Court File and Parties
COURT FILE NO.: FC-FS-181/15-01 DATE: 2024/10/16
ONTARIO SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN: Tamara Smith, Applicant (Responding Party) E. Kiernan, for the Applicant (Responding Party)
- and -
Francois Smith, Respondent (Moving Party) G. Parrack, for the Respondent (Moving Party)
HEARD: July 22, 23, 24 and 26, 2024
BEFORE: T. PRICE, J.
Endorsement
[1] On July 26, 2016, Justice Morissette, granted the parties a divorce in an order that also contained a number of terms addressing corollary relief, all of which were also made on consent. At the time, both parties were represented by legal counsel.
[2] The corollary provisions included:
a) a clause requiring the Respondent (hereinafter, Mr. Smith) to pay child support to the Applicant (hereinafter, Ms. Smith) for the parties’ 3 children commencing July 1, 2016 in the amount of $1,917.00 per month based upon his “alleged estimated income of $104,563.00 per annum for 2016;”
b) three separate clauses addressing payment of the children’s “special expenses” which, in essence, provided as follows:
i. the parties were to share, in proportion to their incomes, pursuant to s. 7 of the Federal Child Support Guidelines, “the net special expenses” for the children of the marriage;
ii. the parties agreed that “travel hockey, tutoring, and [a] YMCA family plan” were special expenses for which, as of July 1, 2016, Mr. Smith’s monthly pro rata contribution was set at $296.00, subject to being adjusted upon Ms. Smith’s return to work “to reflect the cost of daycare [1] on a go forward basis;”
iii. the parties were required to consult and agree before either could spend more than $100.00 on any activity or other special expense if they intended either to be treated as one to which the other party would be obliged to contribute; and
iv. neither party could unreasonably withhold consent for an expenditure “if the activity is in the best interests of the children;”
c) a clause requiring Mr. Smith to maintain Ms. Smith, as beneficiary, in trust for the children, “on all existing life insurance policies” so long as they remained children of the marriage [2] ;
d) a clause requiring Mr. Smith to provide Ms. Smith with a copy of his income tax return for the previous year by June 15 and his notice of assessment within 15 days of receipt for as long as he was obliged to pay child support; and
e) a clause requiring Ms. Smith to provide Mr. Smith with a copy of her income tax return and notice of assessment for the previous year during any year she seeks or receives a contribution from him to the children’s special expenses as defined in the Federal Child Support Guidelines.
Mr. Smith’s Motion to Change
[3] On December 14, 2018, Mr. Smith commenced a Motion to Change the order of Justice Morissette. In it, he sought:
a) to reduce his monthly child support payment to $1,706.00 based on his annual income of $87,000.00 as of January 1, 2017;
b) to vary the manner by which he contributed to special expenses:
from:
i. a fixed amount for three defined activities plus a proportionate share of all other activities or expenses upon which the parties might specifically agree,
to:
ii. an 80/20 sharing of the cost of only those activities or expenses on which the parties might specifically agree that the costs should be incurred;
c) to substitute a different, but “equivalent,” life insurance policy for that which was in existence when the order was made in 2016; and
d) payment by Ms. Smith of amounts that he claimed to have overpaid for child support, since January 1, 2017, and for special expenses, since July 26, 2016, the total amount of which, he estimated at the time of trial, amounted to approximately $34,000.00.
Ms. Smith’s Response to Motion to Change
[4] In her Response to Motion to Change, Ms. Smith requested that:
a) Mr. Smith’s child support obligation be increased retroactive to 2018 because he had “consistently underestimated his income;”
b) Mr. Smith be ordered to contribute to a number of special expenses for which he had previously refused to contribute;
c) the clauses in the 2016 order which addressed “special expenses” be varied by expanding the number of expenses to which Mr. Smith would be obliged to contribute without requiring his specific consent, and by increasing his fixed monthly contribution toward the total of those expenses; and
d) Mr. Smith be ordered to submit to his benefits insurer for its consideration, within 30 days, all claims provided by Ms. Smith, failing which Mr. Smith would be obliged to pay the amount claimed.
Evidence of Mr. Smith
Child Support
[5] He brought his motion to change the order of Justice Morissette based on what he claimed was a substantial reduction in his income from the $105,000.00 on which the child-support payments were based in Justice Morissette’s order.
[6] He has worked at Presstran Industries (Presstran) in St. Thomas, Ontario for 21 years.
[7] Before 2018, including at the time when Justice Morissette made her order in 2016, he held the position of “Tool and Die Maker.” In that position, he earned $32.00/hour for a 40-hour week. He also worked overtime when required, but it was not mandatory that he do so.
[8] In 2018, after completing a certification course and as the result of a successful job competition, he was promoted to the position of “Maintenance Lead Hand.” His current rate of pay is $47.50/hour, an amount which is the result of pay increases received since 2018. In his current position, he works at least 40 hours/week. There is mandatory overtime of 2.5 hours per week. He is able to work more than 42.5 hours/week and does so when it is needed.
[9] His Line 15000 income in and since 2016 was shown to be as follows:
| Year | Income |
|---|---|
| 2016 | $151,069.73 [Employment Income: $98,305.40; RRSP income: $52,427.40] |
| 2017 | $ 87,819.00 |
| 2018 | $ 91,618.00 |
| 2019 | $ 91,240.00 |
| 2020 | $ 90,533.00 |
| 2021 | $ 92,544.00 |
| 2022 | $ 96,254.00 |
| 2023 | $105,624.00 |
[10] Mr. Smith explained that the $52,427.40 RRSP income included in his 2016 income consisted of $40,000.00 used to pay Ms. Smith lump sum spousal support in accordance with the order of Justice Morissette and $12,000.00 for legal expenses.
[11] While he acknowledged that, net of RRSP income, his income in 2016, when he held his former position, was greater than his income in his current position for all years but 2023, he denied intentionally earning less income in his current position in order to pay less child support.
[12] He sought the promotion to Lead Hand because he had been working as a Tool and Die Maker for 15 years and wanted a change.
[13] He also pointed to a “recession” in 2018 and the onset of Covid-19 as reasons why his gross income in his current position was generally less than it had been in his former, pre-2018 position. He worked less overtime during the Covid pandemic. Additionally, he said that the automotive industry is dependent on the state of the economy and, as such, his income fluctuates.
[14] Mr. Smith acknowledged not having disclosed his income after 2016 until he was required to do so as part of this litigation. He claimed, firstly, that his failure to produce the evidence before the litigation began was an “oversight,” while later telling Mr. Kiernan that he was not obliged to do so. When Mr. Kiernan pointed out to him that, in fact, he was required to do so under the terms of Justice Morissette’s order, he then claimed that Ms. Smith had not asked him for his income disclosure because both parties had not been “in the habit” of exchanging that information.
Claimed Overpayment of Child Support
[15] This claim arises from the fact that, on December 16, 2021, as the result of a motion brought by him, I made an interim, without prejudice order reducing his monthly child support obligation from $1,917.00 per month to $1,772.53 per month commencing January 1, 2022. This amount was based on his 2020 income of $90,533.00.
[16] Despite being represented by counsel at the time, Mr. Smith testified that a formal order was never prepared, issued, or entered. As a result, he reported that the FRO has continued to deduct monthly child support from his wages in the amount of $1,917.00 per month.
[17] He seeks an order that Ms. Smith be required to repay him the amount of child support that he “overpaid” after January 1, 2017, based on his income for each successive year, including after January 1, 2022, when the amount that he paid per month should have decreased under the terms of my order, but did not because no order based on my endorsement had been issued.
Changing Life Insurance
[18] In this aspect of his claim, Mr. Smith asserted that he could effect a seamless transition from the private life insurance that he had at the time that Justice Morissette made her order in 2016 to a policy available to him through his employer, which would save him “a couple hundred dollars per year” in reduced premiums.
Evidence of Ms. Smith as to Mr. Smith’s Income
[19] She confirmed that Mr. Smith did not provide his income disclosure for 2016 or 2017 and that the first time she saw any financial disclosure from him after Justice Morissette had made her order was after this litigation began.
[20] She disagreed with Mr. Smith’s claim that his hours at work had been reduced through no fault of his own because she “believed” that he sought the Lead Hand job to purposely reduce his income for support purposes.
[21] She also did not “think” that he is working all of the overtime that he could, nor did she “accept” his claim that the economy affects his job.
Evidence of Jacqueline Blair
[22] Ms. Blair, who was called as a witness by Ms. Smith, has been the payroll administrator at Presstran for the past 7 years. She was familiar with Mr. Smith and confirmed him to be a Presstran employee.
[23] She testified that, with the onset of Covid-19, available worker production time dropped at Presstran because of a shortage of products being brought in for the workers. As a result, employees were often sent home because of reduced hours.
[24] She further testified that, as of the time she testified in July 2024, employees were continuing to work reduced hours because of supply difficulties.
[25] While indicating that, generally, the salaries of Lead Hands and Tool and Die Makers depend on their pay rate and the number of hours worked, a Lead Hand typically earns more than a Tool and Die Maker.
[26] She acknowledged that Mr. Smith may have earned a larger income prior to 2016 because work in the plant was “more robust.” However, after 2020, production had taken “a bit of a hit.”
[27] She confirmed that Mr. Smith does work overtime hours, which he is required to do if they are assigned. She explained that any hours worked in a year beyond 2080 are overtime hours, although they are calculated on a bi-weekly basis.
[28] She testified that a Tool and Die Maker was more likely to get work more overtime hours than a Lead Hand because of the nature of their work, and because their shifts can overlap, whereas the shifts of Lead Hands do not. It is the overlapping of shifts that offers Tool and Die Makers the opportunity for a larger number of overtime hours.
[29] When asked about the specific number of hours that Mr. Smith has worked since 2016, with 2080 being the point at which overtime hours are aggregated, she provided the following information:
| Year | Hours Worked by Mr. Smith | Overtime Hours |
|---|---|---|
| 2016 | 2,402 | 322 |
| 2017 | 2,184 | 104 |
| 2018 | 2,214 | 134 |
| 2019 | 2,211 | 131 |
| 2020 | 1,933 | 0 |
| 2021 | 2,242 | 162 |
| 2022 | 2,132 | 52 |
| 2023 (to November) | 1,916 | 0 |
[30] She further testified that, as hours of available work decline, the reduction is allocated amongst all employees.
[31] Lastly, she testified that Mr. Smith had asked her to ensure that his full child support payments were made regardless of his earnings so that, on occasion, with his consent, she has sent the FRO more than 50% of his earnings.
Life Insurance
[32] The cost to Mr. Smith of maintaining the $500,000 life insurance policy on his life that was in force when Justice Morissette made her order was said by him to be $127.00 per month.
[33] While he claimed that he would save money in the form of reduced premiums by switching his insurance to a policy available to him though Presstran, he produced no documentary evidence to support this claim.
[34] When asked, he also did not know if the policy available through his employment at Presstran was valid only while he continued to be employed there.
Special Expenses
Evidence of Ms. Smith
[35] Although she has been employed since 2003 at McCormick’s, a global spice processor with a plant in London, she has had a number of health problems over the years which have negatively affected her ability to work full time.
[36] When Justice Morissette made her order in 2016, Ms. Smith had not yet developed the physical health problems that now afflict her. She was, however, off work for a period in 2016 because of the emotional fall-out of the parties’ separation.
[37] She was in receipt of long-term disability (LTD) benefits from 2018 to 2020, at which time they were terminated. She is now engaged in litigation with McCormick’s over that issue. She hopes to secure a lump sum payment in lieu of continued periodic LTD payments, but she also expects that she will lose her job when the litigation is complete, regardless of the outcome.
Reason For Her Claims Against Mr. Smith
[38] Her claim with respect to special expenses is predicated on the fact that, since the 2016 order, the children’s activities have expanded and expenses have increased, while Mr. Smith has not contributed any funds beyond the $296.00 per month that Justice Morissette’s order requires him to pay.
Calculation of the Amounts Claimed by Ms. Smith
[39] Before I detail Ms. Smith’s claims more specifically, I first note that she seeks an order that Mr. Smith contribute 80% to the cost of a number of expenses that she has incurred over the years. According to her calculations, at an 80% share of the total expended by her, Mr. Smith would owe her $14,474.66 if her claims are fully allowed. She neither explained why the percentage to be contributed by Mr. Smith for special expenses would be the same fixed amount each year nor how she had determined that the fixed percentage should be 80%. I do note, however, that Mr. Smith used the same percentage for his contribution level in the changed special expense clause that he proposed.
[40] The amount that Ms. Smith is claiming from Mr. Smith at an 80% contribution rate, however, should be reduced by $180.80, because a $226.00 expense for which she has made a claim was incurred in 2015, thereby predating Justice Morissette’s order. As a result, her claim actually amounts to $14,293.86.
Total Expenditures by Ms. Smith Since 2016
[41] In advancing her claim, Ms. Smith categorized the expenses for which she seeks contribution from Mr. Smith, both retroactively and prospectively, as follows: Hockey-related; Other Sports-related; Education-related; Medical/Dental; Childcare.
[42] However, given that Justice Morissette’s order included, as agreed-upon special expenses, “travel hockey, tutoring, and a YMCA Family Plan,” plus “the cost of daycare” after Ms. Smith’s post-July 2016 return to work, Ms. Smith’s claims are better identified and considered by separating the agreed-upon expenses from the others for which Ms. Smith is now making a claim. As a result, I will detail her claims under these categories:
i. Travel Hockey, Tutoring and YMCA Family Plan ii. Post-Return-to-Work Cost of Daycare iii. Other Sports-Related Expenses iv. Education-Related Expenses, not including Tutoring v. Medical/Dental Expenses vi. Miscellaneous Expenses
Travel Hockey, Tutoring and YMCA Family Plan
[43] The order of Justice Morissette requires Mr. Smith to pay a pro rata share of these three expenses in the amount of $294.00 per month for the period January 1 to June 30, and $296.00 per month thereafter.
[44] For 2016, that meant that his pro rata share of these three expenses amounted to $3,240.00, while it amounted to $3,552.00 for subsequent years. [3]
[45] In setting those figures, the order includes statements that Mr. Smith’s “estimated” 2016 income was $104,563.00, while Ms. Smith’s 2016 income was “approximately” $49,052.00.
[46] Using those incomes, Mr. Smith’s pro-rata share of the parties’ combined incomes was 68.1% while Ms. Smith’s was 31.9%.
[47] A pro rata annual payment of $3,552.00 amounts to 68.1% of a total annual expenditure of $5,223.00. This means that, under Justice Morissette’s order, Ms. Smith was expected to contribute $1,671.00 annually [31.9% of $5,223.00] to the cost of these three activities.
Travel Hockey
[48] Ms. Smith testified that, because there are so few girls’ hockey teams, all girls’ hockey teams travel, thereby making any amount expended to support the girls play hockey amounted to a contribution to travel hockey.
[49] Moreover, some girls’ travelling hockey teams are also competitive, for which an additional fee must be paid to register a child to play competitive travelling hockey.
[50] While Ms. Smith did not indicate whether the parties’ son played travel hockey, the invoices for the years up to 2019 suggest that he did. He appears not to have played travel hockey after 2019.
Tutoring
[51] According to Ms. Smith, when Justice Morissette made her order, only the parties’ son was being tutored. After the order was made, the parties’ younger daughter was diagnosed with central auditory processing deficit and started to use a tutor. This cost was not factored into the $296.00 per month that the parties settled upon to cover the cost of hockey, tutoring, and a YMCA family membership. While tutoring for the younger daughter was expensive, it did not make much of a difference for the younger daughter, so it ended in 2017. Some tutoring occurred again in 2024.
[52] According to the evidence, the total amounts expended by Ms. Smith for “Travel Hockey, Tutoring and the YMCA family plan” [4] each year between 2016 and July 2024 were as follows:
| Year | Travel Hockey | Tutoring | YMCA | Total |
|---|---|---|---|---|
| 2016 | $2,810.01 | $4,252.75 | Nil | $ 7,062.76 |
| 2017 | $5,246.21 | $3,552.00 | Nil | $ 8,798.21 |
| 2018 | $4,899.31 | Nil | Nil | $ 4,899.31 |
| 2019 | $4,685.14 | Nil | Nil | $ 4,685.14 |
| 2020 | $3,377.69 | Nil | Nil | $ 3,377.69 |
| 2021 | $4,051.98 | Nil | Nil | $ 4,051.98 |
| 2022 | $3,698.39 | Nil | Nil | $ 3,698.39 |
| 2023 | $4,803.50 | Nil | Nil | $ 4,803.50 |
| 2024 (to July) | Nil | $806.00 | Nil | $ 806.00 |
| Overall Total: | $42,182.98 |
Post-Return-to-Work Cost of “Daycare”
[53] Ms. Smith testified that the emotional effect on her of the parties’ separation and divorce was so great that she was off work from sometime for a period between 2015 and 2016, although she did not provide specific dates for either year. After returning to work in 2016, she continued to work until September 2017.
[54] Ms. Smith further testified that she was off work from September 2017 for a period because of a diagnosed sleep disorder called “hypersomnia,” for which she is required to take multiple medications in order to stay awake. Absent the medications, she testified that she would sleep more than 12 hours per day and would awaken fatigued.
[55] She tried to work periodically between September 2017 and July 2018, when she went on LTD because of her condition. Once her LTD eligibility expired on July 8, 2020, she went on a leave thereafter.
[56] Her income tax returns showed that she earned employment income in each year between 2016 and 2020, inclusive. However, her employment income in 2018 (after July 8), 2019 and 2020 were said to have consisted of her LTD benefits which, according to the Canada Revenue Agency website, are to be reported as employment income. [5] Ms. Smith did not testify that she was working at the same time as she was collecting LTD benefits, which seems improbable to me in any event.
[57] According to her documents, Ms. Smith incurred “Childcare” and “Camp” costs in the following amounts in 2016, 2017 and 2018 [6] :
| Year | Child Care | Camp | Receipt Dates |
|---|---|---|---|
| 2016 | Nil | $275.00 | August 11, 2016 |
| 2017 | $1,660.00 | Nil | Various - August to December, 2017 |
| 2018 | $2,290.00 | $655.00 | Various – January to August, 2018 [7] |
| Totals: | $3,950.00 | $930.00 |
Other Sports-Related Expenses
[58] Ms. Smith has made a claim for other sports-related expenses incurred by her, as follows:
| Year | Amount | Activity |
|---|---|---|
| 2016 | $ 383.00 | Soccer fees and photos– elder daughter |
| 2017 | $ 406.81 | Soccer fees and photos– elder daughter |
| 2018 | $ 457.04 | Soccer fees and photos– elder daughter |
| 2019 | Nil | |
| 2020 | $ 385.00 | School hockey fees and training clothing – elder daughter |
| 2021 | $ 150.00 | School hockey fees – son |
| 2022 | Nil | |
| 2023 | Nil | |
| 2024 | Nil | |
| Total: | $1,781.85 |
[59] Ms. Smith did not ask Mr. Smith to consent to the parties’ elder daughter incurring soccer costs after the order was made because it was not a new activity. The child had been involved with soccer when the order was made in 2016. She also did not ask for his consent for the team photos.
Education-Related Expenses, not including Tutoring
[60] Ms. Smith has claimed a contribution from Mr. Smith for the following:
| Year | Amount | Expense Description |
|---|---|---|
| 2018 | $ 305.88 | Laptop computer |
| 2020 | $ 701.22 | School fees ($48.00); uniforms ($653.22) – elder daughter |
| 2021 | $ 738.40 | School fees ($88.80); uniforms ($649.60) – elder two children |
| 2022 | $ 100.11 | Uniforms |
| 2023 | $ 436.69 | Uniforms – younger daughter |
| 2024 | Nil | |
| Total: | $2,282.30 | (Laptop: $305.88; Fees: $136.00; Uniforms: $1,840.42) |
[61] Ms. Smith purchased the laptop for the parties’ younger daughter because a teacher had suggested to her that it might help the child when she entered Grade 3. She did not ask Mr. Smith to contribute to its cost because, she said, he had “made clear that he was not going to pay [her] any more than he was paying” under the order.
[62] She testified that all students have to pay an activity fee in the secondary school attended by the children.
[63] She also indicated that she tries to purchase uniforms that will last the children through all 4 years of high school but the parties’ son outgrew his uniform in 2022.
Medical/Dental Expenses
[64] Ms. Smith produced evidence that she incurred the following medical expenses for the children after July 26, 2016. She also produced a receipt for an audiology test that occurred prior to July 26, 2016, so it is not addressed by the terms of Justice Morissette’s order. I have not included it in the list of amounts claimed.
| Year | Amount | Expense Description |
|---|---|---|
| 2017 | $ 275.00 | auditory testing for the parties’ son and younger daughter |
| $ 45.00 | dental consultation fee regarding elder daughter’s molars | |
| 2018 | $ 5.00 | physiotherapy device for the elder daughter |
| $ 350.00 | auditory testing for the parties’ son and younger daughter | |
| $ 300.00 | uninsured cost of dental appliance for parties’ son | |
| 2019 | $ 350.00 | auditory testing for the parties’ son and younger daughter |
| $ 505.00 | uninsured cost of braces for elder daughter | |
| 2020 | $ 450.00 | auditory testing for the parties’ son and younger daughter |
| $ 122.42 | uninsured cost of contact lenses for elder daughter | |
| $ 839.50 | uninsured cost of braces for parties’ son | |
| $ 154.00 [8] | uninsured cost-multiple extractions–younger daughter [9] | |
| 2021-2024 | Nil | |
| Total: | $3,395.92 | ($1,965.92 if auditory testing is removed – discussed below) |
[65] Ms. Smith provided the following evidence with respect to the uninsured medical costs for which she seeks a contribution from Mr. Smith:
a) she did not submit the $45.00 dental consultation invoice to her benefits insurer because she knew that the elder daughter required braces and she did not want that amount deducted from her available policy funds of $2,500.00;
b) the available insurance policies for:
i. the elder daughter’s orthodontic work consisted of Ms. Smith’s benefits insurer, the benefits insurer of Mr. Smith’s current spouse, Lisa Smith, and Mr. Smith’s benefits insurer; and
ii. the parties’ son consisted of Ms. Smith’s benefits insurer and the benefits insurer of Lisa Smith. However, there was a suggestion at trial that Lisa Smith may no longer be working. If so, her benefits may no longer be available to cover some of the orthodontic costs for the parties’ son. To the extent that Lisa Smith no longer has benefits coverage, Ms. Smith advised that she is paying $40.66 per month for whatever portion of the orthodontic bills remained when, and if, Lisa Smith lost her coverage. I was provided with no other details.
[66] She further testified that the parties’ elder daughter’s contact lenses are covered by insurance to the extent of only $250.00 every 2 years. She asked that I order Mr. Smith to contribute $700.00 annually.
[67] She appears simply to have not asked Mr. Smith to contribute to the cost of the audiology tests, and there was no evidence that they were covered by her own insurance.
Miscellaneous Expenses
[68] Ms. Smith spent $284.08 to obtain passports for the children - $199.19 in 2018 for all three children and $87.90 for the elder daughter in 2020. She said that she paid, in the first instance, for the passports because Mr. Smith planned a trip to Florida with them. When asked why she would not leave the cost to him, she responded that he would have told the children that she was not prepared to allow them to travel to Florida because she would not obtain a passport for them.
[69] She also claimed a contribution by Mr. Smith to the cost of a secondary school course that their son took in 2023, the cost of which appeared to be $75.00. No invoice was presented and no further information was provided.
[70] Lastly, Ms. Smith gave some very brief evidence about the parties’ elder daughter’s plans to attend university in London in September 2024 while continuing to reside at home with her and her siblings. While it seemed that she was looking for some relief in the form of an order that Mr. Smith contribute to the cost of his daughter’s post-secondary education, I was given no financial or other information about this issue. Even Ms. Smith’s Financial Statement sworn July 22, 2024 indicated that the expense for university attendance was “unknown.”
Communication Between the Parties About Ms. Smith’s Expenditures
[71] Ms. Smith was candid in admitting that she did not ask Mr. Smith to either consent to or share the expenses that she was incurring and for which she is now claiming contribution from him. In her evidence she specifically referred to the younger daughter’s hearing tests and her laptop computer.
[72] When asked why she did not ask Mr. Smith to either consent to or share the expenses, she repeatedly responded that it was her understanding that his contribution level for expenses would be adjusted annually based on the parties’ incomes, but he refused to provide her with his income information.
[73] She further acknowledged that, apart from not asking Mr. Smith to contribute to the expenses she was incurring, she had also stopped sending him copies of the invoices for her expenditures. This occurred, she said, when he refused to provide his income tax information to her. She said that she felt that there was no sense sending him the invoices because he was “telling [her]” that he was not going to pay any more than the monthly amount set out in the order.
[74] She did acknowledge, however, that she saw Mr. Smith’s financial disclosure documents produced when he commenced this Motion to Change in December, 2018. [10]
[75] She agreed that the first time Mr. Smith would have seen the majority of the invoices upon which she was relying to support her claim for a contribution to special expenses was when they were produced to him as part of this litigation.
[76] She further testified that she had told Mr. Smith in their communications that she was encountering financial difficulties because of the costs she was incurring.
Ms. Smith’s Current Financial Circumstances
[77] At present, Ms. Smith has an annual income of approximately $21,000.00, primarily consisting of the Canada Child Benefit, plus some other benefits such as the HST rebate, the Canada Carbon Benefit and an unexplained benefit showing on her Financial Statement. To these, she adds child support from Mr. Smith.
[78] When asked how she covers her expenses, she said that she has cashed in her RRSP and TFSA and has placed a second mortgage on her residence. She expects that her long-term disability litigation will settle in the next few months, after which she expects that with the loss of her job she will lose her benefits.
[79] When asked why she continued to pay all of the expenses for the children in the face of her financial condition, she said she wanted to keep things as close to what they were when the parties were still together because to do otherwise would be unfair to the children.
Mr. Smith’s Response to Ms. Smith Claims about Special Expenses
[80] Mr. Smith advanced a two-pronged defense to Ms. Smith’s claims concerning the special expenses.
[81] The first was that, with respect to the agreed-upon expenses of “Travel Hockey, Tutoring and YMCA Family Plan,” he had overpaid his share of the costs despite paying the monthly amount set out in the order. As to those overpayments he, again, sought repayment from Ms. Smith of any amounts that he might be found to have overpaid.
[82] As to this aspect of his defense, Mr. Smith testified that, shortly after Justice Morissette made her order, the children’s YMCA membership was discontinued, and the tutoring only continued for a couple of the children for a couple of years. As a result, he asserted that he was overpaying his proportionate share of the “Travel Hockey” special expense, since it was only one of the three special expenses whose costs the order required him to contribute to monthly.
[83] While Mr. Smith testified that he knew that the cost of “Travel Hockey” likely did not exceed $1,000.00/year, which he could ascertain from on-line research, he also conceded that Justice Morissette’s order said nothing about an overpayment of special expenses being refundable. I would also note that it said nothing about the percentage of each payment allocated to the individual components making up the agreed-upon special expenses.
[84] He also agreed that he did not contribute to the cost of “daycare” for the children after Ms. Smith returned to work.
[85] The second prong of his defense was based on the requirement of Justice Morissette’s order that, with respect to any activity or other special expense that Ms. Smith intended to be treated as one to which he would be obliged to contribute, she did not at any time “consult” with him about any such activity or expense, nor had he “agreed” to such expenditures.
[86] Accordingly, his position was that, by failing to comply with a specific requirement set out in the order of Justice Morissette, Ms. Smith had lost any opportunity to claim a contribution from him for the alleged special expenses she incurred thereafter.
[87] He testified that the only way the parties communicated was through the “Our Family Wizard” communications application, and that Ms. Smith produced no evidence of any discussions between them about additional expenses.
[88] Despite his stated position, there was some evidence that Ms. Smith had asked him to contribute to the cost of some of the amounts that she has claimed herein, before those expenditures were made.
[89] Mr. Kiernan entered into evidence at trial a Brief containing a number of communications between the parties over “Our Family Wizard.” It contains communications germane to this issue between the parties on the following dates:
July 7, 2020:
[90] On this date, Ms. Smith wrote twice to Mr. Smith about their elder daughter attending high school and being required to wear a uniform. After providing him with some information about the potential costs, she asked, “Are you going to help me pay for these clothing since this is going to be more than $100?”
[91] Mr. Smith responded, “Right now, I pay $300 a month for special expenses and I overpay you on child support. Until this gets sorted out in court, I do not have any extra money to give you for [her school] clothing.”
[92] Om August 25, 2020, Ms. Smith followed up by sending Mr. Smith copies of the invoices for the clothing she had purchased for their elder daughter.
[93] Mr. Smith said that, after this exchange, Ms. Smith never again asked him about contributing to the purchase of school uniforms, nor had he volunteered to help pay for them. When I asked Mr. Smith, directly, if he believed that he should be contributing to the cost of the children’s school uniforms, he said he did not think so.
March 18 and 24, 2024:
[94] On the first of the dates, Ms. Smith informed Mr. Smith that it had been suggested that the parties’ daughters would benefit from seeing a tutor to help them with their struggles in mathematics. She wrote, “I am checking with you about this before I call or enroll them somewhere to get help. Can you please reply back to me about this.”
[95] On the latter of the dates, Mr. Smith responded, “I will definitely help you with the cost of tutoring… I think I’ve already given you $900.00 in special expenses so far this year and thousands in previous years so that should cover it. I’m just glad that the money will finally go for the kids.”
[96] When asked about his response, Mr. Smith testified that he was “only being sarcastic.”
Benefits Issues
[97] Mr. Smith testified that the children’s hearing tests should have been covered by his benefits carrier. He indicated that Ms. Smith had not presented any bills to him for reimbursement by the insurer.
[98] Lastly, on April 4, 2024, Ms. Smith wrote to Mr. Smith to advise him that she had just learned that Lisa Smith’s benefits carrier had stopped paying towards the children’s outstanding orthodontic expenses. She also advised that his benefits carrier had not paid the last two invoices submitted to it by the orthodontist. Mr. Smith responded, curtly writing, “I’m with Manulife now.”
[99] Ms. Smith responded, expressing concern that Mr. Smith had neither told her that Lisa Smith’s coverage had ended, nor that Presstran had changed benefits carriers. She indicated that she would be providing his telephone number to the orthodontist and that he could deal with the problem of non-payment directly.
[100] In responding to questions about the coverage issues, Mr. Smith dismissed Ms. Smith’s concern about Presstran, indicating only that the change of carriers had “led to some difficulties in receiving reimbursement for orthodontic expenses.”
[101] As for the loss of Lisa Smith’s coverage, Mr. Smith testified that, if Lisa Smith’s benefits were no longer contributing to the cost of the children’s orthodontic work, leaving uninsured expenses, he “will consider paying, depending on what type of money [he] can contribute.”
Law and Analysis
Mr. Smith’s Request to Retroactively Reduce Child Support
[102] Because Justice Morissette’s order of July 26, 2016 was made under the Divorce Act, R.S.C. 1985, c.3 (2nd. Supp.), a request to vary the order must also fall under the Divorce Act, the pertinent authorizing section of which is s. 17(1) (a).
[103] However, before a court can make an order varying a child support order, according to s. 17(4), the court must “satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order …” In this case, the “applicable guidelines” are the Federal Child Support Guidelines.
[104] Section 14(a) of the Federal Child Support Guidelines provides that, for the purposes of s. 17(4) of the Divorce Act, “where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof” “constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order.”
[105] These sections were all addressed when, in Colucci v. Colucci, 2021 SCC 24, [2021] S.C.J. No. 24 at para. 113, the Supreme Court of Canada set out the principles underlying a request to retroactively reduce a payor’s child support obligation. They are:
a) The payor must meet the threshold of establishing a past material change in circumstances, [one] that has some degree of continuity, and that is real and not one of choice.
b) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.
c) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.
d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor's conduct; (iii) the child's circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor's efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.
e) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year from the date of retroactivity must be calculated in accordance with the Guidelines.
Has there been a past material change in circumstances?
[106] In Roloson v. Clyde, 2017 ONSC 3642, Justice D. Chappel wrote about the principles articulated by the Supreme Court of Canada as being applicable in a variation proceeding under the Divorce Act and more extensively discussed what was, and what was not, a material change in circumstances. Justice Chappel wrote, in part:
47 … The Supreme Court of Canada held in Gordon v. Goertz that… the judge hearing a variation proceeding cannot simply substitute their discretion for that of the judge who made the existing order. Rather, they must assume that the existing order was correct and consider only the changes in circumstances since the order was made…Accordingly, from an evidentiary standpoint, the court should consider only a limited amount of evidence predating the existing order, for the sole purpose of determining whether a material change in circumstances has been established...
48 The Supreme Court of Canada held in Gordon that …the change relied upon should represent "a distinct departure from what the court could reasonably have anticipated in making the previous order" (at para. 12). The question that the court must consider on a variation proceeding is whether the previous order might have been different had the circumstances now existing prevailed earlier….
49 The case-law that has addressed the meaning of the phrase "material change in circumstances" in the context of child and spousal support variation proceedings has also established that a change will only be considered "material" if it is significant and long-lasting…Trivial, insignificant or short-lived changes will not justify a variation…The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal…
[107] According to the order of Justice Morissette, Mr. Smith’s child support payments were based on an “estimated” 2016 income of $104,563.00. He requests that his support obligation be reduced as of January 1, 2017. That year, he earned $87,819.00.
Was the Reduction in Mr. Smith’s income in 2017 a Material Change in Circumstances?
[108] The reduction in Mr. Smith’s income in 2017 resulted in him earning 16.1% less in 2017 than he earned in 2016. His income remained below his 2016 “estimated” income for the next 5 years after 2017, rising to nearly match his 2016 income in 2023.
[109] I find that the 16.1% reduction in Mr. Smith’s income in 2017, which began a multi-year series of lesser incomes, was neither trivial nor insignificant. Moreover, based on how long it took for his income to rise to the “estimated” income used to establish child support in 2016, I find that the reduction in Mr. Smith’s income which began in 2017 was long-lasting.
Should Higher Incomes be Imputed to Mr. Smith in 2017 and thereafter?
[110] Ms. Smith alleged that, in general, Mr. Smith was purposely underemployed after the parties divorced, in an effort to reduce his child support obligation. I begin with 2017, since it is clear that the estimate of Mr. Smith’s income as set out in the order of Justice Morissette was too high.
[111] In Kinsella v. Mills, Justice Chappel summarized the principles set out by the Ontario Court of Appeal on the issues of imputing income and intentional underemployment by a support payor under s. 19(1)(a) of the Child Support Guidelines in its decisions in Drygala v. Pauli and Lavie v. Lavie, 2018 ONCA 10 as follows [12] :
…there is a duty on the part of parties in a support case to maintain or actively seek out reasonable income-earning opportunities that will maximize their earning potential so as to meet the needs of their dependants;
A party is intentionally under-employed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances…;
A finding of deliberate under-employment or unemployment does not require evidence of bad faith or an attempt to evade support obligations;
The use of the word "intentionally" in section 19(1)(a) highlights that the provision does not apply to situations that are beyond the party's control;
In determining whether a party is intentionally under-employed or unemployed, the court should consider the party's capacity to earn income in light of their age, education, health, work history, the availability of work that is within the scope of the party's capabilities and the amount of income that the party could reasonably earn if they worked to capacity…;
…The court must carry out its own assessment of the party's income based on all of the evidence to determine whether an imputation of income is appropriate…
Where a party experiences a significant decrease in income after voluntarily deciding to change their income-earning activities, the decision needs to be justified in a compelling way in order to avoid an imputation of income…
Even if the court determines that a party is intentionally under-employed or unemployed, the court nonetheless has the discretion to decide whether or not to impute income to them. This discretion does not apply only to the situations specifically referred to in section 19(1)(a) relating to the needs of a child or the educational or health needs of the party. The exercise of the court's discretion will turn on the overall reasonableness of the payor's decisions and actions in relation to their income, taking into consideration all of the relevant circumstances…. The assessment of reasonableness in this context must be undertaken under the umbrella of the legislative and policy objectives of support, including the obligation of a spouse to financially maintain their dependants [and] the importance of ensuring a fair standard of support… A mere desire to have more self-satisfying work may not be considered an acceptable reason for under-employment, but the prospect that less remunerative work may lead to more opportunities for advancement and financial security in the future may be accepted as a reasonable explanation…
[112] In 2017, Mr. Smith continued to be employed as a tool and die maker. He was not promoted to Lead Hand until 2018. He worked 218 fewer overtime hours in 2017 than he did in 2016. At time and a half ($48.00 per hour), the reduction in overtime for Mr. Smith in 2017 amounted to $10,464.00. Had he worked the same number of overtime hours in 2017 as he did in 2016, Mr. Smith’s income in 2017 would have been $98,283.00.
[113] Neither Mr. Smith’s evidence nor that of Ms. Blair accounted for the reduction in his overtime hours in 2017. His evidence was that things changed with the onset of a “recession” in 2018, while Ms. Blair spoke of the “robust” work available at Presstran in 2016. Neither mentioned 2017, despite each being better positioned than Ms. Smith to address working conditions at Presstran in any particular year.
[114] Having regard to the principles cited by Justice Chappel in Kinsella, I find that, in 2017, Mr. Smith’s unexplained and substantial reduction in income through working fewer overtime hours as a tool and die maker did constitute a situation of intentional underemployment. In drawing this conclusion, I also rely on the fact that in 2018 when, according to Mr. Smith, there was a “recession” in the automotive manufacturing sector and he was a Lead Hand, he worked slightly more overtime hours than in 2017 when, according to his evidence, neither of these changes had yet occurred.
[115] I next turn to the changes in circumstances that emerged in 2018, when Mr. Smith secured a promotion at work and, according to him, the volume of work declined due to what he called a “recession.” The first of these factors - his promotion - continued to apply thereafter. The 2018 “recession” identified by Mr. Smith was replaced two years later by the Covid-19 pandemic.
[116] As to the “recession,” I note that, in 2018, whether or not there was, in fact, a recession, Mr. Smith’s total hours worked exceeded the number he worked in 2017 but fell short of matching the number of hours he worked in 2016. He worked fewer overtime hours than in 2016, and slightly more than in 2017.
[117] I find that, regardless of whether there was a “recession” in the automotive industry in 2018, Mr. Smith did suffer a continued reduction in income that year and in 2019. The Covid pandemic arrived in 2020. It, in my view, fell under the allowable exceptions for underemployment as a situation which was beyond Mr. Smith’s control. The evidence of Ms. Blair supported Mr. Smith’s assertion of that fact.
[118] That still leaves the question, however, of whether Mr. Smith, by accepting a promotion to Lead Hand in 2018, which pays more per hour but seems to afford less access to overtime, became intentionally underemployed as of 2018. One of the principles (#7) set out by Justice Chappel in Kinsella addressed this issue.
[119] I find, on all of the evidence, that Mr. Smith’s acceptance of the promotion to Lead Hand in 2018 did not create a situation of intentional underemployment. The acceptance of a promotion with the same employer for whom a support payor worked before a separation, which increases the payor’s base salary and presents an opportunity for future advances, but results in a reduction of overtime, does not result in a situation of “intentional underemployment.” [13]
[120] The optimism inherent in a similar finding by Justice Lacelle in Ladouceur has been borne out in this case, since Mr. Smith’s income increased fairly steadily in the period between 2019 and 2022 and, in 2023, actually exceeded the income on which his child support was based in 2016.
[121] That still leaves two questions to be answered;
i. What income to impute to Mr. Smith for his intentional underemployment in 2017? ii. Did Mr. Smith incur a material change in circumstances as a result of the income change between 2016 and 2017 if his imputed income is substituted for his actual income in 2017?
[122] As to the first question, Justice Chappel addressed what a court should do with respect to determining the appropriate level of income to impute to a party it has found to be intentionally under-employed, writing, at para. 172 in Kinsella:
In carrying out this task, the court must consider all of the evidence adduced by both parties and determine what is reasonable and fair having regard for the particular facts of the case and the circumstances of the family members… The onus on the party seeking to impute income does not extend to proving the appropriate quantification of the imputed amount… Relevant factors in quantifying the imputed income include the age, education, experience, skills and health of the party, their historical income when they were earning a higher income, their ability to resume an income commensurate with their past income, the availability of work and any other obligations which they may have …
[123] In all of the circumstances, I conclude that, for 2017, Mr. Smith should have an income imputed to him in the same amount that he earned, net of his RRSP, in 2016 - $98,305.00. This is almost identical to what he would have earned ($98,283.00) had he worked the same number of overtime hours in 2017 as he did in 2016. He provided no evidence about why he could not have worked as much overtime in 2017 as he did in 2016.
[124] This leads to the second question posed above. Using the imputed income for 2017 rather than the income actually earned in 2017 by Mr. Smith, the reduction in his income from 2016 to 2017 amounted to $6,258.00, or 5.98%, meaning that in 2016 and 2017 he earned 94.02% of what the court had estimated his income to be in 2016.
[125] In terms of child support payable, and earning the imputed income of $98,305.00, Mr. Smith’s child support payments in 2017 would have been reduced from $1,917.00 per month to $1,818.00 per month, a total of $99.00 according to the Child Support Tables in place up to November 22, 2017. That reduction would have amounted to 5.2% in Mr. Smith’s child support obligations per month. More significantly, however, it would have matched his child support payments to his income, rather than using an estimated income as was done in the order of July 26, 2016.
[126] While it may barely qualify as such, I find that the change in child support that would have been payable by Mr. Smith, using his imputed income of $98,305.00 rather than the estimated income of $104,563.00 set out in the order of Justice Morissette, still did amount to a material change in circumstances in 2017. The reduction was neither insignificant nor trivial, and it began the same series of reduced incomes that ultimately ended in 2023. Perhaps just as significant, finding this to be a material change is consistent with the basic principle set out in section 14(a) of the Federal Child Support Guidelines because it allows for a correcting alignment of Mr. Smith’s child support obligation with his income or, in the case of 2017, his imputed income.
[127] A third issue that needs to be addressed as a result of that finding is the date from which Mr. Smith can benefit from the material reduction in his income after 2016. In his Motion to Change, issued December 14, 2018, he asked that the reduction take place as of January 1, 2017, which is when he did suffer a negative material change in circumstances with respect to his income.
[128] This issue of the date at which a support payor should have his support obligation reduced retroactively was addressed by the Supreme Court in Colucci. At paragraph 113, the court wrote:
(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.
(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.
[129] Based on those two paragraphs, the presumption would be in favour of the retroactive decrease applying as of January 1, 2017, the date requested by Mr. Smith. That presumption, however, requires that there be evidence that Mr. Smith gave Ms. Smith “effective notice” of his intention to seek a reduction of support. Proof of any such effective notice would also require evidence that Mr. Smith “clearly communicated” to Ms. Smith “the change in circumstances” upon which he was relying, together with evidence that he provided to her, at the same time, “any available documentation necessary to substantiate the change”, in order to have allowed her “to meaningfully assess the situation.”
[130] In this case, Mr. Smith provided no evidence of having given Ms. Smith any notice of the change in his income as of 2017, or of an intention to seek a change in child support. He acknowledged not providing her with financial disclosure in 2017 or, until he commenced this proceeding, in 2018. The first time she received income disclosure was December 2018. Ms. Smith testified to the futile efforts of her former solicitors to obtain from Mr. Smith his income disclosure before then.
[131] In those circumstances, I find that the appropriate date from which Mr. Smith should have his child support varied due to the material change he encountered as of January 1, 2017 was the first day of the month after his Motion to Change was issued. That would have been January 1, 2019.
[132] Consequently, I find that the amounts that should have been paid monthly by Mr. Smith under the Child Support Guidelines, based on his incomes for the years 2019 to 2023, and the amounts that he either overpaid or underpaid annually, were as follows:
| Year | Amount Payable | Amount Paid | Annual Difference |
|---|---|---|---|
| 2019 | $1,984.00 | $1,917.00 | ($ 804.00) |
| 2020 | $1,773.00 | $1,917.00 | $1,728.00 |
| 2021 | $1,803.00 | $1,917.00 | $1,368.00 |
| 2022 | $1,866.00 | $1,917.00 | $ 612.00 |
| 2023 | $2,009.00 | $1,917.00 | ($1,104.00) |
| 2024 [14] | $2,009.00 | $1,917.00 | ($ 920.00) |
| Total: | $880.00 |
[133] In the result, I find that, since January 1, 2019, Mr. Smith’s overpayment of child support amounts to $880.00. This overpayment is addressed in the order.
Changing Life Insurance
[134] Mr. Smith did not address the issue of a material change in circumstances which would justify this requested change. I find that one does not exist. While Mr. Smith predicated his request on the fact that he expected to save an undefined amount each year because of lower premiums, he could not quantify the savings.
[135] Equally significant, in my view, was the fact that he did not know if the policy available through his employment at Presstran was valid only while he continued to be employed there. Not only does this undermine his claim that he could change policies seamlessly, but the fact also that he might lose the coverage should he lose his job is a fatal flaw to this claim.
Special Expenses
[136] The Section Title preceding s. 7 of the Child Support Guidelines is “Special or Extraordinary Expenses.” The title suggests to me that there could be a difference between the two. That suggestion is strengthened when one considers s. 7(1.1) of the Guidelines. It defines only “extraordinary expenses,” a term which is used only in respect of those expenses listed in s. 7(1)(d) and 7(1)(f) of the Guidelines – extraordinary expenses related to a child’s education or for extracurricular activities. That strongly suggests that the expenses listed in ss. 7(1)(a), (b), (c) and (e) are something other than extraordinary expenses. Are they merely “special” expenses? They include childcare expenses, medical and dental insurance premiums attributable to a child, the uninsured cost of defined medical procedures to the extent that such uninsured costs exceed $100.00 per annum, and expenses for post-secondary education.
[137] While s. 7(1) of the Guidelines indicates that a court “may, on the request of either parent” “provide for an amount to cover all or a portion of [the listed] expenses,” an amount that may be estimated, taking into account:
a) the necessity of the expenses in relation to the child’s best interests;
b) the reasonableness of the expense in relation to the means of the parents and those of the child; and
c) the spending pattern of the parents in respect of the child during cohabitation,
the characterization of expenses, and the amount that Mr. Smith was to contribute with respect to some of them, was done in 2016 when Justice Morissette made her order on consent of the parties, presumably on the advice of their lawyers. All were said to be “special” expenses. To that point, I note that the order of Justice Morissette does not include the term “extraordinary” in relation to any of the children’s expenses, even those that, by definition under the Guidelines, might have been “extraordinary expenses.” In fact, the only reference in the order to s. 7 of the Child Support Guidelines relates to how the cost of agreed-upon “special expenses” are to be divided.
[138] Moreover, neither party addressed the issue of whether there has been a material change in circumstances such as would substantiate making a change to the terms of the 2016 order.
[139] Mr. Smith simply wants the existing clause, which requires that the cost of special expenses be shared by the parties, in proportion to their incomes, pursuant to s. 7 of the Federal Child Support Guidelines, to be changed such that he would be required to pay 80% of such costs, and Ms. Smith 20%,but this arrangement would hereafter apply to only activities on which the parties might specifically agree should be shared.
[140] The evidence is clear on this issue with respect to the current clause. Mr. Smith appears not to have agreed to the few requests made to him by Ms. Smith for the sharing of special expenses under the terms of the existing order.
[141] While his request might change the relative proportions at which each party contributes to the cost of special expenses, what it really does is eliminate his need to respond at all to a request for contribution by Ms. Smith, as well as deprive the court of the ability to decide if any of his refusals to agree to contribute might not have been reasonable. His record thus far suggests that he would not become more willing to share costs under the format he proposes.
[142] Mr. Smith has not made a case for there being a material change in circumstances from his perspective such as would allow me to change this clause of the 2016 order.
[143] Similarly, Ms. Smith predicated her claim for a change on the fact that she has been spending increasing amounts on special expenses and Mr. Smith has not been helping out rather than on there being a material change in circumstances such as would allow me to rewrite the clause. Mr. Kiernan did address, through a case he provided, the question of whether or not the children’s school uniforms constitute a special expense to which Mr. Smith should have been contributing.
[144] I find that, in the absence of there being a material change in circumstances such as would permit a variation in the provisions of Justice Morissette’s order relating to the claims advanced by Ms. Smith, the answer to the questions raised by Ms. Smith lies not in changing the existing clause but in properly interpreting and fully complying with the requirements of the existing clause.
[145] As I see it, the parties agreed that “Travel Hockey, Tutoring and a YMCA Family Plan” were “special expenses,” as opposed to “extraordinary” expenses, if there is actually a difference between the two, and the amounts that Mr. Smith was to contribute to those expenses was set in the order.
[146] Similarly, the parties agreed that “daycare” costs arising after Ms. Smith’s return to work were also to be considered as special expenses to which Mr. Smith would contribute, as they would have been under s. 7(1)(a) of the Guidelines.
[147] For the remainder of the expenses that might be incurred by Ms. Smith, the order first required that Ms. Smith ask Mr. Smith to contribute to the cost, regardless of how they might be characterized under the Guidelines. If Mr. Smith had agreed to any such request, how the expenses might have been characterized would not have mattered.
[148] If, however, Mr. Smith had not agreed after being asked to contribute, the court would have to assess whether or not his refusal was unreasonable. One factor in that assessment would have required that the court consider whether the expense to which Mr. Smith was being asked to contribute constituted an “extraordinary” expense as defined in the Child Support Guidelines. Consequently, I find that it is only at that point that such considerations about what constitutes an “extraordinary” expense as were set out by Justice Somji in Brophy v. Blair, 2021 ONSC 7709 and some of the other cases presented by Mr. Parrack would have been relevant.
Travel Hockey, Tutoring and YMCA Family Plan
[149] As noted, this is the one category of expenses on which the parties did agree to Mr. Smith’s contributions in advance, regardless of how they may otherwise be characterized under the Guidelines.
[150] As my calculations earlier demonstrated, between July 2016 and July 2024, Ms. Smith expended $42,182.98 on these activities. Over the same period, Mr. Smith contributed toward those costs, the sum of $28,416.00, being $296.00 paid per month for 96 months. That amounts to 67.36% of the total amount spent by Ms. Smith on these activities over eight years.
[151] The 67.36% share of the costs paid by Mr. Smith over the past eight years on these activities closely aligns with the 68.1% share that his $296.00 per month represented at the time of Justice Morissette’s order.
[152] While Mr. Smith takes issue that he should be reimbursed for part of his contribution because there were periods when tutoring was not occurring and the YMCA memberships never continued, the fact is that the order does not apportion as between those activities how the funds were to be spent.
[153] Moreover, as Mr. Smith conceded at trial, there is nothing in the order that gives him the right to be reimbursed for any over-contribution to the cost of these expenses, which I find, in any event, does not exist.
[154] The order does not define what is an expenditure on “Travel Hockey.” In determining which amounts to allow for Ms. Smith to allocate to expenditures on “Travel Hockey,” I included the amounts that she spent on equipment and registration fees. One cannot play hockey with proper equipment, a fact known to Mr. Smith. Additionally, Ms. Smith was not required to consult with Mr. Smith about how she spent the money he provided her monthly under this grouped heading.
[155] That is why, despite her asking him in 2024 if he would contribute to resumed expenditures on tutoring for the parties’ daughters, to which he “sarcastically’ agreed, there was no obligation on Ms. Smith to seek his agreement to the expenditures since they are part of the agreed-upon group of expenditures for which his contribution mounts to $296.00 per month.
[156] From my perspective, the only time that Mr. Smith can cease to contribute to these agreed-upon expenditures is when there are none and no more are reasonably anticipated. Ms. Smith will be obliged to keep him informed of her yearly expenditures, despite not needing his agreement to them being made, so he will know when she is no longer incurring them.
Daycare
[157] As Ms. Smith pointed out, despite the cost of this following her return to work also being listed as an expenditure to which the parties agreed both would contribute under the order of July 26, 2016, Mr. Smith never did so. Again, she was not required to seek his consent.
[158] While the repeated use of the word “daycare” was unfortunate, neither of the parties discussed its meaning. I interpret it to mean “childcare,” since all three children were in school full time in 2016. There was no evidence that any were in daycare. I include in the term “day camps” attended by the children while Ms. Smith was at work.
[159] Because Justice Morissette’s order was dated July 26, 2016, and it suggested that Ms. Smith was not working at that time, I conclude that Mr. Smith would only have been required under the terms of the order to contribute to “daycare” costs incurred because of Ms. Smith’s actual attendance for work at McCormick’s for the period beginning on July 26, 2016, and ending on July 8, 2018. She first incurred a cost for the children to attend a day camp in August 2016. Based on the evidence, the only years covered by this expenditure are 2016, 2017, and 2018.
[160] In allocating the amounts that each were required to contribute, I am using, for 2016 and 2017, Mr. Smith’s income as I have found it to be for each of 2016 and 2017, and his actual income for 2018. I am using Ms. Smith’s actual income for all three years.
[161] For Mr. Smith, those amounts were $98,305.00, $98,305.00, and $91,618.00. For Ms. Smith, these amounts were $26,959.00, $16,794.00, and $35,552.00.
[162] While that yields Mr.Smith/Ms.Smith expenditure shares under s.7 of the Guidelines of 78.47%/21.53%, 85.41%/14.59% and 72.04%/27.96%, in my view, because this amount was allocated to the group of expenditures for which Mr. Smith’s share was originally set at 68.1%, that is how I am going to allocate the daycare expenditures. That yields the following results:
| Year | Amount Spent | Cost to Mr. Smith | Cost to Ms. Smith |
|---|---|---|---|
| 2016 | $ 275.00 | $ 187.28 | $ 87.72 |
| 2017 | $1,660.00 | $1,130.46 | $ 529.54 |
| 2018 | $2,945.00 | $2,005.54 | $ 939.46 |
| Totals: | $3,323.28 | $1,556.72 |
[163] Accordingly, Mr. Smith owes Ms. Smith the sum of $3,323.28 for childcare under the terms of the order of July 26, 2016.
Other Expenses Claimed by Ms. Smith
[164] Despite the many invoices that she provided to the court by way of evidence in the trial, what Ms. Smith’s case lacked, except in a few instances, was evidence that she had “consulted” with Mr. Smith and sought his agreement to an expenditure that might be a special expense before she incurred the expense. In most cases, she spent the money and neither sought a contribution from him nor provided him with evidence of the expenditure until well into this litigation. That was far too late for her to involve the assistance of the special expenses clause set out in the order made by Justice Morissette.
[165] As a result, Mr. Smith’s response that he should not contribute to the majority of the claims advanced under this clause by Ms. Smith was well-founded. This would also have been the case if the “special expenses” claimed by Ms. Smith were, by definition, “extraordinary” expenses under the Child Support Guidelines. [15]
[166] As a result, I find specifically that Mr. Smith is not required to contribute to the following expenses for which Ms. Smith sought a contribution because there is no evidence that she sought or obtained agreement from him before she incurred the following expenses:
a) the “Other Sports-Related Expenses” totaling $1,781.85;
b) the following “Education-Related Expenses, not including tutoring” :
i. the younger daughter’s laptop computer purchased for $305.88 in 2018; and
ii. the children’s school fee totaling $136.00, as I also question whether these would even qualify as special expenses under s. 7 of the Child Support Guidelines since “all students have to pay” them;
c) the following Medical/Dental Expenses:
i. the auditory testing expenses incurred between 2017 and 2020 totaling $1,430.00. As to these, I have already noted that Ms. Smith presented no evidence of asking for a contribution from Mr. smith or that they were covered by her benefits insurer. On that point, Mr. Smith said that, had the bills been presented to him at the time, he might have been able to submit them to his benefits insurer. That opportunity was seemingly lost with the passage of time and the changing of his employer’s benefits provider;
and
d) the Miscellaneous Expenses of $284.08 for the children’s passports and $75.00 for the cost of a secondary school course taken by the parties’ son.
Expenses Not Yet Addressed
School Uniforms
[167] The order of July 26, 2016, as noted, had the precondition of consultation and agreement. It further provided that agreement could not be unreasonably withheld.
[168] As I noted earlier, on July 7, 2020, Ms. Smith asked Mr. Smith to contribute to the cost of the elder daughter’s school uniform. His response was that he would wait until the matter was addressed in court. When it was, and he was asked, he said that he did not believe that he needed to contribute.
[169] All of which leads to the question of whether this was an “unreasonable withholding” by Mr. Smith of consent to the expenditure.
[170] I find that it was. Mr. Smith was told that the elder daughter and, after her, the other children, would be attending a Catholic secondary school which required that the children wear uniforms.
[171] While not testified to directly, in an email exchange between the parties dated February 10, 2017 about the auditory testing, Ms. Smith asserted to Mr. Smith that she had “sole custody” of the children. He did not challenge that assertion.
[172] Amongst the rights of a parent with sole decision-making responsibility for a couple’s children is the right to make educational decisions for them.
[173] I was provided with no evidence suggesting that Mr. Smith at any time objected to the children going to a Catholic secondary school.
[174] Having been told that a uniform was necessary, he might have responded that the cost could be avoided by going to a public secondary school but he did not.
[175] If he was not objecting to the children attending a Catholic secondary school, but only to paying a share of the cost of their uniforms, I find that his refusal to agree to share the cost was unreasonable.
[176] As Ms. Smith noted, she never asked again because of his first response, and he acknowledged never offering to contribute thereafter.
[177] School uniforms have been found to be “reasonable and necessary expenses” for purposes of the Child Support Guidelines. (Bakker v. Bakker, 2023 ONSC 3025)
[178] Accordingly, I find that Mr. Smith must contribute to the costs of the children’s uniforms, beginning with the first purchased for his elder daughter.
[179] The costs for the uniforms were as follows and Mr. Smith’s share of the cost in each year, in accordance with s. 7 of the Guidelines, is noted as follows:
| Year | Amount | Mr. Smith’s % Share [16] | Cost [17] |
|---|---|---|---|
| 2020 | $653.22 | 81.63% | $ 522.58 |
| 2021 | $649.60 | 68.14% | $ 442.64 |
| 2022 | $100.11 | 98.62% | $ 80.09 |
| 2023 | $436.69 | 99.05% | $ 349.35 |
| Total: | $1,394.66 |
[180] I find that Mr. Smith owes Ms. Smith $1,394.66 for his contribution to the children’s school uniforms.
Orthodontic and Contact Lenses
[181] As was noted, there are some outstanding, possibly uninsured, orthodontic expenses to which Mr. Smith indicate that he testified to a willingness to “consider paying depending on what type of money [he] can contribute.”
[182] He has already shown a willingness to contribute to dental work, when he voluntarily contributed to the cost of multiple tooth extractions for his younger daughter.
[183] The events leading to these events occurred in 2023 and 2024. In both years, the parties’ relative incomes had Mr. Smith in a situation in which, using a strict s. 7 Guideline calculation, he would be paying more than 80% of the shared cost.
[184] However, both he and Ms. Smith had indicated that they agree, for different reasons, that Mr. Smith’s share of costs should be capped at 80%. Accordingly, to the extent that either the children’s orthodontic work or the elder daughter’s contact lenses are uninsured, Mr. Smith will be ordered to contribute 80% of the uninsured cost and Ms. Smith will be ordered to contribute 20% to the uninsured cost.
University
[185] Given the lack of evidence on this issue, I can make no order. I would only note that, at present, the parties seem to agree that their relative contribution amounts should be 80 and 20%. However, their daughter also needs to contribute a portion, including by using some of her earnings from employment, if any, and by trying to obtain student loans, grants, or bursaries. This may be a matter that the parties should try to learn how to communicate effectively, failing which they may seek to engage the services of a mediator.
Some Final Words
[186] In future, when either party wants the other to contribute to a special expense, they must always comply with the process upon which they agreed in 2016. A request for consultation and consent must always be made except for expenses in the “Travel Hockey, Tutoring and YMCA Family Plan” category.
[187] The request must be made no matter the concern about the response that might be received. If the parent asked to contribute declines or refuses, that parent should be asked, in writing, to explain their position, in writing. A failure to respond would amount to unreasonable behaviour.
[188] Should the parties follow that process, and should these issues arise again, they will at least have an evidentiary record to assist the court in determining whether a request was made and whether a refusal was reasonable or not.
[189] Ideally, however, this entire exercise will have convinced the parties that it would be far easier for them to set aside their hostilities in the best interests of their children and work cooperatively to resolve financial issues directly affecting them.
Order
[190] For the forgoing reasons, I make the following order:
Commencing November 1, 2024 and on the first day of each month thereafter until changed by agreement of the parties or a further court order, the Respondent, Francois Smith, shall pay child support to the Applicant, Tamara Smith in the amount of $2,009.00 per month for three children based on Mr. Smith’s 2003 income of $105,624.00.
The Respondent, Francois Smith, is indebted to and shall pay the Applicant, Tamara Smith, in accordance with the order of Justice Morissette dated July 26, 2016:
a. arrears of s. 7 expenses for childcare costs incurred by the Applicant in 2016, 2017 and 2018 in the net amount of $2,443.28, being $3,322.28 minus the sum of $880.00 overpaid by the Respondent as child support to the Applicant since January 1, 2019; plus
b. the sum of $1,394.66 as his share under s. 7 of the Child Support Guidelines and the order of Justice Morissette dated July 26, 2016 for the cost of school uniforms for the parties’ children.
The total amounts for which the Respondent Francois Smith is indebted to the Applicant Tamara Smith in Paragraph 2 hereof ($3,837.94) shall be paid by Francois Smith in the amount of $300.00 per month commencing on December 1, 2024 and on the first day of each month thereafter for a period of 12 months and one final payment of $237.94 on the first day of December, 2025.
The parties shall each pay, pursuant to s. 7 of the Child Support Guidelines and the order of Justice Morissette dated July 26, 2016, a share of the uninsured costs of the children’s orthodontic work and the uninsured cost of their eldest child’s contact lenses, such shares to be as follows: the Applicant, Tamara Smith, shall contribute 20%, and the Respondent, Francois Smith, shall contribute 80% of the said uninsured costs.
Each year hereafter, commencing in 2025, after the parties have exchanged their income tax information in accordance with the order of Justice Morissette dated July 26, 2016, they shall discuss and determine by June 30 of each year, commencing in 2025, the child support obligation of the Respondent Francois Smith for the following year, based on his previous year’s income.
Support for each following year, as determined by the parties in accordance with Paragraph 5 hereof, shall be adjusted commencing in 2026, and begin to be paid by the Respondent Francois Smith starting on the first day of August annually and the first day of each month thereafter, to and including July 1 of the following year. By that time, the parties, following the process described in the order of Justice Morissette dated July 26, 2016, as modified by Paragraph 5 hereof, ought to have determined the amount of child support that the Respondent Francois Smith shall pay to the Applicant Tamara Smith beginning as of August 1 of that year and monthly thereafter until this process is repeated again the next year, annually, until such time as the Respondent Francois Smith is no longer obliged to pay child support to the Applicant, Tamara Smith, at which time child support shall terminate.
Should the parties not participate in or complete by June 30 in any year the annual process described in paragraphs 5 and 6 hereof to set the amount of child support for the following year, the Respondent Francois Smith shall continue to pay child support for the following year in the same amount as the parties last agreed, or the court last ordered, until such time as they do agree, or a court orders otherwise, for a following year.
The balance of the parties’ claims are dismissed.
Costs
The parties are strongly encouraged to settle the issue of costs. If they cannot, they may forward written submissions to me through the Family Court Trial Coordinator at St. Thomas. Any such submissions shall not exceed five typewritten pages, in Times New Roman 12-point font, at a line spacing of 1.5.
The submissions of Mr. Kiernan are to be delivered by November 5, 2014 and the submissions of Mr. Parrack are to be delivered by November 20, 2024.
Costs submissions shall be accompanied by any offers to settle, whether accepted or not, and a Bill of Costs detailing the names of all persons who worked on the matter for whom a claim for costs is being made, their position, the amount being sought for costs in respect of that person, and a complete and clear description of the work undertaken by each such person for whom a claim for costs is being made.
Each counsel shall also indicate in their submissions the amount that they have invoiced their client for this matter for the period for which costs are being claimed.
If no submissions are received by November 20, 2024, costs shall be deemed to have been settled, neither party shall be entitled to an order for costs, and no costs order shall thereafter be made.
Justice T. Price Released: October 16, 2024
Footnotes
[1] At the time of trial in July 2024, the children were 18, 16 and 15 years of age. Thus, they were 10, 8 and 7 years of age in 2016. [2] The evidence of Mr. Smith, unchallenged by Ms. Smith, was that the value of the death benefit on the only insurance policy on his life in existence at the time of the divorce was $500,000.00. [3] For ease of reference and the calculations herein, I intend to use the higher figure ($3,552.00) since the $12.00 difference in 2016 is insignificant. [4] I have included in the amounts claimed by Ms. Smith for “Travel Hockey” the amounts that she spent on registrations and hockey equipment, since a child cannot play hockey without proper equipment. I have not included the cost of photos. [5] https://www.canada.ca/en/revenue-agency/services/forms-publications/publications/it428/archived-wage-loss-replacement-plans.html [6] Ms. Smith testified that all of the receipts for childcare or camp that were entered as exhibits pertained to periods after she returned to work. However, I have excluded costs incurred for day camp in 2019 since Ms. Smith was on LTD at the time and appears to not have been working. [7] Receipts dated after July 8, 2018 were for children to attend day camps and totaled $465.00. [8] The uninsured balance was actually $548.00. Mr. Smith paid Ms. Smith $394.00 in reduction of this cost. She continues to seek a contribution from him toward the remaining balance of $154.00. Mr. Smith’s payment amounted to 71.9% of the uninsured balance of $548.00. [9] Ms. Smith estimated that the uninsured cost of the younger daughter’s braces will be approximately $3,000.00. She produced no documents to support her claim, as those costs have seemingly not yet been incurred. [10] These would have included his listing of his current income and those of the previous two years in his Change Information Form sworn November 21, 2018, and his Financia Statement sworn December 13, 2018. He also later filed updated Financial Statements sworn July 6, 2021 and January 18, 2022. For the interim motion concerning child support, originally scheduled for October 28, 2021, he swore an affidavit on August 18, 2021 to which he appended income tax documents showing his income for the years 2017 through 2020. [11] Gordon v. Goertz, [1996] 2 S.C.R. 27 [12] Edited; case references and citations omitted. [13] Ladouceur v. Dupuis, [2020] O.J. No. 5677 at paras. 44-47 (S.C.J.) [14] Estimated, based on 2023 income; to October 31, 2024 only. [15] Zychla v. Chihaniuk, 2022 ONSC 6884 at para. 110 [16] Based on the following annual incomes: Mr. Smith: 2020: $90,533.00; 2021: $92,544.00; 2022: $96,254.00; 2023: $105,624.00 and Ms. Smith: 2020: $20,370.00; 2021: $43,274.00; 2022: $1,346.00; 2023: $1,013.00 [17] Because Ms. Smith requested an 80% contribution from Mr. Smith, I have limited his contribution where the calculated percentages exceeded 80%.