Rumble v. Hamilton, 2011 ONCJ 296

Brampton Registry No. 51/04 DATE: 2011·III·15 CITATION: Rumble v. Hamilton , 2011 ONCJ 296 ONTARIO COURT OF JUSTICE BETWEEN: DWAYNE RUMBLE, Applicant, — AND — JASMINE HAMILTON, Respondent (Moving Party). Before Justice Patrick W.

Dunn Heard on 14 and 15 February 2011 Reasons for Judgment released on 15 March 2011 SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Add-ons — Classes of expense — Extraordinary expenses for extracurricular activities — Martial arts — Mother of girl (now 13 years old) advanced claim for father’s contribution towards monthly cost ($316) of her attendance at martial arts studio — Mother was not enthusiastic about this activity but said that her daughter wanted it — Father was opposed because daughter never expressed any interest in this activity and knew nothing about it — Motion judge did not find that interest in martial arts served girl’s best interests, especially when she needed to apply herself in school to compensate for some academic deficiencies — Moreover, expenditure of $316 a month was not reasonable in relation to parents’ means and in view of father’s obligation to pay child support arrears.

SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Add-ons — Classes of expense — Extraordinary expenses for extracurricular activities — Swimming lessons — Mother of girl (now 13 years old) advanced claim for father’s contribution towards monthly cost ($38) of professional swimming instruction, so child could eventually qualify as lifeguard and earn summer income — Father insisted that he could teach daughter to swim and was concerned that her swimming lessons might eat into his access time — Motion judge found expense reasonable and so small that father’s budget could easily absorb totality of expense — Judge had no sympathy for father’s grumbling about being short-changed on his access times — All parents must resign to fact of life that, as child matures and acquires interest in new activities, time spent in those activities will result in increased absences from parents.

SUPPORT ORDERS — Assessment of quantum — Form of order — Retroactive award — Choice of start date — Three-year ceiling on backdating order from date of notice — Under order made 6 years ago, father was required to make monthly payments of $178 (based on his then income of $21,000) to custodial mother for support of daughter (now 13 years old) — Father was also ordered to give mother copy of his annual notice of tax assessment by 1 June in each year — Father gave mother such notice on following year, which showed small increase in father’s income which mother was prepared to overlook but thereafter, he gave no further notices — For first 4 years, father kept up his monthly payments of $178, even though his income had risen dramatically — Mother did not ask for notices because she was dealing with serious health issues, some emotional problems and her own financial woes — About 3 years ago, mother finally asked father for copy of his assessment for previous year, which he provided after some delay, showing that his income was more than 3 times what it was at time of order — Mother promptly made motion 2½ years ago to vary quantum of father’s ongoing child support payments and ultimately for retroactive adjustment over past 5 years — There was no contest on quantum of ongoing support but father opposed making of retroactive order — Motion judge reviewed standard factors set out in D.B.S. v.

S.R.G. , 2006 SCC 37 and concluded that circumstances in this case justified retroactive increase in child support payments — Case of D.B.S. v.

S.R.G. also urged that, ordinarily, there should be 3-year ceiling on backdating order from date of mother’s notice which, in this case, would easily allow court to make retroactive adjustment in child support over past 5 years — Motion judge calculated father’s arrears over that interval to be $18,581, against which father claimed some set-offs (alleged purchases for child’s benefit) but that he failed to prove to judge’s satisfaction — Father ordered to pay off arrears in monthly instalments of $150.

SUPPORT ORDERS — Assessment of quantum — Form of order — Retroactive award — Grounds for making retroactive child support — General — Review of all factors — Under order made 6 years ago, mother was given sole custody of daughter (now 13 years old) with access to father who was required to make monthly child support payments of $178 (based on his then income of $21,000) —

Father was also ordered to give mother copy of his annual notice of tax assessment by 1 June in each year — Father gave mother such notice on following year, which showed small increase in father’s income which mother was prepared to overlook but thereafter, he gave no further notices — For first 4 years, father kept up his monthly payments of $178, even though his income had risen dramatically — Mother did not ask for notices because she was dealing with serious health issues, some emotional problems and her own financial woes — About 3 years ago, mother finally asked father for copy of his assessment for previous year, which he provided after some delay, showing that his income was more than 3 times what it was at time of order — Mother promptly made motion 2½ years ago to vary quantum of father’s ongoing child support payments and ultimately for retroactive adjustment over past 5 years — There was no contest on quantum of ongoing support but father opposed making of retroactive order — Motion judge reviewed standard factors set out in D.B.S. v.

S.R.G. , 2006 SCC 37 :

(1) Delay by mother: Judge accepted that mother had endured upsetting interval when her own health was in peril and when she had to deal with death of father’s niece for whom she had been caring, during which time she was emotionally thwarted from launching motion to vary — But once she received father’s notice of tax assessment, she acted swiftly in making motion — Judge found no reason to censure mother for not filing her motion until 2½ years ago

(2) Blameworthy conduct by father: Although father eventually provided all notices of tax assessment, he continued to pay merely $178, believing that this was extent of his duty and that it was up to mother to pursue child support order that kept step with increases in his salary — But in view of large gap between what he was paying and what he should have been paying, judge found that any belief that father was meeting his child support obligations was unreasonable

(3) Hardship in child’s circumstances: There was evidence that child underwent hardship since date of original order — She did not receive tutoring that she required or enjoy same standard that pre-teenager would have had if father had paid appropriate amount of child support

(4) Hardship to payor father: Father testified that he and his wife (nurse by profession) were saving to buy home for themselves and their new young daughter — But with combined incomes of father and his wife of at least $134,000, judge rejected argument that father’s payment of retroactive child support could be hardship for him. Judge concluded that circumstances in this case justified retroactive increase in child support payments. STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended],

section 7 . Family Law Rules , O. Reg. 114/99 [as amended], clause 14(6) ( e.2 ) and Form 14B. CASES CITED D.B.S. v. S.R.G. ; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 Cars​well​Alta 976. Rochelle S. Green ........................................................................... counsel for the applicant father Christopher J.

Crowe ................................................................. counsel for the respondent mother [ 1 ] JUSTICE P.W. DUNN:— This was a request by Jasmine Hamilton for Dwayne Rumble to pay child support retroactive to January 2006 and to contribute to special expenses. Mr. Rumble was opposed to any retroactive child support being awarded. In the alternative, his position was that any retroactivity only regress to 8 November 2008 (date of service on Mr. Rumble of Ms. Hamilton’s motion to change). [ 2 ] In this hearing, the applicant and responding party was Dwayne Rumble.

The respondent and moving party was Jasmine Hamilton. (Mr. Rumble was erroneously shown as an applicant and should have been designated as a respondent. Ms. Hamilton likewise, called a respondent, ought to have been described as an applicant.) They are the parents of Destiny Hamilton-Rumble (Destiny), born on 7 February 1998, now thirteen. The parties never married. They have not spoken to each other for several years even about important issues involving their daughter. [ 3 ] These proceedings were initiated originally in 2005 when Ms. Hamilton was an applicant and Mr. Rumble, the respondent. Ms.

Hamilton then sought orders for custody, child support and special expenses. Final orders were granted on 24 March 2005 (the 2005 orders) by Justice James D. Karswick. Ms. Hamilton was awarded custody and Mr. Rumble received access. Mr. Rumble was required to pay $178 a month child support for one child, Destiny, based on his 2004 income of $21,000. He was also obliged by the orders to give Ms. Hamilton a copy of his annual notice of assessment (or “notice”) by 1 June in each year. His first notice would have been due on 1 June 2006 for the 2005 taxation year. At the time of the 2005 orders, Mr.

Rumble was employed at Supply Chain Management. [ 4 ] Mr. Rumble has always complied with child support orders. [ 5 ] Mr. Rumble sent Ms. Hamilton his notice of assessment in 2006 for the 2005 taxation year. That notice indicated that his income for 2005 was $26,113. Ms. Hamilton did not bring a motion to change regarding Mr. Rumble’s increase in salary for 2005 ($26,113 vs. $21,000). She was aware that Mr. Rumble was providing some extras to Destiny and that might explain her lack of action. [ 6 ] In 2005, Mr. Rumble continued employment at Supply Chain Management until October 2005 when he quit.

However, six months earlier, in May 2005, he began to work for the Toronto Transit Commission (“TTC”) in track maintenance.

[ 7 ] In 2006, Mr. Rumble’s income with the TTC increased rather significantly to $46,354. It was Ms. Hamilton’s evidence that she did not know about Mr. Rumble working for the TTC, nor his increased salary, because, in 2007, she did not receive his notice of assessment for 2006. [ 8 ] Ms. Hamilton admitted that she did not request the notice in 2007 for the 2006 year, because she was preoccupied with the following: • a personal diagnosis with thyroid cancer and ensuing treatments; • Mr. Rumble’s niece died, for whom Ms. Hamilton was providing care; • Ms. Hamilton had a newborn son; • Ms.

Hamilton was addled by financial woes. [ 9 ] It was Mr. Rumble’s evidence that he did send Ms. Hamilton his annual notices of assessment. Ms. Hamilton said that, if she had received Mr. Rumble’s notice of assessment in 2007 for the 2006 year, despite her many troubles, she would have brought a motion to change. The 2006 income for Mr. Rumble ($46,354.) was over twice the quantum of his 2004 income, upon which the 2005 order was based. [ 10 ] By April 2007, Mr. Rumble’s financial circumstances improved yet again.

Now as a mechanic with the TTC, he was earning $66,473 as opposed to $46,354 that he received in the previous year in 2006. Mr. Rumble did not advise Ms. Hamilton of his employment at the TTC, nor about his enhanced income. [ 11 ] When Ms. Hamilton’s personal circumstances improved in 2008, she requested from Mr. Rumble his notice of assessment for 2007, which she received sometime after June 2007 when it should have been forwarded. This notice indicated Mr. Rumble’s income for 2007 as being $66,473. Ms.

Hamilton then launched this motion to change dated 28 October 2008 (served on 8 November 2008) that was before this court. [ 12 ] Ms. Hamilton’s motion to change requested that Mr. Rumble pay child support of $615 a month from 1 November 2008, based on the latest income statement about which she knew, $66,473. Ms. Hamilton also sought contribution for special expenses. [ 13 ] In Mr. Rumble’s response, sworn on 26 November 2008, he acknowledged an income of $66,473 (for 2007) but only offered to pay $500 monthly, and to start on 30 January 2009.

His reason for wishing to pay less than the child support prescribed by the Child Support Guidelines , O. Reg. 391/97. as amended, was that he paid for Destiny’s clothing, shoes, school activities, hair dressing appointments, food, and he claimed that he had access over fifty percent of the time in the summer. In his response, Mr. Rumble sought joint custody and increased access. [ 14 ] When Ms. Hamilton brought her motion to change in October 2008, she only knew about Mr. Rumble’s 2007 income of $66,473. Mr. Rumble did not tell her that his actual 2008 income was $84,937. To Mr.

Rumble’s credit, however, in his response, he said his 2008 income was expected to be $79,000. It seems Ms. Hamilton did not act upon Mr. Rumble’s acknowledgement of a $79,000 income in 2008. She was not legally represented at the time. Mr. Rumble did not volunteer to pay support based on his 2008 income — only on his reduced 2007 income. [ 15 ] On 10 February 2009 at the parties’ first case conference, on consent, there was a temporary order for Mr. Rumble to pay support of $615 monthly from 1 February 2009 (based on his 2007 income of $66,473). Mr.

Rumble’s notice of assessment for 2008 was not available at the 10 February 2009 case conference, but he chose not to volunteer information about his 2008 nor his 2009 incomes. At this conference, the issue of retroactive child support was raised but without specificity of a commencement date. Ms. Hamilton requested Mr. Rumble to contribute to the cost of tutoring, swimming, Girl Guides and martial arts. At this conference, the record was endorsed: . . . [Mr. Rumble] should have been paying child support since the original orders were made in 2005, based on his income at any given time. . . .

Hence there is an issue of retroactivity in child support that will not be addressed today, but the parties should be aware that it is an issue. . . . Inter alia , the case was adjourned for Ms. Hamilton to consider what she would be requesting by way of retroactive child support. [ 16 ] There were several case conferences after the first on 10 February 2009 that dealt with issues in this case.

(1) On 28 May 2009, when the parties were represented by their present counsel, the court endorsement was “The parties are to respond promptly to reasonable requests for production”.

(2) At the trial management conference on 11 February 2010, the issues for trial were: • Mr. Rumble’s request for joint custody and increased access; • Ms. Hamilton’s appeal for Mr. Rumble to contribute to special expenses. There was no mention in this endorsement of the adequacy of financial disclosure nor child support being an issue. Ongoing child support would not be problematic, because with Mr. Rumble’s regular employment and sufficient financial disclosure, the appropriate quantum of support could be ascertained readily.

(3) On 22 June 2010, there was a further trial management conference. The issues identified for trial then were access, child support retroactivity and payment of arrears.

(4) On 31 August 2010 at a case conference, there were final orders for Mr. Rumble to have access, and no further mention was made of his interest in having joint custody. Both parties were required to give specified financial disclosure. There was a temporary order for Mr. Rumble, on consent, to pay child support of $777 a month from 1 September 2010, based on his 2009 income of $87,388. [ 17 ] The issues from that point left to be decided in a trial were:

• to identify Ms. Hamilton’s special requests and whether there should be retroactivity for them; and • to confirm Mr. Rumble’s present income and to deal with Ms. Hamilton’s claim for retroactive child support. At this conference, there was no mention of Mr. Rumble’s 2010 income, although both parties were represented. Mr. Rumble’s last financial statement filed was sworn on 27 October 2010 and indicated an income of $79,317. for 2010.

He did not file an updated financial statement nor an affidavit to state no change from his last financial statement, as Rule 13(12) required him to do. [ 18 ] On the second (and last) day of trial on 15 February 2011, Mr. Rumble produced his 2009 income tax return, even though it was requested much earlier. In his evidence at trial, Mr. Rumble acknowledged that his 2010 income is $84,000, which I will accept for purposes of this hearing. [ 19 ] At trial, Mr. Crowe brought an oral motion on behalf of Ms. Hamilton to claim retroactive child support from January 2006, which was much earlier than that claimed in Ms.

Hamilton’s motion to change, namely to 1 November 2008. The motion was opposed vigorously by Ms. Greene, who advocated no retroactivity but, if there had to be, then no earlier than 1 November 2008. [ 20 ] The case of D.B.S. v. S.R.G. ; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 Cars​well​Alta 976 (herein called D.B.S. v.

S.R.G. ) was relied upon by both counsel as authority for their respective positions. [ 21 ] The first issue regarding Ms. Hamilton’s request for retroactive child support was whether she should be faulted for not bringing her motion to change until October 2008. [ 22 ] Paragraph [100] in D.B.S. v. S.R.G. stated that the circumstances surrounding a support recipient’s delay in bringing a motion to change is crucial in determining whether retroactive support will be awarded. [ 23 ] The facts revealed that Ms. Hamilton received Mr. Rumble’s notice of assessment in 2006 for the year 2005. Ms.

Hamilton did not bring a motion to change in 2006, because she did not believe that Mr. Rumble’s income in 2006 was substantially larger than in 2005. Then in 2007, Ms. Hamilton was not made aware of Mr. Rumble’s enhanced income in 2006. Ms. Hamilton’s evidence was that 2007 was a very upsetting year for her, with her own health in peril and the death of Mr. Rumble’s niece. Paragraph [101] in D.B.S. v. S.R.G. stated: [101] . . . a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring a [motion to change] or was given inadequate legal advice: . . . Ms.

Hamilton was not represented until 2009 and I find that she was emotionally thwarted in 2007 from bringing a motion to change. There will also be a finding that Ms. Hamilton acted with appropriate dispatch in bringing her motion to change in October 2008, after she received Mr. Rumble’s notice of assessment for 2007 late in 2008. [ 24 ] In conclusion on this part of the test for considering whether to award retroactive child support, Ms. Hamilton should not be censured for not filing her motion until October 2008. [ 25 ] The next consideration is the conduct of the support payor, Mr. Rumble.

It is important that he be given credit for serving Ms. Hamilton with his notices of assessment for the relevant years. However, Mr. Rumble believed that service of these notices was his only duty; if Ms. Hamilton wanted increased support, he thought she should be required to return to court to obtain another order. Ought Mr. Rumble to have made increased support payments when he received increased salaries? Paragraph 108 in D.B.S. v. S.R.G. states: [108] . . . a payor parent who does not increase support payments automatically [when his or her income rises] is not necessarily engaging in blameworthy behaviour.

Whether a payor is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct.

In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met. [ 26 ] Using this test, it should have been apparent to Mr. Rumble that there was a large discrepancy between what he had been paying and that which he should have been paying. It cannot be said that Mr. Rumble had a reasonable belief that he was meeting his child support obligations. [ 27 ] Resuming paragraph 108 in D.B.S. v. S.R.G. : [108] . . .

Equally . . . a court should consider the previous court order . . . that the payor parent was following. Because the order . . . is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order, and not disclosing a revised ability to pay. [ 28 ] There was a pronounced change in circumstances when Mr. Rumble commenced employment at the TTC.

From that point onwards, it was not reasonable for him simply to pay $178 monthly child support pursuant to the 2005 order, which was based on an income of $21,000.

[ 29 ] A court must consider the child’s circumstances in deciding whether to award retroactive child support. If the child does not get a clear benefit from retroactive child support being awarded, or in other words, if the award principally would be a windfall to the recipient, then retroactive child support is unlikely. [ 30 ] It was clear that Destiny underwent hardship in the years since the 2005 order. She did not receive the tutoring she required, nor did she enjoy the same standard that a pre-teenager would have had if the appropriate child support had been paid. [ 31 ] The case of D.B.S. v.

S.R.G. requires a court to consider whether a retroactive award would cause a hardship to a support payor. Mr. Rumble testified that he and Mrs. Rumble were saving to buy a house for themselves and their new young daughter. That does not qualify as a consideration in a hardship argument. With the combined incomes of Mr. Rumble and his wife of at least $134,000, I cannot conclude it would be a hardship for Mr. Rumble to pay retroactive child support. [ 32 ] I refer now to the conclusion in paragraph [132] of D.B.S. v.

S.R.G. : [132] In the context of retroactive child support, this means that a parent will not have fulfilled his/her obligation to his/her children if (s)he does not increase child support payments, where his/her income increases significantly. Since the applicant did not increase child support payments when his income increased significantly, this court will order retroactive child support. [ 33 ] There must now be a consideration of how far in the past a retroactive child support order in this case should reach. The majority of judges in D.B.S. v.

S.R.G. ruled that usually a party could claim retroactive child support for three years before effective notice has been given to a support payor by the support recipient. In this case, notice was when Mr. Rumble was served with the motion to change on 8 November 2008. Such reasoning would allow a claim for the years 2006 and 2007, and I believe that to be appropriate. The applicant will also owe arrears for the years 2008 to 2010 inclusive, because he knew from November 2008 of Ms.

Hamilton’s claim for retroactive child support. 2006 Income: $46,354 Month Amounts Paid Amounts Owed Balance January $178 $428 February $178 $428 March $178 $428 April $178 $428 May $178 $428 June $178 $428 July $178 $428 August $178 $428 September $178 $428 October $178 $428 November $178 $428 December $178 $428 TOTALS $2,136.00 $5,136.00 $3,000.00 2007 Income: $66,473 Month Amounts Paid Amounts Owed Balance January $178 $615 February $178 $615 March $178 $615 April $178 $615 May $178 $615 June $178 $615 July $178 $615 August $178 $615 September $178 $615 October $178 $615 November $178 $615 December $178 $615 TOTALS $2,136.00 $7,380.00 $5,244.00 2008 Income: $84,937 Month Amounts Paid Amounts Owed Balance January $178 $758.00 February $178 $758.00 March $178 $758.00 April $178 $758.00 May $178 $758.00 June $178 $758.00 July $178 $758.00

August $178 $758.00 September $178 $758.00 October $178 $758.00 November $178 $758.00 December $178 $758.00 TOTALS $2,136.00 $9,096.00 $6,960.00 2009 Income: $87,388 Month Amounts Paid Amounts Owed Balance January $178 $778 February $615 $778 March $615 $778 April $615 $778 May $615 $778 June $615 $778 July $615 $778 August $615 $778 September $615 $778 October $615 $778 November $615 $778 December $615 $778 TOTALS $6,943.00 $9,336.00 $2,393.00 2010 Income: $84,000 Month Amounts Paid Amounts Owed Balance January $615 $751 February $615 $751 March $615 $751 April $615 $751 May $615 $751 June $615 $751 July $615 $751 August $615 $751 September $777 $751 October $777 $751 November $777 $751 December $777 $751 TOTALS $8,028.00 $9,012.00 $984.00 Arrears Year Amount 2006 $3,000 2007 $5,244 2008 $6,960 2009 $2,393 2010 $984 TOTAL $18,581 [ 34 ] The case of D.B.S. v.

S.R.G. in paragraph [109] stated that retroactive child support may not be appropriate where a support payor pays for extras for a child’s benefit. Mr. Rumble claimed that he did provide money other than child support to Ms. Hamilton: • He said he paid $3,000 for a bedroom set for Destiny, but he had no proof of payment. Ms. Hamilton denied that such a benefice was received. She believed Mr. Rumble was referring to a receipt for $2,954 for a couch and camcorder bought at a store. • Mr. Rumble claimed he gave money to Ms. Hamilton to travel to Jamaica and St.

Vincent and to pay for a speeding ticket. • He provided clothing and food for school to Destiny. • He gave $4,000 in cash to Destiny to give to Ms. Hamilton. [ 35 ] Mr. Rumble alleged that proof of these expenditures was in a journal that used to travel with Destiny on access exchanges. There was no evidence that Mr. Rumble requested the journal from Ms. Hamilton. Mr. Rumble said his mother was a witness to his largesse to Ms. Hamilton, but he did not call his mother as a witness. I found that Mr. Rumble was unable to establish any proof of any money paid direct to Ms. Hamilton for Destiny’s benefit.

Hence, no credit will be given to Mr. Rumble for any money he claimed that he advanced for his daughter’s benefit. [ 36 ] Turning now to Ms. Hamilton’s request for Mr. Rumble to contribute to special expenses. Co-operative parents can discuss whether certain activities would benefit their child; for example, whether the child has the time and the inclination for the

activity, and whether the parents can afford the costs. In this case, Ms. Hamilton and Mr. Rumble have not talked to each other in years. Hence, there was no unanimity on special expense items. The following were the special activities proposed by Ms. Hamilton. Martial Arts [ 37 ] Ms. Hamilton requested Mr. Rumble to contribute to the cost of $316 a month from September to June in each year. It was Ms. Hamilton’s evidence that she did not want Destiny to engage in this activity, but she would go along with it because Destiny requested it. Very little more was said by Ms. Hamilton to support her request. Mr.

Rumble was opposed to the request because he said that Destiny did not say that she was interested in this activity and she did not know about martial arts. [ 38 ] Following the reasoning in

section 7 of the Child Support Guidelines , I do not find that the cost of martial arts is in Destiny’s best interests, especially given that she needs to apply herself in school to compensate for some academic deficiencies. I also do not find that $316 a month is reasonable, given the parties’ means and Mr. Rumble’s obligation to pay child support arrears. Swimming [ 39 ] The cost would be $38 a month for twelve months. Ms. Hamilton wanted Destiny to have professional swimming instruction, so she could eventually qualify as a lifeguard and earn a summer income. [ 40 ] Mr.

Rumble said that his mother had a swimming pool at her residence and that he could teach his daughter there to swim. Also, he was opposed to any limitation on his access caused by the swimming lessons. [ 41 ] The expense seems reasonable, given the parties’ means and the benefit that the instruction could give to Destiny’s future. Considering the disparity between the parties’ incomes, the contribution by Ms. Hamilton would be so minimal that it would be appropriate for Mr. Rumble to pay the full cost of the swimming lessons. [ 42 ] I had no sympathy for Mr.

Rumble’s concern that the time spent in swimming lessons should not derogate from his access times. As a child ages and becomes interested in activities apart from parents, the parents must accept that the child benefits from time spent in other activities. Tutoring [ 43 ] The projected cost was $160 a month all year. Destiny’s former tutor principally assisted her in French, but also in mathematics and English. The tutoring ended a year ago, because Ms. Hamilton could not afford the cost. She testified that the child was receiving poor marks in communications, writing, mathematics and French. Ms.

Hamilton was promoting the possibility of Destiny’s becoming bilingual for future employment opportunities. Ms. Hamilton believed that the tutoring that Destiny did receive helped to improve her marks. [ 44 ] Mr. Rumble was opposed to making any contribution to tutoring. He said that his wife spoke French and she could assist Destiny in learning the language. He believed that he could train his daughter in other academic areas where she was behind. [ 45 ] I conclude that professional tutoring from a trained teacher would be in Destiny’s best interests and that both parties will be required to contribute to it.

Based on Ms. Hamilton’s income of $10,300 and Mr. Rumble’s income of $84,000, Mr. Rumble should pay $142 monthly and Ms. Hamilton’s share will be $18 a month. [ 46 ] Finally, a snapshot will be given of the parties’ present circumstances. Ms. Hamilton, aged thirty-six, lived alone with Destiny in relative poverty. Destiny’s mother’s thyroid cancer was in remission, but she receives check-ups every three to six months. She had not worked since she was laid off two years ago. Ms. Hamilton busied herself meeting Destiny’s and her other child’s needs. [ 47 ] Mr.

Rumble, aged thirty-five, married Vanessa Rumble about three years ago. They have a child, Mia Rumble, born on 23 September 2009. Ms. Rumble, a nurse, had been on maternity leave from April 2009 until September 2010. Mr. Rumble was vague about his wife’s income, but allowed as how it might have been in the $50,000 range. Orders: [ 48 ] The court’s orders are as follows: 1. Order for Mr. Rumble to pay child support of $751 a month from 1 January 2011 and regularly monthly thereafter. Payments to the Family Responsibility Office. A support deduction order shall issue. This order is based on Mr.

Rumble’s acknowledged annual income for 2010 of $84,000 and the guidelines specify that the support payable for one child would be $751 a month. 2. Arrears owing for the years 2006 to 2010, inclusive are fixed at $18,581. 3. Mr. Rumble shall pay $150 a month towards the arrears beginning on 1 January 2011 until the arrears are paid in full. 4. Mr. Rumble shall pay $38 a month for swimming lessons for Destiny from 1 April 2011 and regularly monthly thereafter. Payments to the Family Responsibility Office. 5. Ms. Hamilton will provide proof to Mr.

Rumble that Destiny’s swimming instruction fees cost $38 monthly and that Destiny receives regular swimming instruction. If Ms. Hamilton does not prove to Mr. Rumble within a reasonable length of time that Destiny’s swimming instruction costs $38 monthly and that Destiny receives regular swimming instruction, Mr. Rumble may bring a 14B motion [1] to court, on notice to Ms. Hamilton, seeking an order to terminate his requirement to pay $38 monthly for swimming instruction for Destiny.

6. Mr. Rumble shall pay $142 a month for tutoring for Destiny, from 1 April 2011 and regularly monthly thereafter. Payments to the Family Responsibility Office. (Total monthly tutoring cost is $160 with Ms. Hamilton’s share being $18 a month and Mr. Rumble’s share being $142 a month, based on Ms. Hamilton’s income of $10,300 and Mr. Rumble’s income of $84,000.) 7. Ms. Hamilton will provide proof to Mr. Rumble that she is paying her monthly share of the tutoring cost of $18 and that the total monthly tutoring cost is $160 a month and that Destiny attends for tutoring classes. If Ms.

Hamilton does not provide that proof to Mr. Rumble within a reasonable length of time, Mr. Rumble may bring a 14B motion to court, on notice to Ms. Hamilton, seeking an order to terminate his requirement to pay $142 a month for tutoring for Destiny. 8. On 1 June 2011, and on the first day of each June thereafter, Mr. Rumble will serve Ms. Hamilton with a notice of assessment or reassessment for the preceding year. The person serving Ms. Hamilton will swear an affidavit of service and deliver that affidavit to Mr. Rumble for his records. [ 49 ] I am grateful to Mr. Crowe and Ms.

Greene for their careful preparation of their client’s case.