r v. Thomas, 2017 ONSC 5864

CITATION : Fletcher v. Thomas , 2017 ONSC 5864 COURT FILE NO.: 04-1541-2 DATE: 2017/11/22 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) GAVIN FLETCHER Applicant – and – ANDREA THOMAS Respondent ) ) ) ) ) ) ) ) ) ) ) Deborah Bennett, Amicus Curiae for the June 20, 2017 hearing Katrina Anders, counsel for the Respondent Malina Feeley, Family Responsibility Office ) ) ) HEARD at OTTAWA: June 20, 2017 AMENDED REASONS FOR JUDGMENT The text of the original reasons was corrected on November 22, 2017, at para 97 and the explanation of the correction is appended. Kershman J. Introduction [ 1 ] The Applicant, Mr.

Fletcher (“Father”) has brought a Motion to Change the Order of Justice Minnema dated August 27, 2013, seeking changes to paragraphs 8, 9 and 10 of the Order. [ 2 ] He also seeks interim relief against the enforcement of child support by the Family Responsibility Office from September 1, 2016, until such time as a new Court Order is granted updating the child support. [ 3 ] A cross-motion is brought by the Respondent, Ms.

Thomas (“Mother”) seeking various relief set out in the cross-motion. [ 4 ] At the hearing, it was agreed on consent that: (1) all communication between the parties would only be as required, and would be civil at all times; and (2) the parties would share an internet calendar for the children’s activities. [ 5 ] In her cross-motion, the Mother withdrew her claim that the parties make matching RESP contributions for the children, which were to be fixed.

Factual Background [ 6 ] The Father and the Mother live separate and apart. They were never married and never resided together. They have two children together, being Audrey Petra Thomas (born April 21, 2004) and Austin Randolph Brian Thomas (born May 7, 2002). [ 7 ] The trial in this action was held on February 1, 4, 5, 6, 7, and 8, and April 11 and 12, 2013, before the Honourable Justice Minnema. The Final Order, dated August 27, 2013, gave joint custody of the children to the Father and Mother, with shared parenting on a week-on, week-off schedule, in addition to a holiday

schedule and guidelines regarding child support and related financial matters. The Father currently pays child support on a set-off basis pursuant to the Order of Minnema J. [ 8 ] Paragraphs 8, 9 and 10 of the Minnema J. Order read as follows: 8. On consent, commencing January 1, 2013, the Applicant shall pay set off child support pursuant to the guidelines for two children, namely Austin Randolph Brian Thomas (born May 7, 2002) and Audrey Petra Thomas (born April 21, 2004), to the Respondent in the amount of $503 per month, based on his income at $90,206 per year and her income at $53,408 per year. 9.

On consent, the parties shall share s. 7 expenses for the children in proportion of their respective incomes. For the year 2013, the Applicant’s proportionate share is 63% and the Respondent’s proportionate share is 37%. 10. Austin’s house league hockey costs shall be an extraordinary expense.

The portions of either party’s medical and dental insurance premiums attributable to the children shall be an extraordinary expense. [ 9 ] A further Order of Minnema J. was made on June 6, 2014, which ordered costs payable by the Mother in the amount of $48,000. [ 10 ] The costs of $48,000 were subsequently reduced to $23,500 on consent between the parties. An Order to this effect was granted by the Honourable Justice Mackinnon, dated April 24, 2014. [ 11 ] The Order of Mackinnon J. included the following paragraphs: 7. The amount toward children’s

section 7 expenses (not including orthodontics) shall be capped at a yearly amount of $2,500 (including both children), and each party shall pay their proportionate share, which for 2013 is 37% for the Respondent (Mother) and 63% for the Applicant (Father). It shall be payable within 30 days of receipt of payment on agreed upon expenses. 8. Each child shall be enrolled in no more than one activity at a time. Both parties shall make their best efforts to ensure that the children attend their activities. A reasonable overlap between seasonal sports shall be permitted.

This paragraph does not restrict a summer camp under paragraph 3 above that occurs while the child is participating in a seasonal activity (for example a summer sports camp during the soccer season). 9. On consent, commencing January 1, 2013, the Applicant shall pay set-off child support pursuant to the Guidelines for two children, namely Austin Randolph Brian Thomas (born May 7, 2002) and Audrey Petra Thomas (born April 21, 2004), to the Respondent in the amount of $503.00 per month based on his income at $90,206.00 per year and her income at $53,408.00 per year. 10. On consent, the parties shall share

Section 7 expenses for the children in proportion to their respective incomes. For the year 2013, the Applicant’s portion is 63% and the Respondent’s portion is 37%, 11. Austin’s house-league hockey costs shall be an extraordinary expense. The portion of either party’s medical and dental insurance premiums attributable to the children shall be an extraordinary expense.

[ 12 ] The Mother’s income increased from $53,408 in 2013 to $76,933 in 2014. Her income has been increasing ever since, although not at the same pace. [ 13 ] The Father’s income has also increased, although in 2015 and 2016 he had additional income for which he was claiming deductions. These deductions will be dealt with later on in this decision. [ 14 ] In 2014, neither party exchanged financial disclosure as ordered by Minnema J. and there was no adjustment of child support. [ 15 ] Financial disclosure took place in 2016.

The Father seeks an adjustment to set-off child support based on the change in the income of the parties. Issues [ 16 ] The issues on the motion and the cross-motion are as follows: 1. What is the Father’s income, and what exclusions are there to be for Child Support Guidelines

Schedule III deductions and for income tax deductions? 2. From what year should child support and s. 7 expenses be adjusted? 3. What is the amount of child support payable in this shared custody arrangement from 2014 to 2017 pursuant to s. 9 of the Child Support Guidelines ? 4. What are considered s. 7 expenses for these children? 5. What is the proper amount of s. 7 expenses that are payable by the parties from 2014 to 2016, and in what proportion? 6. What amount of s. 7 expenses should be paid on a monthly basis commencing in 2017? Issue #1: What is the Father’s income, and what exclusions are there to be for Child Support Guidelines

Schedule III deductions and for income tax deductions? Father’s Position [ 17 ] The Father argues that he should receive the following deductions:

a) For 2014: the Father acknowledges that in 2014 he did not take any deductions or claim any exclusions. In his Affidavit material he advised that he would not be seeking any revisions to his income.

b) For 2015: the Father argues that he should be able to claim the following deductions and exclusions:

Item Amount Total income $103,656 Less Universal Child Care Benefit ($720) Less employment expenses made up of:

a) Union dues ($1,388)

b) Employment expenses claimed ($4,792) Income for child support purposes $96,756 Child support based on this amount $1,376

c) For 2016: the Father argues that he should be able to claim the following deductions and exclusions: Item Amount Total income $104,009 Less Universal Child Care Benefit ($360) Less employment expenses made up of:

a) Union dues ($1,422)

b) Employment expenses claimed ($3,551) Income for child support purposes $98,676 Child support based on this amount $1,399 Mother’s Position [ 18 ] The Mother argues that the deductions claimed by the Father, based on his second job with the Children’s Aid Society, should not be deductible from his income for child support purposes even though they may be deductible for income tax purposes. [ 19 ] The Mother did not take issue with the exclusion for the Universal Child Care Benefit or the union dues. Analysis [ 20 ] The Court has reviewed the deductions and exclusions taken by the Father.

The Court is satisfied that the exclusions claimed for the Universal Child Care Benefit and for union dues are appropriate for both the years 2015 and 2016, based on

Schedule III of the Child Support Guidelines . [ 21 ] As to the claim for employment expenses deductions, in 2015 the Father claimed workspace in the home expenses of: Item Amount Electricity, heat and water $5,460.00 Maintenance $150.00

Other expenses $18,352.22 Total $23,962.22 Less personal expenses ( $21,556.00) Claimed as a deduction $2,396.22 [ 22 ] The Court finds that the claim for workspace in the home may be an appropriate deduction for tax purposes, but is not a proper claim for child support purposes. The Court orders that $2,396.22 be included in the Father’s income for child support purposes. [ 23 ] The Father also claimed “other expenses” of $2,396.22, coincidentally the identical figure as above.

The Father did not specify what the “other expense” figure of $2,396.22 was for, even though in the income tax form it indicates to specify what it is for. The portion of the income tax return related to this number is missing. The Court will allow the sum of $1,000 as an acceptable expense based on s. 1,

Schedule III of the Child Support Guidelines . [ 24 ] Therefore, the Court finds that the claim for employment expenses in the materials filed is disallowed to the extent of $3,792.44 ($2,396.22 + $1,396.22) for 2015 for child support purposes.

The Court finds that the Father’s income for 2015 is $100,548 and the amount of child support payable is $1,422. [ 25 ] As to the claim for employment expenses deductions, in 2016 the Father claimed workspace in the home expenses of: Item Amount Electricity, heat and water $6,548 Maintenance $5,000 Other expenses 0 Total $11,548 Less personal expenses ($10,393.20) Claimed as a deduction $1,154.80 [ 26 ] The Court finds that the claim for workspace in the home may be an appropriate deduction for tax purposes, but is not a proper claim for child support purposes.

The Court orders that $1,154.80 be included in the Father’s income for child support purposes. [ 27 ] The Father also claimed “other expenses” of $2,396.22, as he did in 2015. The Father did not specify what the “other expenses” figure of $2,396.22 was for, even though in the income tax form it indicates to specify what it is for. The portion of the income tax return related to this number is missing. The Court will allow the sum of $710 as an acceptable expense based on s. 1,

Schedule III of the Child Support Guidelines. [ 28 ] Therefore, the Court finds that the claim for employment expenses in the materials filed is disallowed to the extent of $2,841.02 (1,154.80 + 1,686.22) for 2016 for child support purposes. The Court finds that the Father’s income for 2016 is $101,517 and the amount

of child support payable is $1,434. Issue #2: From what year should child support and s. 7 expenses be adjusted? Father’s Position [26] The Father argues that child support should be adjusted commencing in 2014. He acknowledged that neither party provided their financial disclosure in 2014. [27] The Father takes the position that he has overpaid child support in the amount of $10,026 for the years 2014 to 2016.

He claims that the breakdown is as follows: Year Overpayment 2014 $2,988 2015 $3,450 2016 $3,588 TOTAL $10,026 Mother’s Position [28] The Mother argues that she is willing to adjust child support going forward at the set-off amount of $302 per month to be paid by the Father. She argues that since neither party exchanged their income tax information by the appropriate due date set out in the Minnema J. Order, the Father should not be entitled to any overpayment of child support.

Analysis [ 29 ] The Court has reviewed the calculations from the Father regarding the income tax arrears owing between 2014 and 2016 of $10,026. [ 30 ] The Court has prepared its own chart to determine the amount of child support based on the information available to it at the hearing of the motion. The chart is as set out below and includes the years 2014, 2015 and 2016, and the months of January 2017 to September 2017.

Year Father’s Income Child Support to be Paid by Father Mother’s Income Child Support to be Paid by Mother Set Off Child Support Amount Child Support Owed Child Support Paid Overpayment by Father 2014 $97,593 $1,386 $76,933 $1,132 $254 $3,048 $6,036 $2,988 2015 $100,548 [$103,656 - $720 - $1,388 - $1,000] $1,422 $78,855 $1,158 $264 $3,168 $6,036 $2,868 2016 $101,517 [$104,009 - $360 - $1,422 - $710] $1,434 $82,017 $1,196 $238 $2,856 $6,036 $3,180 2017 $101,517 [Based on 2016 calculations] $1,434 $82,017 $1,196 $238 $2,142 [$238 x 9] $4,527 [to Sept. 3, 2017] $2,385

TOTAL $11,421 [ 31 ] The Court finds that the Father has made overpayments as set out in the chart above. The Court finds that the overpayments amount to $11,421 from January 2014 to September 2017. [ 32 ] The Mother argues that repaying the overpayment of child support would be a hardship on her and would be unfair to her because of when disclosure was actually provided.

The Father says he provided disclosure at the appropriate time. [ 33 ] The large change in child support was because the Mother received approximately a $25,000 increase in her salary in 2014, which increased her salary from approximately $53,000 to approximately $76,000.

This was a considerable jump in her income. [ 34 ] While the Mother may argue that the repayment of this amount is a hardship, the Court notes that she is paying into a share purchase plan, she is paying into an RRSP and/or RESP, as well as already having reduced her debt by approximately $30,000 by filing a proposal under the Bankruptcy and Insolvency Act whereby she would repay $33,000 at the rate of $550 per month for a period of 60 months. [ 35 ] The Court has considered that: 1) legal costs were decreased on consent from $48,000 to $23,500; 2) she has filed a Consumer Proposal which reduced her debt by an additional $30,000; 3) she has been buying into a share purchase plan; 4) she has been saving money for RRSP and/or RESPs; and 5) she did not disclose her increase in salary in 2014, which would have reduced the amount of child support payable by the Father to the Mother. [ 36 ] Paragraph 13 of the Minnema J.

Order dated August 27, 2013, is clear. It states that each party shall provide a copy of his or her Notice of Assessment by June 1 of each year. Since the Order was made in 2013, the disclosure should have been provided by June 1, 2014. [ 37 ] Although not explicitly stated, the Court finds that child support and s. 7 expenses are to be adjusted in each year, whether the parties provide the Notices of Assessment and income tax returns or not. [ 38 ] Therefore, the Court finds that there should be an adjustment of child support and s. 7 expenses in each year commencing in 2014.

Issue #3: What is the amount of child support payable in this shared custody arrangement from 2014 to 2017 pursuant to s. 9 of the Child Support Guidelines ? Mother’s Position [ 39 ] The Mother argues that there is a significant difference in household income and expenses between the parents, which is

reflected in the Financial Statements filed by each party. [ 40 ] The Mother argues that based on the affidavit evidence and the Financial Statements provided, the Mother is in a more difficult financial position than the Father. The Mother says that the Father has a higher income than the Mother as he lives with his new partner, who works full time for the Children’s Aid Society.

She says that the Father’s family income is at least double hers. [ 41 ] The Mother argues that she is on a fixed budget due to her filing of a Consumer Proposal made to her creditors under the Bankruptcy and Insolvency Act . [ 42 ] The Mother argues that she drives a 2005 Hyundai Elantra and owns a three bedroom condominium townhouse built in 1986. She claims to participate in free clothing exchanges to help clothe her children. [ 43 ] She argues that she operates at a loss of $523 per month, or $1,026 if child support is not included.

She argues that if child support is set at the set-off of $302 per month, she will operate at a loss of $724 per month, or $8,688 per year. [ 44 ] She argues that the Father has “piled on” many activities for the children, together with the equipment expenses. She says that the vast majority of these expenses are not true s. 7 expenses and were not consented to by her. In her materials, she outlines her attempts to deal with the Father on these issues. [ 45 ] The Mother argues that the Court, should follow the analysis set out in the case of Contino v.

Leonelli-Contino , 2005 SCC 63 , [2005] 3 S.C.R. 217 , examine the financial circumstances of the parties and make an order that is fair and that allows each parent to maintain a reasonable standard of living while the children are in each respective parent’s care. [ 46 ] The Mother argues that from August 27, 2013, to August 1, 2016, she paid her proportionate share of the insurance premiums in the amount of $16.16 per month. [ 47 ] She argues that the Father has not reimbursed her for her dental insurance premiums, attributable to the children.

She is seeking reimbursement for the period January 1, 2014, to February 28, 2017, totalling $1,845.56. [ 48 ] The Mother is also asking the Court to order $64 payable in support for her dental insurance premiums attributable to the children as of the date of the Order. [ 49 ] She argues that she is still prepared to contribute to the Father’s medical premiums of $16.16 per month commencing September 1, 2016, as she stopped paying him in August 2016 due to the existing proceedings. Father’s Position [ 50 ] The Father claims that the Mother has refused to pay s. 7 expenses incurred by him regarding the children.

The Father distinguishes between s. 7 expenses for recreation and sports expenses, as opposed to other s. 7 expenses. [ 51 ] The Father wants the Mother to pay her proportionate share of s. 7 expenses for recreation and sports on a pro-rata basis and collectible by FRO together with other s. 7 claimed by him. [ 52 ] For 2016, the Father wants the Mother to pay $94 per month. For arrears from 2013 to 2016, he wants her to pay a total of $2,615.84 for all retroactive s. 7 expenses and for s. 7 expenses for Austin’s hockey.

[53] The Father argues that the Mother is making a reasonable living and that the Contino analysis should not apply. [54] He argues that: 1) on consent he agreed to reduce the amount of legal costs awarded by the Court from $48,000 to $23,500. 2) the Mother’s income increased over $25,000 in 2014. 3) the Mother is not contributing towards the main s. 7 expenses and other s. 7 expenses. 4) the Mother has lived in a home that she has owned since 2009 while he has lived in a rental townhouse about the same size as theMother’s. In 2015, he purchased a home with his new partner that is larger than the Mother’s.

At the same time, the size of his familyhas grown from three people, himself and his two children, to five people, which includes his new partner and her child. [55] The Father wants the Mother to pay her proportionate share of medical/dental premiums from 2013 to 2016. For 2014, heargues that she should have paid $315.12.

He says that she refuses to pay it, as there was no Court order regarding this expense untilAugust 27, 2013, and that she would not consent to pay this expense from January 1, 2013, to August 27, 2013. [56] After many emails, apparently the Mother agreed to pay this expense from September 2013 to August 2014. The expense waspaid on a monthly basis, but was never received on a timely basis. [57] In March 2015, according to the Father, the Mother stopped making the monthly payments and then restarted again.

Heclaims there is an amount owing of $121.20 for 2015 up until June 2016. [58] In relation to 2016 expenses, the Father says that the Mother finally made the payment for the expense for part of the year,but not for other parts of the year. [59] The Father argues that he is tired of the conflict regarding these expenses and seeks to have resolution thereto. Analysis [60]

Section 9 of the Child Support Guidelines reads as follows: 9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over thecourse of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [61] In the case of Contino, the Court addressed the issue of payment of child support in shared custody arrangements. [62] The Contino analysis requires four steps (adapted from D.A. Rollie Thompson, “‘Annotation’ of Contino” (2005) 2005 SCC63 , 19 R.F.L. (6th) 272):

a) Determining the simple set-off amount. The starting point under s. 9(

a) is the difference between the table amounts for both parents as though each parent were seeking child support from the other. This amount may be adjusted upwards or downwards in the remaining steps (Contino at para. 43).

b) Reviewing the child care expenses budgets.

Section 9(

b) recognizes that the total cost of raising children in shared custody arrangements may be greater than in sole custody situations. At this stage, the Court must examine the budgets and actual child care expenses of each parent. There may be duplicated costs or a disproportionate assumption of spending by one parent. The expenses will have to be apportioned between the parents in accordance with their respective incomes ( Contino at paras. 52 and 53 ).

c) Considering (

a) the ability of each parent to bear the increased costs of shared custody and (

b) the standard of living for the children in each household. In assessing each parent’s ability to bear the increased costs of shared custody, under s. 9(

c) the Court will consider their assets and liabilities, income levels and any disparity in incomes. The Court will also examine the standard of living of each household. Children should not experience a significant variation in the standard of living as they move from one household to another ( Contino at paras. 51 and 69 ).

d) Distinguishing between initial orders or agreements and variations. A variation application will usually raise different concerns than an application where no prior order or agreement exists. The recipient parent may have incurred expenses based on legitimate expectations of how much child support would be provided ( Contino at para. 55 ). [ 63 ] Under paragraph 9(

a) of the Child Support Guidelines , the table amount to be paid by the parents is as set out in the chart prepared by the Court at paragraph 31 above. [ 64 ] Under paragraph 9(

b) of the Child Support Guidelines , the Court is to take into account the increased costs of the shared custody arrangement. The parties have been in a shared custody arrangement since at least 2013. Based on the reasons in the Minnema J.

Decision, the parents had shared time with the children prior to the trial. [ 65 ] Based on the evidence, the Court does not find that there have been any increased costs due to the shared custody arrangement; rather, the shared custody costs have been continuous throughout. [ 66 ] The Court does not find that there are any increased costs that would change the proportionate sharing of s. 7 expenses, particularly in light of the Cap discussed later on in these reasons. [ 67 ] Paragraph 9(

c) of the Child Support Guidelines requires the Court to take into account the “conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought”. In this particular case, a factor to take into account under this paragraph is the difference in household income. The difference in income between the parties has been taken into account previously in paragraph 9(

a) of the Child Support Guidelines, which deals with set-off amount of table child support. [ 68 ] There is definitely a difference in family incomes between the two parties. The Father now has a partner who works. Even if the partner makes $40,000 and he makes $94,000, his total family income is $134,000, while the Mother’s family income is about $82,000. [ 69 ] The Mother filed a Consumer Proposal in May 2014 in which her unsecured debts were approximately $63,000. Under the Consumer Proposal she agreed to repay $33,000 at the rate of $550 per month. The Consumer Proposal will end in June 2019.

Under the Consumer Proposal her debt was reduced by about $30,000. [ 70 ] A review of the Mother’s Financial Statements, sworn May 25, 2017, shows that she earns an income of $6,913 per month, plus a Child Tax Benefit of $220 per month, for a total of $7,133 per month or $85,596 per year. [ 71 ] In reviewing her expenses, the Court notes the following items:

a) Share purchase plan: $229 per month or $2,748 per year

b) Condominium fees: $1,049 per month or $12,588 per year (the Court is not sure if this figure includes payment towards the special assessment or not)

c) Alcohol and tobacco: $150 per month or $1,800 per year

d) RRSP/RESP withdrawal: $374 per month or $4,488 per year

e) Debt payments: $1,275 per month or $15,300 per year, which includes the $550 per month for the Consumer Proposal [ 72 ] The Mother’s monthly expenses total $8,518 per month or $102,216 per year.

Based on the calculations provided, she operates on a deficit every month of $1,383 before the payment of the set-off child support. [ 73 ] According to her Financial Statements, her debts are as follows: 1) Consumer Proposal filed in 2014: $13,200 2) Condominium special assessment: $12,238 of which 60% is due on December 1, 2017, and 40% is due on September 1, 2018 3) Personal loan (Petra Hartwig): $28,747 4) Vacuum loan: $6,815 [ 74 ] Her total net worth is as follows: Item Amount 1) Net assets: $224,456 2) Total debts: $233,574 3) Net worth: ($9,117) [ 75 ] The Mother has been in financial difficulty to the extent that she has had to file a Consumer Proposal to reduce her debts from $63,000 to $33,200.

She also has to pay the special condominium assessment of $12,238 by September 2018. The monthly condo fee is $1,049; the Court assumes that this includes a payment towards the special assessment. [ 76 ] The Court notes that the Mother is trying to save money by paying into a company share purchase plan at the rate of $229 per month and, in addition, putting $4,488 into an RRSP/RESP. [ 77 ] The Mother spends $150 per month on alcohol and tobacco as well as paying a high interest loan on a vacuum cleaner. [ 78 ] The challenges faced by the Mother are very real.

She is trying to raise two children on a shared basis and is going into the red every month by $1,388 excluding child support. She could reduce the deficit if she chooses to by: 1) reducing the amount paid towards the RRSP/RESP; 2) stopping contribution to the share purchase plan; 3) reducing her smoking/alcohol expenses; and 4) refinancing the vacuum cleaner purchase to a rate lower than the current rate of 18% per annum. [ 79 ] The Court finds that the Mother can reduce her deficit by taking these constructive measures. [ 80 ] The Father’s Financial Statement was sworn February 8, 2017.

He states that in 2016, his income was $103,233. He says that his income for the first three months of 2017 averages $7,332 for an annualized income of $87,984. [ 81 ] In his Affidavit dated February 27, 2017, the Father states at paragraph 35: “…My partner pays 40% of those expenses listed under the heading “Housing” under my financial statement. Therefore, I pay $873.60

per month in mortgage payment, more than Ms. Thomas. Ms. Thomas pays $226 in property taxes. I pay $255 per month (60% of $425). My proportionate house insurance is $87.60 per month (60% of $146) whereas Ms. Thomas pays $28.17 per month.” [ 82 ] At paragraph 36 the Father says: “My partner pays 40% of the expenses listed under “Utilities” (with the exception of cell phone expenses as this includes only myself and both my children, not my partner or daughter’s cell phone). Therefore, in total I pay $727.80 in utility expenses and Ms. Thomas pays $497.56.

My partner also pays 40% of the expenses listed under “Household” therefore I pay $654 for this category and Ms. Thomas pays $680. My partner does not contribute to any other of the expenses listed on my financial statement. All expenses listed under “Transportation”, “Health”, “Personal” and “Other Expenses” are my expenses only…” [ 83 ] In his Financial Statement, the Father lists his income, excluding his partner.

He also lists his automatic deductions, which are his alone, excluding his partner. [ 84 ] Under “Housing” he lists the following: Rent or Mortgage: $1,456 Property Tax: $425 Property Insurance: $146 Repairs and Maintenance: $150 Subtotal: $2,177 [ 85 ] Under “Utilities” he lists the following: Water: $107 Heat: $146 Electricity: $417 Telephone: $53 Cellphone: N/A Cable: $137 Internet: $53 Subtotal: $913 [ 86 ] Under “Household Expenses” he lists the following: Groceries: $800 Household Supplies: $100 Meals outside the home: $150 Pet care: $20 Laundry and Dry Cleaning: $20 Subtotal: $1,090 [ 87 ] The Court finds that his expenses as listed in his Financial Statement under the headings “Housing”, “Utilities” (save and except cell phone) and “Household Expenses” are the entire expense for both himself and his partner, of which his partner is paying 40%.

The way this document reads is that he pays all of these expenses, when in fact, as per his sworn Financial Statement, he only pays 60% of them. This means that his expenses are far less than he has claimed. Therefore, the Court finds that the monthly expenses, as claimed by him, are an inaccurate and inflated representation of what his true expenses are.

[ 88 ] He says the house is valued at $365,000, with a mortgage of $365,000. The house is owned in joint tenancy. He shows debts of $40,000 for legal fees. [ 89 ] According to his calculations, his net worth is as follows: Item Amount 1) Total assets: $397,500 2) Total debts: $462,400 3) Net worth: ($64,900) [ 90 ] The Father and his partner own their matrimonial home. He lists the value of the home at $365,000. At the same time, he lists the mortgage debt at $365,000, meaning that there is no equity in the home.

The Court does not accept that the value of the home, as shown by the Father, is his share of the matrimonial home, while the mortgage is valued at $365,000. It makes no sense. The Court does not see how he could purchase the matrimonial home with no money down. [ 91 ] Therefore, the Court finds that the calculation of what the Father has set out as his net worth for the home is incorrect.

The Court does not know how much the Father and his partner paid for the property, however, the Court does find that the house is valued in excess of $500,000 with a $365,000 mortgage. [ 92 ] On that basis, the Father’s net worth would be as follows: Item Amount

a) Total assets: $282,500

b) Total debts: $280,400

c) Net worth: $2,100 [ 93 ] Looking at the net worth of each party, they are approximately the same, with the Father having a net worth of approximately $2,100 and the Mother having a net worth of approximately negative $9,100.

The Court finds that the parties have similar net worths. [ 94 ] This is a variation application where the parties previously had shared time with the children as opposed to a situation where one party had sole custody of the children who have now moved to a shared custody situation, which would result in an increase in expenses for one parent. [ 95 ] The Court is aware that there is a disparity in the incomes of the parties, however, the Court does not find that the disparity in the income levels is that great and finds that it has been dealt with appropriately in the set-off calculation of child support. [ 96 ] The Court does not find that the children experience a significant variation in the standard of living when they move from one household to the other.

There may be a variation, but the Court does not find that the variation is significant. [ 97 ] The Court has concluded, having taken into account the Contino factors, that the amount of set-off child support based on the Father’s income of $101,517 and the Mother’s income of $82,017 is appropriate.

Issue #4: What are considered s. 7 expenses for these children? Father’s Position [ 98 ] The Father seeks to claim the following as s. 7 expenses:

a) Children’s sports, including hockey, soccer and skiing for Austin, and gymnastics for Audrey;

b) School fees;

c) Winter boots and coats;

d) School uniforms;

e) Other activities at the YMCA;

f) Medical expenses; and

g) Cellphones for the children. Mother’s Position [ 99 ] The Mother argues that she has paid s. 7 expenses for the children, including a recital costume for Audrey, clarinet rental for Audrey, gymnastics for Audrey, school trips, and other items. Analysis [ 100 ] In the Order of Mackinnon J. dated April 24, 2014, it clearly specifies what s. 7 expenses are allowed and has set a Cap of $2,500 per year (“Cap”). The only s. 7 expense which is excluded from the Cap is orthodontics. That Order was made on consent of the parties. Based on the wording of the Mackinnon J.

Order, the Court finds that there is a Cap in relation to all s. 7 expenses except orthodontics. [ 101 ] The Child Support Guidelines set out the applicable principles in relation to s. 7 expenses as follows: 7

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

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

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, occupational therapy, speech therapy and 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’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. 7

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

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

(

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

b) where paragraph (

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

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

v) any other similar factor that the court considers relevant. [ 102 ] Winter boots, winter coats, clothing and cellphones are not expenses listed under s. 7(1) of the Child Support Guidelines . In the case of Giroux v. Mueller , 2013 ONSC 246 at paragraph 39 , the Court held that winter boots and winter coats are not s. 7 expenses. [ 103 ] In the case of Dagg v.

Chenier , 2015 ONSC 3049 , the Court held at paragraph 48 that cellphone bills were not s. 7 expenses, but rather, “ordinary, common and unexceptional expenses…intended to be covered by the basic table amount of child support”. [ 104 ] In terms of school uniforms and activities, those could be captured under s. 7(1)(d) “extraordinary expenses for primary and secondary school or for any other educational programs that meets the child’s particular needs”. [ 105 ] The Court notes that these expenses would have to be “extraordinary” according to the criteria under s. 7(1.1). In the case of Bordin v.

Bordin , 2015 ONSC 3730 , at paragraph 121 , the Court did not consider school uniforms to be s. 7 expenses because the parent “offered no evidence to show that the uniforms have caused her to spend anything more than she would normally spend on their clothing needs”. [ 106 ] In this case, the Court finds that school uniforms, fees for school activities, winter coats and boots and cellphones are not extraordinary expenses.

These are expenses that are intended to be covered by the basic table amount of child support. [ 107 ] In relation to the activities, such as hockey, soccer, gymnastics and skiing, the Court does find that these are extraordinary expenses, which should be paid by the parents in proportion to their incomes, subject to the Cap. Issue #5: What is the proper amount of s. 7 expenses that are payable by the parties from 2014 to 2016, and in what proportion? Father’s Position [ 108 ] The Father has provided charts showing the calculations of s. 7 expenses relating to the children. They are broken down as follows:

a) Austin – hockey, soccer, skiing (depending on which years);

b) Audrey – soccer, skiing, gymnastics;

c) School fees;

d) School uniforms;

e) Other activities, including the YMCA;

f) Cell phones; and

g) Medical. [ 109 ] He argues that in Scenario #1, the arrears without considering the Cap are $3,450.90. He argues that in Scenario #2, the arrears are $3,114.11 with the Cap. [ 110 ] In addition to these amounts, which relate only to activities for Austin and Audrey, including hockey, he claims that there are further amounts for extraordinary expenses for school fees, school uniforms, other activities not accounted for, including YMCA, medical and cell phone, and he calculates the arrears for these at 45% owing by the Mother are another $1,643.39.

Mother’s Position [ 111 ] The Mother argues that it was agreed that Austin’s house league hockey expense would be a s. 7 expense. [ 112 ] She views extracurricular activities as a privilege and not a mandate and believes that they should be based on a number of factors, including the ability to pay. [ 113 ] The Mother argues that the Father has pushed her to pay for various expenses for the children that she cannot afford, that he involved the children in various activities without her consent, and then sends her bills to pay. [ 114 ] She claims that the Father has purchased expensive equipment for the children, which she is expected to pay for but cannot afford. [ 115 ] The Mother argues that extraordinary expenses should be shared, and should simply be orthodontics, driver’s education, passports for the children and post-secondary education, in addition to the final court ordered expenses of Austin’s house league hockey, and medical and dental insurance premiums. [ 116 ] The Mother argues that the Minnema J.

Order requires advanced consent of both parties, and the provision of receipts prior to any reimbursements sought from the other parent. She argues that she is not able to keep up with the Father’s expenditures for the children. Analysis [ 117 ] The following are the Court’s calculations as to what the s. 7 expenses are, based on a Cap of $2,500 as set out in the Mackinnon J. Order (excluding the claim for orthodontic expenses). This is based only on the Father’s calculations and what he has spent on the s. 7 expenses.

Year Father’s Income Mother’s Income Total Income Father’s Share % Mother’s Share % Father’s Share Amount Mother’s Share Amount 2014 $97,593 $76,933 $174,526 56 44 $1,400 $1,100 2015 $101,548 $78,855 $180,403 56 44 $1,400 $1,100 2016 $102,227 $82,017 $184,244 55 45 $1,375 $1,125 2017 $102,227 $82,017 $184,244 55 45 $1,375 $1,125

[ 118 ] The aforesaid are the amounts that each party is responsible for. The Father claims that he has paid all of the s. 7 expenses, which were in excess of the $2,500 Cap, but were adjusted above based on the $2,500 Cap. [ 119 ] The Mother claims that she has incurred various s. 7 expenses, including for Audrey’s recital costume, Audrey’s clarinet rental, Audrey’s tumbler gymnastics, school uniforms, hockey fees for Austin and Austin’s New York City trip. [ 120 ] The Mackinnon J.

Order made on consent of the parties requires that s. 7 expenses shall be payable within 30 days of receipt of payment on agreed upon expenses. [ 121 ] The evidence of the parties is very contradictory as to whether or not consent was provided for incurring the s. 7 expenses. [ 122 ] Based on the contradictory evidence, the Court is not able to determine whether consent was given, which parent was required to give it and in relation to what item. [ 123 ] Therefore, the Court finds that each party has not proven on the balance of probabilities that consent has been given to the activities and that the other parent should pay for it. [ 124 ] Various monies have been spent by each party, but the Court is unable to figure out who owes how much to whom in relation to s. 7 expenses.

Therefore, the Court finds that there are no s. 7 expenses owing by either party to the other for the years 2014, 2015 and 2016. [ 125 ] The parties are required to follow the Court Order to obtain consent prior to the incurring of the expense.

The Court orders that subject to the Cap, consent to s. 7 expenses should not be unreasonable withheld. [ 126 ] If consent is not obtained, the Court predicts that the parties will continue to find themselves embroiled in this expensive litigation, the cost of which far outweighs any benefit to them or their children. [ 127 ] Both parties have complained bitterly that their legal expenses have been very high and have put them into debt. The parties have spent in excess of $30,000 each on legal fees prior to this hearing.

If the parties continue upon this expensive, senseless path, they will continue to be in court and may continue to find themselves in a position whereby the Court is not able to determine whether consent has been granted and is not able to determine who owes who how much money in relation to s. 7 expenses.

This will lead them into further debt and at one point in time, at least one, if not both of the parties, will not be able to recover from the legal costs, time and emotion spent dealing with these issues. [ 128 ] In order to resolve the issue of agreed upon s. 7 expenses in the future, the Court orders that the parties agree in writing in advance of incurring such expenses (such consent not to be unnecessarily withheld). This agreement excludes Austin’s house league hockey, medical/dental premiums and orthodontics.

Medical and Dental Premiums Father’s Position [ 129 ] The Father argues that the Mother has not paid the monthly expense for the medical and dental premiums since August 2016. As of March 1, 2017, the amount owing is $127.66. Mother’s Position

[ 130 ] The Mother argues that from August 27, 2013, to August 1, 2016, she paid her share of the Father’s medical insurance premiums of $16.16 per month. She argues that the Father has not reimbursed her for dental insurance premiums that she has paid attributable to the children. [ 131 ] The Mother argues that she is willing to continue to pay the Father’s medical and dental premium expense of $16.16 per month effective September 1, 2016. She states that she stopped paying him in August 2016 due to the commencement of the motion to change. Analysis [ 132 ] Paragraph 10 of Minnema J.

Order dated August 27, 2013, states that medical/dental insurance premiums for the children are to be considered as an extraordinary expense payable by the parties in proportion to their incomes. [ 133 ] According to the Father, he incurred these premiums and there are monies owing to him. [ 134 ] The Mackinnon J. Order of April 24, 2014, which the Court notes was made on consent, varies the paragraph in relation to s. 7 expenses for both children, except for orthodontics, placing a yearly Cap of $2,500 for both children.

The Court finds that the medical/dental premiums are not orthodontic expenses and, as such, fall under the Cap of $2,500. [ 135 ] Notwithstanding how much money may be claimed for s. 7 expenses, the Cap of $2,500 is in place and the most can be charged for s. 7 expenses, save and except for orthodontics, is $2,500. [ 136 ] Therefore, payment of the medical/dental insurance premiums is likely moot because of the Cap. [ 137 ] In the event the issue of premiums is not moot, the Court orders that each party continue to pay their proportionate share of the other party’s medical and dental premiums.

Orthodontic Expense Father’s Position [ 138 ] The Father argues that according to the Mackinnon J. Order, orthodontics are a s. 7 expense. [ 139 ] The Father argues that he had enrolled the children in a dental plan since 2006. The Father indicates that his dental plan does not cover orthodontics. The Father argues that the Mother enrolled the children into a second plan under her name in 2014, despite his protests and lack of consent. [ 140 ] He says that the Mother’s plan was expensive at $85 a month, with the bulk of it being paid by the Father (63%).

At the time, no orthodontic treatment was required for either children. He claims it was a huge waste of money. [ 141 ] Austin did start orthodontic treatment in the fall of 2015. The Father’s biggest complaint is that only the Mother has been benefitting from her insurance plan for orthodontics and, at the same time, he is paying 63% of it. [ 142 ] The Court notes that the Mother’s plan coverage for orthodontics is up to 50% up to a maximum of $2,500. He argues that the Mother alone is the only one that benefits from the plan, notwithstanding that he is paying a proportionate share.

Mother’s Position [ 143 ] The Mother argues that orthodontics is not covered by either of the two court orders. [ 144 ] She argues that both parties have signed their own contracts with the orthodontist for Austin, who continues in treatment. [ 145 ] In her factum, the Mother proposes two scenarios as to how the issue of the orthodontic expense can be dealt with. The scenarios are very complicated. The Court does not understand either of the two scenarios set out by the Mother. Analysis [ 146 ] Pursuant to the Mackinnon J.

Order of April 24, 2014, made on consent, orthodontics is a s. 7 expense and is not covered by the $2,500 Cap per year for both children. [ 147 ] Medical/dental plans may include or exclude orthodontic treatment, depending on the scope of a particular plan. The Father acknowledges that his medical/dental plan premiums do not cover orthodontics. [ 148 ] While in 2014, when the Mother first obtained her plan, Austin did not require orthodontic treatment, by 2015, he was receiving such treatment.

Looking ahead, Audrey may well be a candidate for orthodontic treatment, when she is old enough. [ 149 ] The Mother did enroll the children in her own plan in January 2014, apparently without the consent of the Father. The Father has been paying 63% of the premiums of $85 per month and argues that he is not getting any benefit from the money that he is paying. [ 150 ] In 2015, when Austin started to receive the orthodontic treatment, the Father expected that he would receive a benefit for a plan that he was paying for part of.

According to him, the Mother does not remit insurance proceeds to the Father, even though he is paying 63% of the premiums. [ 151 ] The Court does not agree with the Mother’s position that the Mackinnon J. Order does not cover orthodontics.

It clearly does. [ 152 ] The Court finds that the payment of the premiums by the Father entitles him to receive his share of the reimbursement. [ 153 ] The Court does not find that the Mother’s position that each party has set up their own contract with the orthodontist is an appropriate reason for denying the Father his share of the insurance reimbursement, particularly since he has been paying a proportionate share of the premiums. [ 154 ] The Court is not aware of what amount who owes to whom for orthodontics.

The Court requires the parties to calculate, in chart format, the cost of the orthodontic plan being paid, who has been reimbursed, and how much, as well as how much the insurance company has paid and to whom. The parties are to exchange the information within 20 days of the release of this decision.

If they cannot resolve the issue on their own, they are to attend before the Court to provide oral submissions of no more than 15 minutes each, to explain their position with the appropriate backup documentation. [ 155 ] If these submissions are required, the parties shall contact the trial coordinator within 30 days of the release of this decision to set up an appointment at 9:15 a.m. to deal with the issue. [ 156 ] These submissions are not to include the medical/dental premiums, but only the amounts in relation to orthodontics.

[ 157 ] This Court orders that the parties are to obtain the benefits from any orthodontic insurance coverage, as well as any medical and dental coverage that the parties are paying for. It is not appropriate for only one party to benefit from the insurance coverage when both parties can benefit from it. Issue #6: What amount of

section 7 expenses should be paid on a monthly basis commencing in 2017?

Father’s Position [ 158 ] The Father argues that the Mother should pay 45% of all expenses related to the following: Item Amount Recreational expenses: 45% of $2,500 divided by 12 = $93.75 Additional hockey expenses: 45% of $1,875 divided by 12 = $71.30 School fees: 45% of $330.54 divided by 12 = $12.38 School uniforms: 45% of $380.54 divided by 12 = $14.27 Cellphones: 45% of $744 divided by 12 = $27.90 Total: $218.63 [ 159 ] He argues that this amount of money should be paid by the Mother towards the s. 7 expenses and that this amount should be set by way of Court Order.

Mother’s Position [ 160 ] The Mother argues that the extraordinary expenses that the Father is claiming are in excess of the Cap, and that some of them are not extraordinary expenses. She also argues that she is paying s. 7 expenses, which should be taken into account when setting the amount. Analysis [ 161 ] The Court has already determined that school fees, school uniforms, and cellphones are not s. 7 expenses. [ 162 ] There is already a Cap of $2,500 for s. 7 expenses.

The Father’s claim of $2,500 for recreational expenses and another $1,875 for additional hockey expenses is not in accordance with the Court Orders previously discussed. [ 163 ] Therefore, the Court orders that the s. 7 expenses payable by the Mother are 45% of $2,500 or $93.75 per month. The Court realizes that the Father is not paying all of the s. 7 expenses. The Mother is paying some of the s. 7 expenses for which she seeks a reimbursement. The Court is not able to untangle the very convoluted amounts claimed with respect to s. 7 expenses.

The Court exercises its discretion and orders that the Mother pay $60 as her 45% share of s. 7 expenses. Conclusion [ 164 ] The Court has calculated that the Father has overpaid basic child support on a set-off basis from January 2014 to September 30, 2017, in the amount of $11,421 based on the chart prepared by the Court earlier in this decision.

[ 165 ] The Court has determined that in relation to s. 7 expenses, neither party is entitled to recover any more monies from the other party from the period of 2014 to 2016. [ 166 ] The issue of orthodontic expenses is left to another day to determine who owes how much to whom. [ 167 ] The overpayment of child support shall be repaid by the Mother at the rate of $238 per month until the overpayment has been paid. Other Matters [ 168 ] The Mother sought to have the Father held in contempt of court.

The Court has reviewed the pleadings and finds that the issue of contempt was not properly before the Court on the motion. Accordingly, the Court will not deal with the issue of contempt. [ 169 ] In paragraph 10 of the cross-motion, the Mother seeks to have certain portions of the Father’s pleadings struck because the Father obtained what the Mother calls “hacked email messages” from the Mother’s password protected cell phone that the Father had claimed was lost. [ 170 ] Based on the comments made by counsel at the hearing of the motion, the Court finds that this relief was not pursued at the hearing.

Accordingly, it will not be dealt with by the Court in this decision. Arithmetical Errors [ 171 ] In the event that the parties find arithmetical errors in the Court’s calculations, they are to write to the Court with a “cc” to the other party within the 14 days of the release of this decision setting out their concerns. Costs [ 172 ] The parties shall have 14 days from the release of this decision to determine whether they can resolve the issue of costs. If they cannot, they shall contact the Trial Coordinator, who will set up a court attendance at 9:30 a.m.

Both parties will have ten minutes to argue their position as to costs. Both parties shall provide Costs Outlines and any Offers to Settle made in accordance with the Family Law Rules to the other side and the Court at least three days before the hearing. [ 173 ] Order accordingly. Mr. Justice Stanley Kershman Released: November 22, 2017 APPENDIX

The following modification was made to paragraph [97]: The amount of $102,227 was replaced with $101,517.

CITATION : Fletcher v. Thomas , 2017 ONSC 5864 COURT FILE NO.: 04-1541-2 DATE: 2017/11/22 ONTARIO SUPERIOR COURT OF JUSTICE GAVIN FLETCHER Applicant – and – ANDREA THOMAS Respondent AMENDED REASONS FOR JUDGMENT Justice Stanley Kershman Released: November 22, 2017