McAlorum_v_McAlorum, 2011 ONCJ 715

COURT FILE No.: Chatham-Kent FO-04-070-0001 DATE: 2011·10·05 CITATION: McAlorum_v_McAlorum , 2011 ONCJ 715 ONTARIO COURT OF JUSTICE BETWEEN: JANELLE LOUISE McALORUM Applicant — AND — CRAIG ALLEN McALORUM Respondent Before Justice Paul J.S. Kowalyshyn Heard on March 23 rd and May 3, 2011 Reasons for Judgment released on October 5, 2011 Bruce P. Mitchell ................................................................................................... for the applicant Paul D.

Watson ................................................................................................... for the respondent KOWALYSHYN, J.: INTRODUCTION [ 1 ] This is a Motion to Change a Separation Agreement dated February 6, 2004 with respect to child support and

section 7 expenses. The moving party is the Applicant Janelle McAlorum (“Janelle”). Craig McAlorum is the Respondent (“Craig”). [ 2 ] Counsel presented the court with a Statement of Agreed Facts on March 23, 2011 which addressed resolution of the extracurricular expenses owing by Craig to Janelle for the period February 2004 until the end of 2009 in relation to paragraph 5.4 (

b) and (

c) of their February 6, 2004 Separation Agreement. Specifically, the parties agreed that the sum of $1890.00 was owed for this period and they confirmed that this sum was paid by Craig to Janelle by cheque dated March 22, 2011, the day before the trial commenced. [ 3 ] The parties also agreed that in 2010, Janelle incurred extracurricular expenses of $971.00 within the meaning of paragraph 5.4(

b) and (

c) of their Separation Agreement (incorrectly identified as paragraph “5.4(

c) and (d)”). BACKROUND [ 4 ] The parties were married on September 19, 1992. They separated in April of 2002. They have two children, namely Courtney Alexa McAlorum (“Courtney”) born August 1, 1995 and Connor James McAlorum (“Connor”) born October 9, 1998. [ 5 ] In August 2003 a petition for divorce was issued. The divorce proceedings were finalized in July 2007.

[ 6 ] A Separation Agreement was signed on February 6, 2004. It provided that Janelle would have custody of the children. Craig was given specified access. He was to pay total child support of $840.00 per month ($674.00 being the Guideline amount together with an additional $166.00 per month as his 60% contribution to the yearly daycare expenses of $6506.25). The quantum of support and contribution to extraordinary expenses was based on Craig having an annual income of $48,000.00 and Janelle having annual income of $32,000.00.

The agreement further provided that those sections dealing with custody and child support be incorporated into the Divorce Judgment, however, this was never done. [ 7 ] Within the Separation Agreement (paragraph 5.4) the parties defined the types of expenses and activities that would be deemed to be special or extraordinary expenses within the meaning of the Guidelines. [ 8 ] The agreement also provided in paragraph 5.9 that once a year if requested in writing, either party could review the child support arrangements and request the other to provide “his or her most recent income Tax return and Notice of assessment, a year-to-date pay stub and full particulars of any special or extraordinary expenses within the meaning of Section 7(1) of the Guidelines .” [ 9 ] In 2006 there was a period of approximately 37 days commencing April 20 or 21 when Janelle was hospitalized.

She had fainted the previous evening and hit her head against a wall. Craig brought an application seeking custody of the children and they were placed in his care for a period of approximately two months. The application was resolved in part on May 17, 2006 when the children were returned to their mother’s care. On July 7, 2006 a final order was made by Justice Glenn which provided Craig with a $600.00 reduction in his child support obligations as set out in the February 6, 2004 Separation Agreement, which was to be credited at the rate of $100.00 per month commencing September 1, 2006.

This was to offset the period of time that Craig had the children in his care. [ 10 ] Both parties have experienced changes in their incomes since the Separation Agreement was signed. Jane testified that she wrote to Craig on March 6 and 14, 2006 seeking particulars of the changes in his income. The letters requested an up to date pay stub and proof of an active life insurance policy. No specific request was made for production of tax returns. Janelle said she either mailed or hand delivered the letters as this was her usual practice. [ 11 ] Craig denied receiving any such letters from Janelle.

His position is that he provided adequate disclosure when he served Janelle with pleadings including a financial statement and pay stub on April 26, 2006 in relation to his aforenoted application for custody, etc. The top of the pay stub set out his annual salary as being $66,240. A Direction to Revenue Canada in favour of Janelle was attached however it did not bear her address so Revenue Canada would not have known by this document where to send the information. [ 12 ] The court also heard that a letter was sent to Craig by Bruce Mitchell, counsel for Janelle, dated April 25, 2006, in which Mr.

Mitchell specifically requested copies of Craig’s tax returns and assessments for 2004 and 2005 as well as a year to date pay stub. Mr. Mitchell confirmed that his request was being made in furtherance of paragraph 5.9 of their Agreement. Craig acknowledged receiving this request but again, he believed he had satisfied the request by the production of the financial information and documentation served on Janelle with respect to the proceedings he initiated. [ 13 ] Craig also testified that no further request was made by either Janelle or her lawyer for additional information.

In his mind the July 7, 2006 order seemed to resolve all outstanding disputes. It is not insignificant that the July 7, 2006 order provided Craig with a “credit” for his support obligations in the amount of $100 per month for 6 months. [ 14 ] Craig argued that Janelle effectively did nothing with the information received in April 2006 until she brought her Motion to Change on June 26, 2009.

He therefore argues that the effective date of any change to the existing agreement should not commence until July 2009 as there was nothing presenting Janelle from doing so earlier. [ 15 ] Janelle argues in favour of a March or April 2006 date for effective notice highlighting that Craig never complied with any of the written requests or his obligations under their Separation Agreement. ISSUES 1. Is Janelle entitled to retroactive relief in relation to child support and s. 7 expenses. 2. If yes, what is the effective date of that relief.

3. If yes, what is the amount of the retroactive award and how is it to be paid. 4. What are the incomes of the parties during the relevant periods. 5. Is Craig responsible for ongoing daycare expenses in relation to Connor. THE LAW [16] Counsel have both referred the court to the leading decision on the issue of retroactive support, namely the Supreme Court ofCanada decision of D.B.S. v. S.R.G. 2006 SCC 37 , [2006] 2 S.C.R. 231 (“D.B.S.”). That case sets out some very helpfulguidelines and principles. [17] The court is required to look at all of the relevant circumstances in front of it.

The payor’s interest in certainty is to be balancedwith the need for fairness and flexibility. There are a number of factors which are to be considered and none of them are decisive and allshould be considered (133). [18] Retroactive awards are not to be considered as exceptional orders to be made in exceptional circumstances. Unreasonable delayby the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by thepayor parent will have the opposite effect (5).

I therefore move to consider these and other factors outlined in D.S.B. [19] Has the recipient parent supplied reasonable excuse for delay. [20] This question can be answered in both the affirmative and the negative. Janelle was hospitalized for a period of 37 dayscommencing mid March of 2006. Craig acknowledged that she was not well before she was admitted to the hospital and for this reasonhe commenced his custody application. No immediate diagnosis was available.

Ultimately Janelle was diagnosed with “labrynthitis”, aninflammation of the inner ear which can cause balance disorders. [21] Janelle had previously gone on short term disability upon the advice of her doctor (February 24). She had been employed atChatham Kent Victim Services. She testified she was experiencing increased stress and fatigue due to added responsibilities arising froma change in her duties.

She went on long term disability benefits before retiring in 2006 and continued to receive these until April 2008.She said she was also experiencing stress from the children going to live with Craig and his unexpected custody application. She alsoexplained that she was experiencing stress due to Craig’s failure and/or refusal to assist with payment of the children’s daycare and othersection 7 expenses.

Exhibit 8 in the trial was a series of letters (and supporting documentation) written by Janelle to Craig betweenNovember 13, 2005 and April 23, 2008 requesting contribution to a number of expenses related to the children. [22] The court also heard that Janelle was experiencing stress from the protracted divorce proceedings which took four years tocomplete. [23] While I am prepared to find that Janelle lacked the emotional means to bring an application while she was off work andreceiving disability benefits, I was not provided with any medical evidence as to why it would take her until June 2009 before she was ina position to do so.

After all, she was healthy and emotionally stable enough to sign minutes of settlement and to have the children placedback in her care in May 2006. She testified that in latter 2006 she went back to school on a part time basis. In 2008 she started her ownmassage therapy business out of her home. She was clearly making some personal progress over this period of time. [24] I note that Janelle was always represented by counsel so it is difficult for her to argue that she did not have the benefit of legalrepresentation or that she was unable to properly instruct counsel. Again, I heard no evidence on this point.

Similarly, the court was notmade aware that Janelle harboured justifiable fears that Craig would react vindictively to her application, if brought sooner. [25] Assistance is found again in the D.S.B. decision where the Court stated that “a recipient parent will generally lack a reasonableexcuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply.” (104). [26] I therefore have some difficulty with the submission by Mr. Mitchell that Janelle’s decision was not arbitrary for the above-noted reasons.

[ 27 ] Having said this, one cannot ignore the additional comments in paragraph 104 where Justice Batarache wrote: “In deciding that unreasonable delay militates against a retroactive child support award, I am keeping in mind this Court’s jurisprudence that child support is the right of the child and cannot be waived by the recipient parent: Richardson at p. 869. In fact, I am not suggesting that unreasonable delay by the recipient parent has the effect of eliminating the payor parent’s obligation.

Rather, unreasonable delay by the recipient parent is merely a factor to consider in deciding whether a court should exercise its discretion in ordering a retroactive award. This factor gives judges the opportunity to examine the balance between the payor parent’s interest in certainty and fairness to his/her children, and to determine the most appropriate course of action on the facts.” [ 28 ] In short, delay is only one factor and the children are not to be punished for the inaction of the parent. THE CONDUCT OF THE PAYOR [ 29 ] Another factor to consider is the conduct of the payor parent.

D.S.B. provides that the court is to take an expansive view of what constitutes blameworthy behaviour (106). [ 30 ] Blameworthy behaviour is anything that privileges the payor’s own interests over the children’s right to an appropriate amount of support (106). [ 31 ] A payor parent who knowingly avoids or diminishes his obligations to his children should not be allowed to profit from this type of conduct (107). [ 32 ] The more material the increase in income, the less likely the payor will be presumed to believe they were meeting their obligations (108). [ 33 ] Positive behaviour can also militate against the order, such as voluntary support contributions, paying for activities, etc. (109). [ 34 ] With respect to these considerations, Craig’s position in this litigation is somewhat weakened. [ 35 ] Craig had a clear obligation to contribute to the extraordinary expenses of the children as set out in

section 5.4 (

b) and (

c) of the Separation Agreement yet he only made payment to Janelle for those expenses covering the period February 2004 to December 2009 on the day before trial. He provided a cheque dated March 22, 2011 in the amount of $1890.00. This speaks volumes as to his financial commitment to his children. He made no payments for several years notwithstanding a contractual and parental obligation to do so. [ 36 ] Craig also failed to pay his increased monthly child support payment in a timely fashion following the consent order dated October 14, 2009.

He claimed he was waiting for the deduction to be made from his pay by the Family Responsibility Office (“FRO”). Many paying parents take this approach however I note that under the provisions of s.22 (3) of the Family Responsibility and Support Arrears Enforcement Act Craig had a positive obligation to pay either the Director of FRO or Janelle until such time that his employer began deducting payments. It is irrelevant whether or not he knew of this obligation as ignorance of the law is no excuse. He agreed to pay this amount.

He should’ve done so immediately. [ 37 ] It should also be noted that Craig was in arrears of his ongoing monthly child support obligations in an amount in excess of $3400.00 at the time this trial commenced in March, 2011. [ 38 ] Lastly, Craig knew at least as early as April 2006 that certain financial disclosure was requested and required of him. He chose to ignore this request notwithstanding the clear wording of Mr. Mitchell’s April 25, 2006 letter and the clear wording of paragraph 5.9 of the Separation Agreement. There is no way that he could confuse what was required of him.

If he had any doubt he could have easily

asked his lawyer Mr. Watson as it was clear that Mr. Watson was assisting Craig at the material time of the request by Mr. Mitchell. I therefore do not accept his evidence that he believed that he had already provided the requisite documentation. [ 39 ] Additionally, Craig knew that the quantum of his monthly child support payment was tied to the level of his annual income. He chose to keep his child support payment the same notwithstanding his clear obligation to pay an increased amount. His income went from $48,000.00 in 2004 up to $88,610.00 in 2010.

In my view he voluntarily and willingly chose to avoid the inevitable. He therefore knew or should have known that it simply would have been a matter of time before he would be required to pay the table amount of support based on his increased income. [ 40 ] Furthermore, Craig knew that proceedings were going to be commenced against him if he didn’t provide certain information because Mr. Mitchell indicated the same in his April 25, 2006 letter. He therefore cannot say that he didn’t expect this litigation. [ 41 ] In

summary, Craig did absolutely nothing to garner him any favour with this court. I therefore find that Craig engaged in the type of “blameworthy conduct” contemplated in D.S.B. CIRCUMSTANCES OF THE CHILD/HARDSHIP FOR THE PAYOR [ 42 ] Counsel did not go into depth in addressing these additional factors set out in D.S.B. I heard limited argument that Craig’s financial position had declined and that Janelle’s had improved however I do not find that the evidence bore this out. In the simplest of terms, Craig’s income has almost doubled from the time that the Separation Agreement was signed in 2004.

Janelle’s has always been lower. [ 43 ] Accordingly, I do not believe that a retroactive award would create an undue hardship for Craig, if ordered, if repayment is crafted in such a way that he is able to repay the shortfall over time. [ 44 ] I also note that on October 14, 2009 Craig consented to an order which increased his monthly total child support payment from $840.00 to $1400.00 which means that for the last 23 months he has been paying (or at least has been obliged to pay) an increased amount.

RETROACTIVE AWARD [ 45 ] The Supreme Court of Canada recognized that the question of retroactive child support awards was a challenging one because these situations only arise when at least one parent has paid insufficient attention to the payments his/her children were owed. However, the Court went on to say that courts are to resolve retroactive support situations “in the fairest way possible with the utmost sensitivity to the situation at hand” (135) ( emphasis added ). [ 46 ] Having given consideration to the factors in D.S.B., I believe that a retroactive award is in order.

There are two resulting elements to this determination. Firstly, the court must decide when the support should be retroactive to.

Secondly, the court must decide the amount of support that would adequately quantify the payor’s deficient obligations during that time (117). [ 47 ] Generally the court should make the award retroactive to the date effective notice was given to the payor (134). [ 48 ] Where the payor has engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive date of the award (134). [ 49 ] In this case there is both delay by the recipient parent and blameworthy conduct on the part of the payor parent.

Both must be balanced and considered against the right of the child to their support (104).

[ 50 ] Janelle was experiencing health problems which resulted in her receiving both short and long term benefits from February 2006 to April 2008. She stopped working upon the advice of her physician. She therefore was not lacking a reasonable excuse for not immediately initiating court action notwithstanding the signs of progress she was making along the way. She will not be “penalized” as a result for the delay which occurred during this period. Janelle commenced her motion to change on June 26, 2009.

Assuming she was “healthy” beginning in May 2008 (the first month after her disability benefits expired) she could have commenced her proceedings at that time. Instead she waited approximately 14 months. I therefore find that her delay from this point on was not reasonable.

As the Court said in D.S.B., where a court finds that there has been unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award (130). [ 51 ] Craig on the other hand knew that he was obliged to pay an increased amount of support due to the increase in his income.

Rather than acting on this knowledge he chose to do nothing and accordingly he did so at his own peril. [ 52 ] Balancing all of the factors in D.S.B., I believe that the fairest way to resolve this matter is to apportion the 14 month period of delay equally between Craig and Janelle. In other words, a period of 7 months will be added to the “effective date of notice”. [ 53 ] I find that the effective date of notice was March 6, 2006 that being the date of the first letter from Janelle to Craig.

Although the letter does not specifically set out a request for all of the documentation identified in paragraph 5.9 of the Separation Agreement it is a date when Janelle asked for updated income information because she was aware that both of their employment situations had changed. The subject was therefore clearly broached. [ 54 ] I have no reason to believe that Janelle did not either mail or deliver the March 6 letter to Craig other than his evidence which I have some difficulty with.

Janelle testified that she had sent multiple letters to Craig over time requesting a response without ever receiving a response so his lack of a response to her March 6 and 26, 2006 letters comes as no surprise. I also find it oddly suspicious that Craig claims to have never received these two letters but miraculously he received the letter from Mr. Mitchell dated April 26, 2006. All letters were mailed to him at the same address. [ 55 ] I have therefore taken the March 6 date and have allowed a number of days for the letter to be received and considered by Craig.

A reasonable commencement date would therefore be the first day of the following month (April). Adding the 7 month period referred to earlier this brings the effective date of the retroactive award to November 1, 2006. There is nothing in D.B.S. which distinguishes between special expenses and the table amount: Surerus-Mills v. Mills [2006] O.J. No. 3839 (Ont. S.C.) . Hence, the special expenses not otherwise addressed in the Statement of Agreed Facts filed at the outset of the trial (daycare expenses) will also be varied retroactive to that date.

QUANTUM OF THE RETROACTIVE AWARD [ 56 ] There is little dispute with respect to the incomes of the parties for the years in question. [ 57 ] Craig’s income is as follows: 2006-$72,686.00 2007-$78,549.00 2008-$84,271.00 2009-$86,848.00 2010-$88,661.00 2011-$88,661.00 (projected and agreed by parties to be the same as 2010).

[ 58 ] Janelle’s income, once factoring in the gross up on her disability benefits is as follows: 2006-$26,056.00 2007-$21,034.00 2008-$24,309.00 2009-$25,862.00 2010-$25,862.00 2011-$25,862.00 (projected and agreed by parties to be the same as 2010). [ 59 ] Divorcemate calculations were provided and relied upon by Mr. Mitchell, counsel for Janelle. Additionally, a

summary of calculations was prepared and provided to the court on the final day of trial. These documents proved to be of considerable assistance. [ 60 ] The starting point for the retroactive calculations is the initial quantum of both child support and daycare expenses-$840.00 per month for child support and $166.00 per month for daycare expenses or $840.00 in total. [ 61 ] Craig has already paid Janelle for the special or extraordinary expenses outlined in paragraph 5.4 of the Separation Agreement for the years 2004-2009.

This leaves a recalculation of support and contribution to daycare expenses for the years 2006 (Oct-Dec.) through 2011. [ 62 ] With respect to the daycare expenses for all years, it should be noted that I find them to be reasonable, documented and incurred in accordance with s. 7(

a) of the Child Support Guidelines. This includes the expenses incurred this past year by Janelle which arise out of her needing to have someone look after Connor outside the home while she is working. Craig testified that he was initially unaware of how serious Connor’s behavioural problems were. The court finds Janelle’s need for quiet in her home (meaning Connor needs to be out of it) due to the nature of her business (massage therapy) to be a reasonable one. Accordingly, she is entitled to receive contribution from Craig for Connor’s daycare expenses up to and including this year but not beyond.

Janelle is not seeking reimbursement beyond this year. [ 63 ] Returning then to the calculation of child support and contribution to daycare expenses, based on the respective incomes of the parties in November and December of 2006 Craig will pay $1072.00 for table support and $265.02 for his contribution to the extraordinary expenses. This totals $1337.02.

Deducting his obligation of $840.00 per month under their agreement this leaves a shortfall of $497.02 per month or $994.04 for the two months. [ 64 ] With respect to 2007, Craig’s monthly child support obligation will be $1141.00 plus his share of the daycare expenses ($2460.00 for the year) of $161.75 per month leaving him a total monthly obligation of $1302.75.

This represents a shortfall of $462.75 per month or $5553.00 for the year. [ 65 ] With respect to 2008, Craig’s monthly child support obligation will be $1212.00 plus his share of the daycare expenses ($2680.00 for the year) of $173.30 per month leaving him a total monthly obligation of $1385.30. This represents a shortfall of $545.30 per month or $6543.60 for the year. [ 66 ] For the year 2009, the months of January through October will be dealt with differently than November and December.

The October 14, 2009 order provided that commencing November 1, Craig would pay $1247.00 per month for table support and $174.00 per month for his contribution to daycare expenses for a total payment of $1421.00 per month. This was based on annual income of $87,150.00. Craig’s income was actually $84,271.00. [ 67 ] The recalculation then is as follows: Craig’s monthly child support obligation for January through October will be $1242.00 and his contribution to the daycare expenses ($1812.00 for the year) will be$116.42. This totals $1358.42.

There is therefore a shortfall of $518.42 for 10 months or $5184.20. [ 68 ] With respect to November and December of 2009 there is an overpayment by Craig of $62.58 per month. Accordingly, Craig is entitled to a credit of $125.16 ($62.58 x 2).

[ 69 ] With respect to 2010, Craig’s monthly child support obligation will be $1265.00 plus his share of the daycare expenses ($1068.00 for the year) of $68.89 and his share of the other special expenses as outlined in paragraph 5(4) (

b) and (

c) of their agreement. The parties agree that these expenses for 2010 are $971.00. Craig’s proportionate monthly share is $62.63. The total monthly payment is therefore $1396.52. [ 70 ] Craig had been obligated to pay $1421.00 per month under Justice Glenn’s October 14, 2009 order and accordingly there has been an overpayment of $24.48 per month or $293.76 for the year. [ 71 ] Due to the timing of this trial, the 2011 s. 7 expenses as outlined in paragraph 5(4)(

b) and (

c) of the Separation Agreement were only capable of estimation. Janelle estimated them to be in excess of $1400.00 however she was content to limit them to $1200.00 for the purposes of the litigation. She outlined expenses relating to tutoring and school supplies. These are specifically identified in their agreement as being expenses which each are to contribute to in proportion to their income.

These expenses were not challenged in any meaningful way during cross-examination and I am therefore prepared to find that Janelle is entitled to contribution from Craig for s. 7 expenses totalling $1200.00 [ 72 ] The parties agreed that for the purpose of this litigation that their incomes from 2010 would be estimated to be their incomes for 2011. Accordingly, Craig’s table amount of support will be $1265.00 per month. His 77.4% monthly contribution to the school and tutoring expenses will be $77.40 and his contribution to the daycare expenses incurred in relation to Connor will be $129.00.

Janelle testified that she would only require daycare up until September and accordingly the order will reflects the yearly total of $1500.00 divided into the nine month period of January through to September. [ 73 ] Craig is currently obligated to pay $1421.00 per month. The above calculations total $1471.40 ($1265.00 + $77.40 + $129.00) and there is therefore an underpayment of $50.40 per month or $453.60 for the nine month period ending September 30, 2011. [ 74 ] Mr.

Watson argued that the special and daycare expenses of the children not be recalculated or that they simply be divided equally however, I do not find those suggestions to be fair or appropriate. The parties initially provided for a sharing of these expenses on a pro rata basis within the Separation Agreement and there is no legitimate reason to change that arrangement now.

Furthermore, Craig makes more than twice as much as Janelle does so he should naturally pay the larger share. [ 75 ] On a “go forward” basis commencing October 1, 2011 Craig will pay monthly table support in the amount of $1265.00 plus an additional $77.40 per month on account of the expenses incurred and as set out in paragraph 5(4)(

b) and (

c) of the Separation Agreement. This results in a total monthly payment of $1342.40 [ 76 ] Craig’s arrears of support including all

section 7 expenses is therefore $18,309.46 ($994.04 + $5553.00 + $6543.60 + $5184.20 - $125.16 - $293.76 + $453.60). These arrears will be in addition to any current arrears arising under the Separation Agreement and the October 14, 2009 order. I appreciate that Craig may not be in a position to pay these arrears immediately and accordingly he will be given a period of five years, if he chooses, to make his payments. Interest will accrue at the rate prescribed under The Courts of Justice Act which currently is 3%.

Naturally, if Craig wishes to pay a lump sum at any time he will be entitled to do so however the payments on account of these arrears and interest will be limited to $305.16 until fully paid. [ 77 ] My order therefore is as follows: ORDER

1. Paragraph 5.1 (a) (

b) and (

c) of the Separation Agreement dated February 6, 2004 and signed by the parties is varied as follows: “5.1 Commencing on October 1, 2011, and on the first day of each succeeding month, Craig shall pay to Janelle child support for the children of the marriage, namely Courtney Alexa McAlorum, born August 1, 1995 and Connor James McAlorum, born October 9, 1998, in accordance with the Federal Child Support Guidelines , the sum of $1,342.40, based on the following facts: (

a) Craig’s annual income is estimated to be $88,861.00 based on his 2010 income; (

b) the amount of child support for two children determined under section 3(1)(

a) of the said Guidelines is $1265.00 monthly; and (

c) The amount of special or extraordinary expenses for the two children set out in paragraph 5.4 herein to be paid by Craig is currently $1200.00 annually for tutoring and school supplies. Craig’s portion of these expenses relative to the respective incomes of the parties ($88,861.00 in the case of Craig and $25,862.00 in the case of Janelle) is 77.4% or $77.40 per month. 2. Paragraph 5.2 of the February 6, 2004 Separation Agreement is deleted. 3. The arrears of child support and

section 7 expenses arising from the Respondent’s support obligations as set out in the February 6, 2004 Separation Agreement for the period November 1, 2006 to September 30, 2011 is fixed at $18,309.46. This sum shall be payable by the Respondent in equal monthly payments of $305.16 together with interest at the prevailing rate under the Courts of Justice Act, commencing November 1, 2011 until paid in full. This sum shall be over and above any existing arrears arising out of the support provisions of the February 6, 2004 Separation Agreement and the Temporary Order dated October 14, 2009. 4.

The balance of the Applicant’s Motion to Change is dismissed. 5. The Respondent’s claims as set out in paragraph 14 of the Response to Motion to Change are dismissed. 6. If counsel are unable to agree on costs, written submissions may be made within 21 days with the response to be made within 15 days of the date the initial costs submissions are received. The submissions shall be no longer than three pages together with any offers to settle, Costs outline and any authorities. Released: October 5, 2011. Signed: “Justice Paul J.S. Kowalyshyn”