Court File and Parties

COURT FILE NO.: FC-22-752 DATE: 2024/02/07 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Osob Saeed Obuli, Applicant – and – Sami Isak, Respondent

Applicant, Self-Represented Respondent, Self-Represented

HEARD: November 28, 2023

REASONS FOR DECISION ON MOTION RE S. 7 EXPENSES

Somji J.

[1] The Applicant mother seeks an order for the Respondent father to pay for s. 7 childcare expenses for the period of November 2020 to December 2023 and ongoing childcare expenses for the parties’ seven year old child (G.I.). The childcare costs for this period were $7,053.38. The mother requests that the amount be shared equally even if the father earned more in some years.

[2] The father does not dispute that he should pay for childcare expenses, but argues that he cannot afford to pay his full share because of his financial situation. The father argues he is employed part-time, has student loan and credit card payments, and has to pay for arrears and ongoing child support for G.I. In addition, he is now re-partnered with two children that he supports, and he and his wife are expecting a third child.

[3] The issue to be decided is what amount should the father pay for arrears and ongoing s. 7 childcare expenses?

Factual Background

[4] The parties are in their early 30s. They lived together between October 2014 and December 2017. G.I. was born in 2016.

[5] In August 2022, the mother brought an Application seeking an order for child support, decision-making and parenting time pursuant to the Family Law Act, R.S.O. 1990, c.F.3, as am, and Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am.

[6] The parties came to an agreement on some child support and parenting time. Carter J issued a temporary order on consent of the parties fixing child support arrears for 2018 to 2021 at $10,941.27. The arrears are to be enforced through the Family Responsibility Office (“FRO”).

[7] The father was ordered to provide income disclosure for 2022. The father’s Notice of Assessment revealed that he earned $68,365 in 2022. The mother requested that his income be imputed to a higher amount because of his additional earnings as an Uber driver. Jensen J ordered that income imputation should be left to the trial judge and ordered the father, on a temporary basis, to pay Table support pursuant to SOR/97-175, as am., in the amount of $638/month under based on his 2022 income.

[8] The father argued before Jensen J that he could only afford to pay $462/month in ongoing child support because he was a full-time student at Herzing College and was working part-time. Jensen J found that the father had not provided an evidentiary basis to determine whether, pursuant to s. 10 of the Ontario Child Support Guidelines O. Reg. 391/97 as am, (“CSG”) that the Table amount resulted in undue hardship. Jensen J declined to reduce the Table amount but maintained the father could address the issue of hardship at trial.

[9] The father now raises the same hardship arguments before me with respect to his contribution for his retroactive and on-going s. 7 childcare expenses.

[10] In her original Application, the mother did not seek s. 7 expenses. On October 5, 2022, Trousdale J issued an endorsement stating that the Applicant may need to bring a motion to amend her Application to claim s. 7 expenses for the child if the Respondent is not willing to consent to an amendment. The mother subsequently filed an application for arrears and ongoing s. 7 expenses.

Analysis: What should the father pay for arrears and ongoing s. 7 childcare expenses?

[11] There is a presumption under the Child Support Guidelines, that parents will, in addition to child support, contribute to s. 7 special or extraordinary expenses: s. 3(1) CSG.

[12] Either spouse may request that the other parent contribute to all or any portion of expenses related to the childcare incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment: s. 7(1)(a) CSG.

[13] Parents may also make claims for other types of expenses taking into account the necessity of the expense in relation to the child’s best interests, the reasonableness of the expense, and the financial means of the spouses: s. 7 CSG. The provision reads as follows:

Special or extraordinary expenses

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

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

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

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

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[14] Childcare expenses are recognized as s.7 expenses: s.7(1)(a). For non-enumerated special and extraordinary expenses, s. 7(1.1) CSG provides factors for consideration of whether an expense is an “extraordinary” expense that should be covered under the s. 7 regime.

[15] In determining the amount each parent should pay, the guiding principle is that the expense is to be shared by the parent in proportion to their respecting incomes after deducting, if any, contributions from the child and taking into consideration any subsidies, benefits, tax deductions or credits relating to the expense: 7(3) CSG. However, the court is not to take into account the receipt of the Universal Child Care benefit received by either parent.

[16] While s. 10 CSG allows for the reduction of child support due to economic hardship, there is no corresponding provision for s. 7 expenses. This is likely because the determination of a spouse’s contribution is already determined on the basis of their income.

[17] Since 2018, the mother has been working shifts and relying on childcare after school and into the evening, sometimes as late as midnight. However, because she received subsidies for childcare through the City of Ottawa childcare subsidy program, she only seeks reimbursement for childcare costs incurred between January 2020 and December 2023. The daycare costs have increased over the years. As of August 2023, the mother is paying $406/month.

[18] The father argues he should pay less than a half portion because of his expenses supporting a new family as well as his student and credit card debts. The father has been working part-time for the City of Ottawa while also attending Herzing College. He expects to graduate in January 2024 and hopes to find work in the field of cybersecurity.

[19] The father says his income decreased in 2023. In addition, he notes that he presently has an outstanding CIBC debt of $18,507, OSAP student debt of $22,500, Rogers debt of $3,249, and Capital One credit card debt of $815. The father is also required to pay child support arrears of $10,941 through FRO as well as ongoing support.

[20] While I appreciate that the father has amassed a lot of debt, the responsibility for that debt should not be borne by the mother and at the expense of the well-being of the mother or child. The mother is entitled to continue with her education and develop her career in the same manner that the father has over these past few years. The mother is presently scheduled to commence a paralegal program at Algonquin College in January 2024.

[21] Furthermore, the father’s household income is considerably higher than the mother’s income. She supports herself. The father’s present spouse earned $72,000 as a nurse in 2022. The family is also likely receiving the monthly Universal Child Tax Benefit for their other two children. In addition, the mother argues the father has received close to $10,000 in grants for his education.

[22] Despite the father’s higher personal and household income, the mother is agreeable to sharing the s. 7 expenses equally rather than in an amount proportionate to their incomes as the law generally requires. It is unclear if the father is agreeable to such an arrangement going forward even in circumstances where the mother’s income might be higher than his. Consequently, I find it fair and reasonable that the s. 7 expenses be attributed in accordance with the parties’ respective incomes rather than 50/50.

[23] Based on the parties’ Notices of Assessment, I find the parties’ retroactive and on-going s. 7 expenses shall be apportioned in accordance with their respective incomes and as set out in the following table:

Table 1:

Childcare expense $	Mother income $	Mother’s share of s. 7 expenses	Father’s Income	Father’s share of s. 7 expenses
2020
485.52	42,972	51% $248	41,150	49% $238
2021
1,810.67	43,138	46% $837	50,145	54% $973
2022
1,677.19	52,000	43% $725	68,365	57% $953
Total	3,973.38	$1,810		$2,164

2023 Childcare expenses based on 2022 incomes

Childcare expense $	Mother income $	Mother’s share of s. 7 expenses	Father’s Income	Father’s share of s. 7 expenses
2023
3,080	52,000	43% $1,331	68,365	57% $1,749
Total	3,080	$1,331		$1,749

Monthly on-going childcare expenses based on 2022 incomes

Childcare expense $	Mother income $	Mother’s share of s. 7 expenses	Father’s Income	Father’s share of s. 7 expenses
2024
406 monthly	52,000	43% $175	68,365	57% $231

Order

[24] Leave is granted for the mother to amend her application to request s. 7 expenses.

[25] Pursuant to the Family Law Act, there will be a:

a. Final Order that the father will pay $2,164 for retroactive s. 7 childcare expenses for January 2020 to December 2022. Given the father’s current financial commitments, the father will have 30 days to pay these s. 7 expenses arrears.

b. Temporary Order that the father will pay $1,749 for retroactive arrears of s. 7 child care expenses for 2023 based on the parties’ 2022 incomes. Given the father’s current financial commitments, the father will have 60 days to pay the mother the $1,749.

c. Temporary Order that the father shall pay the mother $462 within 30 days for child care expenses for the months of January and February 2024. This amount is based on the parties’ 2022 incomes and the current monthly cost for childcare set at $406. The father will pay for his proportionate share (57%) based on his 2022 income in the amount of $231/month.

d. Temporary Order that the father will pay the mother on-going s. 7 child care expenses in the amount of $231/month commencing March 1, 2024.

[26] The father indicates that his 2023 income is considerably less than his 2022 income. Upon filing their 2023 income tax returns and sharing their financial disclosure, the parties may agree to adjust the arrears amount for 2023 as well as the on-going amount for s. 7 childcare expenses. If the parties are unable to come to an agreement, they may contact Trial Coordination to obtain a date before me in June 2024 for review of the Temporary Orders.

[27] Pursuant to the Family Responsibility and Enforcement Act, 1996, S.O. 1996, c. 31, the arrears and on-going s. 7 expenses shall be enforced by the Director of FRO.

[28] Finally, the father takes issue with the amount of time G.I. is in care and has suggested that he could care for the child part time. The mother does not oppose G.I. having increased parenting time with the father during the week, but she is not agreeable to driving the child to his residence in the middle of the work day as suggested by the father. Should the father wish to enter alternative arrangements for childcare, he may do so with the mother but it is unreasonable to expect her to disrupt her school and work schedule to accommodate the father.

Costs

[29] The mother is the successful party on the motion, and presumptively entitled to costs if such were incurred. The parties are encouraged to resolve the issue of costs. If the parties cannot resolve the issue of costs for this proceeding, they may file brief written submissions with receipts for any disbursements incurred and forward it to scj.assistants@ontario.ca to my attention by February 28, 2024.

Somji J. Released: February 7, 2024