12-month basis. If E.D. decides to change her residence in her last year of university, the parties shall discuss and agree upon a budget for her rent beforehand.

[285] E.D. was working at a bank in the summer of 2024 and was expected to earn a similar income to what she earned in 2023. In these circumstances, it is reasonable to expect that she can contribute 1/3 of her net income to her own living expenses while she is away at university. If payment of her utilities does not equate to 1/3 of her net annual income, the difference should be deducted from the amount of rent that the parties are required to pay on a pro-rata basis.

[286] In summary, the following s. 7 expenses shall be paid by the parties on a pro-rata basis if they are not covered by RESP savings (RESP amount to be determined by Mr. Lagtapon), any grants/bursaries/scholarships obtained by E.D., any tax savings obtained by the transfer of E.D.'s tuition tax credit to either of the parties (subject to E.D.'s consent), and 1/3 of E.D.'s annual net income (minus her utility costs):

Tuition fees

Tutoring fees

Rent (up to $950/month) on a 12-month basis

$500/month for food on an 8-month basis (September to April)

Textbooks and other necessary study supplies

(g) Should the Court order Mr. Lagtapon to obtain life insurance to secure his child support obligations?

[287] X.E.'s disability is profound and life-long. He is therefore likely to require child support indefinitely. The parties are acutely aware that they may pre-decease him and that they need to plan and provide for his long-term financial security.

[288] To secure Mr. Lagtapon's child support payments for X.E., Ms. Lagtapon seeks an order requiring him to apply for a life insurance policy in the amount of $250,000, naming X.E. as the irrevocable beneficiary of the proceeds of the policy. She relies on this court's decision in Burke v. Poitras, 2020 ONSC 3162, at paras. 250-260.

[289] Mr. Lagtapon objects. He testified that he has made appropriate arrangements for X.E. in his will. He submits that there would be sufficient assets in his estate to provide for X.E. in the event of his death.

[290] The court has authority to make orders securing payment of child support: Family Law Act, s. 34(1); Divorce Act, s. 15.1(4); FCSG, s.12. This includes authority to order a payor spouse to obtain life insurance: Katz v. Katz, 2014 ONCA 606, at paras. 65-70. However, the Court of Appeal has cautioned trial judges to proceed carefully in requiring a payor spouse to obtain insurance where there is no existing policy in place. Such an order requires evidence of the payor spouse's insurability and of the cost of the proposed insurance policy. Moreover, such an order requires careful consideration of the amount of insurance that is appropriate. As the Court of Appeal stated in Katz v. Katz (at para. 74):

It should not exceed the total amount of support likely to be payable over the duration of the support award. Moreover, the required insurance should generally be somewhat less than the total support anticipated where the court determines that the recipient will be able to invest the proceeds of an insurance payout. Further, the amount of insurance to be maintained should decline over time as the total amount of support payable over the duration of the award diminishes.

[291] Ms. Lagtapon's counsel made no submissions to assist me in determining the amount of life insurance that would be appropriate to order in this case. Moreover, no evidence was adduced about Mr. Lagtapon's insurability or about the cost of obtaining a life insurance policy. For these reasons, I decline to make the order requested by Ms. Lagtapon.

[292] Section 34(4) of the Family Law Act states that an order for support under the Act automatically "binds the estate of the person having the support obligation unless the order provides otherwise." There is no similar provision in the Divorce Act. Consequently, to secure the child support obligations in this case, I order that the child support orders in this judgment, including the s.7 orders below, are binding on Mr. Lagtapon's estate.

(h) Should the court make orders with respect to non-harassment and restrict communications between the parties?

[293] At the outset of the trial, Ms. Lagtapon advised that she would be seeking a "non-harassment order." I asked her counsel to clarify whether she wanted a restraining order against Mr. Lagtapon pursuant to s. 46 of the Family Law Act. She said no. However, the draft order that she submitted at the end of the trial included the following: "The Respondent shall not harass the Applicant directly or indirectly." Such an order would amount to a restraining order.

[294] Before issuing a restraining order, I must be satisfied that Ms. Lagtapon has reasonable grounds to fear for her safety. She bears the onus of proof on a balance of probabilities: Gauthier v. Lewis, 2021 ONSC 7554 (Ont. S.C.J.), at para. 36. Her fear may be subjective in nature, but it cannot be comprehended only by her: R.K.K. v. J.L.M., 2007 ONCJ 223, at paras. 33; P.F. v. S.F., 2011 ONSC 154, at para. 31. It must be reasonable and legitimate: Lawrence v. Bassett, 2015 ONSC 3707, at para. 12; Reis v. Lovell, 2022 ONSC 1201, at para. 54.

[295] In considering whether to grant a restraining order, the court must ensure that an appropriate balance is maintained between ensuring that victims of violence and harassment are protected, while also ensuring that such orders (which are registered in police databases and can have criminal consequences) are only granted with good reason and where a clear case has been made out: Gauthier v. Lewis, at para. 33; Reis v. Lovell, at para. 58.

[296] A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears: Gauthier v. Lewis, at para. 35; Reis v. Lovell, at para. 58. However, in order to justify a restraining order, it is not necessary for the respondent to have actually committed violence or conduct amounting to harassment. Rather, it is sufficient if the moving party has a legitimate fear of such acts being committed: Reis v. Lovell, at para. 58.

[297] If the respondent has committed past acts of aggression, they must have some current relationship with the applicant's present fear: R.K.K. v. J.L.M., at para. 34.

[298] Ms. Lagtapon testified that she feared her husband for the majority of their marriage because he engaged in emotional, psychological and physical abuse. She said she had to walk on eggshells because she never knew what would trigger his outbursts; she felt disrespected and unheard by him; and he constantly made her feel inadequate.

[299] She recalled the day that she and the children left the matrimonial home. Mr. Lagtapon had brought a puppy home a few days prior, despite Ms. Lagtapon's clear and consistent communication, over the previous 2-3 years, that she did not want another dog. The family already had a dog. Mr. Lagtapon's decision to ignore her wishes and get a new puppy was the catalyst for the dissolution of the marriage.

[300] On the date of separation in April 2021, X.E. was at his maternal grandparents' home. Ms. Lagtapon testified that she told E.D. to "pack up some things and go." E.D. ran to her grandparents' house. Ms. Lagtapon testified that she was afraid that Mr. Lagtapon would hurt her or E.D. She described him coming upstairs and confronting her, asking "where are you going?" She said she told him, "we're leaving" and thought he was going to hit her. She testified that she went out the door and ran, looking back, because she thought he would follow her.

[301] Mr. Lagtapon did not hit her or attempt to hit her the day that she left. He did not follow her. However, the next day, Mr. Lagtapon texted her saying that he was going to kill the dog. He had asked her to come home and she had responded that she would not return home unless the dog was gone. Mr. Lagtapon did not get rid of the dog. Ms. Lagtapon did not return home.

[302] A few days later, Mr. Lagtapon texted Ms. Lagtapon and E.D. to say "goodbye." Ms. Lagtapon feared he was going to attempt suicide. At trial, Mr. Lagtapon acknowledged that he did make a suicide attempt after the parties separated. He said it was a misguided effort to try to save the family.

[303] Ms. Lagtapon complained to the police about Mr. Lagtapon's behaviour. A copy of her police statement was not produced at trial. She testified that she reported two incidents of alleged physical violence to the police, one when Mr. Lagtapon hit her and another when he attempted to strangle her. She alleged that both incidents occurred during the marriage.

[304] Ms. Lagtapon testified about the alleged hitting incident during the trial. She said it happened not long before the parties separated, on a day when she was working in her home office. She recalled that Mr. Lagtapon walked in, raised his hand, and slapped her left shoulder, then walked out without saying anything. Mr. Lagtapon denies that this incident occurred. He denies ever hitting Ms. Lagtapon.

[305] The choking incident is alleged to have occurred in 2020. Ms. Lagtapon provided no particulars of the incident. Mr. Lagtapon denies ever strangling or attempting to strangle her.

[306] Mr. Lagtapon was charged (I presume with assault) after Ms. Lagtapon made a report of these alleged incidents to the police. The charge was resolved with a peace bond.

[307] Ms. Lagtapon testified that Mr. Lagtapon twice violated the terms of the peace bond, which precluded him from being in her vicinity for a year. She said he came up to her car and knocked on the window one day, which scared and intimidated her. She said he also came to her home, jumped the fence, and checked doorknobs to try to get into the house. She stated that these breaches of the peace bond occurred in the fall of 2021.

[308] Mr. Lagtapon acknowledges that he approached Ms. Lagtapon's vehicle on one occasion. He said he did so to show her an email in which their lawyers had agreed to him picking up X.E. at his Saturday camp. Ms. Lagtapon called the police and he left.

[309] Mr. Lagtapon denies ever jumping the fence at Ms. Lagtapon's home, attempting to enter her home, or being around her home for any reason other than to pick up or drop off X.E.

[310] Ms. Lagtapon did not allege that any incidents of violence, threats, or harassment occurred after the fall of 2021, apart from "incessant" email communications from Mr. Lagtapon, which are discussed below.

[311] There is no evidence to support a finding that Mr. Lagtapon attempted to strangle Ms. Lagtapon in 2020, except for her bald allegation. She provided no details of where or how this incident allegedly occurred. Mr. Lagtapon denies it.

[312] Ms. Lagtapon's allegation about the slap on her shoulder in the spring of 2021 was properly particularized. As previously noted, Mr. Lagtapon also denies that incident.

[313] It is unnecessary for me to determine whether either of these incidents occurred, or whether Mr. Lagtapon jumped Ms. Lagtapon's fence in the fall of 2021. Even if I were to find, on a balance of probabilities, that these events happened, Ms. Lagtapon has not established that she currently has reasonable grounds to fear for her safety based on Mr. Lagtapon's actions or words.

[314] Ms. Lagtapon testified that she was afraid of him during their marriage and was scared of how he would react on the date of their separation. However, she did not testify that she still fears for her physical safety today. Rather, she said, "I'm always fearing he won't accept information I attempt to exchange." She complained that he questions her all the time, just as he did during their marriage. She said, "Until I agree with what he's saying, the conversation doesn’t stop. It never stops." This does not amount to a fear for her physical or psychological safety.

[315] Moreover, even though Mr. Lagtapon acted in a disturbing manner in the wake the parties' separation in April 2021, which was no doubt distressing and terrifying for Ms. Lagtapon, there is no reason to believe that such behaviour will recur. The evidence at trial establishes that Mr. Lagtapon suffered a major depressive episode in 2020, took leave from work, and was prescribed anti-depressant medication. About a month before the parties separated in April 2021, he decided to stop taking the medication. Ms. Lagtapon did not think it was a good idea, but he did it anyway. Mr. Lagtapon testified that he was "heavily medicated." He attributes his irrational behaviour in the immediate aftermath of the parties' separation to his decision to stop his medication "cold turkey," which is a plausible explanation. Although he continues to struggle with depression and anxiety, his mental health has stabilized. He is working full time. Ms. Lagtapon has no complaints about his conduct over the past three years, apart from the frequency with which he communicates with her in writing and the persistent tone of his messages. There is therefore no legitimate basis for Ms. Lagtapon's present fear. A restraining order therefore will not issue.

[316] Ms. Lagtapon asks the court to order Mr. Lagtapon to adhere to a detailed communication protocol. She relies on s. 28(1)(c)(i) of the Children's Law Reform Act, R.S.O. 1990, c. C-12, which permits the court to make orders "the court considers necessary and proper in the circumstances," including an order "limiting the duration, frequency, manner and location of contact or communication between any of the parties."

[317] Ms. Lagtapon testified that she feels harassed by Mr. Lagtapon's "incessant" messages about the children and their s. 7 expenses. In addition to restrictive terms about the nature and content of communications, she asks the court to impose a limit of once weekly correspondence. Without such a protocol, she says she will feel intimidated and overpowered by Mr. Lagtapon.

[318] For the reasons that follow, I have concluded that ordering the requested communication protocol is not "necessary and proper in the circumstances" of this case.

[319] Many of the terms in Ms. Lagtapon's draft communications protocol have already been imposed by Justice André's final order dated April 7, 2022, which remains in effect. The court is not in the practice of issuing duplicate orders.

[320] The main difference between Justice André's order and the terms now sought by Ms. Lagtapon is the requirement that the parties communicate with each other only once weekly. X.E. is a high-needs child because of his disability. The parties must communicate regularly about how best to meet his needs and they must also plan collaboratively for his long-term financial security and wellbeing. X.E. is not likely ever to live independently. He will need the parties to co-parent him indefinitely. Limiting their communications will not serve X.E.'s best interest.

[321] Although Mr. Lagtapon is persistent and sometimes repetitive in his communications, which is exhausting for Ms. Lagtapon, she must recognize that she has created conditions that provoke his "incessant" messaging by excluding him from almost all parental decision-making. If she engaged him in meaningful consultation, as required by Justice André's court order, the frequency of his messages and their tone and content would likely change. Limiting the parties' communications risks further alienating Mr. Lagtapon from his children's lives.

[322] Finally, Ms. Lagtapon's requested communications protocol essentially amounts to a variation of the terms of Justice André's final order dated April 7, 2022. Ms. Lagtapon has not proven a material change in circumstances to warrant such a variation.

(i) What order, if any, should be made for costs of this trial?

[323] The parties are encouraged to try to settle the issue of costs, failing which they may make written submissions to the court, and I will decide the issue.

[324] If either party wishes to seek an order for costs, the parties must agree upon a timetable for the exchange and filing of their costs submissions, with final submission deadlines no later than October 11, 2024.

[325] Each party's costs submissions shall be restricted to 2 pages in length, excluding any authorities, offers to settle, and Bill of Costs.

Justice C. Petersen

Released: September 13, 2024

BRAMPTON COURT FILE NO.: FS-21-100776

DATE: 20240913

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Susanna Lagtapon

-and-

Junipero Lagtapon Jr.

REASONS FOR JUDGMENT

Petersen J.

Released: September 13, 2024

[^1]: Ms. Lagtapon's income was $221,385 and Mr. Lagtapon's income was $166,068. Their combined income was $387,453. Ms. Lagtapon is therefore responsible for 57% ($221,385 ÷ $387,453) and Mr. Lagtapon is responsible for 43% ($166,068 ÷ $387,453).

[^2]: Ms. Lagtapon's income was $200,386 and Mr. Lagtapon's income was $284,393. Their combined income was $484,779. Ms. Lagtapon is therefore responsible for 41% ($200,386 ÷ $484,779) and Mr. Lagtapon is responsible for 59% ($284,393 ÷ $484,779).

[^3]: Ms. Lagtapon's income was $180,729 and Mr. Lagtapon's income was $280,892. Their combined income was $461,621. Ms. Lagtapon is therefore responsible for 39% ($180,729 ÷ $461,621) and Mr. Lagtapon is responsible for 61% ($280,892 ÷ $461,621).

[^4]: He paid $2,500 on November 2, 2022; $2,500 on November 14, 2022; and $498.40 on November 28, 2022.

[^5]: He paid $280 on February 15, 2022, and $356.06 on September 27, 2022.

[^6]: He paid $193.54 on May 2, 2023; $104.62 on October 5, 2023; $668.44 on October 20, 2023; and $52.31 on January 17, 2024.

[^7]: He paid $85.50 on each of March 28, 2023, and April 27, 2023. He also paid $256.50 on May 24, 2023.

[^8]: Ms. Lagtapon acknowledges that he transferred $345.24 (for October 2023 fees), $443.74 (for November 2023 fees), and $394.46 (for December 2023 fees) to her on or about February 26, 2024.

[^9]: Ms. Lagtapon acknowledges that he transferred $410.59 (for January 2024 fees) and $413.73 (for February 2024 fees) on or about February 26, 2024. The exact amount he paid in March 2024 is not in evidence.

[^10]: My Order dated June 14, 2024 stipulates that X.E.'s current s.7 expenses include Transhelp. That order was made on consent of the parties. Absent an agreement between them, I could not have made that order. The order does not apply to the period from September 2021 to March 31, 2024.

[^11]: She paid the tutor $525 for services in the fall of 2022; $750 for services in January through March 2023; $600 for services in April and May 2023; $450 for services in October 2023; and $375 for services in November 2023.