Manzanera v. Rayo, 2011 ONCJ 725

Milton Registry No. 48/11 DATE: 2011·XI·08 CITATION: Manzanera v. Rayo , 2011 ONCJ 725 ONTARIO COURT OF JUSTICE BETWEEN: MARIA deLOURDES CHAVES MANZANERA Applicant — AND — GUILLERMO PEDRO ALBERTO ARNAIZ RAYO Respondent Before Justice Sheilagh O’Connell Heard on 21 October 2011 Reasons for Judgment released on 8 November 2011 Mr. Marty Klein .......................................................................................... for the applicant Guillermo Arnaiz Rayo.............................................................................. on his own behalf JUSTICE S.M.

O’CONNELL: 1: INTRODUCTION: [ 1 ] The applicant mother commenced an application for custody, access, child support, and orders permitting the mother to obtain a passport for the child and to travel outside of Canada with the child without the consent of the father. The application was amended at the mother’s request on October 8, 2011 to include a claim for retroactive child support and

section 7 expenses. [ 2 ] The parties resolved the issues of custody, access, travel, and ongoing basic child support at the case conference and settlement conferences in this matter. The outstanding issues for my consideration are the mother’s claim for retroactive child support and for contribution towards the child’s

section seven expenses. [ 3 ] The parties filed affidavits and financial statements that, by agreement, formed the parties’ direct evidence at trial. No other witnesses were called. 2: APPLICANT’S POSITION: [ 4 ] The mother seeks an order that child support be made retroactive to January 1, 2009 and that the father pay one-half of the child’s schooling at the Oxford Learning Milton Academy between September 2011 and June 30, 2012. The mother calculates that the retroactive child support owed by the father since January 1, 2009 is $19,647.00.

However, she is prepared to accept a retroactive award in the amount of $10,000.00. She is also prepared to accept $3,540.00 towards the child’s schooling at Oxford Learning, even though the total expense is $4,250.00. Finally she seeks costs of $2,500.00. The total amount that the mother is seeking, therefore, including costs, is $16,040.00.

She proposes that if the court grants the mother’s request, then the amount ordered should be paid at a rate of $265.00 per month, in addition to the basic child support payable. 3: RESPONDENT’S POSITION: [ 5 ] The father submits that the mother’s claim for retroactive child support and

section 7 expenses should be dismissed. He submits that he simply cannot afford to pay more than the child support he is currently paying, and that any retroactive award or payment of

section 7 expenses will cause him considerable hardship. The father did not plead undue hardship in his answer, pursuant to

section 10

of the Child Support Guidelines. He is claiming hardship as one of the factors the court must consider in determining retroactive support. 4: BACKGROUND FACTS: [ 6 ] The parties were married on January 11, 1997 and separated in January of 2002. They were divorced on June 12, 2003. [ 7 ] There is one child of the marriage, Laura Arnaiz Manzanera, (“Laura”) born February 29, 1999. Laura is now 12 years old. [ 8 ] After the parties separated, Laura continued to reside with the mother.

The father voluntarily paid child support to the mother in the amount of $300.00 per month, pursuant to a verbal agreement between the parties. Additionally, he paid for one-half of Laura’s special and extraordinary expenses. [ 9 ] In January of 2009, without notice, the father stopped paying child support and special expenses for Laura. He chose not to pay any child support from that date until the mother commenced this application. [ 10 ] The mother issued this application on January 27, 2011. On October 5, 2011, the parties resolved the issues of custody, access and ongoing child support on a final basis.

The father agreed to pay ongoing child support to the mother in the amount of $598.00 per month, commencing December 1, 2011. [ 11 ] The father has been employed at Loxcreen Canada Limited for almost 30 years as a receiving manager and at Hertz- Canada for approximately three years. He earned $65,053.61 in 2010.

The parties agreed to use his 2010 income to calculate ongoing child support. [ 12 ] It is not disputed that the father’s reported income from 2007 to 2010 was the following: 2007 Assessment $64,589.00 2008 Assessment $59, 235.00 2009 Assessment, pre- and post-bankruptcy $63,620.00 2010 Assessment $65,053.00 [ 13 ] The father remarried in 2008 and he is currently supporting his new wife and step-son, both of whom he sponsored to come to Canada in March of 2008. The father’s new wife is currently learning English, although she suffers from severe migraines and is not capable of working, according to the father.

The step-son is also learning English and looking for part-time employment. The father’s new wife and his step-son remain financially dependent upon him. [ 14 ] The mother is employed at Community Living in Mississauga, Ontario and earned $51,320.00 in 2010. She lives with her common law spouse and Laura. The mother’s new partner’s income was not disclosed in these proceedings. [ 15 ] In June of 2011, the mother enrolled Laura in the Oxford Learning Milton Academy. Laura was having great difficulty in many of her courses in the public school system.

According to Laura’s Education Assessment Results from the Halton Catholic District School Board, Laura was performing significantly “below average”. [ 16 ] The mother arranged for further assessments of Laura through the Oxford Learning Centre, which confirmed that Laura had some significant learning difficulties.

According to the evidence filed, which is not disputed by the father, since Laura has been enrolled at the Oxford Learning Milton Academy, Laura’s grades, as well as her general outlook regarding school and her self- confidence have improved significantly and she is doing very well. [ 17 ] The cost of the Oxford Milton Academy is $850.00 per month for ten months or $8,500.00 annually. The mother has arranged for a line of credit to pay for one year of Laura’s schooling. 5: THE LAW: The Claim for Retroactive Child Support: [ 18 ] The Supreme Court of Canada in 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 CarswellAlta 976, (the “ D.B.S .” cases) held that there are three separate situations in which it may be appropriate for a court to order that a retroactive award be paid: 1. awarding retroactive support when there has already been a court order for child support to be paid; 2. awarding retroactive support when there has been a previous agreement between the parties; 3. awarding retroactive support where there has not already been a court order for child support to be paid. [ 19 ] This case clearly falls into the third category.

The court in D.B.S . sets out the factors that a court should take into account in addressing retroactive claims for child support. There are four factors that the court raised:

1. Is there a reasonable excuse for why support was not sought earlier? 2. The conduct of the payor parent. 3. The circumstances of the child. 4. The hardship on the payor as a result of the retroactive order . [ 20 ] The court provided further guidance in considering these four factors as follows: 1. Reasonable excuse for the delay in applying for retroactive support: A delay will generally be unreasonable when the recipient knew higher support payments were warranted but decided not to apply.

However, the court should not hesitate to find a reasonable excuse for the delay where the recipient spouse harbored justifiable fears of the payor’s reaction, the recipient lacked the financial or emotional means to bring an application or the recipient was given inadequate legal advice. The difference between a reasonable and unreasonable delay is often determined by the conduct of the payor. 2. The Conduct of the Payor : The court should take an expansive view of what constitutes blameworthy behavior on the part of the payor.

Blameworthy conduct can be characterized as anything that privileges the payor’s own interests over the children’s right to an appropriate amount of support. The payor cannot mislead a recipient into believing that the child support obligations are being met when they are not being met. On the other hand, a payor who does not automatically increase support payments is not necessarily engaging in blameworthy conduct. A reasonably held belief by the payor that he was meeting his obligations is a good indicator that there is no blameworthy conduct. 3.

The Circumstances of the Child: The court must consider both the present and past circumstances of the child. A child who went through hardship due to not being properly supported may be compensated. However, the argument is less convincing when the child has already enjoyed all of the advantages they would have enjoyed if the payor had been properly supporting them. Further, a child currently enjoying a high standard of living may benefit less from a retroactive award than a child currently in need. 4.

Hardship for the Payor: In determining whether a retroactive award will cause hardship for the payor, the court needs to consider more than the payor himself, and must also consider his children from a second family, if any. The court should be careful to craft a retroactive award in a way that minimizes hardship. [ 21 ] None of these factors are decisive or take priority. All should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances in front of it.

The payor’s interest in certainty must be balanced with the need for fairness and flexibility. [ 22 ] Once a court decides to make a retroactive award, it must then determine the amount.

There are two elements to this decision: first, the court must decide when the order should be retroactive to and second, the court must decide the amount of support that would adequately quantify the payor’s deficient obligations during that time. [ 23 ] The court should generally make the award retroactive to the date the recipient gave effective notice to the payor that support was being sought or the current amount needs to be renegotiated.

Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair. However, once the issue is raised, the recipient must still be responsible in moving the discussion forward.

If she does not, legal action should be contemplated. [ 24 ] It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor, subject to the exception for blameworthy conduct. However, where the payor has engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive date of the award. It will then be open to the court to determine the quantum. The

Section 7 Expense:

[25] The mother’s claim for special or extraordinary expenses is brought under

section 7 of the Child Support Guidelines: 7. Special or extraordinary expenses. --

(1) In an order for the support of a child, the court may, on the request of either parent orspouse or of an applicant under

section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, whichexpenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and thereasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of theparents or spouses in respect of the child during cohabitation:

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

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, occupationaltherapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child'sparticular needs;

e) expenses for post-secondary education; and

f) extraordinary expenses for extracurricular activities. [26] The definition of “Extraordinary expenses” is set out at section 7 (1.1) of the Guidelines:

(1.1) Definition, "extraordinary expenses". -- For the purposes of clauses (1)(

d) and (f),"extraordinary expenses" means: (

a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover,taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or,where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,or (

b) where clause (

a) is not applicable, expenses that the court considers are extraordinary taking into account, (

i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount thatthe parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate,the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child, (iv) the overall cost of the programs and activities, and (

v) any other similar factors that the court considers relevant.

(2) Sharing of expense. -- The guiding principle in determining the amount of an expense referred to in subsection (1) is that theexpense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution,if any, from the child.

(3) Subsidies, tax deductions, etc. -- Subject to subsection (4), in determining the amount of an expense referred to in subsection(1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and anyeligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. [27] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within oneof the categories under

section 7 and that the expenses are necessary and reasonable, having regard to the parental financialcircumstances. See Park v. Thompson, , 77 O.R. (3d) 601, 197 O.A.C. 158, 252 D.L.R. (4th) 730, 13 R.F.L. (6th)415, [2005] O.J. No. 1695, 2005 CarswellOnt 1632 (Ont. C.A.). [28]

Section 7 also requires that the expense be reasonable in relation to the means of the parents and those of the child and to the family's spending pattern prior to the separation. See Correia v. Correia, [2002] M.J. No. 248, 2002 MBQB 172, 29 R.F.L. (5th) 28.In that case, Justice Allen set out a number of factors to be taken into account in determining the reasonableness of a s. 7 expense: 1) the combined income of the parties; 2) the fact that two households must be maintained;

3) the extent of the expense in relation to the parties' combined level of income; 4) the debt position of the parties; 5) any prospects for a decline or increase in the parties' means in the near future; and 6) whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred. 7: ANALYSIS: Retroactive Child Support: [29] The mother delayed in bringing her court application for two years after the father unilaterally stopped paying childsupport.

She states that there are two reasons for this delay: 1) the father stopped communicating with the mother after he remarried in 2008 and advised the mother that all communicationregarding Laura should occur through his new wife only. The mother states that she repeatedly tried to communicate with the father afterhe stopped paying child support and she was accused of harassment.

The mother states that she felt humiliated and intimidated by thefather and his new wife and that she did not want to communicate with the new wife regarding Laura; 2) the mother did not have the financial means to start a court action until 2010, when she retained her current counsel. [30] The father admitted during the course of the hearing that once he remarried, he requested that all communication aboutLaura be with his new wife and not him because he did not want to be “harassed” at work. [31] I find that the mother’s request for child support retroactive to two years before the start of her application is reasonable,balancing the factors in D.B.S.

Although the mother did delay in bringing her application, I accept her explanation. Further, any concernsthat I have with the mother’s delay is far outweighed by the father’s blameworthy conduct. The father was aware of his child supportobligation and he unilaterally, without notice, stopped paying all child support in 2009. The father could not, by any stretch of theimagination, have reasonably believed that he was meeting his child support obligation.

He chose not to pay any child support untilAugust of 2011, after the mother started her application and the court ordered him to do so. [32] The father claims that he declared bankruptcy in January of 2009 and that he had no additional money to pay childsupport. However, his 2009 pre and post bankruptcy income was $63,620.00. There is no excuse for the complete termination of childsupport to Laura in 2009, 2010 and for most of 2011.

The child has also clearly been disadvantaged by the father’s non-payment of childsupport. [33] The father claims very significant hardship and that he simply cannot pay a retroactive award. The court recognises that alarge lump sum retroactive award would create hardship to the father. According to the father’s financial statement and his evidence, thefather still has significant debt, or has accumulated further debt, despite his bankruptcy. Some of this debt arises out of his relationshipwith the mother as he assumed a joint debt of $13, 509.00 at the time of the parties’ separation.

However, the majority of the debt has noconnection to the mother or Laura and arises out of his new relationship with his current wife and step-son. That debt totalsapproximately $337,000.00. Further the father claims his current expenses to support his new wife and step-son total approximately$6,719.00 per month, according to the

schedule he submitted at the hearing. [34] In determining hardship for the payor, D.B.S. makes clear that the court needs to consider more than the payor himself,and must also consider any children from a second family. Here, the father supports his current wife and step-son and appears to havelittle disposable income. However, the father would not be facing such a large retroactive award if he had continued to pay child supportto Laura, rather than arbitrarily terminating the support. By choosing to ignore his child support obligation for more than two years, thefather now faces a very large retroactive award.

Further, it is well recognized that a payor’s obligations to his first family generally takespriority over any subsequent obligations to a second family. See Fisher v. Fisher, 2008 ONCA 11 , [2008] O.J. No. 38 (C.A.). [35] A retroactive order for child support will require payment of child support arrears in excess of $19,600.00. Inconsideration of the hardship that the father will experience, the mother has proposed that the arrears be fixed at $10,000.00. In my view,in balancing all of the factors in D.B.S., this is very reasonable and I will make that order.

Any further hardship to the father can beminimized by creating a monthly repayment plan.

Section 7 Expenses: [36] I find that the educational expense at Oxford Milton Learning Academy is a reasonable, appropriate and necessaryexpense for Laura and that it meets the definition of an extraordinary educational expense under section 7(1) (

d) of the Child SupportGuidelines. This expense would have been incurred given the parties’ total income and the financial history of the family. However, thefather now has significant debt and is currently experiencing some financial difficulties, given that his current wife and stepson arefinancially dependent upon him.

The mother’s total household income combined with her common law partner is unknown, although itwas acknowledged that the common law partner is contributing to the household. [37] Given these circumstances, the mother proposes that the father contribute approximately 41% towards Laura’s specialeducational expense, payable over a twelve month period, which I find to be very reasonable, considering the factors in Correia, supra. [38] Section 7(2) of the Guidelines sets out that the guiding principle regarding

section 7 expenses is that the expense isshared by the parents in proportion to their respective incomes. However, the court has the discretion to apportion the

section 7 expensein a different manner, depending on the circumstances of the case. See Salvadori v. Salvadori [2010] O.J. No. 4425, 2010 ONCJ 462.

This is an appropriate case to apportion the

section expense in the manner set out above given the father’s current financial circumstances. 8: FINAL ORDER : [ 39 ] The final order will be as follows: 1. The Respondent father shall pay retroactive child support to the mother, to be fixed at $10,000.00, payable at a rate of $100.00 per month, commencing January 1, 2012; 2. The Respondent father shall contribute towards the

section 7 educational expense for Laura at a rate of 41% or a total of $3,750.00 towards the 2011-2012 Oxford Learning Milton Academy expense, to be payable at a rate of $100.00 per month, commencing January 1, 2012. 3. The mother shall provide the father each school term with: proof of the child’s enrolment in the Oxford Learning Milton Academy, copies of invoices, transcripts and school reports regarding the child’s progress. The mother is to immediately notify the father and the Family Responsibility Office if Laura stops attending the Oxford Learning Milton Academy. 4.

The parties shall exchange copies of their income tax returns and notices of assessment, by June 30 th of each, starting in 2012, pursuant to sections 21 and 25 of the Child Support Guidelines and the parents shall adjust child support and

section 7 expenses accordingly; 5. For any future

section 7 expenses: (

i) the mother shall advise the father in writing of the category and the expense; (ii) for any expense claimed by the mother, she shall deliver proof of the expense to the father on a quarterly basis; and (ii) the parents shall share these expenses as follows: the father's shall contribute 41% towards the

section 7 expense until otherwise agreed by the parties or adjusted by the court. 6. A Support Deduction Order shall issue. 9: COSTS : [ 40 ] The mother has been successful in this hearing. She seeks $2,500.00 in legal costs. She has submitted a Bill of Costs from her counsel, who is very experienced, totalling legal fees in excess of $10,000.00. The mother’s claim for costs is very reasonable in the circumstances.

I order that the father pay $2,500.00 in costs to the mother, to be payable no later than 30 days from the date of this order, or at a rate of $100.00 per month, commencing January 1, 2012. [ 41 ] The order for costs shall be enforceable as part of a support order by the Family Responsibility Office. This court has the discretion to determine what part of a legal costs order should be enforceable as part of a support order by the Family Responsibility Office. See Sordi v. Sordi , 2011 ONCA 665 , [2011] O.J. No. 4681 (Ont. C.A.) .

In this case, the mother is only seeking $2,500.00 of her entire legal costs, and the main issues in dispute in this application were child support, retroactive support and

section 7 expense. The designation of $2,500.00 in costs to be enforceable as support is entirely reasonable in the circumstances. Released: 8 November 2011 Signed: “Justice Sheilagh O’Connell”