Décision

Droit de la famille — 172652

2017 QCCS 5160

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTREAL

No:

500-12-307610-117

DATE:

November 13 2017

______________________________________________________________________

IN THE PRESENCE OF:

THE HONOURABLE

FRANÇOIS P. DUPRAT, J.S.C.

______________________________________________________________________

K. C.

Plaintiff

v.

L. C.

Defendant

______________________________________________________________________

JUDGMENT

______________________________________________________________________

[9]           The Court wishes to summarize facts which are relevant to the issues before it.

[10]        X is 11 years of age. He has recently taken up guitar lessons and plays hockey. During the summer months, he has attended various day camps. He suffers from an allergy to tree nuts and both parents agree that he must have access to an epipen auto injector. Other than his allergy, X has no particular medical needs. He has tried various sports such as football, soccer and swimming. The father describes him as a social butterfly. He is active and does well in school. He has taken up an interest in reading.

[11]        One point of contention between the parents concerning X is in regards to a psychological evaluation which the mother wanted to obtain since she thought X was uncharacteristically sad. The mother was of the view that this was necessary as recommended by a pediatrician. The father did not believe that such an evaluation was necessary as it had more to do with the fact that the child missed his father. In the end, X did obtain counselling but not an evaluation. The point for the mother is that the father always disputes her initiatives and raises obstructions.

[12]        Although the mother agrees that X is well adjusted, he does present some tics which she believes could be related to a Tourette syndrome. The father disagrees.

[13]        Y is now 17 years old and will be of adult age in a few months. In 2014, Y needed orthodontic care for dental braces and this also was a subject which brought friction between the parents and upon which the Court will deal with later.

[14]        Y is currently holding a part time job during the school year which represents approximately 15 hours per week. The father believes that working will teach Y responsibility whereas the mother is not comfortable with this idea and would prefer that he devotes all his time to his studies. This has been a disagreement between the parents. Recently, Y has taken interest in a physics olympiad organized by McGill University. According to the mother, Y feels he will not be able to participate because of his part time job[5]. The father testifies that Y is not obligated to work and that it remains the child’s decision although he would like to discuss it with him.

[15]        Y has taken up driving lessons and should soon obtain his driver’s licence. Eventually, the mother would like Y to have a car so that attending university, in the fall of 2018, would be easier. The father disagrees that parents should buy a car for a child. The parents also disagree on the cost of automobile insurance[6], the father being of the view that the child should pay for it.

[16]        The evidence shows that Y was diagnosed with an autism spectrum disorder with an Asperger syndrome. He also has an attention deficit disorder and suffers from Tourette’s syndrome[7]. This being said, Y is doing quite well in school[8]. He has tried different team sports, but never took a particular liking to it. He attended a public high school and X will likely attend the same school. He is currently enrolled at [College A].

[17]        The father describes Y as being healthy and currently thriving. He is quite intelligent and is able to succeed without much effort. He only takes medication for his attention deficit disorder. He has many friends and is seen as a leader. Although the mother agrees that Y is a good student, she disagrees that it comes easily: Y works hard and applies himself. The mother informs the Court that Y has learned to suppress his Tourette’s syndrome and to control it. He is indeed doing well socially and in school.

[18]        Overall, the Court finds that both children are doing well. The parents definitely have different values when it comes to parenting and although they have been able to agree on many issues, others have created conflicts and resentment.

[19]        The mother obtained a graduate degree in psychology at the end of September 2015. She works as a psychologist in the public health sector and also earns revenues in private practice[9]. She is currently on a disability leave but expects to return to work full time.

[20]        The mother manages all things related to the family and the children. She maintains a house which has undergone renovations. She considers the children are unable to pursue activities enjoyed by families with a comparable status and socio economic background. For example, she refers to weekend getaways in New York City, or Washington D.C., visiting friends in Whistler B.C, or trips to Barcelona or Hawaii. She would like the children to enjoy cultural activities such as the theatre and the symphony. She indicates that at this time those activities are cost prohibitive and she cannot afford them. She describes the discrepancy with the children’s friends as stark. Vacations which they took were at a rented cottage in the province of Quebec or near Lake Erie in Ontario. She believes that Y should have a car and would like him to have one.  Currently, Y receives a small cash allowance per month and has a pre-set clothing budget. She refers to various other activities which she believes the children would enjoy, such as skiing for Y or for X to do trampoline or paintball. She explains that the clothing budget for the children is limited and testifies that the children want better clothing.

[21]        The mother filed spread sheets in regards to the expenses incurred for the upkeep of the children. One exhibit titled current expenses for mother and children is according to her testimony not representative of reality and is based on a hypothetical budget. In the document, the mother attributed a monthly sum of 6 188 $ to the expenses incurred for the children[10].

[22]        A second budget is filed and takes into account household expenses[11].The document was revised in September 25th, 2017 and is based on actual expenses incurred by the mother in 2016. The mother estimates household expenses at a total sum of 7 922 $ of which 4139 $ represents expenses for both children. She recognizes that for the purpose of this calculation, she attributed a portion of the house expenses to both children at a ratio of 66%. Certain expenses, such as education costs, and allowance were attributed strictly to the benefit of the children.

[23]        A third document, the family budget under form III, is dated October 3rd, 2017. It indicates current spending in the year 2017 for the family at a sum of 7 339 $. As in the second budget, the mother took into account the children’s expenditures and a portion of the house expenses.

[24]        The father is an actuary and is the chief risk officer for an insurance company.  He moved to Toronto in the fall of 2011 and, in April 2012, a consent between the parents was reached to take into account the Federal Guidelines. His income has significantly increased since 2007 as confirmed in the father’s application to modify accessory measures[12]. The father has exercised his access rights without fail since moving to Ontario. He does incur certain expenses to do so since he maintains a condominium unit in the Province of Québec in order to visit the children. He assumes 100% of the medical expenses for the children and 90% of the gross amount of other expenses such as day camp, summer camp, tuition, driving lessons.

[25]        The father points out that communication with the mother is usually courteous, exchanges are smooth, and the parents have been able to resolve issues. He finds that most of their conflicts have arisen because of different parenting styles. He points out that he comes from a middle-class background and worked through school. He believes that children should learn the value of money and the power of the choices they make.

[26]        During the marriage, the family enjoyed limited outings and took a few trips South. Summer vacation were usually spent at a cottage in the Province of Québec or in Maine. Since the divorce, the various activities mentioned by the mother were never brought up in his presence by the children and neither were weekend trips or trips to  destinations such as Hawaii. The father is against the idea that parents should supply a car for a child and his view is that Y should pay for it.

[27]        His general view is that the children’s needs are met with the current amount of child support. He disagrees with the mother’s appreciation that 66% of general expenses should be supported by the children as a child is not equal to the parent and expenses are not doubled when you have a child.

[28]        In his testimony, the father refers the Court to the British Columbia decision of MacDonald to illustrate that certain general household expenses may be apportioned on a 50% basis between the custodial parent and the children[13]. He prepared a comparative chart of the mother’s Form III budget with figures based on MacDonald. As per the chart, the Form III budget shows the children’s expenses at a sum of 4 573 $ whereas, should a lower apportionment for the children expenses be used, the figure comes down to 3 512 $ or 3 698 $[14].

[29]        The father maintains his offer to continue child support at a monthly sum of 4 321.69 $.

[30]        He wishes for consultation between the parents to take place and disagrees that the mother be authorized to take alone decisions on the expenses or health needs of the children.

III  FEDERAL GUIDELINES

[31]        Authors refer to the Federal Guidelines as establishing a presumptive rule. In other words, the amount obtained under the Guidelines is presumed to be correct. It only takes under consideration the income of the obligor and not the income of the custodial parent.

[32]        Payne and Payne have commented[15]:

The expression « Federal Child Support Guidelines» refers to the entire contents of SOR/97-175, April 8, l997, as amended from time to time.  Accordingly, it includes the provincial and territorial tables that set out fixed amounts of child support as well as detailed rules to be applied by the courts in the assessment of child support.  The word «guidelines» is often wrongly used to signifty the « table » amount of support payable under the Federal Child Support Guidelines or their provincial counterparts.

The term « guidelines », which was borrowed from foreign jurisdictions, is misleading because it implies that they are advisory and that the courts have a residual discretion to override them.  That is neither the case under the Federal Child Support Guidelines in Canada nor under corresponding provincial child support guidelines. In cases that fall subject to the Divorce Act, the court is required to fix the amount of child support in accordance with the applicable provincial or territorial table except where the Divorce Act or Guidelines otherwise provide. The Federal Child Support Guidelines in Canada have accordingly been characterized in the marginal note to section 3 of the Guidelines as establishing a « presumptive rule ». [Underlining by the Court]

[33]        Section 1 of the Guidelines defines its objectives:

1 The objectives of these Guidelines are

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

[34]        The decision of the Supreme Court in Baker indicates that decisions relating to the interpretation of the Guidelines must take into account these objectives[16].

[35]        Section 4 of the Guidelines deals specifically with high income. It reads:

4 Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

(iii) the amount, if any, determined under section 7.

[36]         In Baker the Supreme Court expanded on the notion of what is inappropriate under the Guidelines. The ordinary meaning of the word inappropriate and a proper construction of section 4 leads to the conclusion that it refers to the notion that, in certain cases, the amount of child support is so in excess of their needs that it becomes unsuitable and courts should intervene:

40  A proper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other. Furthermore, this balancing must take into account the ordinary meaning of the word “inappropriate”, as well as its use elsewhere in the statute. In my opinion, the plain language of s. 4 is consistent with such an interpretation. Accordingly, the word “inappropriate” in this section must be broadly defined to mean “unsuitable” rather than merely “inadequate.” Courts thus have the discretion to both increase and reduce the amount of child support prescribed by the strict application of the Guidelines in cases where the paying parent has an annual income exceeding $150,000. I would note that the respondent did not take issue with this interpretation in either her written or oral submissions.

41  I add one final comment. As noted above, Abella J.A. was concerned with the differential treatment of children. In my respectful opinion, a broad interpretation of the word “inappropriate” in s. 4 does not deny children of high-income parents any of the intended benefits of the Guidelines. The plain wording of s. 4(b)(i) dictates that these children can predictably and consistently expect to receive, at a minimum, the Table amount for the first $150,000 of their parents' income. They can further expect that a fair additional amount will be awarded for that portion of income which exceeds $150,000. Indeed, even this latter figure lends itself to a degree of predictability and consistency in that the closer the paying parent's income is to the $150,000 threshold, the more likely it is that the Table amount will be awarded. In my opinion, child support undeniably involves some form of wealth transfer to the children and will often produce an indirect benefit to the custodial parent. However, even though the Guidelines have their own stated objectives, they have not displaced the Divorce Act, which clearly dictates that maintenance of the children, rather than household equalization or spousal support, is the objective of child support payments. Subsection 26.1(2) of the Act states that “The guidelines shall be based on the principle that spouses have a joint financial responsibility to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” (emphasis added). While standard of living may be a consideration in assessing need, at a certain point, support payments will meet even a wealthy child's reasonable needs. In some cases, courts may conclude that the applicable Guideline figure is so in excess of the children's reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support. I wholly agree with the sentiment of Abella J.A. that courts should not be too quick to find that the Guideline figures enter the realm of wealth transfers or spousal support. But courts cannot ignore the reasonable needs of the children in the particular context of the case as this is a factor Parliament chose to expressly include in s. 4(b)(ii) of the Guidelines. Need, therefore, is but one of the factors courts must consider in assessing whether Table amounts are inappropriate under s. 4. In order to recognize that the objective of child support is the maintenance of children, as well as to implement the fairness and flexibility components of the Guidelines' objectives, courts must therefore have the discretion to remedy situations where Table amounts are so in excess of the children's reasonable needs so as no longer to qualify as child support. This is only possible if the word “inappropriate” in s. 4 is interpreted to mean “unsuitable” rather than merely “inadequate.” [Underlining by the Court]

[37]        Authors have followed the view of the Supreme Court of what is inappropriate, and suggest the following approach[17]:

Les parents ayant des revenus annuels de plus de 150 000 $ doivent ainsi payer le montant déterminé en application de la règle générale figurant à l'article 3, sauf si un tribunal estime que ce montant « n'est pas indiqué ». Selon la Cour suprême, dans Francis c. Baker, l'expression « n'est pas indiqué », à l'article 4, « doit être définie largement comme signifiant « ne convient pas » plutôt que simplement « est insuffisant », ce qui laisse aux tribunaux le pouvoir discrétionnaire de majorer ou de réduire le montant de pension alimentaire pour enfants prescrit par l'application stricte des lignes directrices dans les cas où le revenu annuel du parent débiteur est supérieur à 150 000 $ ». Par exemple, les tribunaux ont jugé que le montant prévu par les tables n'était pas indiqué dans les situations suivantes : le paiement de la somme de 37 000 $ par mois payable pour trois enfants sur la base d'un revenu d'environ 5,5 millions de dollars, et le paiement d'une pension alimentaire de 5 931 $ par mois pour un enfant adulte poursuivant ses études universitaires à l'extérieur de la maison.

Si un parent convainc le tribunal que le montant des tables n'est pas indiqué, et ce faisant réussit à réfuter la présomption en faveur du montant prévu par les tables, le tribunal procédera alors à un calcul du montant à verser en vertu de l'alinéa 4b), en tenant compte des budgets de dépenses pour les enfants. La pension alimentaire pourrait alors être constituée de la somme de trois montants. Premièrement, le parent payeur ayant un revenu annuel de plus de 150 000 $ devra verser le montant de la table sur les premiers 150 000 $. Deuxièmement, en ce qui concerne le revenu excédant les premiers 150 000 $, le tribunal peut, s'il l'estime indiqué, ordonner au parent de verser un montant supplémentaire, compte tenu des ressources, des besoins et d'une façon générale, de la situation des enfants, ainsi que de la capacité financière de chaque parent de contribuer à leur soutien alimentaire. Finalement, le tribunal pourra aussi ajouter une contribution pour couvrir, en tout ou en partie, les dépenses spéciales et extraordinaires des enfants. [Underlining by the Court]

[38]         The mother invites the Court not to take into account the various budgets which were filed into evidence. The Court disagrees. Firstly, it is not the father who adduced the evidence but the mother herself. Secondly, the amounts indicated in the budgets do generally match the admission filed by the parties which reads: the total family expenses for Plaintiff and the two (2) children are estimated at 7 640 $. Lastly, the Court will not ignore evidence which is relevant to the needs of the children[18].

[39]        It remains that the father has the onus of bringing forth convincing evidence that the amount of support under the Guidelines is not appropriate or, as Baker teaches, is unsuitable. In Droit de la famille - 11846, the Court of Appeal wrote[19]:

14  L'intimé reproche également au juge de première instance de ne pas avoir exercé son pouvoir discrétionnaire afin de fixer la pension alimentaire de X selon ses besoins réels et non à 117 720 $ par année, telle qu'établie par les Lignes directrices en fonction de son revenu.

15  Tel que le souligne la Cour suprême, dans l'arrêt Baker c. Francis⁴, il existe une présomption selon laquelle le montant prévu par les Lignes directrices est «indiqué». En conséquence, la partie qui désire que le juge applique l'alinéa 4 b) (ii) a le fardeau de renverser cette présomption par une preuve convaincante. Il s'agit donc d'une question d'appréciation de la preuve et l'intimé n'a pas démontré que le juge de première instance a mal exercé son pouvoir discrétionnaire.

[40]        Justice Bastarache in Baker agreed that the evidence needed to rebut the presumption should be clear and compelling. There must be a convincing reason not to follow the Guidelines and the Court, in accordance with section 4 of the Guidelines, needs to assess the condition, means and needs of the children and the financial capacity of the parents[20].

[41]         In Droit de la famille - 3148, the Court of Appeal summarized the proposed analysis as follow:[21]

[22]           La Cour nous éclaire également sur les facteurs à considérer avant de conclure au caractère contre-indiqué du montant.  Toutes les circonstances de l'affaire doivent être examinées de même que les facteurs expressément énumérés au sous-al. 4b)(ii), soit:

1.  Les ressources et les besoins des enfants

2.  La situation des enfants

3.  La capacité financière des époux

[42]        In support of applying the Guidelines, the mother argues that the family is making ends meet and has adopted a modest lifestyle. There is nothing extravagant in the children’s life and the father does not suggest it. The mother has testified as to what the children could benefit from an increased support, i.e.: cultural and sport activities, trips, clothing, and a car for Y. The children are allowed to have a lifestyle which is commensurate to both parent’s income and the father’s income has significantly increased since the divorce in 2011 wherein his income was 364 000 $ and is now over 500 000 $. There is nothing to show that the support amount would be so high as to be unsuitable and could no longer be qualified as child support.

[43]         The father points out that nothing has evolved in the children’s needs since 2011, when support was set at 1 800 $, and, 2012 when it was over 4 000 $, there was no change in their lifestyle and no special expenses. The children live in the same house, in the same neighborhood and have maintained a modest living style. He points out that adopting the Guidelines would almost double the amount budgeted for their expenses. There is a discrepancy, sufficient to raise a concern that the amount is inappropriate. The support should maintain the children’s lifestyle not equalize the households; each parent having the obligation under the Divorce Act to support the children of the marriage[22]. In the present case, there is a definite risk that wealth would simply be transferred to the mother. As per the mother’s testimony, the increased support would serve for luxury beyond the children’s needs. The approximate amount of support under the Guidelines, if the calculation is made on a base income of 150 000 $ is 2012 $; the current amount of 4 321.69 $ meets the children’s needs[23].

[44]        The Court must keep in mind the objectives of the Guidelines, one being to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation. In M. (P.) c. L. (Pi.),Courteau J., in applying the principles set forth in Baker, was of the view that children could benefit from the parent’s high income[24]:

38  D... et É... ont le droit de bénéficier du standard de vie que peuvent procurer les revenus importants de leur père. On ne parle pas d'un train de vie excessif ou somptuaire pour deux adolescentes. La pension alimentaire payable reflète simplement les revenus combinés des deux parents, se chiffrant au-delà de 600 000 $.

[45]        In January 2014, the parents entered into a consent which called for the child support to be applied as per the Guidelines at a sum of 4 194 $. The father then reported an income of 331 331 $ in 2012 and projected an income of 410 000 $ for 2013 (which proved to be 407 106 $). At the time, the parents agreed that neither of them would request an adjustment, retroactive, or otherwise, of child support payable between May 2012 and January 2016. This agreement was reached for the reasons expressed in the consent: to avoid legal fees, to take into account the fact the mother received spousal support and was completing her degree, and that the father agreed to pay 100 % of uninsured dental/medical costs and 100 % of expenses such as daycare and summer camps.

[46]        There is no specific reference in the consent to the amount of expenses for the children and the Court understands that the parents agreed on applying the Guidelines in accordance with the father’s income.

[47]        The Court is mindful that the admission filed by the parties estimates the total actual family expenses at 7 640 $. In other words, should the Court award the full amount of support, as suggested by the Guidelines, the support paid by the father would cover not only the children’s needs but a fair portion of the Mother’s expenses. The evidence shows the current expenses for the children hover between 4 600 $ (as per the mother’s budget) and 3 500 $ (as per the father’s calculations)[25]. The admission, and the evidence, only show the actual costs incurred in 2016 and 2017. The mother and the family make ends meet but it is not equivalent to stating the children’s needs are met. In other words, if the mother is able to manage the family on her earnings and current support, it does not equate that the Guidelines should not apply. The objective is for the children to benefit from the parent’s financial capacity.

[48]        In that specific context, Payne and Payne make the following comment to which the Court adheres[26]:

Furthermore, the fact that the children of his former marriage did not enjoy a pre-separation lifestyle equivalent to that which will be achieved by an order for the payment of the applicable table amount of child support does not render the table amount inappropriate where the father’s income has substantially increased over the years following the divorce. A finding under section 4(b) (ii) of the Guidelines that the amount determined under section 3 is ‘inappropriate’ should not be made lightly. The objectives of the Guidelines as defined in section 1 of the Federal Child Support Guidelines will not be promoted if determination of child support in accordance with section 3 is too readily departed from without clear and compelling evidence to warrant doing so.

[49]         The author Tétrault notes that decisions which depart from the Guidelines typically implicate obligors who earn an income over a million dollars[27].

[50]        In conclusion, the Court is of the view that the father has not shown a clear and compelling reason to award an amount of support which breaks from the Guidelines. The amount is not so high as to become unsuitable and no longer qualify as child support. The mother is right in requesting that child support payments under the Guidelines be adjusted by taking into account the income of the father for 2016 and 2017.

[51]        The mother asks the Court to order payment retroactively to January 1, 2016. The father disputes this request by arguing that the evidence does not show the children need the adjusted support.

[52]         The Court disagrees with this view. The children are allowed to the support called for under the Guidelines. The Consent of January 2014 obliged the parents to avoid a revision of the amount of support until January 1, 2016. Once past this deadline, the parties attempted mediation and the mother moved to the Court to obtain the order modifying child support.

[53]        In commenting the Supreme Court decisions in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra[28] dealing with retroactivity, Me Michel Tétrault makes the following points[29]:

En l'espèce, ce qui est demandé, c'est d'ordonner au parent débiteur de payer ce qui, rétrospectivement, aurait dû être versé auparavant.

- L'ordonnance rétroactive ne peut donc simplement être considérée comme une ordonnance exceptionnelle rendue dans des circonstances exceptionnelles (par. 5). Ce n'est qu'après un examen détaillé des faits que le tribunal pourra se prononcer sur l'opportunité d'une ordonnance rétroactive (par. 6) ;

- Le retard injustifié du parent créancier à demander l'augmentation de la pension milite contre une ordonnance rétroactive, alors que le comportement répréhensible du parent débiteur a l'effet contraire. Selon la majorité, lorsqu'elle est prononcée, l'ordonnance prend généralement effet à compter du moment où le parent créancier a réellement informé le parent débiteur de son intention de demander la majoration de la pension, ce qui établit un juste équilibre entre la certitude et la souplesse (par. 5). On notera que la Cour retient le critère du retard injustifié et non l'impossibilité d'agir comme c'est le cas en vertu de l'article 595 C.c.Q., puisque cette disposition ne trouve pas application en matière de divorce. Le critère est donc moins exigeant dans le cas d'un divorce ;

- Le parent créancier n'a pas à prouver que l'omission du parent débiteur de s'acquitter de son obligation a été source de difficultés pour l'enfant.

[54]        There is no reason here not to order support as of January 1, 2016 and there is nothing exceptional in allowing the order to run from that date.

[55]        The Court will not however entertain the mother’s request that child support be collected through the Minister of revenue. Since the divorce judgment, the father has paid support by cheques or bank transfers. There is no justification to deviate from the parents’ initial accord that payment was to be made in that fashion. In October 2011, a payment was late by one day, and in April 2016, the father realized he was late and he immediately corrected the situation[30]. Other than these two incidents, the evidence is clear that the father always met his obligations since the divorce.

IV  ISSUES CONCERNING DECISIONS AND EXPENSES

[56]        In her proceedings, the mother alleges a number of issues which are in the eyes of the Court either settled between the parents or no longer relevant. The facts alleged by the mother relate to her view that the father obstructs without reason many of her decisions concerning the children[31]. The Court will review each situation.

[57]        A panorex x-ray for X[32]. The father understood the normal frequency for such an x-ray to be once every few years. A review of the email exchange between the parties simply shows that the father was asking questions about the necessity of the panorex.

[58]        Another dispute arose in regards to a back x-ray for Y since he had been diagnosed with a mild scoliosis. The father understood in April 2015 that Y’s back                condition did not require any other follow-up[33]. This is why in January 2016, he questioned the need for a further investigation[34]. In any event, he eventually agreed to the x-ray.

[59]        The next issue concerns orthodontic care for Y. The evidence shows that the father accepted the mother’s selection of two different doctors in order to obtain an evaluation of the cost of treatment. Later on, the mother realized that the doctor she had selected could not give appointments which were manageable[35]. The evidence shows that the father agreed to the need for braces. He actually sought pre-approval from his health insurance carrier and the doctor chosen by the mother was agreed upon. It appears there was a miscommunication between the parents, since the email that would have been sent to the father explaining a difficulty in setting appointments, was never received[36].

[60]        In March 2014, the father agreed to a maximum of 5000 $ for the cost which corresponded to the lowest estimate which had been obtained by the mother.  Eventually, Y did get braces in the fall of 2014 for an approximate sum of 4 800 $.

[61]        The mother also raises a problem she had in reaching an agreement with the father in regards to day-camps for X. Generally speaking, as per the mother, X has been attending the least expensive camps and specialty camps were not considered by the father. This created a lot of conflicts between the parents. The communications between the parents filed into the Court record date back to 2014 and April 2013. While the Court can understand the mother’s frustration, there is certainly a logic on the father’s part as he was the parent assuming the cost and wished to be kept informed.

[62]        Another disagreement is alleged in regards to X attending a hockey camp in 2012. Initially the father disagreed with the cost as the mother failed to inform him in advance. Eventually, the father paid for the disbursement, although he initially asked the mother to reimburse him.[37]

[63]        The mother also testified on the father requesting modifications to his access rights in order to accommodate his work schedule. The mother does recognize that this is all in the past now, but wanted to testify nonetheless on these events. The father explained that on most occasions the parties agreed on changes to access. He prepared a chart which shows such requests happened on nine occasions over a period of six years[38]. On the face of this evidence, it is rather difficult to conclude that the situation was problematic.

[64]        The mother makes a general allegation in the proceedings to the effect that the father failed to inform her on the children’s health. She actually refers to a February 2014 incident when she took X to an allergist and obtained confirmation that he was allergic to three nuts. After the appointment, the father informed her that he thought he had seen X react to a peanut as well. The mother had to attend a second appointment which confirmed that it was not the case. While the Court can certainly understand the mother’s frustration, this does not show a pattern of a parent withholding information on the health of the children and it is an isolated event[39].

[65]        The mother also recounts another incident in October 2014, when the father refused to take X to a dentist appointment over the weekend since it coincided with one of his access[40]. The father explains that over the years he was happy to go to various appointments or activities with the children. He candidly acknowledges that the October 2014 event was a mistake on his part.

[66]        The parents also had a dispute concerning Y’s driving lessons. The father did not mind paying his share but wanted Y to contribute to a portion of the costs.  The problem was resolved after numerous discussions between the parents and the father paid the lessons. In the eyes of the Court, there can be no reproach found here, a parent, whether divorced or not, does not have to forego his values or accept any expense. In some cases, divergence of opinions will arise. This is simply an illustration of different parenting values. The father insists that children should pay a portion of certain costs and learn responsibility. When it comes to Y driving a car, the father believes that if the child wants to buy a car it should be his own decision and that he should also absorb the cost of insurance. Obviously, the mother differs of opinion on this subject.

[67]         The mother also refers to a September 2016 event when the father showed Y a magazine article about children managing money. The mother was seemingly upset at the father for telling the child how to manage the money that the mother allowed him[41]. Despite the mother’s testimony, the Court sees nothing wrong in the fact that a parent would want a child to learn to manage money.

[68]        At the present time, there is no specific agreement between the parents as to post-secondary education for the children. The mother wishes for the children to be fully supported in proportion to the income of each parent. The father would want the children to pay a portion of their education as this is what he himself did. In his testimony, the father explains that he agrees to pay tuition and other expenses such as books. However, he believes that school supplies or lunch expenses should go to the basic support that he pays for the children. He has the same view in regards to extracurricular activities. Should there be an organized school trip, he would want a three way discussion i.e. the parents and the child, and his view is that the child should contribute.

[69]        The Court finds that the parents are not that much apart on this issue. They both agree that tuition fees and expenses should be supported in proportion of their respective income. The father argues that it would beneficial for both parties to share the net cost once Federal notices of tax assessment are received. The Court agrees with the suggestion and the judgment will reflect such a conclusion.

[70]        The mother also testified that she wished to obtain a psychological evaluation for X in 2013 which the father refused. The Court accepts the father’s testimony: in an August 26, 2013 email[42], he expressed his surprise at the suggestion that X needed such an evaluation as he could see nothing wrong with his son. He did notice that X had shown sadness and missing his father. Both parents attended with the pediatrician and the topic of the evaluation never came up.

[71]        The mother wants the Court to reserve a potential claim for tax credits that the father should reimburse to her. The claim was not substantiated during the hearing. In a nutshell, she is of the view that if a receipt is to her name, she should be allowed to claim the available tax credit. The father explains that in most cases he has paid either 90% or 100% of the expense and he should therefore be the one to benefit from a tax credit, if possible. The Court is of the view that the mother’s position on the subject is not founded. Firstly, the Court will not render a judgment that reserves such rights.  Either these rights exist or not. No evidence was made. Furthermore, the father’s explanation is, without any other testimony, logical.

[72]        The mother brings up other issues concerning routine medical appointments, dental care and cost for summer camps. For example, she recounts that Y needed a booster shot for his hepatitis B vaccine which the father objected to. She also tells the Court about a medical bracelet for X concerning his allergies and the cost of shipping the bracelet. She brings up one instance where the cost of cleaning Y’s teeth was also a subject of dispute between the parents, as well as the cost of an epipen auto injector for X.

[73]        Basically, the mother would like to make routine decisions on medical and dental care to reduce conflicts and obstructions by the father. She wishes in the same way to be able to book day camps and summer camps without consulting him.

[74]        The father is against the notion that expenses should be only approved or decided by the mother. He concedes that there have been conflicts over the past seven years but does point out that there have been numerous times where the parties agreed very quickly on various issues. He points out that he pays 90% of expenses and that in most cases he pays promptly[43].

[75]        Overall, the Court finds that the parents have been able to agree on most issues since the divorce of May 2011. While some of the situations alleged by the mother were brought up with reason, the Court is of the view that there is no need for a general authorization for the mother to incur certain costs or expenses. This is especially true in the present case where the father is assuming 90% of expenses and is offering to support 100% of medical dental expenses. The Court points out that while some of the reproaches are founded, the majority are not. The parents need to continue to exercise their parental authority jointly and to agree on expenses.

V  PROVISION FOR COSTS

[76]        The mother is asking the Court to award, as a provision for costs, the reimbursement of her attorney fees to present the Motion. The invoices for professional services rendered show that the mother paid sums of 5148, 01 $, 6 910, 90 $, and 5 557, 75 $ to the firm which previously represented her and drafted the proceedings[44]. She has agreed to pay her current firm the sum of 23 000 $ plus applicable taxes[45]. Overall, she has paid 42 000 $ in legal fees and has agreed to pay her current attorneys on a lump sum basis. She admits that the current fee structure with her attorney was based on a three-day trial and that no arrangement has been made if the hearing happens to be shorter. The hearing took place over two (2) days on October 4 and 5, 2017.

[77]        The mother was paid a sum of 8 000 $ on an interim basis by the father as a provision for costs and is asking 32 000 $ to cover her legal fees[46]. In Droit de la famille-142449[47], the Court of Appeal stated the criteria which the Court must evaluate when deciding a provision for costs. They are:

1.    The necessity for the creditor to obtain a provision;

2.    The means and needs of the parent requesting the provision;

3.    The financial resources of the debtor and the disparity with the resources of the creditor;

4.    The nature, complexity and importance of the litigation;

5.    Whether the litigation concerns the protection of the rights of the children or a demand for support;

6.    The respective behaviour of the parties to the litigation.

[78]        There is no doubt that the demand by the mother concerns a request for child support. While the litigation between the parents on the issue of the amount of support can be qualified as important, it was not factually complex. There is no doubt that there is a huge disparity between the parties’ financial means.

[79]         However, the Court is of the opinion that the mother’s allegations regarding the father’s obstructions to decisions or expenses were unnecessary and complicated the issues before the Court. The mother also took the decision to replace her first attorney and legal fees are paid in full, whether the audition lasts two or three days. Lastly, it is true that the parents did attempt mediation before coming to Court. In summary, the Court is of the opinion that the hearing could have been less complex and shorter. Most of the exhibits filed into the court record, and referred to by the parents, concern the mother’s allegations of obstruction by the father which the Court finds to be ill-founded. The need for a provision for costs is established but the Court will limit it to 15 000 $ (over and above the 8 000 $ already paid).

VI  REQUEST BY THE MOTHER TO AVOID MEDIATION:

[80]        The consent signed by the parties called for the parents to attend mediation before going to Court. The mother points out that the last mediation attempt failed and that the father proved to be unreasonable or attempted to coerce her into agreeing to certain terms in exchange for other conditions.

[81]        Litigants must contemplate the possibility of settlement discussions. This is one of the principles now included in the Civil code of procedure. In its preliminary provision, the Code reads: This Code is designed to provide, in the public interest, means to prevent and resolve disputes and avoid litigation through appropriate, efficient and fair-minded processes that encourage the persons involved to play an active role.

[82]         Its first article states:

1. To prevent a potential dispute or resolve an existing one, the parties concerned, by mutual agreement, may opt for a private dispute prevention and resolution process.

The main private dispute prevention and resolution processes are negotiation between the parties, and mediation and arbitration, in which the parties call on a third person to assist them. The parties may also resort to any other process that suits them and that they consider appropriate, whether or not it borrows from negotiation, mediation or arbitration.

Parties must consider private prevention and resolution processes before referring their dispute to the courts.

[83]        The past consents show that the parties were often able to agree on a number of important issues without having to go to Court. Under these circumstances, the request of the mother is unreasonable and counterproductive. It will not be granted.

VII  CONCLUSIONS

[84]        The Court finds that the Federal Guidelines apply to the child support sought by the mother. The father did not reverse the presumption that the amount of support is appropriate. The Court does not accept the mother’s request that she be allowed to make decisions alone on expenses or care relating to the children of the marriage.

[85]        As a provision for costs, the Court awards 15 000 $ (over the sum of 8 000 $ already paid under the interim order).

[86]        The Court also accepts the father’s position that the parties share on a net cost basis extraordinary and special expenses or a pro rata basis of the parents’ incomes.

[87]        FOR THESE REASONS, THE COURT:

[88]        ORDERS the father to pay to the mother as child support for the children Y and X, as of January 1^st, 2016, a sum of 7 611,10 $ per month in accordance with the Federal child support Guidelines (Table for Ontario);

[89]        ORDERS the father to pay to the mother as child support for the children Y and X, as of January 1^st, 2017, a sum of 6 173 $ per month in accordance with the Federal child support Guidelines (Table for Ontario), the whole to be indexed annually according to law;

[90]        ORDERS the father to pay to the mother, as a provision for costs, the sum of 15 000 $ within 30 days of the present judgment;

[91]        TAKES ACT of the father’s offer to continue to pay 100% of the following medical expenses, provided that they are pre-approved by him: medical and dental insurance premium for his insurance offered by his employer, the uninsured portion of the children’s medication, dental, orthodontics, psychotherapy, x-rays and radiology, optometry and glasses, osteopathy, speech therapy and other therapies necessary to the treatment of a condition afflicting one or both children;

[92]        ORDERS the parties to share the net cost of the following extraordinary and/or special expenses on a pro-rated basis in proportion to their respective incomes applying the previous years’ declared income (as per the total income indicated on their respective federal notices of assessment) from the period beginning August 1^st and ending July 31 on an annual basis:

A)   Daycare expenses, summer camp and day care or summer camp during spring break;

B)   Expenses for post-secondary education, specifically for CEGEP, trade school and/or a first degree at the university level: tuition, registration fees, books, necessary transportation costs and other supplies, the whole on the condition that the said expense is not covered by the basic amount of child support;

[93]        ORDERS the parties to confer and agree with one another before incurring any extraordinary or special expense;

[94]        ORDERS that should either party be in disagreement with any activity for the benefit of the children, the parent who wishes to incur the cost of said activity shall be free to do so at their own expense and this on the condition that the activity does not infringe upon the other parent’s custodial time;

[95]        ORDERS that the parent who is projected to receive the most beneficial tax advantage for any given extraordinary and/or special expense for the children, pay the given expense in its entirety and deduct said expense on their income expenses as to reduce the net cost to both parents;

[96]        MAINTAINS the obligation of the parents to attend mediation before asking for the intervention of the Court;

[97]        THE WHOLE WITHOUT COSTS.

__________________________________

FRANÇOIS P. DUPRAT, J.S.C.

Me Martin Greenberg

Me Alexis Ibgui

HENDY GREENBERG

Attorneys for Plaintiff

Me Catherine Eustace

McCONOMY COLLARD EUSTACE INC.

Attorney for Defendant

Date of hearing:

October 4 and 5, 2017.