Court File and Parties

COURT FILE NO.: FS-19-00014624-0001 DATE: 20240711 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Angelina Schwartz, Applicant AND: Farad Eslah, Respondent

BEFORE: Shin Doi J.

COUNSEL: Shelly Kalra, for the Applicant Carolina Repila, for the Respondent

HEARD: May 21, 2024

Endorsement

[1] The parties started living together on April 1, 2012 and separated on October 20, 2019. The parties have two children, born on […] (“C”) and born on […] (“L”).

[2] The Respondent Farhad Eslah (the “Father”) brings a motion for an order that the Applicant Angelina Schwartz (the “Mother”) give the children their prescribed medications on her parenting time. The Father alleges that the Mother does not give the older child C his attention deficit and hyperactivity disorder (“ADHD”) medication on weekends and holidays, and that C requires the medication seven days per week including holidays. The Father also seeks decision-making responsibility for medical treatment of the children. The Father further seeks $5288.00 in section 7 expenses and the Disability Tax Credit. The Father seeks an order that the parties shall equally claim half of the Disability Tax Credit for the tax year 2022 and onwards.

[3] The Mother brings a cross-motion for an order that the Father sign Stephen Cross’ retainer agreement for the s.30 assessment, provide the Father’s intake form within 48 hours, and cooperate with the s.30 assessment, failing which the Father should pay a daily monetary penalty. The Mother also seeks proof of payment for section 7 expenses and 2023 financial disclosure.

ADHD Medication

[4] I dismiss the Father’s motion for an order that the Mother give C his ADHD medication on weekends and holidays. There is a court order that the Mother has interim sole decision-making authority and that they follow the recommendations of treating health professionals. There is evidence that C is doing well on the medication administered, C has been on that course of medication for nine months, and health professionals are monitoring the medication plan. I am not persuaded that a change in the medication plan is required in C’s best interests.

[5] The Mother submits a medical report dated April 8, 2024 by Dr. Carolyn Freedman which states, “…although the official recommendation is for treatment every day with no breaks, that the approach to each patient may be individualized and that at this point in time [C] appears to be doing well on the medication as provided .”

[6] The Father submits an earlier medical report [of December 2023] by Dr. Freedman stating her recommendation that medication be provided seven days per week as per the Canadian Pediatric Society and CADDRA guidelines. Dr. Freedman further states, “we would not usually consider weekend breaks, unless we were concerned about adverse effects such as poor weight gain.”

[7] I note that the medical report of December 2023 further states, “I will continue to support the wishes of this family and that it may also be reasonable to stop medications on the weekend and/or holiday break. This should be explored further with [C] about his preferences .”

[8] The Father noted that the medical report dated November 6, 2023 by Dr. Freedman states, “When [C] was asked for his opinion, he stated that he would prefer to take it all seven days.” The Mother disputes that C provided that opinion of his own volition and submits that C was age nine at the time. In Decaen v. Decaen, 2013 ONCA 218, the Court of Appeal set out the factors to consider when assessing a child’s wishes which includes “whether both parents are able to provide adequate care, how clear and unambivalent the wishes are, how informed the expression is, the age of the child, maturity level, strength of the wish, the length of time the preference has been expressed, practicalities, the influence of the parent(s) on the expressed wish or preference, the overall context, and the circumstances of the preferences from the child’s point of view”. More evidence is needed to assess the child’s wishes given those factors. I note that there is no evidence about C’s current wishes. The Mother submits that they intend to ascertain C’s current wishes through a section 30 assessment.

[9] I note that the medical report dated November 6, 2023 states, “When asked for my opinion, I told parents that taking it all seven days was my recommendation based on what they had told me (particularly if C finds the medication helpful for doing work on the weekend or playing sports) but that some families preferred to take it for only school days, and that was appropriate as well .”

[10] I am not satisfied that a change in the administration of medication to seven days per week including holidays is required in the best interests of C at this time. I am also not satisfied that a change from the Mother to the Father in decision-making authority for medical treatment is reasonable or necessary. When a section 30 assessment is conducted, C may express his wishes to the independent assessor and the plan for administration of medication may be reconsidered by the court.

Section 30 Assessment

[11] The court has ordered an assessment pursuant to the Children’s Law Reform Act, s. 30. The Mother requires the Father to sign the retainer agreement with the assessor and submit the intake. The Father explains that he has not signed the retainer agreement with the assessor because the Father is experiencing financial difficulties and does not want to create a financial obligation. The Father submits that he does intend to sign the retainer agreement after the hearing of this motion. The Mother explains that in light of the Father’s reluctance to sign the retainer agreement, the Mother has requested the assessor to begin the assessment of her part and the assessor has agreed to do so and work until the Mother’s fees are spent. The Mother submits that she is not fully aware of the Father’s financial situation and questions his financial hardship.

[12] I order the parties to serve a Request for Information and an updated Form 13 Financial Statement within 14 days.

[13] Given that the Father intends to sign the retainer agreement, it is not necessary for me to require him to sign the retainer agreement at this time. The Mother may return this portion of the motion for an order requiring the Father to proceed with the retainer if he fails to sign as indicated.

Section 7 Expenses

[14] Justice Shore ordered on December 7, 2022, “Commencing January 1, 2022, the parties shall each pay their proportionate share of the children’s s.7 expenses, having regard to their respective incomes as set out, being 60% by the Father and 40% by the Mother.” Justice Shore further ordered that there shall be no retroactive section 7 expenses owing by either party from the date of separation to December 31, 2021.

[15] The Father alleges that the Mother has not paid her share of childcare and summer camp, basketball, and medical expenses. The Father seeks to share the following expenses:

• SBA Basketball and Families in Transition
• Therapists
• Before and After School Care Costs and Summer Camp

[16] The Mother alleges that the Father has not provided invoices/receipts. The Mother argues that she has paid other section 7 expenses since October 2023.

[17] The Federal Child Support Guidelines, section 7(1) provides special or extraordinary expenses as follows:

Special or extraordinary expenses

• 7 (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) childcare 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.

Definition of “extraordinary expenses”

• (1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means
  • (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.

[18] I order that within 7 days, each party shall provide the other with invoices/receipts for the section 7 expenses that he/she is claiming, taking into account the categories noted above.

[19] The Mother argues that only the net amount of childcare expenses is a shared section 7 expense. She further argues that had the Father filed his taxes for 2023 already, the parties would be able to do a reconciliation of their proportionate share for this expense.

[20] The Canada Revenue Agency provides that one person can claim the childcare expenses as a deduction. Once the childcare expenses have been claimed as a deduction, the expense can be reconciled and shared by the parties. The parties shall determine their proportionate shares of the childcare expenses after the net amount is determined based on the filed tax returns and notice of assessment.

[21] It is important that each party has the financial disclosure and information that he/she reasonably requires or is required under law. Each party shall provide the other with a Request for Information within 7 days. Each party shall respond to the other’s Request for Information within 20 days of receipt.

Disability Tax Credit

[22] The parties are in agreement about sharing the Disability Tax Credit but propose different ways to do so. The Father seeks an order that the parties shall retroactively to 2022 and going forward equally claim half of the Disability Tax Credit for the tax year 2022 and onwards. The Mother proposes that the parents alternate claiming the Disability Tax Credit. The parties have each received 4 Disability Tax Credit deductions to date.

[23] The Canada Revenue Agency provides that if there are two persons who support the same dependent, the claim for that dependent may be split up to the maximum amount allowed for that dependent.

[24] Given that it would be onerous to adjust tax returns that already have been filed and assessed for 2022 and 2023, the parties shall split the disability tax credit for year 2024 and onwards, as permitted by the Canada Revenue Agency.

Shin Doi, J. Released: July 11, 2024