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Posts tagged ‘and enforcement of court orders’

Family Law Costs:  “Divided” Success is not “Equal” Success

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Family Law Costs:  “Divided” Success is not “Equal” Success

Readers may know that one element of the courts’ role is to allocate how the costs incurred in Family Law proceedings are to be divided up between the litigants.   The presumptive rule, traditionally stated, is that “the costs should follow the event”, which simply means that a litigant who is wholly successful in the proceedings is entitled to have his or her costs paid by the other, unsuccessful litigant.

That’s the most straightforward scenario.  But it gets more complicated when the parties have “divided success” – meaning there were numerous legal issues raised, and the ultimate court order reflected partial success for each of them. In other words, each party was victorious on some of the issues, but not on others.

The true meaning of “divided success” was the focal point of the recent decision in Lazare v. Heitner.  The former couple had asked the court to review a prior spousal support order in the wife’s favour, which necessitated considering several issues including:  1) whether her support should continue at all; 2) how long it should last; 3) at what dollar amount should the support be set; and 4) what income-level be attributed to the wife.

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The court outlined the guiding costs rules for “divided success” cases, as follows:

If success in a step in a case is divided, the court may apportion costs as appropriate. Divided success is not equal success.  It requires a comparative analysis.  Most family cases have multiple issues and not all are equally as important, time-consuming or expensive to determine. When there are a number of issues before the court, only the dominant issue may be the one that attracts an award of costs.  When deciding what that issue was, the court must also consider the parties’ respective Offers to Settle.

The problem was that by the time the matter got to trial, the dominant issue had changed from the one that had been the focal-point during negotiations and the exchange of settlement offers.  During settlement, it was whether the wife’s spousal support should be terminated; at trial, the other issues took center-stage.  This differential focus over time managed to complicate the costs-allocation exercise.  As the court put it:

Therein lies the dilemma of litigating off a different menu than one negotiates.

To facilitate the analysis, both spouses had prepared charts; some compared the results at trial to their respective positions beforehand; while others compared trial results to their settlement offers.   But the court observed that the key purpose of costs awards was to: 1) partly indemnify successful litigants on the costs of litigation; 2) encourage settlement; and 3) discourage inappropriate behavior.  That being the case, the comparison had to be between what each party sought to gain by litigating, versus what they actually achieved at trial.  As the court put it:

To do otherwise is to encourage all in, or all out litigation; or in other words, the all too familiar “accept my terms or I’ll fight you on everything.”  

In the end, the court dissected the various pre-hearing positions of each party, assessed whether these were reasonable in all the circumstances, and awarded the husband most – but not all – of the costs he asked for, in light of the particular circumstances.

Noting that “divided success is largely a discretionary exercise,” the court added:

Assessing costs is “not simply a mechanical exercise,” and it is well understood that courts do not necessarily reimburse a litigant for every dollar spent on legal fees.  Ultimately, the court’s responsibility is to make a costs award which is proportional, fair and reasonable in all the circumstances. 

For the full text of the decision, see:

Lazare v. Heitner

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Single Mom’s Victorious Legal Journey for Disabled Adult Son Finally at an End

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Single Mom’s Victorious Legal Journey for Disabled Adult Son Finally at an End

This week we reveal the happy ending to one devoted mother’s ceaseless struggle to obtain child support for her disabled adult son.  It started with the landmark 2017 decision we wrote about previously, which prompted the Ontario government to amend the Family Law Act in response to the mother’s constitutional challenge.  Before this decision, only adult children who were still attending school, or whose parents had been formally married and divorced, were eligible for support.

At that time the mother had argued before the court – successfully – that this distinction between married and unmarried parents was unconstitutional, and that she should be able to claim support from her son’s father in her particular case.  Under a ruling released last week, the mother has finally obtained a court order awarding her support in line with the new legal principle that she herself fought for.

The situation sparking this noteworthy legal change involved the mother and her now 23-year-old son for whom she provided full-time care. Her son’s disabilities left him unable to attend school, and he was unable to work and support himself.  In the time since the son had turned 18, she had been receiving Ontario Disability Support Program (ODSP) benefits for him, in addition to funding from both Development Services Ontario and a local community living agency.  However, those benefits did not cover her son’s added medical and recreational expenses costing about $1,400 per month.

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The mother turned to her son’s father – whom she never married – to contribute $800 per month, in keeping with the amounts set out by the Tables derived from the Child Support Guidelines.  By agreement, it was later dropped to $630 a month, but he later applied to the court to lower that even further or terminate his obligation entirely, pointing to the fact that his son was already receiving ODSP and other benefits.

Last week, the Ontario court ordered him to pay monthly support of $518.14, for the balance of her son’s life.  The court added that this amount was not based on Table amounts, but rather on a “broader analysis, considering all of his needs, some of which are his daily basic needs and some of which might be considered traditionally … extras,” and one which focused on both parents sharing the responsibility toward their adult child equally.

In doing so, the court brought an end to the mother’s efforts to not only address son’s unique needs, but also change the law for the benefit of parents in similar situations. In that prior constitutionally-focused ruling from 2017, the court had held that the wording of the relevant Family Law Act provisions relating to child support improperly connected an adult child’s eligibility to child support to his or her attending school – and yet did not allow for support due to any other reasons, such as disability.  That judicial conclusion prompted the government to pass legislative amendments that went into force in December of 2017.  Now, adult children in Ontario who are unable to withdraw from the care of their parent, due to illness or any other reason, are now eligible to claim support.

This latest ruling applies that principle, and ends one mother’s long journey for justice.

For the full text of the decision, see:

Coates v. Watson, [2018] O.J. No. 4598, 2018 ONCJ 605

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Parents’ Joint Decision for Wife to Start Business Can Still Result in Her “Intentional Underemployment”

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Parents’ Joint Decision for Wife to Start Business Can Still Result in Her “Intentional Underemployment”

At first blush, the facts in Lavie v. Lavie appear unremarkable, but on closer look they gave the Ontario Court of Appeal the opportunity to clarify a narrow issue about how the wife’s business venture – that both parents agreed to – could still result in her being “intentionally underemployed” for child support purposes.

The parents separated after about 10 years of being together.  The mother had worked as a teacher, but when her second child was born they agreed that she would leave the profession to be more available to their children.  They mutually decided she would start a business venture, namely a child play center called “Balls of Fun”, to allow her more flexibility around child-care.

She started the business a few years prior to separation, and earned about $15,000 in the last year they were together. Meanwhile the father had been working as a TV sports show editor earning $78,000 per year, until he was terminated and given a severance package in 2012.

When the parties went to court for equalization of their Net Family Properties, the trial court imputed about $70,000 in income to the father, but declined to impute any income to the mother at all.  The judge reasoned that the decision for the mother to quit teaching and open Balls of Fun had been made jointly, so she could not be “intentionally underemployed.”  The judge calculated equalization and child support accordingly.

The father appealed, claiming it was wrong for the trial judge to have imputed income to him, but not to the mother, in these circumstances.  He claimed that – simply put – each parent must earn what they are capable of earning, to meet their legal obligation to support their children.

The Appeal Court agreed.

Admittedly, the father had certainly consented to the Balls of Fun venture, since it was worth the short-term sacrifice in favour of building a business that was good for the future of the family.  Ultimately, the vision was for them to both work in the business at some future point.

Still, the trial judge had taken the incorrect legal approach to the underemployment issue: The mutual decision of these parents to open Balls of Fun during the marriage were irrelevant at this later, post-separation stage.  As the Court said:

[I]f a parent is earning less than she or he could be, he or she is intentionally underemployed. From the time she chose to start [Balls of Fun] and to earn $15,000 per year rather than the over $70,000 per year, [the mother] would have earned returning to teaching, she was intentionally underemployed. There was also no basis on the record to find that [the mother] could not resume her teaching career at the time of separation or at the time of trial. In fact, the trial judge found that her teaching career had not been compromised by her marriage or assumption of household responsibilities.

The Court clarified that the Federal Child Support Guidelines authorize a court to impute income to “intentionally underemployed” parents, except where that underemployment is necessary to serve the child’s own needs.  Here, the mother started Balls of Fun to “improve their family life”; she did not do out of any “requirement” to meet the child’s needs, as that term is used in the Guidelines.

In the end, the trial judge should have imputed income to neither of the parties, or else to both of them.  Imputing income only to the father was incorrect.  In this post-separation stage, they were each running separate households and sharing parenting responsibilities equally, so it was appropriate to impute an income of $70,000 to each of them. Doing the math, this in turn would result in neither of them owing support to the other.

The lower court judgment was varied accordingly.

For the full text of the decision, see:

Lavie v. Lavie

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Wednesday’s Video Clip: What are some do’s and do nots of texting during divorce?

Wednesday’s Video Clip: What are some do’s and do nots of texting during divorce?

DO text to discuss child custody and access. DO text to provide or request information that you need from your spouse. DO text to discuss the resolution of any outstanding issues resulting from your separation. DO text to engage in any other polite communication with your spouse. DO NOT text in an attempt to force or bully your spouse to do something. DO NOT text your spouse over and over again in an attempt to convince them of something you have previously discussed. DO NOT text rude or insulting messages to your spouse. DO NOT text your spouse if they have specifically asked you not to contact them or if their lawyer has requested that you don’t contact them. DO NOT text your kids any information in regards to your divorce, to ask them to pass on inappropriate messages to your spouse or to speak negatively about your spouse.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Social Media “Smoking Gun” Evidence Thwarts Income Assistance Eligibility

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Social Media “Smoking Gun” Evidence Thwarts Income Assistance Eligibility

In several prior posts, Facebook or other social media evidence has been a factor in a court’s decision on various Family law matters, most often relating to child custody and access.

For something on this same theme yet still a little out -of-the-ordinary, I noted a recent decision from pertaining to Income Assistance Benefits under the Ontario Works (OW) program.  An applicant, who said she was a sole-support single mother, was ordered to repay about $30,000 in benefit over payments because her sister’s and her own social media photos proved that she had a “spouse in the house” that rendered her ineligible to receive benefits during a three-year period.

The decision had been made by an OW Administrator, based on an investigation and the evidence of a Caseworker, the applicant’s landlord, and photos of the applicant on social media.  The Administrator’s conclusion was that “Mr. H.,” who was the applicant’s common law spouse and the father of her child, had indeed been living with her regularly over the three-year period in question.  She was also found to have failed to provide certain information required of her under the governing legislation.

The applicant appealed to the Social Benefits Tribunal to have the Administrator’s decision overturned.  She claimed that she did not know of Mr. H’s whereabouts or employment status, had no means of contacting him, and had absolutely no communication with him apart from meeting him in a public parking lot once a month to receive $50 in child support payments.

After reviewing evidence of the applicant’s social media presence in particular, the Tribunal quickly concluded otherwise.  It said:

While the Tribunal acknowledges that while the majority of the photos were sourced from the [applicant’s] sister’s Facebook page, a number of them were sourced from the [applicant’s] and Mr. H’s own social media accounts.  However, what the Tribunal considered most significant in the context of social media evidence is that the [applicant’s] social media account indicated that she was engaged to Mr. H.

The Tribunal also noted that the applicant’s “engaged” status was changed to “single” a few days after she became aware that she was being investigated by OW.

Based on this and other evidence, the Tribunal disbelieved the evidence of both the applicant and Mr. H that they were not living together and rarely saw each other aside from exchanging child support payments.    It affirmed the previous decision of the Administrator, declared the applicant ineligible for benefits, and ordered her to repay the previously-received $30,000 to the Ontario Works program.

For the full text of the decision, see:

1610-07346 (Re)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

School’s About to Start:  Who Pays to Transport the Kids?

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School’s About to Start:  Who Pays to Transport the Kids?

September is back-to-school time.   It can be a challenging time for parents generally, but when there is a separation or divorce in the mix, there can be a lot of fine-tuning getting kids to-and-from school.  A very recent Ontario court illustrates some of the difficulties that can arise.

The parents had separated after 12 years of marriage and had two children, now aged 12 and 14.  They executed a separation agreement that provided for joint custody, a week-on/week-off parenting schedule, and shared special and extraordinary expenses.

However even after the separation, the children lived mainly with the mother in the former matrimonial home, and continued to attend the same school as before.  The father moved to an area served by a different school district.

But things turned sour when the mother advised that she was planning to sell the former matrimonial home and move to her new partner’s residence.    Since her new home was outside the children’s current school district, this meant that neither parent would be living within those school boundaries.  The parents went to court, where a judge ruled that the children’s best interests nonetheless called for them to stay in the same school for the 2018 school year.  The parents were also ordered to apply for a “cross boundary school transfer” from the school board, that was required for any students attending from outside the district.

One problem remained, however:  The question of which parent was required to pay the transportation costs for getting the children to and from school.  Even with the cross boundary school transfer, they were no longer eligible for school board-funded bus transportation; the parents were now themselves responsible for transporting the children to-and-from school, which was a distance of about 10 km each way.

With the start of the new school year looming, the father applied to the court again; this time he asked that the mother be ordered to shoulder the full costs of the children’s private transportation, which he said would cost $110 per day (i.e. $55 each way for two children).  Essentially, he blamed her for the changed circumstances and upswing in transportation costs, since she had unilaterally decided to move out of the children’s school district and this precluded their use of the school bus option.

The mother, on the other hand, claimed that each of them should be responsible for their own costs in transporting the children to-and-from school.  After all, this was what their separation agreement provided for, under special and extraordinary expenses.  The mother also pointed out that the father’s claim that the children needed $110-a-day private transportation, rather than less expensive options such as public transit or even a taxi, was not proven.

By way of a temporary order to address the impending start of the school year, the court agreed with the mother.  The clear wording of the separation agreement did not require the mother to stay in the school district, nor pay the full costs of deciding not to.  Nor was the court persuaded that the father’s $110 daily fee estimate was the most cost-effective option.  The court added:

In the past, both parties, including the [father], have benefitted from the [mother] maintaining a residence inside the children’s school district – the fact that the [mother] is no longer doing so does not mean that only she has to bear any increased costs.

As a parting note, the court also said:

It is apparent from the evidence before me that these motions could have been avoided if both parties were more effective at communicating with each other in a constructive manner.

For the full text of the decision, see:

Hammoud v. Rosolen

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Wednesday’s Video Clip: Child Support & Access Rights in Ontario

Wednesday’s Video Clip: Child Support & Access Rights in Ontario

In this video we discuss child support in relationship to access rights. A parent cannot cut off contact to a child simply because child support is not being paid.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Husband Squanders Family Money, Quits a Good Job, and Moves Back to Poland – Can He Avoid Paying Spousal Support?

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Husband Squanders Family Money, Quits a Good Job, and Moves Back to Poland – Can He Avoid Paying Spousal Support?

The couple were polish immigrants, who immigrated to Canada in the late 1980s.  They separated after 20 years of marriage.  The marriage was traditional one, with the electrician husband being the major breadwinner, and the wife taking care of the home and childcare duties, alongside some paid housecleaning when possible.  The husband’s income was roughly triple that of the wife’s.

However, over the course of their marriage the husband had single-handedly squandered much of their joint money. For example, against the wife’s objections, they had sold the jointly-owned matrimonial home in 2000 with the husband promising they would use the $65,000 proceeds to buy a larger home.  However, they never did;  instead, he secretly used the money to invest in the stock market and ended up losing it all.  He also withdrew at least $75,000 from his RRSP and had no explanation for where the money went.  The court added:

Between the years 2000 and 2012, [the husband] depleted staggering amounts of money, much of it without satisfactory explanation. Some of the monies were lost due to [the husband’s] unwise investments in the stock market. However, a significant amount of monies were dissipated without an explanation by [the husband] as to what they were spent on.  …

One of the many issues between the couple was the spousal support that the husband owed to the wife. When the couple first separated, he had been ordered by the court to pay monthly spousal support to the wife.  He paid these only begrudgingly;  on one of the cheques, he wrote the word “ztodziejstwo”, which means “thievery” when translated into English.  He stopped paying support entirely in 2015.

Then, he unceremoniously quit his job and moved to Poland without telling the wife, where he found work for about $16,000 but then failed to pass the employer’s probation period.  Even if he could find and keep a comparable job, this $16,000 salary was considerably lower than the $120,000 he was earning in Canada.  However, he said he had no intention to ever return, citing a need to look after his aging parents who were still in Poland.

Meanwhile, the wife – who had trained as a dental assistant but could find no work – was unable to become self-sufficient.  She therefore requested lump-sum spousal support based on an imputed income that the husband would otherwise be earning.  He still had pension assets in Canada which were secured and protected by way of a prior court order and could be used to pay her that lump sum.

The court considered her request, citing the relevant factors as including: her level of need; whether it would be difficult to obtain periodic support from the husband in Poland; the precariousness of his employment; and the fact that he left the country.  The court said:

[The husband] deliberately, unilaterally, and voluntarily left his secure, long-term, lucrative employment at Presstran in St. Thomas. He did so without regard to his obligations to [the wife]. He has left the jurisdiction. I find that [the husband] took the steps he did in an attempt to avoid his support obligations.

In all the circumstances, the court accepted the wife’s support claim and ordered it to be paid by lump-sum; it also ordered retroactive support to cover those periods where the husband failed to pay her support at all, despite being under a court order to do so.   Finally, the court also ordered an equalization of their NFPs, after factoring in the squandered sums of money, and the full value of property in Poland that he refused to admit that he owned.

For the full text of the decision, see:

Hamernik v. Hamernik

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Was 47 Trips to Court Enough to Make Wife a “Vexatious Litigant”?

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Was 47 Trips to Court Enough to Make Wife a “Vexatious Litigant”?

In McKee v. McKee, the 79-year-old husband brought a motion to have his 71-year-old former wife declared a “vexatious litigant,” which designation would prevent her from directly or indirectly bringing anything to court without the permission of a judge – i.e. any action, application, motion or proceeding.   The wife, not surprisingly, opposed the order.

The couple, who had been married for almost 30 years, separated in 2012 and were granted a divorce in 2016.  Under a subsequent order in 2017, Justice Pazaratz issued a mutual restraining order, preventing either former spouse from contacting or even speaking the other person’s name, except as required by the legal proceedings.

In that prior ruling, Justice Pazaratz noted that despite their advanced ages, neither party was behaving with “the maturity or dignity that one would expect given the stage of their lives, and all of their previous positive accomplishments.”  Justice Pazaratz stated that it was clear to him:

…that these parties have unresolved animosity toward one another and bitterness about previous court determinations, and these destructive and unchecked emotions are fueling this endless litigation.

As a court system we have to ensure access to justice for everyone, but that also entails an obligation to ensure that court resources are allocated appropriately, I have tried to explain to both of these parties that taxpayers do not have a bottomless pit of money to pay for their incessant legal feuding, and that after 9 volumes and 47 court attendances these parties have pretty much exhausted our tolerance from any further wasteful court proceedings.

A mere seven days after Justice Pazaratz made this order, the wife pursued a motion to set it aside, and to declare that only the husband should be subject to a restraining order – not her.  She also asked the court to make “different laws” for the husband filing court documents, than the ones to which she was subject.    In her affidavit in support of various complaints about prior court rulings and the judges who made them, she complained that she “was not going to get justice,” and offered a litany of complaints of the wrongs she perceived to have suffered at the hands of those previous judges.

In light of this scenario, the husband asked the court to declare the wife a vexatious litigant.   The court showed almost no hesitation in doing so.

The court examined the established legal test for making that determination, as set out in a decision called Lang Michener Lash Johnston v. Fabian.  That case stated the relevant factors included whether:

  • The wife was bringing an action to determine an issue that has already been determined by another court;
  • It was obvious that the wife’s action cannot succeed, or that her action would lead to no possible good, or that no reasonable person could reasonably expect to obtain relief;
  • The vexatious actions were brought for an improper purpose, and include harassing and oppressing the husband; and
  • The issues and grounds previously raised by the wife have been rolled forward into subsequent actions and repeated, often with actions against the wife’s own lawyers.

The court emphasized that not all of these factors needed to be present; however, the court must look at the whole history of the matter in making the determination. This also included looking at whether: 1) the wife failed to pay the costs of unsuccessful proceedings; and 2) she was persistently unsuccessful in her appeals of judicial decisions.

In this case, the court found that almost all of these applied to the wife: She had brought numerous repetitive proceedings to set aside prior orders, brought unsuccessful appeals, and generally acted in a manner that made it clear her motive was to harass the husband, who was in ill health.  Her materials were replete with criticisms not with her lawyers (she was now self-represented) but of previous judges who had ruled on her claims.  None of her court proceedings were based on a good cause of action.

Overall, the court concluded that “no possible good can be had” from the wife’s litigation, and her conduct was “indicative of persistent and unwarranted pursuit of legal proceedings that are both meritless and frivolous.” She should no longer be permitted unrestrained access to the courts of Ontario; she was accordingly barred from coming back to any court with any proceeding against the husband, without first obtaining a judge’s permission.

For the full text of the decisions, see:

McKee v. McKee

Lang Michener Lash Johnston v. Fabian

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Could Mom Unilaterally Bump Up Kid’s Ballet Lessons – And Ask Dad to Pay His Share?

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Could Mom Unilaterally Bump Up Kid’s Ballet Lessons – And Ask Dad to Pay His Share?

The very recent decision in Young v. Zaatri addressed a small, but important issue to the separated parents of an aspiring young ballerina:  Could one of them unilaterally increase their child’s level of participation in a sport or activity, and thereby unilaterally increase the other parent’s level of financial responsibility for “special expenses”?

The background facts were unremarkable:   The parents were married for nine years and, and had an 11-year-old daughter together.   The child lived primarily with the mother, but saw the father on alternating weekends.

They had a separation agreement that required the father to pay child support and – because he earned significantly more than she did — also obliged him to pay 70 percent of the child’s “special expenses,” while the mother was liable for 30 percent of them.  Those “special” or “extraordinary” (often called “section 7 expenses” because they arise under that section of both the federal Child Support Guidelines and its provincial counterpart), were to cover child-related expenses excluded from the basic monthly child support that the father was ordered to pay.

In this case, the “special expenses” consisted mainly of the fees incurred for the daughter’s ballet classes.  The father had agreed in writing to contribute to the cost of one lesson each week, which would total $900 annually.   However, the mother unilaterally enrolled their daughter in many more classes, claiming that the daughter wanted to take them, since she loved doing ballet.   The mother conceded that the father had never agreed to pay for this accelerated schedule of lessons, which now amounted to about $3,000 per year.

The parents went to court to resolve this dispute over the special expenses that the father should pay, in the circumstances.

The court quickly cut to the chase.  It essentially determined that:  1) the added ballet lessons were in this particular child’s best interests; and 2) they fell under the category of a “special expense” within the meaning of the legislation.   However, since the parents had been unable to communicate effectively about what special expenses were reasonable, the court would have to craft an order that addressed what level of fees was appropriate, and how responsibility for them should be allocated.

The resulting court order:  1) confirmed the respective incomes of each parent; and 2) directed that the father would still have to pay 70 percent of the overall cost of the increased schedule of lessons, while the mother would pay 30 percent.   The court also imposed a requirement that the parents set up a “budget” for the daughter’s ballet courses, to the tune of $2,000 annually.  The parents were required to contribute to that budget on a 70/30 split as well.

Finally, the court ordered that the mother must forward to the father, for his information and on a regular basis, the invoices for the daughter’s ballet lessons.  She was also obliged to advise him if the lessons decreased in frequency, or were terminated altogether.  The court also added that any further section 7 expenses were to be agreed to in advance, but that consent by each parent was not to be “unreasonably withheld.”

This decision is not to be taken as giving a parent the green light to unilaterally incur costs for sports or activities, and then expecting the other parent to pay under the umbrella of “special expenses.”  Instead, it simply shows the court’s flexibility around assessing the child’s best interests versus what the parents themselves may have agreed in writing between themselves.

For the full text of the decisions, see:

Young v. Zaatri

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com