SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-19-10345-0001
DATE: 20241220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.B.
Applicant
– and –
D.T.
Respondent
Self-represented
Self-Represented
HEARD: November 21, 2024
MATHEN, J.
[1] This is a motion to change a Final Order issued August 8, 2018. The Applicant mother initiated the motion on April 17, 2023. The Respondent father sought his own changes on August 23, 2023.
[2] The parties, who are self-represented, gave evidence, cross-examined each other and responded to questions from the Court.
BACKGROUND
[3] S.B. (“Applicant”) and D.T. (“Respondent”) never married or lived together. They have one son, K., born in 2013. The parties’ relationship ended soon after.
[4] S.B. works full-time for the federal government. In 2023, she earned $127,000. D.T. is a part-time personal support worker (“PSW”) earning just over $46,000 in 2023.
[5] After K. was born, the parties had an informal agreement regarding child support and section 7 expenses. It appears that payments were modest. Eventually, S.B. brought an application to formalize things. On consent of the parties, Justice Hughes issued a Final Order on August 8, 2018 that, among other things:
a. Gave S.B. “sole custody” of and final decision-making for K.
b. Permitted S.B. and K. to relocate outside of Ontario including the United States.
c. Relieved D.T. from paying any section 7 expenses either then or in the future.
d. Set D.T.’s monthly child support at $502, based on a declared annual income of $54,499.95.
e. Made no specific provisions for parenting time for D.T., only that “any access…shall be in [S.B.’s] discretion”.
f. Required D.T. to add K. to his workplace health and dental benefit plan and cooperate with S.B. on claims.
[6] S.B., first, seeks compensation for D.T.’s alleged failure to cooperate on health and dental claims as provided for in the Final Order. Second, she seeks to vary the Order to provide for increased child support and shared section 7 expenses; require D.T. to take out life insurance; and transfer future proceedings to Ottawa. D.T. objects to all of this except the transfer. He wants to decrease child support and remove K. from his workplace health and benefit plan.
ISSUES AND BRIEF CONCLUSION
[7] The issues on this motion are:
a. Has D.T. failed to comply with the 2018 Final Order regarding health and dental claims?
b. Should the Final Order be varied?
c. If the answer to (b) is yes:
i. What is D.T.’s payable child support?
ii. What section 7 expenses should D.T. share?
iii. How should future health and dental premiums be dealt with?
iv. Does D.T. owe retroactive section 7 expenses?
v. Should D.T. take out life insurance to secure his child support obligations?
vi. Should further legal proceedings in this matter be transferred to the jurisdiction of the Superior Court in Ottawa?
d. Should costs be awarded?
[8] I find that S.B.’s request should be granted in part. I am satisfied that D.T. has not cooperated in submitting claims to his insurer. Additionally, there has been a material change that justifies varying the Final Order. S.B.’s request for retroactive support and expenses is dismissed. D.T. shall take out term life insurance. The proceedings shall be transferred to Ottawa. I dismiss D.T.’s claims. The parties shall bear their own costs.
EVIDENCE
S.B.
[9] S.B. lives with K. and one other child. She works for the federal government, where she earned $127,000 in 2023.
[10] According to S.B.’s financial statement filed on August 22, 2024, she receives $500 per month from the Canadian Child Tax Benefit or Tax Rebate. She lists property valued at $620,750.
[11] S.B. commenced legal proceedings against D.T. in 2014. At the time, the parties were sharing section 7 expenses although D.T. was not happy about it.
[12] In 2018, S.B. wanted to leave Toronto. D.T. objected. K. was four years old with very few expenses. At Justice Hughes’ suggestion, D.T. agreed to add K. to his work benefit plan. Because she “just wanted to move on”, S.B, made a trade-off. She gave up all other section 7 claims for the freedom to relocate, and to have K. added to D.T.’s health and dental plan.
[13] Subsequent to the Final Order, S.B. developed epilepsy. Some of her American family members passed away. It was no longer feasible to leave the country. After securing a job with the federal government in Ottawa, she moved with K. to Gatineau, Quebec.
[14] Over the years, K.’s expenses increased considerably. K. always played hockey and baseball, but in Quebec he switched to competitive leagues. S.B. incurs extra child-care costs for work-related travel. K. was diagnosed with ADHD and a vision condition called saccades, both of which require additional care and costs. For example, K. has problems with impulse control and requires tutoring.
[15] S.B. says that D.T. refuses to submit insurance claims. Since 2022, she has paid out-of-pocket for all these expenses.
[16] S.B. claims that K.’s section 7 expenses are at least $22,000 a year. D.T. has refused to share in them.
[17] S.B. says that D.T. has never exercised parenting time.
[18] Under cross-examination, S.B. said that D.T. has not paid child support since August 2024.
[19] S.B. added the following:
a. She did not immediately seek to modify the final order when her life circumstances changed. She simply started asking D.T. to share in section 7 expenses.
b. She seeks section 7 expenses retroactive to 2021 as that is when they began to significantly increase.
c. The court should impute an income of $60,000 to D.T. since that is the income for a full-time PSW in Toronto according to the website glassdoor.ca.
d. S.B. asks for an upward deviation of child support more than double the table amount. She says this is justified because of (a) D.T.’s lack of cooperation regarding insurance claims; and (b) his refusal to exercise any parenting time.
e. In addition to tutoring and medical/dental expenses, K.’s section 7 expenses include occasional childcare for work-related travel; summer camps which function as childcare; hockey; and baseball.
f. K. has been playing baseball for 7 years and hockey for 6 years. There is no evidence that he has a special talent for either sport. These activities build his confidence and surround him with a “supportive community”.
g. Because of federal government confidentiality rules, S.B. cannot provide proof that she is required to travel for work.
[20] S.B. is proud of K., who has done well despite the various strikes against him: not knowing his father, his father not wanting to know him, abandonment issues, and ADHD.
D.T.
[21] D.T.’s most recent financial statement, dated August 23, 2023, shows gross income for the previous year of $38,422. It lists yearly expenses of $80,353.92 including approximately $2100 per month in housing. No real estate assets are listed but there is a mortgage owing of approximately $185,000.
[22] D.T. stated that his income for 2023 was $46,047.00.
[23] D.T. said that he and S.B. had a causal relationship. (S.B. says it was more serious.)
[24] D.T. has been paying $502 monthly child support since 2018. He says the amount never changed even though his income decreased. He repeatedly pointed out how much more money S.B. earns than he does.
[25] D.T. wants to send proof of his annual income directly to the Family Responsibility Office (FRO) for automatic adjustments of child support. He does not want to have to return to court.
[26] D.T. describes S.B. as a “stranger” to him. During the hearing, he never referred to K. as his child. His written materials state that he is interested in getting new paternity tests.
[27] Based on the fluctuations in his income since 2018, D.T. claims he has overpaid child support by $8,874.
[28] D.T. currently works part-time as a PSW because it is too hard to get full-time hours. He provided no corroborating evidence for this statement. He disputes S.B.’s allegation that the full-time average salary of a PSW is $60,000. I note that, by his own evidence, he works 20 hours per week and earns just over $46,000 per year.
[29] D.T. said that “[S.B.] wants a luxury life” with activities for K., such as hockey and baseball, that are the province of the wealthy like “doctors and lawyers”. He continued: “If you want your child to go for the expensive kind of sport like hockey [sic] you need to have finances. [You] should not dump responsibilities on another person if you are a stranger to them.”
[30] D.T. said he does not live to be “a slave to [S.B.]”.
[31] D.T. only agreed to pay for section 7 expenses in 2017 (prior to the Final Order) because he “wanted to keep the child a secret from [his] parents.”
[32] D.T. avoids communication with K. to avoid communication with S.B., who he describes as a “danger” to him. D.T. introduced a police report prepared by the Durham Regional Police Service on December 31, 2013. D.T. called police about an alleged “domestic incident”. The report describes a bad argument between the parties that may have become physical. It goes on to say: “[D.T.] confirmed with officers that at no time did [S.B.] threaten him or act in a manner where he felt threatened.” In his written materials, D.T. said while he initially downplayed things out of pity for the Applicant, the incident was quite serious and involved a knife (something the report specifically disavows).
[33] D.T. would not have agreed to the Final Order if he knew he would have to pay to include K. in his benefits plan. He cannot afford the extra premiums, which cost $857.04 per year. He cannot afford life insurance either and regards S.B.’s request for it as absurd. He has not inquired into the cost of such insurance.
[34] Under cross-examination, D.T. said:
a. He is not interested in looking for a second part-time job to supplement his part-time PSW work.
b. He has no proof that S.B. is married or lives with another adult.
c. When asked why hockey and baseball are “luxuries”, he told S.B.: “You should find cheaper sports.” He said a person who makes $45,000 a year cannot afford such things.
d. D.T. denied ever receiving emails from S.B. asking him what he thought about enrolling K. in activities.
e. When asked to elaborate on his statement that S.B. (and by implication, K.) is a “stranger” to him, D.T. replied: “I have nothing to do with you or your family.”
[35] In response to the court’s questions, D.T. said:
a. He lives with his parents in a condo that he co-owns with them. He estimates the monthly payments at $1200. He contributes approximately $800 per month.
b. He has no other children and has never been married.
c. He works approximately 20 hours per week at $25 an hour. Claiming to be “very busy with his family”, D.T. has no plans to obtain full-time work. His father has cancer.
d. He has no intention of developing a relationship with K. as that would require contact with S.B.
e. When asked how removing K. from his health plan would be in the child’s best interests, D.T. simply said that S.B. should be able to cover such expenses.
f. D.T. was sure he was up to date with child support but was willing to call the FRO to check and to make up any arrears.
g. D.T. did not object to moving future proceedings to the Superior Court in Ottawa.
h. When asked why he never used Clause 5 of the Final Order which anticipates adjustments to child support based on annual exchanges of income tax returns, D.T. repeated his aversion to returning to court or interacting with S.B.
ANALYSIS
[36] The facts as I find them are set out in the following analysis.
Credibility
[37] I find S.B. credible. She gave her evidence in a straightforward manner. She was consistent and measured. She admitted weaker points in her case.
[38] However, S.B.’s supporting material was not properly presented. For example, to demonstrate some of K.’s medical expenses, she submitted 187 pages of emails to D.T. with individual invoices scattered throughout. On a half-day motion, it was not possible to adduce every invoice, have S.B. recognize it and then seek D.T.’s consent to admit them. I therefore admitted several of these documents as lettered exhibits for identification only.
[39] I find D.T. credible in some respects and not credible in others. He was very straightforward about his feelings towards S.B., the child, his responsibilities, and work plans.
[40] Some of D.T.’s financial information was not reliable:
a. D.T.’s Financial Statement does not list his condo as an asset.
b. D.T.’s monthly expenses greatly exceed his income.
c. D.T.’s 2023 Financial Statement shows an income in 2022 of $38,422 and expenses of $80,353. Yet the statement also shows no debts other than his mortgage. It is unclear how D.T. was funding these expenses which greatly outpace his income.
d. D.T. gave puzzling testimony regarding his income. D.T. said he works 20 hours per week at $25 an hour which totals $500 per week or around $26,000 per year. Yet, D.T.’s 2023 income was just over $46,000. D.T. did not say that his 2024 income would be very different from in 2023. This suggests that, currently, D.T. either works even fewer hours than he says, or earns a higher hourly wage.
General Findings of Fact
[41] I make the following findings of fact on a balance of probabilities.
[42] When they consented to the Final Order, each party made strategic choices and trade-offs.
[43] I do not believe that D.T. thought he could add K. to his benefit plan for no additional cost. I do believe that he may not have anticipated how much that cost would be.
[44] I believe that D.T. works approximately 20 hours per week.
[45] The parties had a serious altercation on December 31, 2013. However, D.T.’s belief that S.B. is a danger to him is not supported by the accompanying police report and, I find, lacks foundation.
[46] The reasons that D.T. has never exercised parenting are (a) an intense aversion to S.B.; and (b) indifference to K.’s well-being.
Issue One: Outstanding Health and Dental Claims
[47] S.B. testified that D.T. has not cooperated in the timely submission of health and dental claims to her insurer. She testified about the problems she has encountered as a result.
[48] D.T. offered little to rebut this. His main argument is that he no longer wishes to pay any premiums.
[49] On a balance of probabilities, I am satisfied that D.T. has not complied with clause 7 of the Final Order, to S.B.’s financial detriment. S.B. is entitled to relief beginning April 17, 2020, which is three years prior to filing her Motion to Change.
[50] I have insufficient evidence to calculate the amount S.B. might be owed. She submitted appendices consisting of many dozens of emails to D.T. with invoices attached to each email.
[51] Therefore, S.B.’s claim for a specific amount is dismissed without prejudice for her to resubmit proof of these expenses in a form in which they can be properly assessed. The form and process are prescribed at the conclusion of these reasons. She shall serve this on D.T., who may respond via a sworn affidavit. S.B. may then bring a regular one-hour motion, on notice to D.T., for payment.
Issue Two: Motion to Change
The Law
[52] In Ontario, a motion to change a final order is brought under Family Law Rule 15. The legal test on a motion to change is found in the case law.
[53] The test for a variation of a final order is stated in Gordon v. Goertz, 1997 CanLII 191, [1996] 2 S.C.R. 27. Before considering the merits of an application, the reviewing court must be satisfied that a material change in circumstances has occurred since the date the final order was made. The onus of proof is on the party seeking the change. Given that S.B. and D.T. want to change the final order in different respects, they must each prove on a balance of probabilities why the changes they want are warranted: Willick v. Willick, 1994 CanLII 28 , [1994] 3 S.C.R. 670.
[54] The party bearing an onus must satisfy the court that a material change of circumstances has occurred since the date of the final order and that, had those new circumstances been in evidence before the judge who made the final order, the judge would have made a different order: Persaud v. Garcia-Persaud, 2009 ONCA 782, 81 R.F.L. (6th) 1.
Analysis
[55] S.B. has persuaded me on a balance of probabilities of three material changes that justify varying the Final Order.
[56] First, K. has saccades, ADHD, and learning challenges. D.T. did not contest these facts. I accept S.B.’s testimony that, as a result, K. requires both tutoring and extra care, for example, to assist with his limited impulse control. I am persuaded on a balance of probabilities that had these conditions been in evidence at the time the Final Order was made, the Order would have been different.
[57] Second, as I have already found, D.T. does not cooperate in a timely way in submitting K.’s expenses to his employer. This undermines the essential bargain of the Final Order: No shared section 7 expenses in return for additional medical/dental coverage. I find on a balance of probabilities that had these circumstances been known the judge would have made a different Order. Given D.T.’s reluctance to working with S.B. in any capacity, it is in K.’s best interests to chart a different path.
[58] Third, as I explain below, I find on a balance of probabilities that D.T. is intentionally underemployed. I find that this too would have affected the Final Order.
[59] Therefore, I am satisfied that there has been a material change of circumstances that justify modifying the Final Order of August 8, 2018.
[60] For clarity, I reject the following claims that were also put forward as a material change:
a. S.B. says that in 2018, K.’s expenses were modest and increased over time. By itself, the greater costs do not amount to a material change. S.B. made a conscious choice to abandon section 7 expenses from D.T. as a trade-off for other things she wanted. Justice Hughes would have been aware of the fact that section 7 expenses increase as a child matures.
b. S.B. says the fact that she remained in Canada is a material change. S.B. did not state that she would have abandoned her request to have the freedom to relocate with K. as she saw fit. She simply says that, as it turns out, she did not move to the United States. That was her choice. I am not persuaded that the judge would have made a different order based on the likelihood of S.B. moving to a particular place. This is not a material change.
c. D.T. says that his income is lower than the amount set out in the Order. However, clause 5 of the Order already provides for the adjustment of child support on that basis. D.T. is simply averse to using it. This does not represent a material change.
d. D.T. says that he did not appreciate that he would have to pay more to insure K. through his employer. Because I do not believe this on a balance of probabilities, I reject it as a material change. I do accept that D.T. may not have appreciated how much the extra premiums would cost. But that does not constitute a material change either. When she made the premiums a part of the order, Justice Hughes also permanently relieved D.T. of sharing in section 7 expenses. D.T. does not wish to share any section 7 expenses. He cannot have it both ways.
Issue Three: What is D.T.’s payable child support?
[61] Addressing D.T.’s payable child support involves three questions. First, should income be imputed to him? Second, is it appropriate to award an upward deviation from table child support? Third, is retroactive child support payable and, if so, how much?
[62] S.B. requests that D.T. be imputed an income of $60,000 which, she says, is the average income of a full-time PSW in Toronto. She also asks that D.T. pay 2.5 times the table child support amount.
Imputation: The Law
[63] Section 19 of the Child Support Guidelines,O.Reg. 381/97 (“CSG”) permits a court to impute income to a parent who “is intentionally under-employed or unemployed”. Section 19 involves three factors: Is the parent intentionally under-employed or unemployed; are there legitimate reasons for that; and what amount of income should be imputed: Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 164 O.A.C. 241, at para. 23.
[64] Legitimate reasons for unemployment or underemployment are the needs of the child of the marriage, the needs of any other child under the age of majority, the reasonable educational needs of the spouse, or the reasonable health needs of the spouse: CSG, s. 19(1)(a).
[65] A parent must seek employment if they are healthy and there is no other reason why they cannot work: Van Gool v. Van Gool, (1998), 1998 CanLII 5650 (BC CA), 166 D.L.R. (4th) 528.
[66] A parent cannot avoid child support obligations by a self-induced reduction of income: Katarzynski v. Katarzynski, 2012 ONCJ 294, [2012] W.D.F.L. 6325, at para. 122 citing Payne’s Child Support in Canada (1999).
Analysis
[67] I find on a balance of probabilities that all of the factors in this case warrant imputing income.
[68] By his own testimony, D.T. is intentionally under-employed. He has no plans to change his current work schedule of twenty hours per week.
[69] D.T. did not present any reasons to justify his underemployment. K. is his only dependent. D.T. is not pursuing education to upgrade his earning potential. He has no health reasons affecting his ability to work full-time. I accept that D.T.’s father has cancer, but this unfortunate fact does not alter D.T.’s ability to work. For example, he did not testify to any additional responsibilities he must undertake to care for his father.
[70] In addressing the final question, quantum, I find the following evidence relevant:
a. D.T. says he only works 20 hours per week. He should be working at least 30 to 35 hours per week.
b. D.T.’s 2023 income, earned through his admitted part-time schedule, is just over $46,000.
[1] S.B. testified that according to the website Glassdoor, the average income of a PSW working full-time in Toronto is $60,000. D.T. disputes this amount but, given that by his own evidence he earns approximately $46,000 working part-time hours, this objection is not credible.
[71] It is likely that D.T.’s full-time PSW income is more than the $60,000 imputation S.B. has requested. However, the evidence before the court does not permit me to calculate, on a balance of probabilities, exactly how much more. Mindful of my obligation to avoid arbitrary amounts or amounts not pleaded, I am satisfied on a balance of probabilities that it is appropriate to impute to D.T. an income of $60,000.
Upward Deviation: The Law
[72] Under the CSG, table child support for D.T.’s imputed income of $60,000 is $556 per month. The Guidelines are presumptive. S.B. asks the court to exercise its discretion to depart from this amount under s. 10, which provides:
10.(1) On the application of either spouse or an applicant under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
[73] Circumstances that may cause “undue hardship” include where a parent “has unusually high expenses in relation to exercising parenting time with respect to a child”: CSG, s. 10(2).
[74] Scotcher v. Hampson, 1998 CanLII 14892 (ON SC), 41 RFL (4th) 271, recognizes that undue hardship may exist if a parent exercises “no or almost no access” since “the costs of the custodial parent are necessarily higher than that anticipated by the framers of these Guidelines and the table amount no longer provides for an appropriate sharing of basic expenses for the children”: para. 6.
[75] At the same time, the court in Scotcher expressed caution about rigidly linking child support to access: para. 13.
Analysis
[76] There is no dispute that D.T. exercises no parenting time. On that basis, S.B. argues for child support 2.5 times the table amount.
[77] I accept that S.B.’s situation is difficult. She testified to the challenges she faces as a single mother caring for a child with special needs. K.’s expenses are significant. S.B. faces additional challenges because of D.T.’s lack of interest in K. I note, too, her epilepsy.
[78] Nevertheless, I am not persuaded that S.B. faces “undue hardship”. One must consider the degree to which any hardship is linked to D.T.’s refusal to exercise access. I am not persuaded that this situation qualifies. By S.B.’s choice, she and D.T. do not live in the same jurisdiction. That affects the amount of access that D.T. reasonably could undertake.
[79] S.B. also has not justified the specific deviation she has asked for.
[80] I am mindful of the issues with tying child support too rigidly to access.
[81] There are other ways to address the imbalance in parenting, which I address below.
[82] I therefore am not persuaded that I should exercise my discretion to deviate from table child support. S.B.’s claim is dismissed.
Retroactive Child Support: The Law
[83] The next issue is retroactive child support. The Supreme Court of Canada’s framework in S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, states the following key factors:
a. The reason why support was not sought earlier;
b. Any blameworthy conduct of the payor;
c. Past and present circumstances of the recipient; and
d. Potential hardship on the payor flowing from a retroactive award.
[84] S.B. has a rationale for why she did not seek section 7 expenses earlier. She does not, however, speak to why she failed to seek an upward deviation earlier. In this case, I have found that D.T. is intentionally under-employed. This constitutes blameworthy conduct on his part. However, I am unable to determine how long he has been intentionally under-employed. Given the context, it is not appropriate to award retroactive support earlier than the date of S.B.’s application.
[85] D.T.’s child support has been $502 a month. Under his imputed income, he owes $556 per month. Accordingly, D.T. shall pay $1080 in child support owing for the period May 1, 2023 to December 1, 2024.
[86] I will now address D.T.’s claim that he has overpaid child support. D.T. could have adjusted his child support payments under the Final Order. He chose not to. D.T. provided no legal argument for seeking a retroactive adjustment now. His claim is dismissed.
Issue Four: Section 7 Expenses
[87] S.B. says that D.T. should share in K.’s section 7 expenses. This section addresses expenses other than health insurance premiums which are dealt with in Issue Five, below.
Section 7: The Law
[88] Section 7 of the CSG covers those additional costs of raising a child that are not incorporated into table child support: Ostapchuk v. Ostapchuk, 2003 CanLII 57399 (ON CA), 64 O.R. (3d) 496, at para. 13.
[89] The categories of expenses under section 7 include:
a. childcare expenses incurred as a result of employment, illness, or disability;
b. medical and dental insurance premiums attributable to a child;
c. uninsured health-related expenses that exceed $100;
d. extraordinary expenses for primary or secondary school education or other educational programs;
e. post-secondary education; and
f. extraordinary expenses for extra-curricular activities.
[90] For the purposes of clauses 7(d) and (f), whether an expense is “extraordinary” depends on, among other things: The amount of the expense in relation to the income of the requesting parent; the nature and number of educational programs and extracurricular activities; any special needs and talents of the child; the overall cost; and any other similar factors that the court considers relevant: CSG, s. 7(1.1).
[91] Courts have considered the following factors in awarding section 7 expenses: Whether the expenses are necessary “in relation to the child’s best interests”, and reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”: Titova v. Titov, 2012 ONCA 864, 299 O.A.C. 215, at para. 24.
Analysis
[92] I will proceed as follows. First, I will determine whether the disputed expense falls within an enumerated section 7 category. Second, I will examine any of K.’s needs or talents to determine whether an expense is in his best interests. Third, I will look at cost. Fourth, I will look at the family’s previous spending patterns. Fifth, I will look at what proportion of each party’s income the requested section 7 expenses represent. Sixth, I will consider as a “similar factor” the parties’ dynamic and its impact on K.
[93] S.B. seeks an order that the parties share in section 7 expenses on a one-third (D.T.)/two-thirds (S.B.) basis.
[94] The section 7 expenses S.B. claims fall into the following categories:
a. Childcare for travel related to her work; and for before and after school – 7(a)
b. Summer camps – 7(a)
c. Tutoring – 7(d)
d. Future expenses for a secondary school placement – 7(d)
e. Hockey – 7(f)
f. Baseball – 7(f)
[95] Turning to whether these expenses meet a need or talent for K:
a. There is insufficient evidence before this court to find on a balance of probabilities that S.B.’s overnight travel is necessary for her work. S.B.’s evidence in this regard is quite general. She submitted emails she sent to third party childcare providers. Their probative value is slight. S.B. testified that she is forbidden by federal confidentiality rules from discussing any of the terms of her employment. She would not elaborate on this blanket statement. For example, she did not mention any workplace accommodation she might seek or whether some of her tasks might be accomplished without travel. It is S.B.’s burden to demonstrate that a claimed expense is eligible under section 7. With respect to work-related travel, I find that she has not done so.
b. I am persuaded on a balance of probabilities that summer camps function as childcare for K. K. is not in school during the summer months and S.B. works full-time. It is evident that camps therefore meet a need necessary for K.’s well-being and best interests. I make the same finding regarding before or after-school care that does not involve overnights.
c. I am persuaded that K.’s tutoring is in his best interests. I am persuaded by S.B.’s evidence that K. has ADHD and other learning challenges. I am persuaded that tutoring and other educational supports helps K. develop important skills necessary to his well-being.
d. S.B. wants K. to enter a high school program called sport études which is a concentration in sports at an annual cost of $4,000. While it is possible that K. may require a specialized secondary school program, there is insufficient evidence to show on a balance of probabilities that it is in K.’s best interests to attend the sport études program. While this program likely would meet K.’s desire to play sports, there is no evidence to show how this program would meet K.’s special education needs.
e. I am satisfied on a balance of probabilities that K. benefits from extracurricular activities. However, there is no evidence that either baseball or hockey nurtures a special skill on K.’s part. Given the disparity in the parties’ incomes and the high cost of K.’s other expenses (discussed immediately below), I am not persuaded that, in this situation, these extracurricular activities are eligible under section 7.
[96] S.B. testified that the total cost for what she considers to be section 7 expenses is $22,000 - $25,000 per year. For 2023, S.B. subdivided those costs as follows:
a. Childcare during work travel: $2750
b. Childcare during school: $1500
c. Tutoring: $10,200
d. Summer camps: $2250 (avg)
e. Baseball and hockey: $9830
[97] The total of the above amounts is $26,530.
[98] I am persuaded on a balance of probabilities that S.B. has recounted the general cost of the above activities to the best of her recollection. She was not able to adduce many of the receipts as exhibits. However, I find that that fact does not negate my ability to award some relief for section 7 expenses.
[99] These are very high section 7 expenses. The tutoring alone is over $10,000 per year.
[100] Next, S.B.’s section 7 expense claims must be considered in the context of the proportion it represents of the parties’ respective incomes.
[101] In her calculations, S.B. does not appear to credit the approximately $500 per month she receives in child-related tax benefits.
[102] S.B. suggests that D.T. pay $608 per month towards section 7 expenses, or approximately $7200 per year. This is twelve percent of D.T.’s gross income which I have imputed to $60,000. It is more than his table child support. I am not persuaded that S.B. has justified such a severe draw on D.T.’s income other than claiming that K. needs these expenses. K.’s needs, while important, are not the sole factor in setting a parent’s appropriate share of section 7 expenses.
[103] In addition, I have found that, in the circumstances of this case, work-related childcare and K.’s hockey and baseball expenses are not eligible expenses. After removing them, the total amount claimed is $13,950 or $1162 per month. The majority of this is tutoring: $850 per month.
[104] I find it reasonable to apply S.B.’s child-related tax credit to the remaining monthly section 7 expenses. This reduces the monthly total to $662.
[105] The parties never lived together, so there is no family spending pattern for comparison.
[106] The final, “similar factor” in my analysis is the parties’ dynamic and its likely effect on K. This dynamic is of grave concern to the court. S.B. testified to K.’s abandonment issues in relation to his father. D.T.’s indifference to K.’s welfare is striking, even shocking. I find that K. should be shielded against his father’s lack of regard for him. I find that it is in K.’s best interests for the parties to interact as little as possible. One way to do that is to remove the need for the parties to interact every month or few months over section 7 expenses.
[107] Therefore, I find it appropriate to award a set monthly amount for section 7 expenses.
[108] I acknowledge that a set monthly amount is an imperfect solution. Section 7 expenses are not static. I find, however, that in this case there is more benefit than detriment to setting a monthly amount. In the circumstances, I find that D.T.’s proportionate share in K.’s monthly section 7 expenses discussed in this section is $200 per month.
Issue Five: How should future health and dental premiums be dealt with?
[109] Health and dental premiums are a section 7 expense. I deal with them separately as they were anticipated in the original Order and that context is significant.
[110] I have found that D.T. does not cooperate with S.B. in ensuring prompt reimbursement for K.’s health and dental claims. I accept S.B.’s evidence that this complicates things for her.
[111] The evidence is that K. is covered under his mother’s health care plan. I do not, though, know the extent of that coverage or whether it is possible for S.B. to pay additional premiums for K.
[112] I have found that it is contrary to K.’s best interests for the parties to have more contact with one another than is absolutely necessary. I therefore will order that K. be removed from D.T.’s insurance.
[113] To be clear, I reject D.T.’s position that he is entitled to remove K. from his health coverage because his premiums are too high. My order does not recognize a legitimate claim by D.T. It is made in K.’s best interests.
[114] In determining appropriate compensation for taking K. off D.T.’s plan, I consider the following:
a. Insurance premiums were part of the original bargain in the Final Order under which D.T. was not otherwise obliged to share in section 7 expenses.
b. I have decided that D.T. shall share in K.’s section 7 expenses by paying $200 every month. The original bargain has ended.
c. K. is covered under his mother’s workplace plan.
[115] In the circumstances, I find it appropriate that D.T. pay an extra $50 per month towards K.’s health needs.
Issue Six: Should D.T. take out life insurance to secure his child support obligations?
[116] S.B. requests that D.T. take out life insurance to secure his child support obligations. D.T. objects, again, because of the cost.
[117] It is in K.’s best interests for D.T.’s child support obligations to be secured. D.T. provided no evidence to show otherwise. He also provided no evidence of how much such insurance would cost.
[118] The total monthly child support payable by D.T. is $806. S.B. has suggested that this obligation be insured for 15 years, until K. turns 26. I have found that K. has learning and health challenges. K. may, therefore, require longer than usual to obtain a university degree or become independent. Nonetheless, the age requested by S.B. is high. I find it reasonable that D.T. secure his child support obligations for 14 years. Assuming K. begins his university education at 19, that gives him almost six years to complete his first degree.
[119] A DivorceMate calculation shows that, to secure his child support obligations D.T. requires a term life insurance policy of about $75,000. After paying child support, D.T.’s net disposable income (on the amount imputed in these reasons) is over $3000 per month. He lives with his parents, which reduces his monthly expenses.
[120] There is no evidence to suggest that obtaining this amount of insurance would pose a hardship to D.T. D.T. could have adduced evidence of how much premiums might cost, at least with respect to the original award of child support. He did not, I find, because he rejects outright the idea of securing this obligation.
[121] An order shall issue for D.T. to take out life insurance for $75,000 for a term of 14 years. D.T. shall irrevocably designate S.B. as the beneficiary of this policy in trust for K. D.T. shall purchase and provide a copy of the policy to S.B. within 60 days of this decision.
Issue Seven: Does the Respondent owe retroactive expenses?
[122] I have already found that S.B. may submit proof of her out-of-pocket health and dental expenses. Therefore, the only issue remaining is whether D.T. owes any other retroactive expenses. S.B. requests retroactive section 7 expenses dating back to January 1, 2021.
[123] While S.B.’s request is understandable given K.’s situation, I do not find this an appropriate case in which to award retroactive expenses prior to the date of her application. The Final Order states that D.T. would have no obligation to share in section 7 expenses. The Applicant made a conscious decision to not seek to vary the order for at least a few years. Given that fact, I cannot fault D.T. for declining to share in section 7 expenses prior to S.B. initiating these proceedings.
[124] I have found K.’s eligible section 7 expenses to be summer camps that function as childcare, after school childcare that does not involve overnights, and tutoring. S.B. has leave to bring a motion in writing before me within the next 60 days, on notice to D.T., to claim these expenses between April 17, 2023 and the end of this calendar year (since D.T.’s amended child support shall begin on January 1, 2025). She shall prepare a sworn affidavit to which she attaches specific proof of each of these expenses. She shall calculate D.T.’s proportionate one-third share.
Issue Eight: Transferring Jurisdiction
[125] Under Rule 4(8) of the Family Law Rules, O. Reg. 114/99, I may transfer a case to another municipality if “it is substantially more convenient” to deal with it there. S.B. seeks to transfer future proceedings to the Superior Court in Ottawa. D.T. does not object. Given that S.B. works and lives in the Ottawa region with the child, I find that it is substantially more convenient for future proceedings to be heard in Ottawa.
[126] In order to accommodate the motion returnable to me authorized in Issue Seven, the transfer shall take effect in 120 days.
Issue Nine: Costs
[127] The parties are self-represented. While S.B. was more successful, she did not prevail completely. The parties shall bear their own costs.
ORDER
[128] In conclusion, I make the following order.
[129] S.B.’s claim that D.T. has failed to comply with clause 7 of the Final Order concerning health and dental expenses is granted. Her claim for a specific amount is dismissed without prejudice for her to resubmit proof of these expenses in a form in which they can be properly assessed:
a. S.B. has 45 days to serve a sworn affidavit, with the following supporting evidence, on D.T:
i. For the period between April 17, 2020, and December 31, 2024, S.B. shall prepare charts that list, by month, every insured health and dental expense, the amount she paid out-of-pocket and D.T.’s proportionate share (one-third) of that out-of-pocket amount.
ii. To be eligible for reimbursement:
Every noted expense must be cross-referenced to a communication from S.B. to D.T..
S.B. must specify whether the expense was eligible under her own insurance plan and, if so, any amount received through it.
b. Within 30 days of receipt, D.T. may respond with a sworn affidavit supported by information that shows that a particular expense was submitted to his insurer along with proof of reimbursement of that expense to S.B.
c. S.B. may then bring a regular one-hour motion, on notice to D.T., to seek an order for payment.
[130] S.B.’s request to vary the Final Order of August 8, 2018, is granted in part:
a. Paragraphs 3, 4, 7 and 9 are struck out.
b. Beginning January 1, 2025, and on the first day of each month thereafter, the Respondent D.T. shall pay to the Applicant S.B. $806 in child support for the child K., born November 16, 2013. The support award comprises:
i. Monthly Table child support of $556 a month based on an imputed income of $60,000;
ii. $200 a month for K.’s section 7 expenses as recognized in this Order; and
iii. $50 a month for K.’s health and dental expenses.
c. D.T. shall pay S.B. $1080 in retroactive child support for the period May 1, 2023, to December 1, 2024.
d. For clarity, the provisions in the 2018 Final Order regarding a support deduction order and the enforcement of child support via FRO are continued.
e. Within 30 days of the date of this Order, D.T. shall pay to the Family Responsibility Office any outstanding child support arrears and provide proof to S.B. that he has done so.
f. D.T. shall remove K. from D.T.’s workplace health and dental benefits plan.
g. D.T. shall take out life insurance in the amount of $75,000 for a term of 14 years. D.T. shall irrevocably designate S.B. as the beneficiary of this policy in trust for K. D.T. shall provide a copy of the policy to S.B. All of this is to be completed within 60 days of the date of this Order.
h. S.B.’s request for retroactive section 7 expenses is dismissed.
i. S.B. may claim a proportionate share of section 7 expenses from the date of her Application to the end of this calendar year. Accordingly:
i. S.B. may claim reimbursement from D.T. for a proportionate share of summer camps functioning as childcare, after school childcare that does not involve overnights, and tutoring. Her claim will be for the period April 17, 2023 to December 31, 2024. It will only include those expenses in which D.T. has not shared on a one-third basis.
ii. Within the next 60 days, S.B. may bring a motion in writing, before me, to claim these expenses. She shall prepare a sworn affidavit to which she attaches specific proof of each expense in which D.T. has not shared or has not contributed his proportionate one-third. She shall both calculate the amount owing for each expense and provide the total. In her motion S.B. should include an excerpt of this part of this Order.
j. The Ontario Superior Court of Justice in Toronto’s jurisdiction over this matter is continued for 120 days, after which jurisdiction, including to review and vary child support, is transferred to the Ontario Superior Court of Justice in Ottawa.
[131] Within the next 30 days, either of the parties may prepare a Draft Order, incorporating the provisions of this Order, for my signature care of Linda.Bunoza@Ontario.ca. After 30 days the party shall apply to whichever court has jurisdiction of the matter via a motion in writing.
[132] The parties shall bear their own costs.
Mathen, J.
Released: December 20, 2024
COURT FILE NO.: FS-19-10345-0001
DATE: 20241220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.B.
Applicant
– and –
D.T.
Respondent
REASONS FOR JUDGMENT
Mathen J.
Released: December 20, 2024