Delichte v. Rogers, 2013 MBCA 106

Citation: Delichte v. Rogers, 2013 MBCA 106 Date: 20131128 Docket: AF 12-30-07895 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes BETWEEN : ) K. L. Delichte KARYN LYNNE DELICHTE ) on her own behalf ) (Petitioner) Appellant ) J. A. King and ) A. J.

Wheeler - and - ) for the Respondent ) ) Appeal heard: BRENDAN NOEL ROGERS ) May 14, 2013 ) (Respondent) Respondent ) Judgment delivered: ) November 28, 2013 STEEL J.A. [ 1 ] This is an appeal from a variation order with respect to the father’s obligation to pay for specified extraordinary expenses for the two children of the marriage. Facts [ 2 ] These parties were married in 1994 and separated in 2003. They have been before the courts on numerous occasions to settle the terms of their divorce and the care and support of their children.

This is the third time in the last two years that they have been before this court. [ 3 ] Pursuant to a final order dated October 1, 2007, the parties share joint custody of the children, with the mother having primary care and control of the children and the father having specified periods of care and control of the son and final decision making for the son’s extracurricular activities.

By agreement, the father does not have periods of care and control in relation to the daughter. [ 4 ] The father was required to pay the mother extraordinary expenses pursuant to s. 7(1) of the Child Support Guidelines Regulation , Man. Reg. 58/98 (the Guidelines ), “until further order of the court.” In particular, the order recognized the children’s attendance in private school. The father was required to pay extraordinary expenses for private school tuition in the amount of $20,545.32 per year for attendance at Balmoral Hall and St.

John’s Ravenscourt and extraordinary expenses for dance and hockey for a total of $1,931.64 per year. The daughter attended private school from the age of 4 (born 1997), and the son attended private school from the age of 5 (born 2001). [ 5 ] The final order also contained a provision indicating that, if the parties were unable to agree on whether their son “shall continue to attend St.

John’s Ravenscourt, the party seeking to change the school may make application to the Court to determine the issue.” The final order required the mother to advise the father of any changes with respect to the children’s extraordinary expenses.

[ 6 ] In 2010, the mother applied for a variation of the final order as she wished to pursue post-graduate studies in California. The father opposed this variation and also applied to have his obligation to pay s. 7 extraordinary expenses deleted.

The trial judge dismissed the mother’s application to move with the children to California, but also dismissed the father’s application to delete the s. 7 extraordinary expenses. [ 7 ] In 2011, this court overturned the decision of the trial court and allowed the mother to relocate with the children to California, subject to arranging periods of care and control between the father and the son. See Rogers v. Rogers , 2011 MBCA 50 , 268 Man.R. (2d) 77. [ 8 ] The parties were unable to agree on these periods and, therefore, returned to the trial judge who imposed specified periods of care and control.

The mother appealed the nature of those periods of care and control to this court, and that appeal was dismissed. See Delichte v. Rogers , 2012 MBCA 105 . [ 9 ] While this court overturned the trial judge’s decision regarding the mother’s relocation to California, the trial judge’s decision regarding the father’s continuing obligation to pay extraordinary expenses was not appealed and, therefore, remained in effect.

The relocation to California occurred August 22, 2011, and, despite the father’s objection about enrolling the children in private school in California, the mother enrolled them in a private school beginning in September 2011. [ 10 ] In September 2011 the mother filed a motion to have the father’s obligation to pay his proportion of the s. 7 extraordinary expenses adjusted annually based on his earned or imputed income, and the father filed a motion to have his obligation to pay s. 7 expenses terminated effective July 1, 2011, specifically, the tuition for the private school in California and the expenses related to the extracurricular activities of the children.

In April 2012, he filed a second motion to vary asking that the timing of his monthly child support payments be changed. [ 11 ] Following a case conference between the parties in March 2012, the case conference judge set down the father’s notice of motion to be heard, noting, however, that: It was agreed that the court would be asked to determine what the special and extraordinary expenses are and have been for the children from July 1, 2011 … and what [the father’s] contribution to same should be, not just whether his obligation to contribute to the expenses specified in the Final Order of Yard J. should be terminated.

In her motion filed September 1, 2011 (Document 300), [the mother] sought an order that [the father’s] obligation to pay his proportion of s. 7 expenses be adjusted annually based on his earned or deemed income. Each parent’s financial information will be needed for the court to determine these issues. [ 12 ] The mother’s income in 2010 was $14,608.

In 2011, her income was $12,000 in spousal support plus just over $5,000 from part-time employment as a research assistant at the University of Manitoba prior to her relocation to California to pursue post- graduate studies. [ 13 ] The father’s income in 2010 was approximately $279,101 and, in 2011 it was approximately $277,553. In his affidavit, the father stated that he expected his 2012 income to be comparable to the previous years. The father is a bankrupt with a conditional discharge pronounced November 2011.

He can secure his discharge from bankruptcy by making a “balloon payment” of $25,000 within 36 months of November 2011. As of March 2012, the father had not made any payments toward that balloon payment. He has a number of other debts, including a loan from his mother in the amount of $100,000. [ 14 ] Before the variation, the father was paying monthly child support and s. 7 expenses for the two children in the amount of $4,974.08, as well as $1,000 to his ex-wife for spousal support. The father has additional child support payments of $1,589 per month for a daughter born June 2011.

He has also had to assume the cost of transportation to exercise his periods of care and control of his son. Decision of the Variation Judge [ 15 ] As a result of the mother filing her material late, the variation judge refused to hear her motion and adjudicated only the father’s two motions.

However, as noted above, as a result of the agreement reached at the case conference, it was agreed that the court would be asked to determine what the special and extraordinary expenses are and have been for the children from July 1, 2011, and what the father’s contribution should be, “not just whether his obligation to contribute … should be terminated.” [ 16 ] The variation judge pronounced the order in June 2012 following the hearing held in May 2012.

He varied the final order by terminating the payment of any private school tuition fees, effective July 1, 2011 (when the Winnipeg schooling ended), and changed the date of payment of the child support payments from the first of the month to the 22nd of the month. [ 17 ] With respect to the children’s extracurricular activities, the variation judge found that the mother’s evidence was confusing and that the mother had provided insufficient evidence about the expenses and how they related to s. 7 extracurricular

activities.

He deleted all of the s. 7 expenses for extracurricular activities effective July 1, 2011. [ 18 ] The mother now appeals the decision of the variation judge, arguing that he failed to correctly apply the law because he did not find a material change in circumstances before terminating private school tuition for the children, that he failed to appropriately apply the Guidelines , that he misapprehended the evidence and that he was biased against her. [ 19 ] The mother was unrepresented both before the variation judge and before this court. [ 20 ] For the reasons that follow, the appeal is allowed in part because of the errors committed by the variation judge in his decision to terminate the father’s contribution to the extraordinary expense of his children’s private school fees.

The father will continue to pay that extraordinary expense in the amount previously ordered ($20,545.32 Canadian per year). The remaining aspects of the mother’s appeal are dismissed. The Legislation [ 21 ] This was a variation application brought pursuant to s. 17(1) of the Divorce Act (the Act ), the relevant sections of which state: Order for variation, rescission or suspension 17.

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (

a) a support order or any provision thereof on application by either or both former spouses; … …. . . . . . Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. . . . . . Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines. [ 22 ] Pursuant to s. 2(1) of the Act , the “applicable guidelines” for the purposes of determining child support are defined to mean: (

a) where both spouses or former spouses are ordinarily resident in the same province at the time an application for a child support order or a variation order in respect of a child support order is made, or the amount of a child support order is to be recalculated pursuant to

section 25.1 and that province has been designated by an order made under subsection (5), the laws of the province specified in the order, and (

b) in any other case, the Federal Child Support Guidelines ; [ 23 ] Therefore, in the present case, because one of the spouses lives outside of Manitoba and the proceeding was commenced under the Divorce Act , s. 2(1)(

b) applies and the applicable guidelines are the Federal Child Support Guidelines , SOR/97- 175 (the Federal Guidelines ), as amended (see Chambers v. Chambers , 2004 MBQB 239 , 188 Man.R. (2d) 283).

[ 24 ]

Section 7 of the Federal Guidelines state: 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: …. (

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

f) extraordinary expenses for extracurricular activities. Definition of “extraordinary expenses” 7.

(1.1) For the purposes of paragraphs (1)(

d) and ( f ), the term “extraordinary expenses” means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the 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 paragraph (

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 spouse requesting the amount, including the amount that the 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 or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. Sharing of expense 7.

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

The Law What are Extraordinary Expenses? [25]

Section 7 of the Federal Guidelines provides some flexibility because not all family needs are the same. As explainedby Twaddle J.A. for this court in Andries v. Andries (1998), (MB CA), 126 Man.R. (2d) 189 (at para. 11): Explanatory notes attached to the [Federal] Guidelines tell us that the tables are based on economic studies of average spending onchildren in families at different income levels in Canada. This means that the support payable by a non-custodial parent when taken fromthe tables allows for all ordinary expenses of child-rearing.

The Governor-General-in-Council has recognized, however, that there maybe special or extraordinary expenses not allowed for in the tables to which the non-custodial parent should make a contribution. It wasfor this reason that s. 7(1) (reproduced above) was enacted. [26] Expenses are extraordinary if they exceed an amount that the requesting spouse can reasonably cover, taking intoaccount the income of the requesting spouse and any child support received. Thus, the term “extraordinary expense” must be understoodwithin the particular family’s means and circumstances. See Correia v.

Correia, 2002 MBQB 172 at paras. 7, 10, 165 Man.R. (2d) 134;and Holeman v. Holeman, 2006 MBQB 278 at para. 42, 209 Man.R. (2d) 299. If the expenses do not exceed an amount the requestingspouse can reasonably cover, then the court will consider the factors listed in s. 7(1.1)(

b) to determine whether the expenses can still beclassified as extraordinary in the circumstances. [27] On an initial application, the onus is upon the applicant to prove that the claimed expenses fall within one of thecategories listed under s. 7(1) since the categories listed are exhaustive (Graham v. Graham, 2008 MBQB 25 at para. 62, 224 Man.R.(2d) 141). “Extraordinary expenses” for primary or secondary school expenses or educational programs, and “extraordinary expenses”for extracurricular activities are specifically mentioned in s. 7(1)(

d) and (f).[1] [28] Extracurricular activities have been broadly held to include any activity outside the regular school curriculum, althoughnot activities such as family vacations: Raftus v. Raftus (1998), 1998 NSCA 75 , 166 N.S.R. (2d) 179 at para. 22 (C.A.). So,for example, everyday clothing does not fall within s. 7 expenses, although the costs of equipment and uniforms which related to anextracurricular activity may qualify: Walsh v.

Walsh, (NL SC), 2006 NLUFC 7 at paras. 62-64, 254 Nfld. & P.E.I.R.338. [29] When the actual amount of the expense is difficult to ascertain, the expenses may be estimated; however, there must besome evidence to support the estimation of the expenses, otherwise the court cannot determine whether the requesting spouse is able toreasonably cover a totally unknown expense. See Ferguson v.

Thorne, 2007 NBQB 66 at paras. 63-65, 316 N.B.R. (2d) 18. [30] Where a court determines that an amount to cover extraordinary expenses should be awarded, the contribution generallywill be in proportion with the spouses’ respective incomes (s. 7(2)), but not always. The court may order a different contribution,depending on the specific circumstances of the case. See E.K.R. v. G.A.W. (1997), (MB KB), 122 Man.R. (2d) 120at paras. 15-17 (Q.B.).

For example, the courts have occasionally departed from the general rule of contribution in accordance with theparties’ respective incomes in situations where the payor’s access costs are unusually high: Carmichael v. Douglas, 2008 SKQB 320 atparas. 31-32, 56 R.F.L. (6th) 420; Brown v. Hudon, 2004 SKQB 294 at para. 24, 267 Sask.R. 53. [31] As noted by Julien D. Payne & Marilyn A.

Payne, Child Support Guidelines in Canada (Toronto: Irwin Law, 2009) (at234-35): .… Section 7(2) of the Guidelines establishes a guiding principle, rather than a fixed rule or requirement, with respect to the sharing ofspecial or extraordinary expenses that fall within the ambit of section 7(1) of the [Federal] Guidelines. There is, therefore, some judicialflexibility and discretion in the allocation of such expenses, or in their denial.

The court may depart from the general principle of anincome-based pro rata sharing of the child’s expenses where the parents have agreed to equally share the expenses, or where there is asubstantial disparity between the parental incomes, as for example, where one parent’s income is barely sufficient to provide for his orher own needs and the other parent has ample ability to shoulder the expense… [32] In all cases, the decision to order payment of the expenses at all is a discretionary decision, as indicated by the use ofthe word “may” in s. 7(1). See Staples v. Callender, 2010 NSCA 49, 85 R.F.L. (6th) 236.

Extraordinary Expense Must Also be Necessary and Reasonable [33] What must be remembered is that the classification of the expenses as extraordinary is only the first step in determiningthe issue of whether to order the sharing of the expenses. Even if the expenses are classified as extraordinary and they come within one

of the categories listed in the section, the court must still be satisfied that the expenses are reasonable and necessary before ordering the sharing of the expenses. [ 34 ] In determining whether the two-part test of necessity and reasonableness outlined in s. 7(1) has been satisfied, the court is to take the following factors into account: 1. the necessity of the expense in relation to the child’s best interests; and 2. the reasonableness of the expense in relation to a. the means of the spouses and those of the child; and b. the family’s spending pattern prior to the separation. [ 35 ] Courts have generally considered that the test of necessity does not connote only the necessities of life, but, rather, may include things that are “suitable to or proper for his station in life bearing in mind his requirements at the time.” See Hiemstra v.

Hiemstra , 2005 ABQB 192 at paras. 52-53 , 13 R.F.L. (6th) 169. Courts have looked to activities that have aided the child’s development and health. So, for example, participation in sports activities has been held to be necessary in relation to the child’s best interests. See Fong v.

Charbonneau , 2005 MBQB 92 , 194 Man.R. (2d) 45, and Correia . [ 36 ] With regard to private schooling, the British Columbia Court of Appeal, for example, was satisfied that the trial judge correctly considered private schooling to be necessary where both parties affirmed the importance of private Catholic school for their daughters and had serious reservations about public school. This agreement was determined to be “strong evidence to support a finding of necessity in relation to the children’s best interests” ( McDonald v. McDonald , 2001 BCCA 702 at para. 27 , 161 B.C.A.C. 310).

In other cases, the court has been stricter about proving necessity, in particular with regard to tuition for private school. For example, in Steele v. Koppanyi , 2002 MBCA 60 , 163 Man.R. (2d) 268, Helper J.A. determined that “[t]here is no evidence to support a finding that [the child’s] best interests necessitate his attending a private school” (at para. 46), despite the fact that the child had attended private school for several years. [ 37 ] In many cases, the issue of necessity is not really discussed. The lack of discussion about “necessity” was commented upon by MacDonald J. in T.L.S. v.

D.J.M. , 2009 NSSC 79 , 275 N.S.R. (2d) 357, as follows (at para. 48): …. The requirement for evidence from which a conclusion of “necessity” can be made is generally overlooked and this may occur because many parents agree, after separation, to share these expenses proportionally.

This prior agreement may remove the prerequisite that the court determine whether a particular expense is “necessary”. [ 38 ] Furthermore, in many cases, it quickly becomes apparent that the “real” issue is whether the expense is reasonable in relation to the means of the spouses, and whether the expense is reasonable in light of the parties’ spending pattern pre-separation. In that regard, it is necessary to focus on the means of the parties, not just their incomes.

Case law indicates that the means of the parties should be interpreted broadly to include a consideration of all financial resources, including capital assets, income distribution, debt load, third-party resources which impact upon the parties’ means, access costs, obligations to pay spousal or other child support orders, spousal support received, and any other relevant factors (see Leskun v.

Leskun , 2006 SCC 25 at para. 29 , [2006] 1 S.C.R. 920). [ 39 ] The courts have indicated that the following matters can be considered when assessing the reasonableness of the expense in relation to the means of the spouses [2] : • the combined income of the parties; • the fact that two households must be maintained; • the extent of the expense in relation to the parties’ combined level of income; • the debt of the parties; • any prospect for a decline or increase in the parties’ means in the near future; and • whether the non-custodial parent was consulted regarding the expense prior to the expense being incurred. [ 40 ] However, the reasonableness of the expense in relation to the family’s spending pattern prior to the separation is a factor which the court is required to take into account ( s. 7(1) ).

In Correia , Allen J. indicated that “[a]n examination of this factor helps to see if the activity was one which would have been likely to be supported by the parents when together and thus considered by both to be in the child’s best interests” (at para. 25). In Van Deventer v. Van Deventer , 2000 BCCA 9 , 132 B.C.A.C. 186, Prowse J.A., for the court, noted (at para. 17): …. … [The father] was content to have his son attend private school while the parties were together. He cannot point to any change

which has occurred since then which would indicate that this expense is unnecessary or unreasonable. [41] In fact, the pre-separation pattern of spending may assist the court on the issue of reasonableness and necessity evenwhere the expense seems relatively excessive. For example, in Winseck v. Winseck (2008), 235 O.A.C. 38 at paras. 30-31 (S.C.J.), thetrial judge determined that private school expenses which seemed excessive in relation to the incomes of the parties were reasonable inthe circumstances, as the respondent had insisted and the applicant had acquiesced in these expenses since before the separation.

Onappeal, the court determined that the fact that the expenses were a continuation of expenses the parents had funded for many years andthe fact that the parents’ income had not changed all that much was sufficient to support the trial judge’s conclusion. [42] The court should, therefore, consider the family’s lifestyle and activities prior to the separation, although the weightgiven to this factor may have to be re-evaluated in light of the dissolution of the marriage, the fact that there will now be two householdsto support, and the decreased means of the parties (N.M.M. v.

N.S.M., 2004 BCSC 346 at paras. 111-113, [2004] B.C.T.C. 346). Obviously, where the means of the parties have dropped substantially after separation, judicial reliance on the family’s pre-separationspending pattern will be less appropriate. [43] As well, where there has been a history of spending for an extraordinary expense, but that expense has increased to whatcould be considered an unreasonable level, the court may order the payor to contribute to a portion of the expense in recognition of theprior history of spending (Doherty v. Doherty (2001), (ON SC), 19 R.F.L. (5th) 46 (Ont. S.C.J.); Abelson v.

Mitra,2008 BCSC 1197 at para. 95, 59 R.F.L. (6th) 364; and Magee v. Faveri, [2007] O.J. No. 4826 at para. 42 (QL) (S.C.J.)). Also see Iddonv. Iddon, (ON SC), [2006] O.J. No. 237 at paras. 72-80 (QL) (S.C.J.), wherein Corbett J. set a cap of $7,000 annuallyon the amount of the private school expense prior to ordering its apportionment between the parties, and B.B.W.-B. v.

D.M.B., 2005SKQB 462 at paras. 35-38, 271 Sask.R. 151, wherein Smith J. set a cap of $75 per month on the amount the payor had to contribute toextracurricular activities. [44] While it is clear that a lack of consultation with the other spouse does not automatically preclude the properapportionment of an extraordinary expense, it is a factor the judge can take into account when exercising his or her discretion. In somecases, the courts have reduced the payor’s contribution due to the lack of consultation. In Pepin v. Jung, [1997] O.J.

No. 4604 (QL)(G.D.), for example, Aitken J. noted that, although the father had been supportive of his children’s participation in soccer in the past, hewas not consulted about their participation in a more expensive, elite soccer program. At his income level, the father would be forced tomake some financial sacrifices to cover his proportionate share of these increased expenses. In the circumstances, Aitken J. reduced thefather’s proportionate share of the increased expenses, stating (at para. 14): ….

It is one thing for a parent in consultation with his or her children to embark upon significant sacrifices in order to enable the childrento pursue special extracurricular programs. It is another for a parent not to have any say in the decision but to be forced to make suchsacrifices. [45] Ultimately, this is a fact-specific analysis, and the decision as to whether a particular expense will be considerednecessary and reasonable will depend on the facts of the case and the hearing judge’s discretion.

Analysis and Decision Standard of Review [46] The standard of appellate review with respect of support decisions is clear. Support awards are heavily fact-based andinvolve the exercise of considerable discretion by trial judges. Consequently, they must be given deference by appellate courts whensuch decisions are reviewed. As stated by the Supreme Court of Canada in Hickey v.

Hickey, (SCC), [1999] 2 S.C.R.518 (at para. 11): … [A]ppeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension ofthe evidence, or unless the award is clearly wrong. …. [47] This standard of review was confirmed more recently by the Supreme Court in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henryv. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, and has been consistently applied in our court (see Kynoch v.Kynoch, 2013 MBCA 73 at para. 21, 294 Man.R. (2d) 250; and Graham v. Graham, 2013 MBCA 66 at para. 13, for recent examples).

This is equally true of a support decision dealing with s. 7 expenses. [48] Having said this, however, it is also clear that a judge does not have an unfettered discretion to simply decide the caseon the facts and his or her individual consideration of what a just outcome should be. The judge, in exercising his or her discretion, mustapply the applicable principles of law set out in the statute and apply those principles to the facts in a manner consistent with the purposeof the statute. This was made clear in Gosse v.

Sorensen-Gosse, 2011 NLCA 58, 311 Nfld. & P.E.I.R. 76, wherein Wells J.A., for thecourt, stated (at para. 19):

…. While courts and judges tend to speak in terms of discretion being “conferred” by statute, in all but exceptional cases the discretion is not so much conferred upon courts as it is entrusted to courts to give effect to the purposes of the statute, as explicitly stated in, or reasonably to be inferred from, its provisions. Therefore, the reasoning on which its exercise is based cannot be informed by the evidence alone. It must be consistent with furtherance of the statutory purpose. …. [ 49 ] Where an error requiring appellate intervention occurs, the appellate court is given the power, under s. 21(5) (

b) of the Act , to allow the appeal and either order a new hearing, or make the order that ought to have been rendered and such further orders as deemed just by the court. [ 50 ] In Katz v. Katz , 2004 MBCA 85 at para. 37 , 184 Man.R. (2d) 271, the court concluded that, where the variation judge erred, it was open to the court, pursuant to s. 21(5) of the Act , to consider the issue “with fresh discretion” and that “in our view, it is the preferable way to proceed in the hope of at least reducing ongoing court proceedings.” Similarly, in Jens v. Jens , 2008 BCCA 392 at paras. 38-40 , 260 B.C.A.C. 185, Levine J.A., for the court, indicated that s. 21(5)( b )(

i) of the Act provided the appellate court with original jurisdiction to decide the matter in its discretion, and that it was in the public interest, in some circumstances, for an appeal court to finally bring the litigation to an end in family matters, thereby saving the parties time and money. [ 51 ] Thus, where an appellate court determines that the court below made an error permitting appellate intervention, the appellate court may consider the issue that was before the lower court with fresh discretion, assuming there is sufficient evidence to do so, of course.

Timing of Support Payments [ 52 ] I see no merit to the mother’s appeal as to the timing of the support payments and I would dismiss that ground of appeal. [ 53 ] At the time of the application, the father’s support payment was due the first day of the month. The father receives one paycheque per month from his employer on the 15th day of every month, which is garnished at source.

By the time the father’s employer issues a cheque to the mother and forwards it to the Maintenance Enforcement Program, several more business days have passed, putting the father in the perpetual situation where he is in arrears and mandates the payment of penalties for the late payment of support. The variation judge accepted the evidence of the father that he had no control over the date by which his employer issues his paycheque.

I see no grounds to interfere with the exercise of the variation judge’s discretion to vary the final order to permit payment of the monthly support obligation by the father on the 22nd day of every month and to remit any penalties or interest that may have been charged to the father for later payment since the Act was amended on April 1, 2012. Bias Against the Mother [ 54 ] The mother alleges that the variation judge was biased against her. I would also dismiss this ground of appeal. There was no evidence of bias to which the mother could direct the court.

Section 7 Expenses [ 55 ] It is the father’s position in his factum that only the father’s request for termination of the expenses was before the variation judge. I do not agree. The case conference memorandum was clear that the parties agreed that the variation judge would deal with two questions at the hearing, first, whether the s. 7 expenses presently being paid by the father should be terminated as of July 2011, and, second, if not, what the father’s obligation to contribute to s. 7 expenses from July 2011, should be.

Given that clear agreement, confirmed in the case conference memorandum, I believe that the matter of the father’s contribution towards s. 7 expenses from July 2011 onwards was properly before the court. [ 56 ] I understand that the mother wishes a retroactive variation of the child support and s. 7 expenses back several years before July 2011, arguing that the father’s income increased between 2007 and 2011 as did the s. 7 expenses. The variation judge held that the mother’s motions would not be heard for the reasons indicated earlier, and I see no ground for appellate intervention in that decision.

Private School Fees [ 57 ] The 2007 final order set out amounts for private school tuition fees for both children, plus other expenses for extracurricular activities. The total monthly payment of the father under the 2007 final order for s. 7 expenses was $1,873.08, which amounted to 85 per cent of the tuition and sports fees of the children at that time. The payments are to be made until further order of the court. [ 58 ] As has been mentioned, the decision as to s. 7 expenses is a discretionary, fact-based decision. However, in this case, I believe the variation judge made two errors of law in his analysis.

Those two legal errors relate to his lack of consideration of the previous spending patterns of the parties as required by s. 7(1) and an inappropriate shifting of the evidentiary burden onto the mother. As well, I believe he misapprehended the evidence as to the proportion of the father’s income being spent on private school tuition. Previous Spending Pattern and History of Private Schooling [ 59 ] With respect to the private school fees, the variation judge stated:

The fundamental principle as to payment of private school fees is that they can only be authorized after a thorough analysis of allevidence as to the educational options open to the children, given their unique gifts and needs on the one hand and the availability of theparents to pay these costs on the other.

It is the duty of the claimant, in this case the mother, to present evidence that shows what theparticular needs and gifts of each child are in the context of what the private school has to offer, and that these gifts and needs cannot beaccommodated elsewhere at an affordable rate. [60] The variation judge further indicated in his reasons that “[t]here is no legal principle that private school costs shouldcontinue automatically or indefinitely once they have started.” This is true. However, as the above quote reveals, he gave noconsideration at all to a factor which the

section indicates he “must” consider – the family’s spending pattern before separation. Thisfactor was an important one in this case since the children have been attending private school almost their entire lives.

The law indicatesthat a judge must consider the fact that the family previously committed family funds to these expenses when determining whether thecontinuation of these expenses will be reasonable and in the best interests of the children post-separation. [61] A court’s consideration of whether the expense was one which the family considered reasonable and in the child’s bestinterests, pre-separation, ties into some of the basic principles of child support discussed in D.B.S.

That case reminds us that support isthe right of the child, that the right to support survives the breakdown of the marriage, and that, as much as possible, child support shouldprovide children with the same standard of living they enjoyed when their parents were together (at para. 38). As stated by the AlbertaCourt of Appeal in Levesque v. Levesque (1994), (AB CA), 155 A.R. 26, a judge should “have regard to the standardof living for the child chosen by the parents when they lived together with the child” and that “the lifestyle of the former family unit is agood first test of what is appropriate” (at para. 21).

If the family considered an expense reasonable and necessary pre-separation, then,absent some relevant change relating to the circumstances of the child or reduced financial means of the parents, it would be expectedthat the expense would continue to be considered reasonable and necessary post-separation. [62] In the present case, the variation judge indicated that the payment of private school fees could only be authorized afteranalyzing the educational options open to the children given their unique gifts and needs and the ability of the parents to pay the costs.

These factors, of course, are important considerations. However, he failed to consider the reasonableness of the expense in relation tothe family’s spending pattern prior to separation, as required under s. 7(1) of the Guidelines. [63] With respect to the children’s unique gifts or needs, there is no evidence that the Winnipeg private schools were chosenfor a specific reason, to accommodate specific gifts or needs that could only be met by private schools in Winnipeg.

Instead, it wouldappear that the children were enrolled in Winnipeg private schools because that is what the mother wished, because the father acquiescedto this while they were together, and, ultimately, they agreed in the final order that the children would remain in private school post-divorce. Nature of Onus in a Variation Application [64] Next, this was a variation application, not an original application. The onus in a variation application is on the personrequesting the change, in this case the father. It is the father who is requesting that the tuition be terminated.

However, the variationjudge held that the “mother has not met the onus based on the evidence on the record.” [65] While it is correct that there is no legal principle that private school costs should continue indefinitely, there is apresumption of validity with respect to the initial order which provided for private school tuition payments. In this case, para. 5.54 of thefinal order indicated that the father was required to contribute to the extraordinary expenses relating to the children. Balmoral Hall andSt. John’s Ravenscourt were noted to be the schools.

The final order also indicated that the date of the last payment of these expenseswas “until further order of the court.” [66] Paragraph 5.9 of the order did indicate that, if the parties did not agree upon whether the son would continue to attendSt. John’s Ravenscourt, the party wishing to change the school would have to bring a variation application to the court.

In my view, thehistory of the litigation between these parties makes it clear that this paragraph is intended to mean that, if the father wanted the son tostart attending public school, he would have to bring an application to vary. [67] So, to repeat the history of the parties to some extent, it should be noted that, when the mother originally applied to thecourt to move with the children to California in June of 2010, the father applied at that time to terminate the extraordinary private schoolexpenses.

The trial judge denied both applications, noting that it was in the children’s best interests to continue enrolment in their privateschools, and that, although the father had made an assignment in bankruptcy in June of 2009, he remained able to contribute to the costsof private schooling as contemplated in the final order due to his high income.

In refusing to delete the s. 7 extraordinary expensesobligation, the trial judge noted that the children were benefitting from their attendance at these schools and it was in their best intereststhat they continue their enrolment in private schools. [68] When this court, on appeal from that decision, permitted the mother to move with the children to California, there wasno discussion regarding the children’s schooling expenses, although it was implicit that the children would be changing schools.

Byfurther order dated August 16, 2011, following this court’s decision to allow the move to California, the trial judge simply ordered thatthe mother was required to provide the father with updates of the schooling of the children, including copies of report cards and schoolpictures.

No variation to the final order was made as far as the payment of extraordinary school expenses was concerned. [69] Despite the fact that it was clear that the children would no longer be attending the specific private schools noted in thefinal order, the father’s obligation to pay the children’s extraordinary school expenses under the final order was not deleted and, pursuantto the provisions of the final order, remained in effect “until further order of the court.” Thus, it would appear that the father would beresponsible to pay the extraordinary expenses set out in the final order unless he successfully applied to delete that obligation by bringinga motion to vary the final order on the basis of a material change of circumstances under s. 17 of the Act.

[ 70 ] All of the previous history of the parties before separation in the consent order and during litigation, confirms that the children continued to attend private school and that payment of a portion of that tuition should continue until further order of the court.

It was the obligation of the father to convince the court that private school was no longer in the best interests of the children, not the mother. [ 71 ] The variation judge proceeded as if this was an original application for extraordinary private school expenses and placed the onus on the mother to prove the necessity and reasonableness of these expenses, rather than placing the onus on the father to prove that a material change in circumstances had occurred. In my view, this was an error in principle. As was said by Scott C.J.M. in Rebenchuk v. Rebenchuk , 2007 MBCA 22 , 212 Man.R. (2d) 261 (at para. 65 ): ….

The task before the court is to determine whether its prior decision should be altered. It is not to re-litigate the issues previously incorporated in the existing order. [ 72 ] Moreover, the variation judge terminated all private school payments and did not explore, as he had the jurisdiction to do, whether the father should be ordered to pay a lower proportion of the tuition than he had been paying for the children in Winnipeg.

I would add that, since he terminated all payments in June 2012 retroactive to July 2011, and gave the father “credit towards future child support of all tuition fees paid under the Yard order since July 1st of 2011,” the impact on the mother’s financial situation as of the date of the release of the decision was significant. [ 73 ] It is true that the tuition of the private school that the children attend in California is substantially higher than the tuition of the schools in Winnipeg.

In fact, the difference is so substantial that it may be considered a material change in circumstances. (The variation judge did not indicate in his reasons the nature of the material change in circumstance upon which he was relying to base his variation order.) [ 74 ] The father became an undischarged bankrupt on June 3, 2009, after the signing of the 2007 final order. He argued that he was unable to pay the private school expenses due to his current financial circumstances and his status as an undischarged bankrupt.

The variation judge seems to have concluded that the father’s ability to pay had materially changed when he stated that “virtually all of the income of the father is garnished at source and, as an undischarged bankrupt, he is burning through his monthly income as fast as he can earn it.” He further stated that, if the father paid the increased tuition, he would be spending 35 per cent of his income on private school education for his children. [ 75 ] In my view, the variation judge misapprehended the evidence as to the father’s financial circumstances and whether those circumstances had materially changed since the final order in 2007 or since the decision of the trial judge in 2010. [ 76 ] When the father brought a motion to terminate his payments in June 2010, the trial judge denied his motion, determining that, despite his assignment in bankruptcy, the father “remains able to contribute to the costs of private schooling as was contemplated in the Final Order.” Clearly, the trial judge did not consider that the father’s status as an undischarged bankrupt at that point in time affected his ability to contribute to the children’s private schooling at the level outlined in the final order.

The trial judge noted the father’s 2009 salary to be $243,317.29 and his income up to June 2010 as already being $155,226.08. [ 77 ] If the father is now unable to pay the private school tuition at the level he had been paying previously, one would expect his financial circumstances to have materially changed since the trial judge’s above comments in 2010. [ 78 ] The father is an investment advisor and his pay is dependent on the commissions which he earns.

In his affidavit affirmed March 21, 2012, the father stated that he does not receive a set income every month, and his income can fluctuate greatly from month to month. He submitted payslips from January to March of 2012 confirming this, which indicate gross monthly earnings of $23,844 (January), $43,035 (February) and $3,702 (March). However, he also indicated in his affidavit that his gross income in 2011 was $277,553, and that he expected his income to be comparable in 2012.

This amount is comparable to his 2007 income ($280,000) set out in the 2007 final order and comparable to his income when the trial judge held, in 2010, that he was still financially able to contribute to private school tuition. [ 79 ] The father’s financial statement, affirmed March 21, 2012, indicates that his monthly expenses total $21,452. This includes all amounts paid towards compulsory employment deductions, pension deductions, medical/health insurance dues, household expenses, debt repayment of $500 per month, personal living expenses and all spousal and child support payments, including s. 7 expenses.

On a yearly basis then, these expenses would total $257,424. Given a yearly income of $277,553, a simple calculation suggests that, after payment of all expenses, the father would be left with a surplus of just over $20,000. [ 80 ] In my view, the variation judge failed to correctly analyze the father’s financial circumstances. He paid little, if any, attention to the father’s statement that his income fluctuated from month to month, but that he expected to earn the same income as in previous years.

Instead, the variation judge fell into error by focussing upon the most recent three payslips rather than considering whether the father’s annual income and expenses had materially changed. In this regard, consider this court’s decision in Albinet v. Albinet , 2003 MBCA 22 at para. 26 , 170 Man.

R. (2d) 308, wherein the court indicated that, except in exceptional circumstances support should be based on annual income and not on monthly fluctuations. [ 81 ] Taking the father’s annual income and expenses into account, it is clear that the father’s financial situation is not quite as dire as the variation judge believed. Even if the father remained responsible for paying his children’s s. 7 expenses as originally ordered in the 2007 final order, it would appear that he would still have $20,000 of disposable income, some of which could be applied toward his $25,000 bankruptcy balloon payment.

[ 82 ] Moreover, it does not appear to be correct that paying private school tuition would amount to 35 per cent of the father’s income. The new schooling expenses amounted to $45,315 for 2011-12. If the father was still required to pay 85 per cent of the fees he had been paying, he would have had to pay $38,518. His claim that this would have amounted to 35 per cent of his income would mean that his income for 2011 was just over $110,000.

As I have just indicated above, that would be incorrect according to the father’s own evidence. [ 83 ] Thus, the evidence appears to indicate that the father’s current income was very similar to that stipulated in the final order and that he would continue to take home a healthy surplus, even after all deductions (including the current private school expenses) were taken off his paycheques.

Consequently, the father “remains able to contribute to the costs of private schooling as was contemplated in the Final Order ” in spite of his status as an undischarged bankrupt and in spite of his complaints about his current financial circumstances. [ 84 ] The question remains whether the father should be ordered to pay his proportionate share of the increased cost of tuition or some other proportion. Given the litigious history of these parties and the costs already incurred, I am very reluctant to send this matter back for decision.

I believe it would be more expedient for all parties for this court to make that decision. [ 85 ] The increase in the amount of the private school expenses was substantial. At the new school, the daughter’s Grade 10 tuition was $25,740 and the son’s Grade 6 tuition was $19,575 for a combined total of $45,315 for the 2011-12 school year, all figures in American dollars. The actual tuition was ten per cent higher, but the mother received financial aid from the school.

Assuming the currencies are at par, as the variation judge did, this represents a private school tuition increase of 38 per cent. [ 86 ] The father had been paying $20,545 in total per year, which represented his 85 per cent contribution to the Winnipeg private school fees. The total tuition fees at Balmoral Hall and St. John’s Ravenscourt in 2011, had the children remained in Canada, would have been $17,124 for the daughter and $15,663 for the son, totalling $32,787 in Canadian funds. [ 87 ] If the father similarly paid 85 per cent of the California fees, he would be required to pay $38,518.

This would require the father to contribute approximately $18,000 more each year, or $1,500 more per month. As discussed above, the father’s current financial circumstances suggest that he will end up with a surplus of $20,000 annually, after deducting all support obligations, payslip deductions and personal/debt expenses. Requiring him to pay an additional $18,000 out of that surplus would clearly be a material change in circumstances.

This would allow him almost no discretionary funds to use towards his increased access costs, payments towards his bankruptcy discharge or other claimed debts. [ 88 ] As mentioned previously, there is caselaw which supports the view that, in circumstances where the extraordinary expenses have materially increased, a court should at least maintain the amount of the extraordinary expenses originally ordered or agreed to or historically supported by the parties, in order to properly defer to the original final order or to properly reflect the expectations of the parties.

In circumstances where s. 7 expenses have materially increased, a court may take into account the reasonable expectations of the parties based on their past spending or agreements and may decide that the fairest resolution requires the maintenance of the amount of the extraordinary expenses originally ordered, agreed to or established in the past. [ 89 ] For example, in Abelson , the mother requested contribution towards their children’s extraordinary private school expenses. While the parties were together, they had enrolled one child in a private school, which cost approximately $2,160 per year.

After separation and a relocation, the mother enrolled both children in a new private school, with fees of approximately $20,000 per year per child. The trial judge determined that the mother had unilaterally decided to enrol the children in private school, as she believed it was preferable, but she had provided no evidence of other educational options open to the children. The trial judge noted that the parties had sent one of their children to a modestly-priced private school prior to separation, but found that (at para. 92): ....

Had the parties remained in Prince George, I am satisfied that the children would either have continued in the public school system or in a very much more modestly priced private school setting.

I find that at no time prior to separation did the parties entertain the possibility of having the children attend schools such as the one they currently attend. [ 90 ] The trial judge went on to state (at para. 95): However, given the parties’ historical expenditure for private schooling, I consider that it is reasonable for the plaintiff to bear a proportionate share of the schooling expense based upon the sum of $2,000 per annum per child. …. [ 91 ] Relying on the same reasoning, I would order payment of private school tuition at the same level the father had been paying for the private schools in Winnipeg. [ 92 ] In coming to that conclusion, I have taken into account the father’s argument that the decision to place the children into private school in California was made by the mother without consultation.

The 2007 final order indicated that the parents would have joint custody of the children and that they would communicate and/or consult with one another on major decisions relating to the children; however, if they were unable to agree, the mother had final decision-making authority with the respect to the daughter and the

father had the final decision-making authority with respect to the extracurricular activities for the son. [ 93 ] The mother did advise the father of her intention to enrol the children at the Sierra Canyon School. The father argues that there was no true consultation that was consistent or appropriate given the parties’ status as joint custodial parents. The father indicates that he repeatedly told the mother, through his counsel, that he was not in agreement with the children attending a private school in California.

He repeated his position in court when the trial judge was deciding the nature of the periods of care and control between the father and the son.

His objection was to the children’s attendance at any private school in California, “as it is beyond my financial means” as well as “the unwillingness of the Sierra Canyon School staff to provide me with any information relating to my children’s enrolment.” Moreover, the father argues that the mother failed to provide any concrete evidence of the total costs for the Sierra Canyon School and no evidence or analysis of the possible educational options for the children in California or of the aptitudes or abilities of the children which may favour the children’s attendance at the Sierra Canyon School. [ 94 ] The mother argues that the father was not prepared to consider any private school under any circumstances and, thus, any consultation with him was a farce.

The father acknowledges that the mother sent him a variety of messages regarding her plans for the children’s schooling and the fact that she was narrowing down her choice to the Sierra Canyon School. The mother has provided father’s counsel with copies of the children’s report cards, although not consistently and not through the “Our Family Wizard Program” as ordered. She claims to be unable to afford the membership fees for the program.

Moreover, she has registered the children in school and extracurricular activities under her last name rather than that of the father, which is contrary to the provisions of the original final order. [ 95 ] As indicated earlier when reviewing the caselaw, lack of consultation is a factor which the court may take into account in coming to its decision and, while it does not mean that no contribution of expenses may be ordered, it may affect the amount of contribution. Again, as reviewed earlier, the father’s financial means have not changed since the 2007 final order.

Moreover, with respect to the nature of the information provided in regard to the kind of schools in the area, given the timing of all of this (the mother arrived in California in August and the children had to start at some kind of school by September), the mother was faced with making a decision in a very short period of time. Taking all of the above into account, I find that maintaining the father’s contribution at its previous level rather than terminating it altogether is the most appropriate decision.

Extracurricular Activities [ 96 ] The variation judge also terminated all contribution by the father to the payment of expenses for the extracurricular activities of the children. The mother wishes to enrol the daughter in hockey, voice lessons, driver education, S.A.T. preparation and surfing lessons.

She wishes to enrol the son in soccer and basketball. [ 97 ] The variation judge held that the evidence presented by the mother as to the current extracurricular activities was not set out in sufficient or coherent detail and that the mother has not provided reasonable information to the father about the activities and costs of the extracurricular activities of the son, and has given virtually no information about the daughter’s extracurricular activities. He states that: Most of the evidence presented to the mother as to the extracurricular activities pertains to the time prior to her move to California. ….

The mother’s evidence as to these expenses is very confusing as it consists primarily of a written

summary ... of what these expenses are with an incomplete record of corresponding receipts. The mother, at Exhibit “P”, attaches receipts which are not identified in her written

summary so I’m left in a very difficult position as to assess what expenses fairly and reasonably pertain to

section 7. …. [ 98 ] Consequently, the variation judge concluded that there was insufficient evidence for him to make any award as to extracurricular expenses after July 1, 2011. Again, he varied the 2007 final order with a full credit to the father for any payments as to s. 7 expenses made after July 1, 2011. He set no obligation to contribute towards anything further in the future. [ 99 ] The variation judge had the discretion to estimate an amount for extraordinary expenses, or perhaps to adjourn the question of ongoing contribution by the father until the mother presented further and better evidence.

It was self-evident that the children were registered in a number of extracurricular activities, had always been so registered and that the mother’s income was not sufficient to cover these expenses. [ 100 ] However, to put it plainly, the evidence submitted by the mother in respect of the children’s extracurricular activities was a mess. The mother provided pages and pages of confusing and self-serving, hand-written or typed documents regarding the extracurricular expenses of the children. Receipts are xeroxed several to a page with no reference to the list that precedes them.

The case conference memorandum stated that s. 7 expenses from July 1, 2011, would be considered. The mother’s affidavit and the exhibits following the affidavit spend considerable time on expenses from 2007 to 2010. [ 101 ] With respect to expenses after July 2011, the affidavit is extremely vague. She states in her affidavit dated April 17,

2012: For the remainder of 2012, I anticipate [the son’s] special and extra ordinary expenses will include hockey registration, additional fees, and equipment; Little League Baseball; and orthodontic treatment. For the remainder of 2012, [the daughter’s] special and extra ordinary expenses will include hockey registration, additional fees, and equipment; voice lessons and studio time; driver’s education training, SAT preparation; and surfing lessons. …. [ 102 ] It should be remembered that the mother was unrepresented at the hearing.

What is and is not an extraordinary expense has occupied many courts and much time since the passage of the Guidelines . While the introduction of the Guidelines and the computer programs which support the method of calculation of payments have provided “a simplified way for parents – and courts – to quantify child support obligations” ( D.B.S. at para. 43 ), it is still not an easy area for an unrepresented litigant. While a certain leeway for unrepresented litigants is understandable and acceptable, there comes a point when the other party is prejudiced. [ 103 ] This mother is not an unsophisticated litigant.

She has been before the court on many occasions, and she is presently in graduate studies. While the court has a great deal of sympathy for unrepresented litigants, it is not for a court to wade through pages and pages of lists of expenses and receipts thrown together in such a confusing fashion. [ 104 ] In any case, the father has final decision-making authority for the son. While the mother did email the father regarding registration for soccer, she did not include the cost or

schedule for this activity. She registered the son for baseball without consulting the father and registered him under the mother’s name rather than the father’s name, something that was inevitably destined to increase the already high level of animosity between the parties.

And, while the father does not have final decision-making authority for the daughter, he was not consulted with regard to any of her activities since the relocation to California. [ 105 ] Given all of this, I would not intervene with the exercise of the variation judge’s discretion to terminate all expenses for extracurricular activities as of July 2011. This would not preclude a subsequent application by the mother for appropriate expenses related to extracurricular activities, and after consultation with the father.

The father should remember that his decision-making authority should be exercised in good faith and in the best interests of his son. Conclusion [ 106 ] In conclusion, the variation judge erred in failing to take into account the past spending pattern of the parties and in placing the onus on the mother in relation to the expenses for private school tuition. He further misapprehended the evidence when looking at the father’s financial circumstances. Having so erred, it is open to this court to substitute its own decision, pursuant to s. 21(5) ( b )(

i) of the Act . [ 107 ] With respect to the increase in the cost of tuition, paying an additional $18,000 annually for private school appears not only to be beyond the father’s means, but also appears to be beyond what was reasonably contemplated by these parties when they were together and at the time the final order was signed. [ 108 ] However, the current amount of ordered private school expenses was contemplated by the parties at the time the final order was signed, and that amount appears to still be within the father’s means.

Given the principle that a variation of a support order should only reflect the material change in circumstances, and the principle that child support is the right of the child and should as much as possible maintain the children in the same standard of living as was experienced pre-separation, maintaining the status quo as far as the quantum of private school expenses appears to be the just solution in this case. [ 109 ] The appeal is allowed in part by ordering the father to continue to pay the amounts in respect of private school tuition specified in the 2007 final order.

The father should not be forced to pay that amount in one lump sum as it would unduly impact upon his financial circumstances. Instead, I would order that, in addition to paying ongoing s. 7 expenses for private school tuition in the amount ordered above, he pay the amounts now owing from July 2011 at the rate of $500 per month, starting in December 2013. In view of the divided success, parties will bear their own costs for both the variation hearing and the appeal. J.A. I agree: C.J.M. I agree: J.A.