Kase v. Bazinet, 2011 ONCJ 718

COURT FILE No.: Halton 369/08 DATE: 2011.10.28 CITATION: Kase v.

Bazinet , 2011 ONCJ 718 ONTARIO COURT OF JUSTICE BETWEEN: NICOLE DENISE KASE Applicant — AND — JOSEPH ROGER DENNIS BAZINET Respondent Before Justice Sheilagh O’Connell Heard on 20, 21 and 28 April 2011; 13, 16 and 17 June 2011 Reasons for Judgment released on 28 October 2011 Bonnie Caplan-Stroeder ............................................................................ for the applicant Joseph Walinga ........................................................................................ for the respondent O’CONNELL, J.: 1: INTRODUCTION: [ 1 ] The applicant mother, Nicole Denise Kase commenced a Motion to Change on April 27, 2010 seeking to change the child support provisions in the parties’ separation agreement, dated January 30, 2001.

She seeks the following: 1) an order changing the monthly child support payments to an amount based on the father’s increased annual income, in accordance with the Child Support Guidelines for Ontario, retroactive to 2005; 2) an order enforcing those provisions of the separation agreement dealing with the children’s special or extraordinary expenses, retroactive to 2005, 3) an order that the respondent contribute at a minimum, 66% towards the special and extraordinary expenses for the children, including post-secondary education costs for the older child; 4) an order that the respondent pay child support for the oldest child of the marriage from the period of June 2009 to September 2010 (when the respondent stopped paying support for the oldest child), as the child remained a dependant and enrolled in a full time program of education during that time. 2: ISSUES BEFORE THE COURT: [ 2 ] The issues for me to decide are the following: 1.

What should the current monthly child support be for the children? 2. Is the mother entitled to retroactive child support, and if so, to what date and for what amount? 3. Is the mother entitled to enforce the provisions of the separation agreement regarding special or extraordinary expenses retroactive to 2005, and if so, is she entitled to the full reimbursement claimed? 4. Do all of the expenses claimed by the mother properly qualify as

section 7 expenses?

5. What should the father’s contribution be towards the special and extraordinary expenses, including the claim for the oldest child’s post-secondary expenses? 6. Was the oldest child entitled to child support in 2010? 3: APPLICANT’S POSITION: [ 3 ] The mother submitted that the parties entered into a separation agreement in 2001 in which they agreed that the father would pay monthly child support based on his gross annual income in accordance with the Child Support Guidelines .

They further agreed that the father would pay 66% of the children’s special or extraordinary expenses (“section 7” expenses), however, in 2005, the father unilaterally reduced his proportionate contribution to the children’s

section 7 expenses to 50%. The mother submits that although she did not agree with this change, she had no choice but to accept a 50% contribution from the father for the

section 7 expenses. The mother submits that the father’s action was a deliberate breach of the parties’ separation agreement and that the terms of the agreement regarding the 66/33% proportionate share of the

section 7 expenses should be enforced. At the time of trial, the mother’s claims for

section 7 expenses to 2005 are in the amount of approximately $20, 978.63. [ 4 ] The mother further submits that since November of 2005, she repeatedly gave the father effective notice that she was seeking an increase in the monthly child support payable and asked the father to provide updated financial disclosure.

She states that the father refused to provide any financial disclosure until 2008, at which time it was apparent that his income had significantly increased. [ 5 ] The mother states that she did not commence these proceedings until April of 2010 because she was fearful that the children would suffer repercussions, specifically that they would be subject to the father’s anger and violence and that their continuing relationship with their father would suffer. The mother’s submits that since she commenced these proceedings, the father has lashed out at the children.

She submits that her delay in commencing these proceedings was reasonable in light of her fears. 4: RESPONDENT’S POSITION: [ 6 ] The father submits that the mother’s claim for retroactive child support and

section 7 expenses should be dismissed. He relies upon the doctrine of promissory estoppal. He states that the parties reached a verbal agreement in 2002 that his contribution to the special or extraordinary expenses would be reduced to 50% in exchange for the father not disputing the expenses submitted by the mother, which included many non-section 7 expenses. The father submits that prior to this verbal agreement, the parties had several disagreements about whether the expenses submitted by the mother were proper

section 7 expenses. Rather than continuing this dispute, he agreed to pay all of the expenses submitted by the mother, but at a ratio of 50 percent. Thus, the father relies upon the conduct of the mother in not pursuing a claim for a retroactive adjustment of child support because she was satisfied with the expenses he paid. [ 7 ] The father further submits that the mother did not pursue an increase in his child support payments in accordance with his income until these proceedings were commenced because he was paying all of the expenses submitted by the mother, even though they were not proper

section 7 expenses. [ 8 ] Finally, the father submits that he should not be required to pay child support or

section 7 expenses for the parties’ oldest daughter between January 2010 to September 2010 because she was not enrolled in a full-time program of education during that time, and that in fact she was only taking one course while working between 20 and 30 hours each week. The father also denies that he has been violent and abusive towards the children or that states that both parties have been engaged in physical altercations with each other in the past, as well as with the children. 5: BACKGROUND: [ 9 ] The mother is 46 years old and the father is 42 years old.

The parties started living together in 1990 and were married on October 15, 1994. They separated in January of 2000, although they continued to live separated and apart in the matrimonial home until the summer of 2000. There are two children of the marriage, namely, Alexandra Bazinet, born March 5, 1991 (“Alex”), and Tyler Bazinet, born March 16, 1994 (“Tyler”). Alex is now 20 years old and Tyler is 17 years old. Both children remained in the primary care of the mother after the separation.

The mother recently started new employment as an account manager for a company called Claim Secure and her base salary is $60,000.00 per annum. [ 10 ] The mother remarried in September of 2001 to Paul Kase. Mr. Kase is employed by DuPont Canada and earns approximately $100,000.00 per annum. Mr. Kase has established a close relationship with the children and has demonstrated a settled intention to treat the children as his own. In December of 2010, the mother and Mr. Kase separated on a trial basis and Mr. Kase moved out of the family residence. The mother and the children continue to live in the family residence.

Mr. Kase continues to contribute to the family’s household expenses during this separation. [ 11 ] The father is employed by Rogers Cable as a senior manager for network capacity and earns a base salary of approximately $116,000.00 per annum, although in 2010, the father earned $176,634.00 in salary and bonuses. The father estimates that his 2011 income with bonuses will be $125,000.00. In 2007, the father married Michelle Bazinet and they have two young children, ages two years old and four months old.

Ms Bazinet is a registered massage therapist, although she has not been working full-time since the birth of their first child. She estimates that her income for 2011 is approximately $6,000.00 to $7,000.00. [ 12 ] The parties entered into a separation agreement on January 30, 2001. Pursuant to the agreement, the mother has sole custody of the children and the father had specified access. The father agreed to pay child support for the two children in the amount of $927.00 per month, based on his income of $70,000.00 per annum at the time, in accordance with the Child Support Guidelines , until one

of the following occurs: 1) The child(ren) cease to reside full-time with the wife, and “reside fulltime” includes the child(ren) living away from home to attend an educational institution, pursue summer employment or vacation but otherwise maintaining a residence with the wife; 2) The child(ren) become 18 years of age and ceases to be in fulltime attendance at an educational institution; 3) The child(ren) becomes 22 years of age; 4) The child(ren) marries; 5) The child(ren) attains one post-secondary degree, diploma, or certificate; 6) The child(ren) dies; 7) The wife dies. [ 13 ] The agreement also provided the following regarding the children’s

section 7 expenses: “The parties hereby assert and declare that they wish those extraordinary expenses that are not otherwise dealt with in this agreement, to be proportioned 66%/34%, with the husband assuming the larger percentage of the expense. Therefore, the cost of the child’s extraordinary expenses, which includes but is not limited to daycare, post-secondary expenses, medical costs not fully covered by insurance reimbursement, extra-curricular activities, recreational fees and equipment, shall be paid for by the parties pursuant to a 66%/34% split.” “DAYCARE” 3.

The parties shall share the children’s daycare costs of $75.00 per week proportionate to their income. As the wife expects to resume full-time employment and earn at least her previous annual income of $34,000.00, the parties agree that the husband shall currently be responsible for $200.00 per month and the wife shall be responsible for $100.00 per month during the school year, with each party’s contribution being accordingly adjusted in the summer months when the children are in daycare fulltime.

The wife shall notify the husband within two weeks of the time when the children cease to be enrolled in daycare so that he can terminate his contribution. “EXTRA-CURRICULAR ACTIVITIES” 4. The parties agree that the children’s swimming lessons shall be shared proportionately pursuant to the parties’ incomes. 5. The parties agree that they cannot now accurately predict what special or extraordinary expenses may be incurred for the children in the future.

However, as the children will be residing with the wife on a full-time basis, she will decide what other activities the children will be enrolled in and the parties shall share the cost pursuant to the minimum ratio of 66%/34%. [Emphasis added.] “POST-SECONDARY EDUCATION” 6. The parties shall proportionately share, pursuant to their incomes, all the costs of the children’s post-secondary education which includes tuition, residence, transportation, books, supplies, equipment and other incidental costs. “MEDICAL AND DENTAL BENEFITS” 7.

The parties shall proportionately share, pursuant to their incomes, the costs of any dental, orthodontic and medical expenses incurred by the wife for the children for so long as the husband is obliged to pay support, pursuant to a 66%/34% split, if the said expenses are not fully covered by one party’s medical insurance and/or benefit plans. [ 14 ] The agreement does not contain a clause requiring annual financial disclosure.

Instead, the following two clauses are included: “10.2 The parties agree and acknowledge that if either party’s annual income significantly increases or decreases, each party’s proportionate contribution shall be adjusted accordingly pursuant to s.7 of the Child Support Guidelines, or any successor legislation, provided first that each party has produced to the other party’s income tax return, T4 slips, attached schedules, and notices of assessment confirming the party’s significant increase or decrease in gross income.

If a party fails to provide this documentation, the proportionate contribution of each party shall remain at the minimum ratio of 66%/34% 10.3 The parties also agree and acknowledge that if the husband’s income significantly increases or decreases, his monthly child support obligation shall be adjusted pursuant to the Child Support Guidelines .” [Emphasis added.] [ 15 ] It is not disputed that the father’s reported income was the following between 2005 to 2010: 2005 Assessment $108,823.00 2006 Assessment $102,371.00 2007 Assessment $102,924.00 2007 Reassessment $102,371.00 2008 Assessment $102,934.00 2009 Assessment $114,690.00

2010 Assessment $176,634.73 [ 16 ] From 2005 to 2011, the father’s average monthly table amount for child support was the following; according to both parties’ bank records and the

schedule prepared by the mother: Average Monthly Support Paid Guideline Amount 2005 $820.72 $1,332.00 (old tables pre May 2006) 2006 $1,029.31 $1,265.00 until May/06; $1,433.00 after May/06 2007 $1,126.58 $1,433.00 2008 $1, 277.79 (or $1,451.00 according to father) $1,439.00 2009 $1,130.53 (or $1,451.00 according to father) $1,583.00 2010 $1,123.74 (stopped paying support for Alex from Jan/10 to Sept./2010) $2,301.00 2011 $1, 583.00 $1,702.00 (based on father’s estimate at trial of $125,000.00 for 2011) [ 17 ] According to a detailed expense

schedule prepared by the mother and filed as an exhibit at trial, as well as other evidence filed in both parties’ document briefs, the mother does not dispute that at least until 2008, in addition to the regular monthly child support payments, the father contributed (at a rate of 50% starting in 2005) to the following expenses for the children: swimming lessons, music lessons, basketball lessons, dance lessons, child care, summer camps, tutoring for Alex and Tyler, school uniforms, additional school clothes and shoes, driving lessons, computer hardware, Wonderland passes, guitars and amplifiers for both children, glasses for both children, braces, dental expenses, healthcare, counselling for Tyler, school trips to France and Italy for Alex, school trip to Quebec for Tyler, among other miscellaneous expenses. [ 18 ] The mother’s husband, Paul Kase, also gave evidence that until 2007, the father did not dispute a single expense submitted by the mother.

The mother’s chart also indicates that the father paid all of the expenses submitted, albeit at 50 percent commencing in 2005, instead of 66 percent in accordance with the separation agreement. [ 19 ] In 2008, it is not disputed that the father started to refuse to pay the expenses submitted, including the expenses claimed for Alex’s trip to Africa ($5, 258.00), Alex’s car and related expenses ($3,415.00 for the car, $2,401 for insurance, and $$1,225.27 for car maintenance).

By 2009, the father also stopped paying for school uniforms, tutoring, Alex’s dance classes and the children’s summer camps. [ 20 ] In June of 2009, Alex graduated from high school but decided to go back in September of 2009 to take three further courses that she needed in order to apply for the forensic sciences program at the University of Toronto. In the summer of 2009, she took grade eleven biology so that she could take grade twelve biology, chemistry and advanced functions in the fall semester. In September of 2009, she started all three courses but dropped chemistry.

She decided to take chemistry in the 2010 winter semester in order to improve her grade point average. In the 2010 winter semester, Alex was taking one chemistry course and participating on a high school coop program worth two high school credits and approved by the school. The coop program involved working at the Canadian Superstore where Alex had a part-time job. She was working approximately 20 to 30 hours each week and earned approximately $13,000.00 in 2010. Alex improved her mark in chemistry and earned an 81% in 2010. She received an 80% in her coop program resulting in an overall average of 81%.

Alex was accepted into the forensic sciences program at the University of Toronto in September of 2010. [ 21 ] In January of 2010, the father stopped paying child support for Alex. He took the position that Alex was not entitled to child support because she had ceased to be in full-time attendance at an educational institution.

In his view, the coop program was simply a “sham” which allowed Alex to work thirty hours a week and earn significant income while only taking one high school course. [ 22 ] In August of 2010, the parties entered into Temporary Minutes of Settlement in which child support was adjusted to $1,583.00 per month for two children based in the father’s 2009 income of $114,690.00. The father also agreed to contribute 66.66% towards Alex’s post-secondary education and

section 7 expenses, including tuition, books, transportation and vehicle costs. He also agreed to pay 66% towards Alex’s dance lessons. The minutes were entered into without prejudice to the father’s claim that he should not be paying child support or

section 7 expenses for Alex, nor should he be contributing 66.66 %towards her post-secondary education expenses [ 23 ] In September of 2010, notwithstanding that the determination of what are appropriate

section 7 expenses and the father’s proportional contribution to same were proceeding to trial, the mother filed a detailed sworn

schedule of what she described were retroactive

section 7 expenses with the Family Responsibility Office in August of 2010, (totalling approximately $20,000.00 dating back to 2005), claiming 66% of these expenses pursuant to the parties’ separation agreement, which had been filed with court for enforcement. [ 24 ] For reasons unknown to the court, the Family Responsibility Office agreed to enforce all of these expenses at the rate of 66% (including the trips to Africa, France and Italy and Quebec, school uniforms, dance lessons, etc.) with the exception of Alex’s car expenses, and issued a Statement of Arrears in the amount of $12, 886.54 for the expenses filed by the mother.

The father testified that he notified a F.R.O. representative in writing that the expenses were being disputed and that a trial was pending. However, by the time

of trial, F.R.O. had collected approximately $4,700.00 of the expenses claimed by the mother in addition to the regular monthly child support payments. 6: THE LAW: 6.1: The Motion to Change: [ 25 ] The mother's motion to change the child support terms of the agreement was brought under subsections 37(2.1) and 37(2.2) of the Family Law Act which provides as follows:

(2.1) Powers of court: child support. -- In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may, (

a) discharge, vary or suspend a term of the order, prospectively or retroactively; (

b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (

c) make any other order for the support of a child that the court could make on an application under

section 33.

(2.2) Application of child support guidelines. -- A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines. [ 26 ] The test to be applied in a motion to change is whether there has been a change in circumstances of either the parent or the child. It does not have to be a material change. There is no question that the father’s income has changed since 2001.

Further, the increase in the father’s income from $70,000.00 in 2001, to $176,000.00 in 2010, at the time the mother commenced her motion to change is clearly a significant change, as stipulated in the parties’ separation agreement. 6.2: The Claim for Retroactive Child Support: [ 27 ] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 , [2006] 2 S.C.R. 231 , 351 N.R. 201 , 391 A.R. 297 , 61 Alta. L.R. (4th) 1 , 377 W.A.C. 297, [2006] 10 W.W.R. 379 , 270 D.L.R. (4th) 297 , 31 R.F.L. (6th) 1 , [2006] S.C.J.

No. 37 , 2006 CarswellAlta 976, (the “ D.B.S .” cases) held that there are three separate situations in which it may be appropriate for a court to order that a retroactive award be paid:

a) awarding retroactive support when there has already been a court order for child support to be paid;

b) awarding retroactive support when there has been a previous agreement between the parties;

c) awarding retroactive support where there has not already been a court order for child support to be paid. [ 28 ] This case clearly falls into the second category. The court in D.B.S . held that in most circumstances, agreements reached between the parents should be given considerable weight. Courts should recognise that these agreements were likely considered holistically by the parents and it is often unwise for courts to disrupt the equilibrium achieved by parents. However, unlike the court’s analysis in Miglin v.

Miglin , [2003] 1 S.C.R. 303, 2003 SCC 24 (S.C.C.) which dealt with spousal support, the fact that we are dealing with children and child support, must remain of primary significance in the court’s analysis. Thus, where circumstances have changed and the actual support obligations of the payor parent have not been met, courts may order a retroactive award so long as the applicable statutory regime permits it. [ 29 ] In Ontario, section 56 (1.1) of the Family Law Act provides the following: “56

(1.1) Contracts subject to child support guidelines - In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to the support of the child in the contract.” [ 30 ] The court in D.B.S . sets out the factors that a court should take into account in addressing retroactive claims for child support. There are four factors that the court raised: 1.

Is there a reasonable excuse for why support was not sought earlier? 2. The conduct of the payor parent. 3. The circumstances of the child. 4. The hardship on the payor as a result of the retroactive order . [ 31 ] The court provided further guidance in considering these four factors as follows:

1. Reasonable excuse for the delay in applying for retroactive support: A delay will generally be unreasonable when the recipient knew higher support payments were warranted but decided not to apply. However, the court should not hesitate to find a reasonable excuse for the delay where the recipient spouse harbored justifiable fears of the payor’s reaction, the recipient lacked the financial or emotional means to bring an application or the recipient was given inadequate legal advice. 2.

The Conduct of the Payor : The court should take an expansive view of what constitutes blameworthy behavior on the part of the payor. Blameworthy conduct can be characterized as anything that privileges the payor’s own interests over the children’s right to an appropriate amount of support and includes hiding income and intimidating the recipient. The payor cannot mislead a recipient into believing that the child support obligations are being met when they are not being met. On the other hand, a payor who does not automatically increase support payments is not necessarily engaging in blameworthy conduct.

A reasonably held belief by the payor that he was meeting his obligations is a good indicator that there is no blameworthy conduct. However, the more material the increase in the payor’s income, then the less likely the payor will be presumed to believe he was meeting his obligations. Positive behaviour by the payor can also militate against a retroactive order. For example, a payor who has contributed to his children’s expenses beyond his statutory obligations to do so may have met his increased support obligation indirectly. 3.

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

Hardship for the Payor: In determining whether a retroactive award will cause hardship for the payor, the court needs to consider more than the payor himself, and must also consider his children from a second family, if any. The court should be careful to craft a retroactive award in a way that minimizes hardship. [ 32 ] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances in front of it.

The payor’s interest in certainty must be balanced with the need for fairness and flexibility. [ 33 ] Once a court decides to make a retroactive award, it must then determine the amount.

There are two elements to this decision: first, the court must decide when the order should be retroactive to and second, the court must decide the amount of support that would adequately quantify the payor’s deficient obligations during that time. [ 34 ] The court should generally make the award retroactive to the date the recipient gave effective notice to the payor that support was being sought or the current amount needs to be renegotiated.

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

If she does not, legal action should be contemplated. [ 35 ] It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor, subject to the exception for blameworthy conduct. However, where the payor has engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive date of the award. It will then be open to the court to determine the quantum. [ 36 ] The principles set out in the D.B.S . cases regarding retroactive child support apply to

section 7 expenses as well. See Selig v. Smith , 2008 NSCA 54 , 266 N.S.R. (2d) 102, 851 A.P.R. 102, 56 R.F.L. (6th) 8, [2008] N.S.J. No. 250, 2008 CarswellNS 307 (N.S.C.A.), paragraphs [25] and [26] . The court in the D.B.S . cases makes no distinction between the table amount of child support and

section 7 expenses for child support. 6.3: The

Section 7 Expenses: Entitlement and Retroactive Claim: [ 37 ] The mother’s claim for special or extraordinary expenses is brought under

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

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

section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the

parents or spouses in respect of the child during cohabitation:

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

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

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

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

e) expenses for post-secondary education; and

f) extraordinary expenses for extracurricular activities. [38] The definition of “Extraordinary expenses” is set out at section 7 (1.1) of the Guidelines:

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

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

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

b) where clause (

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

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

v) any other similar factors that the court considers relevant. [39] The list of special and extraordinary expenses under clauses 7(1) (

a) to (

f) is exhaustive. If a claim does not fall withinany of the listed categories, then it must be dismissed. See Kilrea v. Kilrea (1998), 82 A.C.W.S. (3d) 952, [1998] O.J. No. 3677, 75O.T.C. 269, 1998 CarswellOnt 3652 (Ont. Gen. Div). The onus is on the parent seeking the special or extraordinary expenses to provethat the claimed expenses fall within one of the categories under

section 7 and that the expenses are necessary and reasonable, havingregard to the parental financial circumstances. See Park v. Thompson, , 77 O.R. (3d) 601, 197 O.A.C. 158, 252D.L.R. (4th) 730, 13 R.F.L. (6th) 415, [2005] O.J. No. 1695, 2005 CarswellOnt 1632 (Ont. C.A.). [40] Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount ofsupport. See Smith v. Smith (1997), 75 A.C.W.S. (3d) 703, [1997] O.J. No. 4833, 48 O.T.C. 316, 1997 CarswellOnt 4493 (Ont. Gen.Div.), paragraph [14] and [16]; D'Urzo v. D'Urzo (2002), (ON SC), 30 R.F.L. (5th) 277, [2002] O.J.

No. 2415,[2002] O.T.C. 419, 2002 CarswellOnt 2104 (Ont. S.C.); Park v. Thompson, supra; Zimmerman v. Doe, , 159A.C.W.S. (3d) 407, [2007] O.J. No. 2896, 2007 CarswellOnt 4721 (Ont. S.C.). [41] It is also clear from the case law that a custodial parent does not have carte blanche to enrol a child in any number ofextra-curricular activities and then to look to the non-custodial parent to share all of the costs. See Forrester v. Forrester, , 73 A.C.W.S. (3d) 479, 11 O.F.L.R. 61, [1997] O.J. No. 3437, 1997 CarswellOnt 3212 (Ont. Fam. Ct.), paragraph [4];Zimmerman v.

Doe, supra. 6.4: The Meaning of Full-time Program of Education for Child Support Purposes: [42]

Section 31 of the Family Law Act sets out the obligation of a parent to support a child as follows: Obligation of parent to support child 31.

(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time

program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2. [Emphasisadded.] Idem

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parentalcontrol. R.S.O. 1990, c. F.3, s. 31 (2). [42] In Vohra v. Vohra, 2009 ONCJ 135 , [2009] O.J. No. 1446, Justice Stanley Sherr stated that a flexible approach shouldbe adopted to determine what is a full-time program of education. The flexible approach allows the determination to be made havingregard to the child’s aptitudes and abilities: “Most courts have followed a flexible approach to the determination of what constitutes a full-time program of education.

A full-timeprogram does not necessarily mean full-time attendance at school. A child can be found to be enrolled in a full-time program ofeducation while taking less than a full course load, so long as his or her participation is meaningful and consistent with the program'spurposes and objectives. See Wilson v. Wilson, , 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885,2002 CarswellOnt 3838 (Ont. S.C.); Lall v. Lall, 2009 ONCJ 96, [2009] O.J. No. 1273, 2009 CarswellOnt 1629 (Ont. C.J.); andKapounek v. Brown, , 7 R.F.L. (5th) 144, [2000] O.J. No. 1301, 2000 CarswellOnt 1406 (Ont. Fam.

Ct.) (where thechild received support while attending a two year course over three years). The court must examine the individual circumstances of eachcase when making this determination.” [43] The flexible approach, where the Court examines the question of full time enrolment in the context of the child’s ability andaptitude, is now followed by most courts. In Wilson v. Wilson, , 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002]O.T.C. 885, 2002 CarswellOnt 3838 (Ont. S.C.) Justice Heeney concluded that

section 31 of the Family Law Act is intended to ensurethat parents support their children while they are fully engaged in their education, and should be strictly construed for the benefit of children. 6.5: The Determination of Child Support for the Adult Child Attending University: [43] The determination of when it is appropriate to order child support in the Table amount for an adult child attendingpostsecondary education is a matter within the court’s discretion. [44] The relevant Guidelines provisions are sections 3(2) and

section 7: "3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age ofmajority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition,means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. 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 ofthe following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's bestinterests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spendingpattern prior to the separation: (

e) expenses for post-secondary education; "

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is sharedby the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.” [45] Section 3(2) is presumptive and must be used unless the court considers that approach would be inappropriate. See Lewiv. Lewi, (ON CA), [2006] O.J. No. 1847 (C.A.). In Lewi v. Lewi, supra, the Ontario Court of Appeal held that thatin determining the question of child support for adult children, clause 3(2)(

b) and

Section 7 of the Guidelines require the court toconsider whether an adult child is able to make a contribution toward his/her post-secondary education. The court may consider assetsand income, including available money from summer employment and student loans. There is no standard formula; the matter is largelyone of the trial judge's discretion. In many cases the base amount of support is varied during the eight months of the year that the childis living away from home at school. See Caravello v. Wickett [2011] O.J. No. 3761. [46] In Vohra v.

Vohra, supra, Justice Sherr cites with approval the following passage from the Manitoba Court of Appeal inRebenchuk v. Rebenchuk, 2007 MBCA 22, 212 Man. R. (2d) 261, 2007 CarswellMan 59 (Man. C.A.): “... Children have an obligation to make a reasonable contribution to their education. However, just because a child is earning income, itdoes not follow that all of that income must be applied to the child's education. The desirability of allowing the child to experience some

personal benefit from the fruits of his or her labours should also be considered: Glen v. Glen [ (1997), (BC SC), 34R.F.L. (4th) 13 (B.C.S.C.)] (para. 14). 7: ANALYSIS: Delay: [47] In carefully considering all of the evidence in this trial, I find that the mother is entitled to retroactive child support, butonly to 2008, not to 2005, for the reasons that follow. [48] First, I reject the mother’s evidence that since 2005, she repeatedly asked the father to provide proof of his income and topay child support based on his increased income. The mother states that these requests were made verbally and by email.

However, thereis no written proof of the requests going back to 2005. The mother states that the hard drive in her computer crashed in 2009 and as aresult, she lost all of her e-mails to the father requesting proof of income and increased child support. However, mother’s document brieffiled as evidence at trial contained numerous e-mails that pre-dated the crash of her hard-drive. [49] It is clear from the document briefs and evidence filed by both parties that the father paid all expenses submitted by themother between 2005 and 2008, albeit at a rate of 50%.

The email correspondence filed by the father and the mother demonstrates thatthe mother submitted the expenses to the father and requested that he pay 50 percent, not 66 percent of the cost. The father complied. The vast majority of the expenses were not legitimate

section 7 expenses. For example, the high school uniforms, driving lessons,Wonderland passes, the prom dress, shoes, extra clothing, guitars, amplifiers, computer hardware, are clearly not

section 7 expenses. Further, many of the extra-curricular activities expenses submitted did not meet the definition of “extraordinary” under section 7(1) (f). The swimming, music and dance lessons were all ordinary activities and relatively small amounts that could have been covered by thebasic child support paid given the mother’s global family income during the relevant time period, which was in excess of $100,000.00per annum.

See D’Urzo, supra, McAdam Estate v McAdam, Park v Thompson, supra. [50] The email correspondence submitted also supports the father’s evidence that the parties agreed to an arrangement inwhich he would pay 50 percent of all expenses submitted without dispute and in turn, the mother would not seek a higher amount of childsupport.

In particular, on May 15, 2008, the mother wrote the following to the father once he started to dispute the expenses submittedby the mother: “On another subject also, Olympia...I read your email about increasing the child support and not paying for Olympia, but I was not in aframe of mind to deal with it at that time. After careful evaluation, I am not in agreement with your suggestion. Based on your T4 from2006, you are still not paying the full amount of child support for your tax bracket and 2 children.

I am not picking on that...I did wantyou to read your separation agreement that you did sign regarding paying 66.66% of all extracurricular activities and I have only beenrequesting 50%. I do indeed expect you to pay half of Tyler’s Olympia costs of approximately $1300 total for two weeks. This paymentis due to Olympia this week in full and is being put on my credit card. I am willing to discuss this with you but Paul and I do expect youto pay half of the charges.” [51] The mother copied this e-mail to her husband, Paul Kase, and the father’s wife, Michelle Bazinet.

In an e-mail written toby the mother to the father’s new wife on March 17, 2007, the mother stated the following: “I have been VERY fair to Dennis and I have NEVER asked for more child support every time he gets a raise in the last 7 years. I couldeasily get more based on his salary and all the back salaries. I have NEVER gone after his reffing money as the lawyer told me to. I feelhe works hard for it and deserves to keep it. I have also NEVER made Dennis pay ¾ of the activities as in our divorce agreement. I onlyasked for half.

I have been MORE than fair to him and he has continuously let the kids down which let me down as well.” [52] The mother first provided notice that she would seek the appropriate amount of table child support in 2007 when thefather started to dispute some of the expenses, such as the trips to France and Italy, unless he agreed to pay for those expenses. Forexample, when the father initially refused to pay for the Italy trip, the mother asked for the father’s income disclosure on September 5,2007 in an e-mail, which is filed in the mother’s document brief. The father responded by e-mail on September 10, 2007.

He providedhis notice of assessment and reassessment from Revenue Canada confirming his total income for the 2006 tax year. The father copiedthe mother’s husband on this e-mail. On October 25, 2007, the mother’s husband, Mr. Kase sent the following e-mail to the father afterthe father initially refused to contribute to Alex’s trip to France and Italy: “Dennis, After all the discussions we have had around child support and financing it appears as though you are leaving us with only oneoption...and that is to go through with the necessary legal actions to recover your portion of total child support going forward.

As such,unless you agree, and take action to further fund Alexandra’s extra-curricular activities which include the trip to Europe, we are left withno option but to file the appropriate paperwork to increase your child support to $1,450/month. Please provide me with your response by the end of day October 26, else we will begin legal procedures. Please give me a call if youwant to discuss.

Paul Kase” [53] The father did pay his half of Alex’s trip to France and Italy and the mother did not commence the motion to change untilApril of 2010 after it became very clear that the father was refusing to pay a number of subsequent expenses, such as the trip to Africaand Alex’ car. [54] The mother’s admits that the e-mails referenced above were sent by the parties and Mr. Kase, however, she claims that

they were altered by the father. This evidence is rejected. The mother’s husband, Mr. Kase, who was the mother’s witness, testified at trial that he had written the e-mail dated October 25, 2007 and the amount that he had cited for child support ($1,450.00) was based on the income disclosure that he received from the father on September 10, 2007. The father’s new wife, Michelle Bazinet testified at trial that she received the e-mail from the mother dated March 17, 2007 and that the e-mail was not altered in any way.

I accept her evidence. [ 55 ] Further, it is clear from the e-mail correspondence filed that both parties copied their respective spouses on e-mails sent. It defies common sense that the father would risk altering e-mails knowing that there were duplicate copies sent to Mr. Kase at his work place.

Third, after the father agreed to pay for the trips to France and Italy, the mother did not pursue an increase in child support based on the correct table amount for the father’s income until three years later, when the father started to refuse to pay many of the expenses submitted by the mother. [ 56 ] I further reject that mother’s claim that the father would retaliate against the children if she started a court action sooner. There is no question that the father and the children have a troubled relationship.

In hearing all of the evidence at trial, it is clear to me that both parents are responsible for the difficult relationship that the children have with their father. The court was very concerned that the mother called both children to testify at trial against their father to bolster her case, putting them in a very difficult position. She also has certainly made her dislike of the father and his new wife very clear to the children.

In fairness, the father had summonsed the children to testify as well, so he is also at fault. [ 57 ] There was a great deal of evidence regarding an altercation between Alex and her father in the summer of 2008. This incident had no connection to the issue of child support. The mother permitted Alex (who was 17 at the time) to take a “six pack” of beer and a 26 ounce vodka cooler to the father’s family holiday without telling the father. The father became understandably upset when he saw Alex drinking the vodka cooler after he had expressly forbidden her to drink any more alcohol (Alex had consumed one beer).

The father handled the situation poorly. His reaction was immature and inappropriate and upset Alex greatly. However, the mother’s conduct in permitting her daughter to take this much alcohol to the camp site without telling the father and then blaming him later for serving alcohol to minors is also poor parenting. Alex was unfortunately caught between both of her parents’ poor conduct. [ 58 ] The other incidents that the children were compelled to describe, corroborated by both parents, reflect the troubled relationship that the children have with their father and the father’s poor management of conflict.

For example, his refusal to say good- bye to Alex at the airport before she left for Africa and his reaction when Tyler did not let the family dog out to relieve himself are examples of poor parenting. However, some of the situations described were often exacerbated by the mother’s conduct.

Their difficult relationship is no doubt also caused by the fact that the father has a new family where the children sadly, appear to take second place to the father’s new children. [ 59 ] However, I do not find that the mother was afraid to commence these proceedings because she feared the father would retaliate against the children. If the mother were truly afraid of the father’s reaction, then she would not have called the children to testify against him at trial. If anything, that would certainly place the children in a far more vulnerable position regarding their relationship with their father.

Blameworthy Conduct: [ 60 ] Although the mother’s lacked a reasonable excuse for the delay in bringing a court action, and in fact, chose not to bring a court action while the father was paying all the expenses that she submitted, the father also engaged in blameworthy conduct. By 2008, the father stopped paying those expenses that he deemed were not legitimate

section 7 expenses and he testified that he adjusted his child support in accordance with the correct table amount. [ 61 ] However, he did not do so. He continued to underpay child support even though he stopped contributing to many of the expenses submitted, some of which were proper

section 7 expenses. This is blameworthy conduct. [ 62 ] Once he had effective notice that the mother was seeking full financial disclosure and an increase in child support, and he stopped paying all of the expenses submitted by the mother, then he should have adjusted the table amount of child support payable in accordance with his proper income and the Child Support Guidelines. Circumstances of the Children: [ 63 ] The children have had the good fortune to have Mr. Kase, another father figure in their lives who assisted the mother financially and supported the children since the parties separated. Paragraph 2 (

d) of the parties’ separation agreement, provides that “Mr. Kase has established an excellent, close and loving relationship with the children and has demonstrated a settled intention to treat the children as his own.” Although the mother and Mr. Kase underwent a trial separation in 2010, with a view to reconciliation, Mr. Kase continues to support the children and to pay the household expenses. [ 64 ] The evidence at trial indicated that Mr. Kase earns approximately $100,000.00 per annum and the mother and Mr. Kase enjoyed a very comfortable lifestyle with the children.

During the years that the mother was earning a good income, the family income was substantial and the children were able to enjoy their activities and travel without hardship.

However, the existence of contributions from others in the children's life does not change the obligation of a parent to financially support the children. [ 65 ] Further, until 2008, the father paid half of all of the of the children’s expenses submitted by the mother and the children were able to travel, to participate in school trips and to enjoy all of the activities in which they expressed an interest. [ 66 ] The children, Alex in particular, have earned significant income while living at home and going to school.

In 2009, Alex earned almost $9,000.00 in part-time and summer income and in 2010, Alex earned $13,156.00. Alex has paid for all of her own dance classes at Aradia Fitness since her 18 th birthday.

Hardship: [67] In determining hardship for the payor, the D.B.S. makes clear that the court needs to consider more than the payorhimself, and must also consider his children from a second family. Here, the father supports two young children in a second family andalso supports his new wife, who earns minimal income while at home caring for their second child. In Fisher v. Fisher, 2008 ONCA 11, [2008] O.J.

No. 38 (C.A.), the Ontario the Court of Appeal recognised the principle that a payor’s obligations to his firstfamily take priority over any subsequent obligations, although it should be noted that this was in the context of spousal support.Nevertheless, the Court held that “inevitably new obligations to a second family may decrease a payor’s ability to pay support,”particularly when the payor has his own children in the second family. A retroactive award will cause hardship in this case and the courtshould be careful to craft a retroactive award in a way that minimizes hardship.

Section 7 Expenses: [68] I find that the following expenses are reasonable and necessary expenses that meet the definition of extraordinaryeducational expenses and post-secondary expenses under paragraph 7(1)(

d) and (e):

a) The children’s Olympia Sports summer and leadership camps;

b) Alex’s calculus tutoring;

c) Tyler’s reading comprehension assistance and tutoring;

d) The taxi costs in inclement weather as a result of the school bus cancellation in the children’s area;

e) Tyler’s French trip to Quebec;

f) Alex’s transportation and vehicle expenses in university, given that she is choosing to live at home to save expenses and thecommute to her university from her mother’s residence is three hours each way by public transit. It is completely unreasonable to expectAlex to do this commute and her transportation costs are reasonable. However, the car was purchased while Alex was in high school, andwhile she was earning part-time income at Loblaws in the amount of $8,664.00 in 2009. Alex’s contribution towards the purchase of thecar and insurance should be fixed at one-third;

g) Alex’s post-secondary expenses for tuition and books. [69] In addition to the other expenses that I found were not proper

section 7 expenses earlier in these reasons, I do not find thefollowing expenses claimed as extraordinary secondary school education expenses and extra-curricular activities to be reasonable ornecessary expenses:

a) Alex’s trip to Africa, including the inoculations;

b) Alex’s miscellaneous prom expenses, including the prom dress;

c) Fabric for fashion class;

d) School uniforms;

e) The trips to France/Italy;

f) The dancing and yoga classes taken by Alex after her 18th birthday, particularly given that she was able to pay for these classeswith her part-time employment income of $13,000.00;

g) The bartending course;

h) The cost of the bus tickets for Tyler to visit his maternal grandmother and father’s relatives in northern Ontario. Child Support and Post-Secondary Expenses for Alex: [70] I find that Alex was enrolled in a full-time program of education in 2010 and the father should not have stopped payingchild support for Alex during this time. The father should continue to pay the basic child support for Alex while she is living at themother’s home and attending university, given that she was not incurring residential fees.

However, as Alex earned $13,156.00 in 2010,she should have contributed far more than $2,000.00 towards her post-secondary expenses in accordance with her legal obligation to doso during the 2010/2011 academic year. I find that an appropriate sharing of Alex’s post-secondary expenses for that year should havebeen one-third to each parent and one-third to Alex given the amount of money Alex earned in 2010. However, I am not ordering thatthe father be reimbursed for his contribution towards Alex’s post-secondary expenses in 2010 for the reasons set out in

section 8 of thisJudgment. [71] In the future, an appropriate sharing of Alex’s post-secondary educational expenses is as follows. While Alex continues tolive at home, she should be required to pay 30% of her post-secondary expenses. Her parents will share the balance of these expenses inproportion to their annual incomes. Alex’s post-secondary expenses include the costs of tuition, books, parking pass, transportation andvehicle expenses and extra costs for labs.

8: CONCLUSION: [ 72 ] There is no question that the father underpaid child support between 2005 and 2008. However, he overpaid his contribution to the children’s additional expenses during the same time period. I find that the mother chose not to pursue increased child support from the father during the period given his contribution to all of the expenses the mother submitted. [ 73 ] According to the bank records filed by the father and the mother’s

schedule filed, I find that the arrears in monthly child support since 2008 (including child support for Alex during the time the father stopped paying) are the following: 2008 $1,1944.00 2009 $3,229.60 2010 $14,127.00 TOTAL $19,300.72 [ 74 ] I find that the arrears for proper

section 7 expenses for the same time period, according to the invoice

schedule prepared by the mother, are the following: Travel expenses Tutoring Summer/Sports Camps Car Expenses for School/University University Tuition & Books TOTAL 2008 $305.32 $38.40 $267.40 $2,101.00 $2,711. 2008 $70.08 $1,255.32 $1,210.00 $2,536.23 2010 $1,265.22 $389.50 $52.47 $1,707.16 TOTAL: $6,954.39 [ 75 ] The total amount of retroactive child support and arrears of

section 7 expenses since 2008 is therefore $26,254.39. [ 76 ] In considering all of the D.B.S. factors in circumstances of this case, in my view, an appropriate and fair retroactive award for both child support and the

section seven expenses since 2008 should be $14,000.00 for the following reasons. [ 77 ] By the time of trial, F.R.O had collected $4,700.00 of the approximately $12,000.00 submitted for

section seven expenses, many of which I have found are not legitimate

section 7 expenses. For example, I determined that the trip to Africa is not a legitimate

section 7 expense. The mother submitted the total cost of this trip to F.R.O. ($5, 258.00) and sought collection of $3,720.28 of that trip from the father, yet admitted at trial that more than half of the cost of this trip ($2,950.00) was actually not paid by her, but was raised through fundraising. I have also determined that the parties agreed that the father would pay 50% of the expenses submitted prior to 2008, so long as he did not dispute these expenses, yet the mother submitted all of these expenses and sought the full balance owing (the difference between the 50 % paid by the father and the 66% sought by the mother at trial). [ 78 ] In addition, the father has paid for a number of

section 7 expenses in 2008, 2009 and 2010 that I deemed were not proper

section 7 expenses, such as school uniforms, swimming lessons and driving lessons. These amounts, including the amounts being enforced by F.R.O. should be set off against the retroactive support and arrears owed.

The father also overpaid his contribution towards Alex’s post-secondary educational expenses for the 2010 to 2011 school year, given that Alex’s contribution should have been far greater, although I recognise that the father’s contribution was pursuant to Temporary Minutes of Settlement the parties negotiated with counsel during these proceedings. [ 79 ] Finally, it is hoped that this retroactive award achieves the "balance between certainty and flexibility" that the court describes in D.B.S ., balancing fairness to the children with certainty to the payor father in the overall “fairness” analysis that must be undertaken. 9: FINAL ORDER: [ 80 ] The final order will be as follows: 1.

Commencing October 1, 2011, the father shall pay child support to the mother in the amount of $1,702.00 per month, on the first day of each month thereafter. This is based on the table amount for two children pursuant to the Child Support Guidelines , based on the father’s stated income fixed of $125,000.00 per annum for 2011. Any adjustment to that amount will be made forthwith by the father upon receipt of his 2011 T-4 or end of year report documenting all salary and bonuses received; 2. The amount of retroactive child support and arrears for all outstanding

section 7 expenses owed by the father shall be fixed at $14,000.00. This amount shall be paid either in a lump sum forthwith and no later than 30 days from the date of his Order, or at a rate of $250.00 per month, commencing December 1, 2011 until the full balance is paid. 3. For any future

section 7 expenses (other than post-secondary education):

(

i) the mother shall advise the father in writing of the category and the expense; (ii) for any expense claimed by the mother, she shall deliver proof of the expense to the father on a quarterly basis; and (ii) the parents shall share these expenses in proportion to their respective incomes. The father's proportion of the parties' joint incomes is presently 66% and shall continue at this rate until otherwise agreed by the parties or adjusted by the court. 4. For post-secondary education expenses under

section 7, the mother and father shall be responsible for paying 70% of the children’s post-secondary expenses, including tuition, books, and transportation costs, in proportion to their incomes. The father's proportion of the parties' joint incomes is presently 66% and shall continue at this rate until otherwise agreed by the parties or adjusted by the court. 5. The mother shall provide the father each school term with: proof of the children’s enrolment in university or college, transcripts, details of student loans if any, tuition, book and transportation expenses and income.

She is to immediately notify him and the Family Responsibility Office if either child stops attending school. 6. The parties shall exchange copies of their income tax returns and notices of assessment, to the mother every year, by June 30 th of each, starting in 2012, pursuant to sections 21 and 25 of the Child Support Guidelines and the parents shall adjust support and

section 7 expenses accordingly; 7. A Support Deduction Order shall issue. [ 81 ] If the either party seeks costs, then they shall serve and file costs submissions, with a bill of costs and offers to settle attached, within 30 days. Any written response to costs submissions shall be served and filed within 20 days. Released: 288 October 2011 Signed: “Justice Sheilagh O’Connell”