COURT FILE NO.: FS-20-20064
DATE: 20240920
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eden Camille Tsafaroff
Applicant
– and –
Ranko Valentin Plejic
Respondent
Self-Represented
Self-Represented
HEARD: September 9th, 10th, and 11th, 2024
REASONS FOR DECISION
M. Kraft, J.
Nature of Trial
[1] This was a three-day trial about child support arrears between two parents and their daughter who is in 1st year University.
[2] The parties are not married. They began cohabiting in 2004 and their relationship ended 11 years later, at the end of 2015. They are the parents of a daughter, R. At the time of separation, R. was 9 years of age. R. is now 17 years old and is in 1st year University.
[3] For the first 4 ½ - 5 years after the parties’ separated, it is agreed that R. resided with both parents in a shared parenting arrangement. During these years, neither party paid child support to the other and they shared R.’s s. 7 expenses equally. There was no separation agreement signed. Nor was there a court order in place.
[4] In the Fall of 2020, the respondent, Ranko Valentin Plejic (“the father”) stopped having regular parenting time with R. The applicant, Eden Camille Tsafaroff (“the mother”) then issued this Application on November 13, 2020, seeking primary residence and custody (now referred to as decision-making responsibility) of R., child support, spousal support, and costs.
[5] R.’s parenting time resumed with the father in May 2021, pursuant to a temporary court order, after about 9 months when they only saw each other about 7-8 times.
[6] In 2021, 2022 and 2023 court orders were made by judges of this Court, as temporary place holders for parenting time and child support, among other things. These orders were made without prejudice to what would be decided at trial.
[7] There were no parenting issues before me given that R. is now in 1st year University. However, the parenting schedule for R. in 2020 to 2023 is relevant as it impacts child support.
[8] During the trial, both parties relied on these temporary court orders when they calculated child support arrears or overpayments. While these temporary orders were to be followed by the parties, they were made by the court with incomplete information which is why they were made without prejudice to adjustment at trial where the trial judge is in a position, with a complete record, to determine what should have been paid in terms of child support and compare that with what was paid.
Issues to be Determined?
[9] The issues for me to determine are as follows:
a. Does the father owe child support arrears for 2020 to 2023 or did he overpay child support during this time?
i. To determine whether the father owes child support arrears or overpaid child support, the court must determine whether R. resided with the father for at least 40% of the time over the course of year during this time period?
ii. Should income be imputed to the father for six months in 2023, namely from January 1, 2023 to and including July 31, 2023 and onward and, if so, in what amount?
iii. Does either party owe the other retroactive s.7 expenses for R. during this time period?
b. What should the future child support arrangements be?
The Mother’s Position
[10] At trial, the mother sought an order for child support arrears, totalling $13,782.12, calculated as follows:
a. Child support table arrears for 2021-2023 as reflected in the most updated FRO statement of account, in the sum of $8,229.22; and
b. 50% of s.7 expense arrears of $5,552.90, to reimburse her for s.7 expenses she paid on behalf of R..
[11] The mother also seeks an order that the court impute income to the father of $62,500 for the six months from January 1, 2023 to and including July 1, 2023. The mother is not seeking future child support from the father. She also abandoned any claim she has for spousal support.
[12] In the mother’s draft order submitted after trial, she seeks costs totalling $17,769.00 plus $500 for disbursements. She also seeks damages for emotional distress in the sum of $5,000, however, she did not seek damages in her Application. Nor was any evidence put on the record by the mother about damages or the tort of emotional distress. Accordingly, the mother’s claim for damages is not considered by this Court.
The Father’s Position
[13] The father’s position is that he overpaid child support. He is seeking a one-time payment from the mother to reimburse him for overpaying child support in the sum of $28,980.40, calculated as follows:
a. $5,290.91, representing 50% of the s.7 expenses he paid on R.’s behalf for health care, technology, and school expenditure of $19,487.71, after giving the mother credit for paying s.7 expenses of $8,906 in this category;
b. $1,708.35, representing 50% of s.7 expenses he paid on R.’s behalf for athletics, activities and extracurricular expenditures totalling $3,767.11, after giving the mother credit for paying for R.’s athletics, activities and extracurriculars of $350.00;
c. $529.02, representing 50% of s.7 expenses he paid on R.’s behalf for Arts & Classes expenses, including but not limited to Creative Arts expenditures
d. $4,191, to reimburse the father for the overpayment of table child support paid for the period May 1 2021 to and including October 31, 2021.
e. $9,701.12 to reimburse the father for the overpayment of table child support he paid to the mother for the period January 1, 2022 to and including August 1, 2024; and
f. $7,560 to pay the father the set-off of child support the mother should have paid him for the period January 1, 2022 to and including June 1, 2024, since R. was residing with the parties pursuant to a shared parenting schedule.
[14] He is agreeable to income being imputed to him for six months in 2023 in the sum of $62,500. The father also abandoned any claim he had made for spousal support. He is seeking an order that the mother assume R.’s cell phone costs on a going forward basis along with the cost of her apartment insurance. The father also seeks costs of $16,000 plus disbursements of $4,064.50, for a total sum of $20,064.50.
Parties’ Incomes and Employment Background
[15] The mother is employed by the Ontario College of Social Workers and Social Services Worker as an Investigator in the Complaints and Discipline division. She is on a 13-month contract from July 29, 2024 to August 29, 2025. Her annual salary is $100,000.[^1] Prior to this position, the mother was employed in a similar role at the College of Optometrists of Ontario, earning an annual salary of $78,768.87.
[16] The father is currently unemployed. He was employed by Fitzrovia working in the multi-family residential marketplace. He began at Fitzrovia in June 2020. He was terminated on October 21, 2021. He received a severance which is reflected in his 2021 income tax return. The father testified that he has been unable to find work in his industry, which is why he remains unemployed and is in receipt of Employment Insurance.
[17] The incomes earned by each party from the date of separation (2016) to 2024 is set out below, along with the proportionate share each party should have paid in each year toward R.’s s. 7 expenses:
Year
Father’s Line 15000 Income/imputed income
Mother’s Line 15000 Income
Proportionate share of s.7 expenses under the CSG
2024
$62,500
(imputed)
$100,000
F=38.4 %
M=61.6%
2023
$62,500
(imputed)
$80,721
F = 43.6%
M = 56.4%
2022
$26,658
$81,256
F= 24.7%
M = 72.7%
2021
$204,733
$76,666
F= 72.8%
M= 27.2%
2020
$216,890
$83,854
F= 72.2%
M = 27.8%
2019
$143,649
$55,022
F = 72.3%
M = 27.7
2018
$79,791
$111,879
F= 41.6%
M=58.4%
2017
$36,916
$50,511
F = 42.2%
M = 57.8%
2016
$27,969
$58,789
F = 32.2%
M = 67.8%
[18] Although the issues to be decided at this trial are relatively narrow, this case has had a protracted, high conflict history. The mother started this case four years ago. The parties have had 14 settlement/case conferences and argued 2 motions. Faieta, J. worked with these parties over 7 conferences to try and resolve their outstanding issues. Two sets of Partial Minutes of Settlement were reached during these attendances. Rhinelander, J. then worked with these parties over a further 3 conferences to try and resolve their outstanding issues. Several interim, without prejudice, orders for parenting and support were made. There were also orders made to obtain a Voice of the Child report and a psycho-educational assessment of R. Despite these orders being made, there was significant delay in obtaining these two reports, which heightened the conflict between the parties and delayed the determination of the issues of child support.
[19] Throughout the trial, the mother was not able to calculate either the child support arrears or s. 7 expense arrears she was seeking. At the commencement of this trial, I noted that the parties were proceeding with a trial when they were apart by only about $30,000. Based on the mother’s draft order that was provided after the trial, it appears that the parties are apart by about $42,000. During this trial, I observed two parents who are clearly both involved with and connected to their daughter, R. In the early years of this litigation, conflict arose because of parenting issues and vastly different narratives. The mother describes being in a psychologically abusive marriage. The father denies such allegations. The mother does not dispute the father’s connection or involvement with the child. Rather, she submits that he de-valued her role as R.’s mother, by blaming her for R.’s poor academic performance in Grades 9 and part of Grade 10 and by his attempt to make decisions, particularly, medical, and health-related decisions about R., without including her. Both parties clearly felt hurt by the other. Regrettably, this conflict did not abate over time.
[20] R. is now living away at University and spared from ongoing parental conflict. R. has overcome academic and emotional difficulties she experienced during High School and was tremendously successful, earning her a spot in film school at university. She is to be commended for her perseverance. Both parents are to be commended for supporting R. through the family breakdown, Covid and High School.
Litigation History
[21] A brief review of the litigation history is set out below:
a. As a result of R. not having parenting time with the father, on November 13, 2020, the mother commenced this Application, 5 years after the parties had been separated, seeking spousal support, child support, custody and primary residence of R., imputation of income for the father and costs.
b. In his Answer/Claim, the father sought sole custody of R., equal parenting time, and child support.
c. On April 28, 2021, the parties had their first case conference before Pinto, J., at which they reached a consent, temporary without-prejudice order (“Pinto 2021 temporary order”) as follows:
i. R. would reside primarily with the mother, without prejudice to the father’s claim to seek a shared 50/50 parenting time schedule;
ii. Each parent was to be entitled to make inquiries and be given information and documentation about R. from teachers, schools officials, doctors, dentists, health care providers, etc.;
iii. For the month of May 2021, the father was to have parenting time on alternate weeks from Saturday, at noon to Sunday, at 7:00 p.m. and Tuesdays from 5:30 p.m. to Wednesday morning;
iv. From June 2021 onward, the father was to have parenting time on alternate weekends from Friday, at 5:30 p.m. to Sunday at 7:00 p.m. and Mondays, from 5:30 p.m. to Wednesday mornings.[^2]
v. Starting May 1, 2021, the father was to pay child support to the mother in the sum of $1,522 a month, based on a projected income for him in 2021 of $185,000 a year; and
vi. A psycho-educational assessment was to be performed on the child, with an agreeable assessor.
d. On October 21, 2021, the father lost his employment and has been on Employment Insurance since that time.
e. On January 10, 2022, the parties attended a Settlement Conference before Kristjanson, J., at which, among other things, the parties were ordered to obtain a Voice of the Child report to set out R.’s views and wishes on parenting time. The father was also granted leave to bring a motion to change to reduce child support on a temporary basis due to the loss of his employment.
f. On May 19, 2022, the father brought a motion to change the Pinto 2021 temporary order, dated April 28, 2021, to reduce his child support and to ask for child support from the mother. He also sought an order for interim primary decision-making responsibility and primary residence of R., who was 15 years old at that point in time. At the time of this motion, neither the psycho-educational assessment nor the Voice of the Child Report had taken place despite the Pinto 2021 temporary order having been made 13 months earlier. Shore, J. ordered the parties to complete both reports and sign all necessary documentation for both reports within ten days. Shore J. made the following without prejudice interim order:
i. The father’s motion to change the parenting schedule and decision-making responsibility was dismissed;
ii. Starting June 1, 2022, the father was to pay child support based on his EI income of $27,350 of $227.62 a month until the earlier of him securing employment or December 31, 2022. If by December 31, 2022, he had no secured alternate employment, his child support under the Pinto, J. 2021 temporary order was to continue in the sum of $1,522 a month; and
iii. Arrears of child support were set at $0 as of May 31, 2022.
g. On August 17, 2022, Joanna Seidel completed a Voice of the Child report. The report described that since June 2021, R. had been residing with the father on Mondays, Tuesdays and alternating weekends from Fridays to Sundays and that R. resided with the mother on Wednesdays, Thursdays, and alternative weekend and every Sunday evening. The report notes, among other things, that
i. Both parents agree they have poor co-parenting communication;
ii. R. expressed that she would like her parents to be more flexible with the parenting schedule;
iii. R. stated that she has lived with both her mother and father, equally, for the most part, since the separation. She explained the current parenting schedule is 2-2-5-5, with a modification;
iv. During the first interview, R. mentioned that she did not always want to go back to her mother’s on Sunday night, as it adjusts her groove, especially, if she is doing schoolwork or working on a project;
v. She would like the ability to stay an extra night with either of her parent’s when she wishes but does not want to feel guilty about when she chooses this option;
vi. She is typically agreeable to follow the regular parenting time schedule. She also reported spending additional time with her father, he was driving her to school and picking her up daily and taking her to baseball. She also goes to her father’s home everyday after school;
vii. She does not want the scheduled to be so fixed;
h. On March 1, 2023, the parties attended an exit TMC before Faieta, J. The 6-day trial which was scheduled to commence on Mach 23, 2023 was vacated because the matter was not ready for trial. The trial was re-scheduled for October 2, 2023;
i. On June 6, 2023, Elizabeth Saunders completed a psycho-educational assessment of R.
j. On June 30, 2023, at a TMC, Faieta, J. made a Final order, which incorporated the terms of Partial Minutes of Settlement signed by the parties, which set out the following:
i. Subject to R.’s wishes, she will reside with both parents on a 2-2-5-5 schedule, with the modification that she returns to the mother’s home on Sunday Evenings. This schedule results in R. spending 8 overnights out of 14 with the mother and 6 overnights out of 14 with the father.
ii. Effective July 1, 2023, there shall be no child support payable by either party to the other given the shared parenting time schedule. If on the anniversary date of the order, namely June 30, 2024, R.’s parenting time was greater than 60/40 with either parent, then the parent who had the greater parenting time may claim child support.
k. On July 6th, July 13th, July 21st, September 5th, and September 15th, 2023, the parties had five additional conferences before Faieta, J., 2023, at which he tried to settle the issue of child support arrears/overpayment and s.7 expenses.
l. On September 15, 2023, the parties attended the TMC before Faieta, J. at which they reached Partial Minutes of Settlement, agreeing that:
i. Their respective claims for reimbursement of s.7 expenses by way of payment of $1,460.20 from the father to the mother; and
ii. An annual income of $62,500 shall be imputed to the father for purposes of calculating child support for the period January 1, 2023 or June 30, 2023.
iii. The trial date scheduled for October 2, 2023 was vacated, leaving the sole issue to be resolved, being child support from June 1, 2021 to June 30, 2023. The Endorsement of Faieta, J. outlines that the mother’s position is that R. primarily resided with her during this period and the father’s position is that R. resided with him on a 5-5-2-2 schedule and that there should be a set-off of child support. A further Settlement Conference was scheduled to be heard on September 22, 2023 and the parties were ordered to attach documents to support their position with respect to the parenting time schedule and provide a month by month basis he/she is claiming in terms of child support for the period from June 1, 2021 to June 30, 2023.
m. On September 22, 2023 the parties attended again before Faieta, J., at which attendance the mother indicated that she felt bullied into singing the Partial Minutes of Settlement dated September 15, 2023 and she wished to set them aside. The father did not agree. Faieta, J. then ordered the parties to attend a TMC on January 3, 2024 and for the parties to revise the most recent TSEFs[^3].
n. On January 3rd, January 23rd, and May 27, 2024, the parties had conferences before Rhinelander, J., at which she then tried to resolve the issues of child support arrears/overpayment and s.7 expenses, at the request of the parties.
o. On May 27, 2024, a Peace Bond hearing took place, based on the mother seeking a peace bond against the father based on her belief that the father was breaking into her home.
p. On June 14, 2024, the parties attended an exit pre-trial before Rhinelander, J., at which this trial was scheduled for September 9-11, 2024 and the parties signed the revised TSEF.
Issue One: Does the father owe child support arrears for 2020 to 2023 or did he overpay child support to the mother?
The Law – Child Support
[22] Section 31(1) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) sets out each parent’s obligation to provide child support. The purpose of an order for child support is to (a) recognize that each parent has an obligation to provide support for the child, and (b) apportion the obligation according to the child support guidelines: s.31(7) of the FLA.
[23] The Ontario Child Support Guidelines, O. Reg. 391/97 (“CSG”) are applicable since the parties are not married.
[24] Section 3(1) of the CSG sets out that the table amounts are presumptive, based on the number of children to whom the order relates and the income of the parent against whom the order is sought, and the amount, if any determined under s.7: s.3 of the CSG.
[25] However, when a child lives roughly equally with both parents, the court has discretion to order child support in an amount other than what is set out in the Guideline table amounts: s.9 of the CSG.
[26] Section 37.(2.1) of the FLA authorizes the court to vary a child support order retroactively.
[27] The Supreme Court of Canada dealt definitively with retroactive child support in the four cases of D.B.S. v. S.R.G.; L.J.W. v. T.A.R., Henry v. Henry; and Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.). (“D.B.S”) Justice Bastarache, speaking for the majority stated, at paragraph 4-5:
"... the ultimate goal is to ensure that children benefit from the support they are owed at the time they are owed it. Any incentives for payor parents to be deficient in meeting this obligation should be eliminated."
[28] While retroactive awards should not be presumed, they are not to be regarded as exceptional orders to be made in exceptional circumstances.
[29] A retroactive child support order does not impose an obligation on the payor that did not exist at the time when support is being claimed, since the obligation to support a child exists independently of any court order that may have been ordered in the past. Therefore, even if a payor has made child support payments in accordance with an existing court order, the payor may be found to have not met their child support obligations if the payments did not increase as they should have according to the applicable law at the time. As stated by Bastarache, J., at para. 68:
Thus, the support obligation of a payor parent, while presumed to be the amount ordered by a court, will not necessarily be frozen to the amount ordered by a court. It is the responsibility of both parents to ensure that the payor parent fulfils his/her actual obligation, tailored to the circumstances at the relevant time. Where they fail in this obligation, a court may order an award that recognizes and corrects this failure. Such an award is in no way arbitrary for the payor parent. To the contrary, it serves to enforce an obligation that should have been fulfilled already.
[30] In DBS the court held that a claim for retroactive child support can apply not only to court orders but also to any previous agreements between the parties. The court held that in most circumstances, agreements reached between the parties should be given considerable weight. Courts should recognize that these agreements were likely considered holistically by the parties and it is often unwise to disrupt the equilibrium achieved by parties.
[31] However, as the court is dealing with children and child support that must remain the main focus. Therefore, where circumstances have changed and the actual support obligations of the payor have not been met, the court may order a retroactive award as long as the applicable statutory regime allows it.
Issue 1(a) What was the Parenting Schedule for R. between 2020-trial?
[32] To determine whether the father owes child support arrears in 2020 to 2023, or whether he overpaid child support to the mother, the first question that needs to be answered is whether R. was residing with the parents pursuant to a shared parenting arrangement during this period of time?
[33] Pursuant to s.9 of the CSG where each parent exercises parenting time with respect to a child for not less than 40% of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,
a. The amounts set out in the applicable tables for each of the parents;
b. The increased costs of shared parenting time arrangements; and
c. The condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
[34] Section 9 of the CSG requires a two-step analysis. Firstly, it must be established a “parent exercises a right of access to , or has physical custody of, a child for not less than 40 % of the time over the course of a year”. Secondly, if the 40% threshold has been met, the court must then determine the parents’ child support obligation by taking into account the provisions of subsections 9(a) through (c).
[35] As a first step, how does the court calculate when a parent has 40% of the time with a child? There are cases that look at the number of overnights a child has with parents. There are cases that count the total hours in a day and add up the hours a child is under the care of a parent. The relevant criterion is the amount of time that the child is in the care and control of a parent, not the amount of time that the parent is physically present with the children. The weight of judicial authority favours the conclusion that the time during which the children are in school does not accrue to the benefit of the non-custodial parent. If only part of a day is spent with a parent, it is simpler, clearer, and fairer to account for the time on the basis of the number of hours spent with that parent or during which that parent assumes responsibility for the child: Bolton v. Bolton, 2022 ABQB, 277. At pp. 313-314.
[36] Prior to the litigation commencing, it is agreed that R. resided with the parties generally equally. It is also agreed that between September 2020 and April 2021, the father had limited parenting time with R. What is not agreed upon, is the reason for this reduction in time. The father believes the mother influenced R. and the mother submits R. was experiencing anxiety and mental health challenges and resisted having parenting time with the father. It is also agreed that R.’s school performance deteriorated significantly in the 2020-2021 academic year – her Grade 9 year.
[37] As stated above, since June 1, 2021, R. has been residing with the father 6 nights out 14 and with the mother 8 nights out of 14. Using overnights as the time measure, that amounts to R. resides with the father 48.2 % and with the mother 57.2% of the time.
[38] The mother’s position at trial is that R. resides with her “primarily” and there has been no shared parenting schedule. The mother did not put into evidence how she calculated “primary time.” Instead, she repeatedly made this statement and suggested that the charts prepared by the father which attempted to calculate R.’s parenting time were not reliable because they were prepared by him. The mother continued to insist that R. resided with her “primarily”, despite the parenting schedule set out in the Pinto 2021 temporary order starting June 1, 2021 and despite the comments R. made during the Voice of the Child interviews by Joanna Seidel about living with her parents roughly equally. I do note that the Pinto 2021 temporary order does state that R. shall live with the mother primarily, but it then goes on to set out a parenting schedule where R. resides with the mother 8 nights out of 14 and with the father 6 nights out of 14.
[39] During the trial, the mother attempted to introduce an affidavit sworn by R., on August 7, 2024 into evidence at trial. The affidavit was presented electronically and appears to have been written in someone’s handwriting in blue ink. There is a change in the style of handwriting/print in a few places and several initials in places appearing to suggest either R. made changes to the affidavit after she wrote it, or she made changes to the affidavit if it was handwritten by someone else, but contained her words.
[40] The affidavit acknowledges that R. told Ms. Seidel that she lived “equally for the most part (with both parents) since the separation” and clarified that this statement ignores the 9 months period in 2020/2021 when R. was living primarily with the mother. Further, the affidavit states that Ms. Seidel “overemphasized how much time [she] spends with [her] dad vs. [her] mom. [She] [has] always spent more time at my moms than my dads.”
[41] R. was not called as a witness at trial. Given that the Court was not able to verify whether the affidavit, in fact, was written by R., and I could not, therefore, determine its authenticity or reliability, R.’s affidavit was not entered into the trial record as a numbered exhibit. However, it was entered into the record as a lettered exhibit.[^4] Accordingly, this exhibit was provided to me as an aide memoire and is not, itself, evidence.
[42] Even if I accepted the reliability of R.’s affidavit, which I do not, her evidence that she spends more time at her mom’s house rather than her dad’s house is correct based on the fact that she follows at 2-2-5-5 schedule but spends every Sunday night at her mother’s home – she has 8 overnights with the mother and 6 overnights with the father out of 14 days. That still meets the 40% threshold required by s.9 of the CSG.
[43] Neither party called Joanna Seidel as a witness at trial. However, both parties consented to the Voice of the Child Report being made a numbered Exhibit at Trial. The mother testified that R., on her volition, wanted to write the affidavit to make it clear to the court that in R.’s opinion, Ms. Seidel overstated how much time R. said she spends with her father.
[44] The father produced a chart which outlined and calculated the number of hours he spent with R. month by month from May 2021 to March 2022. This time chart was marked as Exhibit #20 at trial and counted the number of hours R. spent with each parent for the period May 2021 to and including March 2022. Other than for the month of May 2021, when R. was clearly in the primary care of the mother, for the ten months from June 2021 to and including March 2022, the father calculated that R. spent between 41.7% to 62.7% of her time with him on a monthly basis, and never below 40%. These calculations, while they do not span over a 12-month period, are the best evidence the court has regarding the parenting time R. spent with both parents during this ten-month period.
[45] There is no suggestion by either party that the parenting schedule changed after June 1, 2022.
[46] The Voice of the Child report lists that R.’s personal view of her parenting time is that she spends “roughly equal” with both parents. While she does return to her mother’s home on Sunday nights, R. also recounts that she spends a lot of time with her father, every day after school, and he drives her to and from school daily. I am persuaded that R. spent at least 40% of her parenting time with both parents and has followed a close to equal-time sharing schedule since June of 2021.
Application of s.9(b) and s.9(c) to the Facts
[47] Section 9 is a unique CSG provision; the Supreme Court of Canada has stated that “shared custodial arrangements require[e] the application of an entirely different formula” guided by different principles than the remainder of the CSG: Contino v. Leonelli-Contino, 2005 SCC 63, at para.
[48] Section 9 is the only CSG provision where the court has to consider the increased costs of shared parenting time arrangements; and the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
[49] Section 9(a) mandates a determination of the parties’ incomes and the “set-off” amount calculated by subtracting the amount owed in child support under the CSG tables by the lower-income earning party from the amount owed in child under the CSG tables from the higher-income earning party.
[50] Section 9(a) mandates no particular mechanism for considering the parties’ table amounts, but Contino adopted the “simple set off” approach, drawn from s.8 of the CSG.[^5] The set off amount, however, has no presumptive value because it may not reflect the actual spending patterns of the parties.[^6] This is why the court is also to consider and compare the childcare and household budgets to determine the actual cash flows of each household: s.9(b), and compare each party’s standard of living: s.9(c). Contino provides that courts may, through sections 9 (b) and 9 (c), “modify the set-off amount” based on the financial realities of the parents.”[^7]
[51] The set-off amount provides the reference point around which the court determines an appropriate level of child support in a shared parenting scenario. It is only the parents’ incomes that provide the reference points against which the final quantum of child support is to be assessed.
[52] Section 9(b) is meant to account for the fact that a parent who has care of a child more than 40% of the time may incur most costs than he or she did before; such as the increase in the cost of food, or housing.[^8] However, increased time with a child does not necessarily translate into increased costs to a parent who did not spend 40% of his/her time with a child and, likewise, does not necessarily result in a decrease of costs to a parent who formerly had primary residence of a child. Further, in this case, R. was in a shared parenting arrangement from the time of separation onward, and so there is nothing for the court to compare any “increased” costs to since the parents embarked on a regime of shared custody from the time of separation.
[53] Contino clarified that despite the wording in s.9(b), courts must consider the general “budgets and actual expenditures of both parents in addressing the needs of the children” to make sure that expenses relating to the children are apportioned between both parents relative to their respective incomes: at para. 53.
[54] Based on the number of overnights R. spends with each parent, and since she also saw her father daily after school and he drove her to and from school daily, I find that at the very least R. spent at least 40% of her parenting time with the father starting June 1, 2021, pursuant to the 2021 Pinto temporary order.
[55] It is also noteworthy that the parties agreed that as of June 30, 2023, R. was residing with the parents pursuant to a shared parenting schedule, such that neither parent was to pay the other child support. This is the language used by Justice Faieta in his order, dated September 15, 2023. At that point in time, namely, June 30, 2023, R. was residing with the parties pursuant to the same 2-2-5-5- schedule put into place by Pinto, J. in April of 2021, including the modification of R. being at her mother’s home on Sunday nights since June of 2021.
[56] When I review the financial statements sworn and filed by both parties, along with the detailed charts of s.7 expenses both parties have submitted, each parent’s budgets included childcare expenditures, child-related activities and global child-related expenses. If anything, the father’s child-related expenses exceeded the mother’s child-related expenditures, even after his employment was terminated.
[57] Section 9(c) means that the court must analyze the “resources and needs” of the parents and child at issue, to verify the assumptions inherent in the table amounts and set off: Contino, at para. 68. In terms of housing expenses, the father’s sworn financial statement, sworn on June 6, 2023, indicates that his rent is $2,235 a month. This is for the same three-bedroom apartment the parties lived in during the relationship, prior to separation. His cell phone bills include R.’s cell phone cost of $149.90 a month, and his grocery bills amount to $300 a month for both the father and R. Clothing for R. and children’s activities amount to $200 a month. The father’s total budget comes to $50,438.88 in this financial statement, even though he had only earned about $26,000 in 2022. He testified that his father gifted him monies to ensure that he could make ends meet. He also cashed in part of his RRSP.
[58] In the father’s May 15, 2024 financial statement, his rent is listed at $2,280 a month for the same three-bedroom apartment. In error, the father listed his other monthly expenses in yearly amounts.[^9] In the father’s July 29, 2024 financial statement, his rent is listed at $2,280 a month and his grocery expenses have decreased to $200 a month, likely because he was not earning an income in 2023 and 2024.
[59] In the mother’s sworn financial statement, dated March 2, 2024, her rent is similar to the father’s, in the sum of $2,017.13 a month. Her cell phone bill amounts to $78 a month, since she is not paying for R.’s cell phone. Her grocery bills are higher than the father’s by about 50%. In the mother’s sworn financial statement, dated August 7, 2024, her rent remains at the same rate of $1,2017.33. She lists her entertainment expenses at $200, including R. and clothing and activities for R. at $150.00 a month. This sum is lower than what the father was spending for himself and R. at $200 a month.
[60] In comparing the parents’ sworn financial statements, the parties’ budgets, in terms of R. and her needs, are very similar, as are their housing expenses. There does not appear to a drastic shift in the standards of living R. enjoys in either party’s house. I note that R. does complain that her father’s house being messy in the Voice of the Child report and being embarrassed about this. The mother introduced pictures of the father’s house into evidence showing that it is cluttered. This does not, however, translate into R. experiencing a drastic shift in her standard of living when she is one parent or the other.
[61] Both parents spend significant funds on R.’s activities, healthcare needs, and extra-curriculars, with the father paying for more of these expenses than the mother. This also makes sense since there was about a 3-year period between 2019 and 2021 where the father was earning significantly more than the mother. This was then followed by a 2-year period where the mother is earning more than the father and he remains unemployed. I am not persuaded that either parent has experienced an increased cost in his/her living costs because of the shared parenting arrangement. Similarly, I do not find that there are significant disparities between both parents’ homes.
[62] I find that the father should pay full table child support to the mother in accordance with his Line 15000 income for the period September 1, 2020 to and including May 30, 2023 when R. was living primarily with her. Commencing June 1, 2023, the parties shall pay set-off child support based on his/her Line 15000 incomes or the imputed income determined below.
Issue 1(b): Are monthly child support arrears owing for 2020 to 2023 or did the father overpay child support?
[63] The Pinto 2021 temporary order obliged the father to pay table child support in the sum of $1,522 starting May 1, 2021, based on an estimate of his 2021 income at $185,000. When the father brought his Motion to Change child support, before Shore, J. in May 19, 2022, among other things, she corrected the amount of child support the father should have paid in 2021, based on his 2021 Notice of Assessment, which lists his Line 15000 income as $204,733. Shore, J. states that the father should have paid $1,687 a month, being the table amount for 1 child on an income of $204,733. Shore J. also reduced the father’s child support to $227.62, based on his EI income starting June 1, 2022. Shore, J.’s order was without prejudice to an order being made a trial.
[64] Further, it is agreed that R. was living primarily with the mother from the beginning of September 2020 until the Pinto 2021 temporary order was made. I find, therefore, that the father, therefore, should have been paying child support for R. in accordance with the CSG tables starting September 1, 2020, not May 1, 2021. In 2020, the father’s line 15000 income was $216,890. Table child support for one child under the CSG is $1,781 a month.
The Law on Retroactive Reduction in Child Support
[65] An applicant seeking to vary child support must establish a material change in circumstances, such as a change in a payor’s income. Once a material change in circumstances in the payor’s income is established, a presumption arises in favour of retroactively increasing or decreasing child support to the date the payor gave the recipient effective notice of the request for a decrease: Colucci v. Colucci, 2019 ONCA 6561, at para. 73.
[66] It is clear that the father experienced a significant and sustained reduction in his income when he lost his employment beginning on October 21, 2021. That reduction in income constituted a material change in the father’s means and circumstances, meeting the threshold for a variation of the temporary child support order made by Pinto, J.
[67] In D.B.S., the Supreme Court of Canada extensively canvassed the principles applicable to a request to vary child support payments. The court identified four factors that a court should consider before making a retroactive child support: (i) the reason why a variation inf support was not sought earlier; (ii) the conduct of the payor parent; (iii) the circumstances of the child; and (iv) any hardship occasioned by a retroactive award: paras. 94-116.
[68] In Colucci and in Gray v. Rizzi, 2016 ONCA 152, it was held in para. 54 that the factors the Supreme Court of Canada identified in D.B.S. provide useful guidance to a court faced with a request to reduce child support based upon a payor's material decline in income. Although those factors require some minor alteration to suit circumstances where the payor's income has gone down, not up, the fundamentals still apply.
[69] First, at paras. 56-59 of Gray, the court identified the overarching considerations on a request to retroactively reduce child support, which I summarize as follows:
a. The best interests of the child is the paramount issue. Parents cannot bargain away their children’s rights to support when they need it. Delinquency in paying support should not be incentivized.
b. There is a distinction to be made between (i) requests for a reduction of arrears based on a current inability to pay and (ii) arrears arising from a change in financial circumstances that affected the payor’s ability to make the support payments when they came due. A current inability to pay will generally not result in a reduction unless the payor can demonstrate on a balance of probabilities that he or she cannot and will not ever be able to pay the arrears. However, a change in circumstances while arrears were accumulating, which rendered the payor unable to make support payments for a significant period of time, may allow for a retroactive decrease in the amount of child support owed during that time and a reduction of the accumulated arrears.
c. Next, at para. 60 in Gray, the court set out the following key factors of the D.B.S. analysis to guide a court in deciding whether to grant retroactive relief, the date of retroactivity, and the appropriate quantum of relief:
i. The nature of the obligation to support, whether contractual, statutory or judicial;
ii. The ongoing needs of the support recipient and the child;
iii. Whether there is a reasonable excuse for the payor’s delay in applying for relief;
iv. The ongoing financial capacity of the payor and, in particular, his or her ability to make payments towards the outstanding arrears;
v. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he or she has cooperated with the support enforcement authorities, and whether he or she has complied with obligations and requests for financial disclosure from the support recipient;
vi. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears ;and
[70] Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears.
[71] Applying the D.B.S. factors as adapted by this court in Gray, I find as follows:
a. The parties’ initial obligation to pay child support for R. arose out of a joint agreement between them which was not codified in a separation agreement or court order. Once the mother issued her Application, then this Court make the first temporary without prejudice order for child support on April 28, 2021.
b. There is an ongoing need for the child to receive child support and for each parent to receive what he or she was entitled to in terms of child support;
c. In this matter, the father was the initial payor and he did not delay in seeking a reduction to his child support obligation. In fact, he asked for leave to bring a motion to change in January 2022, just two months after his employment was terminated.
d. Throughout these proceedings, the father did not shirk from his child support obligations. The FRO statement of account is clear that monies were being deducted from the father to the best of his ability. In addition, the father was spending significant sums on child-related s.7 expenses, including for health care, school programs, technology and extra-curriculars, often more than the mother, even in years where she was earning more than he was.
e. There was delay on the mother’s part, and she was the recipient of child support. Over a year of time went by and the mother did not comply with the agreement to obtain a Voice of the Child report. This report was necessary, from the father’s perspective, to demonstrate that R. was living in a shared parenting arrangement. The father consistently took the position that R. was living with him at least 40% of the time and that therefore, instead of him paying full table child support to the mother that the parties should be in a set-off child support arrangement. The mother’s delay in the Voice of the Child report, delayed in the Court having this information before it.
[72] Neither party raised hardship on his or her part if ordered to pay retroactive child support.
[73] Based on the above, I am of the view that the father is entitled to a retroactive variation downward to his child support obligation starting on January 1, 2022. Although he lost his employment on October 21, 2021, during cross-examination, the mother was successful in demonstrating that the father had the funds to pay child support as per the Pinto temporary order in November and December 2021 in his Simplii bank account, but he did not do so.[^10] The father answered that “He did not know” why he did not pay child support in October, November, or December 2021. When asked whether he purposefully did not pay child support in November and December 2021, the father answered, “[he] prioritized something else.”; “he did not think it was a priority.” The father sought leave to bring a Motion to Change his child support when the parties were before Kristjanson, J. on January 10, 2022 and, accordingly, a reduction in his child support obligation should begin as of January 1, 2022. This is also the case since his income earned in 2021 exceeded $200,000.
[74] Similarly, despite the temporary, without prejudice order of Shore, J. which stated that if the father does not find employment by December 31, 2022 the Pinto 2021 temporary order would be reinstated such that he resumed paying child support in the sum of $1,522 a month, I find that the father is entitled to a reduction in child support arrears in the 2022 year. As stated above, this is not a situation where the father is saying he cannot afford to pay child support arrears which have accumulated in the past four years. Instead, this is a situation where the father experienced a change in circumstances while arrears were accumulating in 2022, which rendered him unable to make support payments for a significant period of time. In any case, there were significant monies taken from the father by FRO after the support payments had been reduced despite there being an SDO and it appears there were times between 2022 and the trial where father actually overpaid child support.
[75] Further, I find that there should be retroactive adjustment to the quantum of child support based on the parenting schedule for R. so that this case is in line with the CSG.
[76] Appeal courts have held that support should be calculated on the payor’s actual income in each year for which the support was payable: Virani v. Virani, 2006 BCCA 63 (C.A.); Lavergne v. Lavergne, 2007 ABCA 169 (C.A.); J.D.M. v. K.D.M., 2015 PSCA 16 (C.A.).
Calculation of child support arrears/overpayment in 2020 and 2021
[77] I find that for the period September 2020 to and including December 31, 2020, the father underpaid child support in the sum of -$7,124 calculated as follows:
Month in 2020
Child Support Ordered
What the father should have paid in child support
Under/Overpayment
Sept. 2020
None
$1,781
-$1,781
Oct. 2020
None
$1,781
-$1,781
Nov. 2020
None
$1,781
-$1,781
Dec. 2020
None
$1,781
-$1,781
Total Underpayment
-$7,124
[78] I find that for the period January 2021 to and including December 31, 2021, the father underpaid child support in the sum of -$12,634 calculated as follows:
Month in 2021
Child Support paid by the Father as per Pinto J.’s 2021 temporary order
What the father should have paid in child support
Over/Under payment
Jan.
Nil
$1,687
-$1,687
Feb.
Nil
$1,687
-$1,687
Mar.
Nil
$1,687
-$1,687
April
Nil
$1,687
-$1,687
May
$1,522
$1,687
-$165
June
$1,522
$1,687
-$165
July
$1,522
$1,687
-$165
Aug
$1,522
$1,687
-$165
Sept.
$1,522
$1,687
-$165
Oct.
Nil
$1,687
-$1,687
Nov.
Nil
$1,687
-$1,687
Dec.
Nil
$1,687
-$1,687
Total underpayment of child support
$7,610
$20,244
-$12,634
Calculation of Child Support Arrears/Overpayment for 2022
[79] Based on the father’s 2022 Notice of Assessment, his Line 15000 income was $26,658. The table CSG on that level of income for one child is $218 a month. Despite the Shore, J. order reducing the father’s child support to $227.62, his actual income earned was not $27,350, as she estimated but, $26,658. Accordingly, from January 1, 2022 to and including May 31, 2022, the father should have paid child support of $218 a month. My review of Exhibit #25, the FRO Statement of Account as at September 9, 2024, demonstrates that for the period January 1, 2022, to and including May 31, 2022, the father overpaid child support to the mother in the sum +$5,748, calculated as set out in the below chart:
Month in 2022
Child Support as per Shore J.’s order
What the father should have paid
What the father paid as per FRO statement
Over/Under payment
Jan.
$227.62
$218
Nil
-$218
Feb.
$227.62
$218
$4,208
+$3,990
Mar
$227.62
$218
$526
+308
Apr.
$227.62
$218
$526
+308
May
$227.62
$218
$1,578
+$1,360
Subtotal of overpayment of child support by the father
$1,138.10
$1,090
$6,838
+$5,748
[80] However, starting June 1, 2021, the parties should have been paying set-off child support, based on each their incomes given the shared parenting schedule The mother’s Line 15000 income in 2022 was $81,721 and the tables would require her to pay child support for R. of $757 a month. The set-off of the tables would, therefore, result in the mother paying the father $539 a month. I find that the father overpaid child support during this period in the sum of $682 and he is owed set-off child support from the mother in the sum of $3,773, for a total payment owing to him of $4,455:
Month in 2022
Child Support as per Shore J.’s order
What the mother should have paid in set-off child support
What the father paid as per FRO statement
Overpayment/Underpayment
June
$227.62
$539
Nil
July
$227.62
$539
$227
Aug.
$227.62
$539
$227
Sept.
$227.62
$539
$228
Oct.
$227.62
$539
Nil
Nov.
$227.62
$539
Nil
Dec.
$227.62
$539
Nil
Subtotal of overpayment + set-off support owing to the father:
$1,593.34
$3,773
$682
$682 overpayment +$3,773 in set off = $4,455 owing to father
Calculation of Child Support Arrears/Overpayment for 2023
[81] The overpayment which Shore, J. calculated in her Endorsement, dated May 19, 2022 was calculated incorrectly. Shore, J. stated that for the period January 1, 2021 to May 31, 2022, the father overpaid child support totalling $3,229.90. Shore, J. did not order the mother to repay this sum to the father. She stated, “The adjustments for retroactive support can be dealt with on a final basis at trial.” Accordingly, the overpayment referred to by Shore, J. for 2022 has been recalculated above.
[82] The father did not find alternate employment in 2023. The mother argues that he ought to have paid child support in the sum of $1,522 a month, as per the Pinto 2021 temporary order because Shore, J. made that order on May 22, 2022. However, at the same time the mother argues that the Court should impute the father with an income in 2023 for the first six months of the year, (Jan – July 2021) in the sum of $62,500. Both parties appear to agree on this level of imputed income for the father. I note that during oral submissions at trial, the mother sought imputation of income in the amount of $90,000 a year for the father. The mother led no evidence as to why the Court ought to impute the father with $90,000. She, then, however, changed her position in her closing argument, and in her draft order, that she seeks an order imputing the father with an income of $62,500 for the first 6 months of 2023.
[83] The father asks the court to impute him with an income of $62,500, which was the figure the court imputed him with for a six-month period from January 1, 2023 through to June, 2023 on consent.
The Law on Imputation of Income
[84] S.19(1)(a) of the CSG permits the court to impute additional income to a payor if he or she is intentionally underemployed. Drygala v. Pauli, 2002 41868 (ONCA), provides that in order to find intentional underemployment and to impute income to a parent, there is no need to find a specific intent to evade child support obligations. In other words, there is no requirement of bad faith. Once it is established that s.19(1)(a) applies, and that a parent is intentionally unemployed or under-employed, the burden shifts to that parent to establish what is required by virtue of his or her health or reasonable educational needs.
[85] There was no evidence led by either party to suggest that R. had needs requiring either parent to stop working. Further, there was no evidence led by the father to suggest that he was not employed due to his health needs.
[86] In para. 44 of Drygala, Gillese, J.A. wrote that when imputing income, the court must consider the amount that can be earned if a person is working to their full potential. The relevant factors to consider are the health of the parent, age, education, experience, skills, the number of hours the parent is capable of working, and what amount they would likely earn if they obtained work.
[87] The court looks to the parent’s financial statement when determining the quantum of income to impute. The financial statements provide the court with insight into the parent’s spending habits, debt levels and their overall financial status. The father filed three financial statements in this proceeding, with the latest one being sworn on July 29, 2024. The father lists his budget at $36,280 a year, which is significantly higher than the income he lists on his statement of $12,024 a year. Despite being in litigation for the past four years, the father failed to complete the asset portion of his financial statement. He did list his debts at $48,352.30, comprised of a Student Loan and a PC Financial Mastercard. In answer to the mother’s questions as to how he has been managing to pay rent and meet his expenses when he is in receipt of Ontario Works, the father testified that he was given $20,000 from his father recently. This is not reported on his financial statement as an asset or a loan. The Court assumes therefore, this is a gift, rather than a loan.
[88] The father’s financial statement, sworn on June 6, 2023 lists his income for 2022 at $26,657. In this earlier filed financial statement, the father’s annual budget is $50,438.88. Again, the father failed to complete the asset portion of the financial statement but lists his debts at amounting to $52,939.63 as at that date, comprised of a Student Loan and a PC Financial Mastercard. There is no explanation provided to explain how the father is meeting his monthly expenses.
[89] Using the agreed upon income to be imputed to the father of $62,500 for the months January to and including July 2023, the father’s table CSG obligation for R. is $581 a month. The mother’s Line 15000 income in 2023 was $80,721, and her table CSG obligation for R. is $752 a month. The set-off of the parties’ table CSG obligations is that the mother would owe the father child support of $171 a month for the period January 1, 2023 to and including June 30, 2023. As of July 1, 2023, Faieta, J. ordered that neither party is to pay the other child support based on the shared parenting schedule. For 2023, I find that the father overpaid table child support to the mother in the sum $3,469.71 and the mother owes the father set-off child support in the sum of $1,026 for a total amount wing to the father of $4,495.50, calculated as follows:
Month in 2023
Child Support as per Shore J.’s and Faieta, J.’s orders
What the mother should have paid in set-off child support
What the father paid as per FRO statement
Over/Under payment
Jan.
$1522.00
$171.00
Nil
-$581.00
Feb.
$1,522.00
$171.00
$1,138.96
+557.96
Mar
$1,522.00
$171.00
Nil
-$581.00
Apr.
$1,522.00
$171.00
$455.24
-$125.76
May
$1,522.00
$171.00
Nil
-$581.00
June
$1,522.00
$171.00
$577.24
-$3.76
July
Nil
Nil
$296.97
+$296.97
Aug.
Nil
Nil
$121.82
+$121.82
Sept.
Nil
Nil
$267.82
+$267.82
Oct.
Nil
Nil
$96.77
+$96.77
Nov.
Nil
Nil
$146.87
+$146.87
Dec.
Nil
Nil
$367.82
+$367.82
Total under/over payment of child support
$9,132
$1,026
$3,469.51
$3,469.51 overpayment
- $1,026 set-off = $4,495.51
[90] For 2024, neither party should have paid the other child support given the order of Faieta, J., dated June 30, 2023.The FRO Statement of account, however, demonstrates that the following amounts were deducted from the father, which total $1,388.61. This represents an overpayment of child support to the mother:
Month in 2024
Amount withdrawn by FRO as FOAEA Diversion[^11]
Running Balance
Jan.
$121.82
Feb.
$121.82
Mar.
$245.82
April
$121.82
May
$96.91
June
$473.42
July
$103.50
Aug.
$103.50
$1,388.61
[91] In summary, therefore for the period from September 1, 2020 to and including September 1, 2024, the father owes the mother the total sum of $2,532.88 on account of child support arrears, taking into consideration the set-off child support the mother owes the father, calculated as follows:
a. In 2020, the father owes the mother child support arrears because he underpaid child support in the sum of -$7,124
b. In 2021, the father owes the mother child support arrears because he underpaid child support in the sum of -$5,748;
c. In 2022, the father overpaid child support and the mother owed him set-off child support in the sum of +$4,455;
d. In 2023, the father overpaid child support and the mother owed him set-off child support in the sum of + $4,495.51; and
e. In 2024, the father overpaid child support in the sum of +$1,388.61.
Issue 1(c): Are s. 7 expense arrears owing by either parent?
[92] Both parties are also seeking reimbursement from the other, a retroactive adjustment on account of s.7 expenses he/she paid for R. The calculations each party completed was based on them sharing these expenses on a 50/50 basis. This agreement is contrary to s.7 of the CSG which would require the parties to share these expenses on a proportionate basis.
[93] It has been held that the D.B.S. principles apply to claims for retroactive claims for contributions to s.7 expenses, or retroactive increases in such contributions: Kase v. Bazinet, 2011 ONCJ 718 (O.C.J.) and Domik v. Ronco, 2013 ONCJ 197 (O.C.J.).
[94] The mother’s position is that the father engaged in blameworthy conduct because he refused to contribute to R.’s orthodontics and was extremely difficult with the dentist’s office. Similarly, the father’s position is that the mother engaged in blameworthy conduct because she refused to contribute to expenses he was paying for on behalf of R., such as her cell phone plan, her computer and technology equipment, and other lessons and activities.
[95] Each party prepared detailed charts of the s.7 expenses he/she paid on behalf of R. on a yearly basis and by category. In addition, the parties attached invoices or receipts for expenses they are each claiming totalling over 900 pages.
[96] Section 7 expenses, also referred to as “special and extraordinary expenses” are to be shared by the parties in proportion to their respective incomes after deducting from the expense, the contribution, if any from the child: s.7(2) of the CSG.
The Law on s.7 expenses
[97] Section 7 expenses can be ordered by the court, 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 parents and those of the child and to the spending pattern of the parents in respect of the child during cohabitation. These expenses include:
a. childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent or 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, 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.
(1.1) For the purposes of clauses (1) (d) and (f),
“extraordinary expenses” means
(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or 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 clause (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 parent or spouse requesting the amount, including the amount that the parent or 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,
(iv) the overall cost of the programs and activities, and
(v) any other similar factors that the court considers relevant.
[98] As outlined above, based on the incomes earned by both parties from the time of separation (2016) to 2023 the proportionate responsibility each would have toward R.’s s.7 expenses are listing in the far-right column:
Year
Father’s Line 15000 Income/imputed income
Mother’s Line 15000 Income
Proportionate share of s.7 expenses under the CSG
2024
$62,500 (imputed)
$100,000
F-38.4%
M=61.6%
2023
$62,500 (imputed)
$80,721
F = 43.6%
M = 56.4%
2022
$26,658
$81,256
F= 24.7%
M = 72.7%
2021
$204,733
$76,666
F= 72.8%
M= 27.2%
2020
$216,890
$83,854
F= 72.2%
M = 27.8%
2019
$143,649
$55,022
F = 72.3%
M = 27.7
2018
$79,791
$111,879
F= 41.6%
M=58.4%
2017
$36,916
$50,511
F = 42.2%
M = 57.8%
2016
$27,969
$58,789
F = 32.2%
M = 67.8%
[99] The mother submits that between 2016 and the trial she had spent a total of $11,105.80 on s.7 expenses on behalf of R. She seeks an order that she be reimbursed 50% of this amount in the sum of $5,552.90 by the father. However, I find that of s.7 expenses paid for the by the mother, listed in her s.7 expense chart prepared marked Exhibit #9 at trial, the total legitimate s.7 expenses paid by the mother totalled $14,196.91 for the period 2016 and 2023.
[100] The father did not take issue with the mother’s submitted s.7 expense summary. Nor did he question her on any of the items listed.
[101] The father submits that between 2016 and 2023 he had spent a total of $24,312.95 on s.7 expenses on behalf of R. He seeks an order that the mother make a one-time payment to him of $7,528.48, representing her 50% share of the s.7 expenses paid for by him, after giving the mother credit for what she has paid, calculated by him as follows:
a. $5,290.91 to reimburse him for health care, technology and school related s.7 expenses he paid for R., after taking into account the mother’s s.7 expenses of $8,906 in this category;
b. $1,708.55 to reimburse him for leagues, lessons, and extracurricular activities, after taking into account the mother’s s.7 expense in this category; and
c. $529.02 representing 50% of these expenses he paid for arts and classes for R.
[102] The mother took issue with many of the s.7 expenses claimed by the father. During cross-examination, she was able to demonstrate that some of these expenses are not legitimate s.7 expenses, including the cost of white water rafting and kayaking trips claimed by the father for activities in which he and R. engaged while on holidays with him. Further, where the father could not provide evidence that he paid for a specific s.7 expense on his list, the mother took the position that she ought not to contribute to any such expense. For example, the mother took the position that the father ought not to be reimbursed for the City of Toronto Ultra swim classes because he could only show proof of enrollment and not proof of payment. However, there were three receipts demonstrating proof of payment for Ultra swim 5 in the sum of $77,[^12] Ultra Swim 8 in the sum of $98,[^13] and accordingly, I allowed these s.7 expenses since they clearly fall under category s.7(1)(e).
[103] Further, the mother took issue with the cell phone expenses for R. She argued that the father could not separate his cell phone costs from R.’s cell phone costs. I disagree. I did find receipts which separated the cellular phone numbers such that R.’s cell phone plan amounts to $34.59 a month, along with the monthly device payment of $39.38 a month, totalling $79.09.[^14] In fact, I found receipts for the father’s total monthly Fido cell phone bills of about $152.86.[^15] Again, I find the cell phone bills associated with R.’s cell phone are a legitimate s.7 expense, being reasonable, necessary and in R.’s best interests, taking into account the father’s income and the fact he was not receiving set-off child support despite the fact that R. was sharing her residence with him for most of this time (other than for the 9-month period between September 2020 and June 2021, as per s.7(1.1) of the CSG.
[104] I have removed all expenses under the category of rafting and kayaking from the father’s list. I have also removed school program expenses, such as money spent at a school charity drive, hot lunches at school or school photos, as these expenses do not fall under extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs as contemplated by s.7(d). Similarly, I have removed school photos from the mother’s list of s.7 expenses. I note that expenses paid by for the father for clothing, birthday gifts and printer ink were not included by him in his list of s.7 expenses.
[105] I have found that the following expenses are legitimate s.7 expenses paid for by the mother, to which the father must contribute for the period 2016 – 2023, inclusive. However, instead of these expenses being shared equally as proposed by the mother, these expenses must be shared proportionately by the parties pursuant to their respective incomes in each year as required by s.7 of the CSG. I find that the father owes the mother a total of $6,945.09 on account of R.’s s.7 expenses during this time, calculated as follows:
Section 7 expenses paid by the mother for the period 2016 – 2023 = $14,197.60
Category of S.7 expense
2016 F= 32.2% M=67.8%
2017 F=42.2% M=57.8%
2018 F=41.6% M=58.4%
2019 F=72.3% M=27.7%
2020 F=72.2% M=27.8%
2021 F=72.8% M=27.2%
2022 F=24.7% M=72.7%
2023 F=43.6% M= 56.4%
Health Care, Technology and School
Orthodontics
$2,536.00
$1,080.80
$241.20
$3,644
$1,800
$120.52
Daycare
$497.00
$1,304
Karate
$45.08
Psychologist
$893.75
School expenses
$85.00
Academic tutoring
$114.85
Gymnastics
$345.00
Art Supplies
$42.22
Alternative Arts
$215.83
Amsterdam Trip
$1,231.66
Subtotal
$3,078.08
$2,600.63
$586.20
$3,644
$1,800
$1,056.49
$1,431.51
Proportionate sharing
F=$992.24 M=$240.15
F=$1,097.47 M=$1,503.16
F=$243.86 M=$342.34
F=$2,634.61 M=$1,009.39
F=$1,299.60 M=$500.40
F=$769.12 M=$287.36
F=$624.14 M=$807.37
[106] I have found that the following s.7 expenses paid for by the father are legitimate s.7 expenses to which the mother must contribute for the period 2016 – 2023, inclusive. However, the mother’s contribution shall be proportionate as should the father’s contribution, in accordance with s.7 of the CSG. The mother’s proportionate share of these s.7 expenses amounts to $10,823.22, calculated as follows:
Section 7 expenses paid by the father for the period 2016 – 2023 = $17,416.64
Category of S.7 expense
2016 F= 32.2% M=67.8%
2017 F=42.2% M=57.8%
2018 F=41.6% M=58.4%
2019 F=72.3% M=27.7%
2020 F=72.2% M=27.8%
2021 F=72.8% M=27.2%
2022 F=24.7% M=72.7%
2023 F=43.6% M= 56.4%
Health Care, Technology and School
Dental and prescription
$316.88
$388.20
$284.50
$120.52
Daycare
$814.80
$772.42
Cell phone
$406.80
$542.40
$542.40
$542.40
$897.95
$939.97
$650.88
Computer and Printer
$189.70
$2,291.05
$338.97
$542.37
$1,678.21
$1,000
School programs
$157.25
$279.25
$450.00
School trips
$111.15
$487.00
$73.00
Subtotal
$663.83
$3,791.90
$2,528.99
$845.90
$542.40
$2,696.68
$939.97
$2,100.88
Proportionate sharing
F=$213.75 M= $450.07
F=$1,600.18 M=$2,191.72
F=$1,052.06 M=$1,476.93
F=$611.58 M=$2,343.14
F=$391.61 M=$150.78
F=1,963.18 M=$733.49
F=$232.17 M=$683.36
F=$915.98 M=$1,184.89
Leagues and Lessons
Baseball House League and Select
$335.91
$555.00
$657.25
$21.00
$120.75
$580.23
Comedy, improv and film
$443.10
$110.85
City of Toronto swimming
$77.00
$157.00
$64.00
$98.00
City of Toronto Drama
$43.00
City of Toronto drawing
$43.00
Subtotal
$163
$492.91
$619
$1,198.35
$21
$231.60
$580.23
Proportionate Sharing
F=$52.47 M=$109.84
F=$108.00 M=$284.90
F+$257.50 M=$361.50
F=$866.41 M=$331.94
F=$15.16 M=$5.84
F=$168.60 M=$92.99
F=12.41 M=$421.83
TOTALS
F=$266.45 M=$559.91
F=$1,708.18 M=$2,476.62
F=1,309.56 M=$1,838.43
F=$1,477.99 M=$2,675.08
F=$406.71 M=$156.62
F=$2,131.78 M = $826.48
F=$244.58 M=$1,105.19
F=$915.98 M=$1,184.89
[107] For 2024, the mother claimed no s.7 expenses. However, the father claimed s.7 expenses totalling $3,853.77, comprised of cell phone of $488.16; school programs of $2,947.53; and comedy, improv and film classes of $418.08. Using an imputed income for the father of $62,500 for 2024, as proposed and the mother’s 2024 income of $100,000 as reflected in her Offer of Employment, the parties’ proportionate responsibility for R.’s s.7 expenses would be 38.5% for the father and 61.5% for the mother. Accordingly, the mother owes the father a total of $2,370.06 for 2024 s.7 expenses for R.
[108] Therefore, the father owes the mother $6,945.09 to reimburse her his proportionate share of R.’s s.7 expenses paid for by her and the mother owes the father a total of $13,193.28 to reimburse him for her proportionate share of R.’s s.7 expenses from 2016 – 2024, inclusive, resulting in the mother owing the father the sum of $6,248.19 for retroactive s.7 expenses.
Summary of child support arrears/overpayment and s.7 expenses.
[109] Based on the above calculations, the mother owes the father the total sum of $3,715.31 on account of child support arrears and retroactive s.7 expenses, calculated as follows:
a. For the period September 2020 to and including September 1, 2024, the father owes the mother child support arrears of $2,532.88; and
b. For the period 2016 to and including 2024, the mother owes the father reimbursement of s.7 expenses of $6,248.19.
Issue Two: What should the child support arrangements be going forward?
[110] Given that I have found the father is intentionally underemployed pursuant to s.19(1) of the CSG, income should be imputed to the father on a going forward basis.
[111] The issue is that R. is living away from home to attend university. Neither party led evidence as to whether she will be returning home for the summer months. If R. does return to live at home in the summer months and she chooses to share her residency between each parent’s home, set-off table child support should apply. However, the mother abandoned her claim for child support going forward and the father does not seek ongoing table child support from the mother.
[112] The father did, however, indicate in his draft order that he seeks an order requiring the mother to assume the entire cost of R.’s cell phone expenses on a going-forward basis, along with the cost of R.’s apartment insurance. I decline to make that order. Instead, I order the parties to share the cost of R.’s cell phone plan with Fido equally, along with the cost of her apartment insurance.
[113] For any future s.7 expenses, the parties shall share those expenses on an equal basis, provided neither party incurs an expense for R. without first obtaining the consent in writing from the other parent before seeking reimbursement. A party making a s.7 expense on behalf of R. shall advise the other party in writing. The party who receives notice of a requested s.7 expense, shall respond to the requesting parent within 72 hours of receiving the notice, failing which he or she shall be deemed to have contributed to the said expense on an equal basis.
Costs
[114] The mother seeks costs of this trial in the sum of $17,796.88, calculated by her using her annual salary in each year from 2021 to 2024 and based on the number of days she missed work. In addition, she seeks disbursements of $500 for disbursements, related to photocopies.
[115] The father seeks costs of this trial in the sum of $20,000, calculated by him using an estimate that he spent 600 hours working on this matter and attending court over the past four years, at the hourly rate of $20 for a self-represented litigant. He also seeks disbursements of $4,064.50 to cover 50% of the Voice of the Child report, notarization, legal consultations, photocopying and the use of a process server.
[116] The starting point in any costs analysis is the presumption that a successful party is entitled to costs: rule 24(1) (Jackson v. Mayerle, supra, Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330, 2000 22584 (S.C.J.)).
[117] If success is divided, the court may apportion costs as appropriate: s.24(6).
[118] In this trial, success is divided. While the father owes the mother child support arrears, the mother also owes the father set-off child support because of R.’s parenting schedule. While the parents each need to reimburse each other for s.7 expenses, they have to reimburse one another based on the proportionate sharing as proposed by the CSG.
[119] I adopt Kurz, J.’s statement in Spadacini-Kelava v. Kelvav, 2021 ONSC 2490, “when success is divided, the court has the explicit discretion under r. 24 (6) to determine the allocation of costs. One key issue under r. 14(6) is how to allocate success when neither party is the clear winner of a motion, trial or other proceeding.
[120] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, at para. 12. The reasonable expectations of the unsuccessful party are a relevant consideration: Delellis v. Delellis, 2005 36447 (ON SC), [2005] O.J. No. 4345.
[121] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, O. Reg. 114/99 (“FLRs”), the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.
[122] Pursuant to r. 24 of the FLRs, the successful party is presumptively entitled to costs, subject to the factors set out in r. 24: Beaver, at para. 10. In setting the amount of costs, the court must consider the reasonableness and proportionality the factors listed in r. 24(12) as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees and any other expenses, and any other relevant matter.
[123] There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, at para. 13.
[124] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant (Selznick v. Selznick, [2013] O.J. No. 252, 2013 ONCA 35; Delellis v. Delellis, 2005 36447 (ON SC), [2005] O.J. No. 4345, 2005 CarswellOnt 4956 (S.C.J.); Serra, supra; Murray v. Murray (2005), 79 O.R. (3d) 147, [2005] O.J. No. 5379, 2005 46626 (C.A.); Guertin v. Guertin, [2015] O.J. No. 4585, 2015 ONSC 5498 (S.C.J.)).
[125] A useful benchmark for determining whether costs claimed are fair, reasonable and proportional is to consider the time that the other party has spent and the amount they have paid for their own legal fees and disbursements in the matter (Smith Estate v. Rotstein, 2011 ONCA 491 (C.A.); Durbin v. Medina, 2012 ONSC 640 (S.C.J.); Scipione). Although there is no requirement that a party resisting costs file their own Bill of Costs, it is preferable that they do so to assist the court in dealing with costs in a fair and reasonable manner (Risorto et al. v. State Farm Mutual Automobile Insurance Co., 2003 ONSC 43566 (S.C.J.), at para. 10).
[126] It is noteworthy that that parties are each seeking costs in roughly equal amounts.
[127] Pursuant to Fong v. Chan, 1999 2052 (ON CA), a self-represented litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge. Moreover, self- represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity.
[128] A self-represented litigant should only receive a “moderate” or “reasonable” allowance for the loss of time devoted to preparing, and presenting the cost: Fong v. Chan, at para. 36.
[129] As Czutrin, J. stated in Jordan v. Stewart, 2013 ONSC 5037 at para. 75:
I would also add the following from Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 26:
o Self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel.
o As the Chorley case [London Scottish Benefit Society v. Chorley, Crawford, and Chester (1884), 13 Q.B.D. 872] recognized, all litigants suffer a loss of time through their involvement in the legal process.
o The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.
o Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity.
o As the early Chancery rule recognized, a self-represented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case.
o This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. [Emphasis and bullet points added.]
[130] Before an analysis of costs can be completed, the parties need to present any Offers to Settle he or she made on the issues before me and the parties need to back out the costs of steps where the court already ordered costs and the time any litigant would spent in court.
[131] The parties are encouraged to try and settle the issue of costs between them,
Disposition
[132] This court makes the following order:
a. Pursuant to s.37(2.1) of the Family Law Act, the mother shall pay the father the sum of $3,715.31 representing her proportionate share of the child’s s.7 expenses for the period of 2016 and 2024, after taking into account the father’s child support arrears for the period September 2020 to and including September 1, 2024, by making 12 monthly payments of $309.61 commencing on October 1, 2024 and on the first day of each following month until this sum is satisfied.
b. Pursuant to s.37(2.1) of the Family Law Act, this court discharges and relieves the father from any child support arrears listed in the FRO Statement of Account.
c. Commencing September 1, 2024 and on a going forward basis, neither parent shall pay the other table monthly child support on account of R.
d. Commencing September 1, 2024, and on a going-forward basis, the parties shall equally share R.’s legitimate s.7 expenses including but not limited to R.’s cell phone plan, books and university fees not covered by a RESP, grants, scholarships or student loans, including housing, food, insurance, university club fees and memberships. A parent seeking contribution from the other on account of s.7 expense for R., shall advise the other parent in writing. The parent receiving the request to contribute to R.’s s.7 expenses, shall respond to the requesting parent within 72 hours of receiving the request in writing. If no response is received by the requesting parent, then the other parent shall be deemed to have consented to the s.7 expense(s).
e. If the parties cannot agree on costs, then each party shall prepare written costs submissions of no more than 3 pages in writing not including a Bill of Costs and Offers to Settle and serve these costs submissions on the other party within 15 days of the release of this judgment. The parties shall respond to each other’s costs submissions of no more than 2 pages in writing within 7 days of being served with the other’s costs submissions.
M. Kraft, J.
Released: September 20, 2024
COURT FILE NO.: FS-20-20064
DATE: 20240920
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eden Camille Tsafaroff
Applicant
– and –
Ranko Valentin Plejic
Respondent
REASONS FOR DECISION
M. Kraft, J.
Released: September 20, 2024
[^1]: Exhibit 15 at Trial: Offer of Employment from the OCSWSSW, dated July 9, 2024.
[^2]: Note, this translates into R. residing with the father 6 out of 14 overnights on a two-week rotation starting June 1, 2021.
[^3]: “TSEF” stands for Trial Scheduling Endorsement Forms.
[^4]: 1162740 Ontario Limited v. Pingue, 2017 ONCA 52, at para. 21.
[^5]: Contino, at para. 41.
[^6]: Contino, at para. 50.
[^7]: Contino, at para. 51.
[^8]: Contino, at para. 52.
[^9]: In answer to a question posed to him in cross-examination, the father testified this was done in error by inadvertence.
[^10]: Exhibit #6 at Trial: The father’s Simplii bank statements show a balance of $37,619.06 as at October 31, 2021; and a balance of $14,963.33 as at November 29, 2021
[^11]: Note: FOAEA stands for the Family Orders and Agreements Enforcement Act, which is a federal statute that diverts income tax refunds and HST credits to the FRO when child support payments have gone into arrears. Such diversions appear as Receipt FOAEA Diversion on the Director’s Statement of Arrears.
[^12]: See exhibit 27, Master pages B2799 and B2872.
[^13]: See Exhibit 27, Master page B3160.
[^14]: See Exhibit 27, Master pages B3594, B3604, B3616, B3642.
[^15]: See Exhibit 27, Master pages B3188, B3213, B3384, B3393, B3399, B3405, B3409, B3413, B3423, B3427, B3433, B3438