In Owens v. Owens, Justice Ramsay of the Ontario Superior Court of Justice considered a motion by a mother to vary a final child support order on the basis of material changes to the children’s child care, orthodontic, dental, and tutoring expenses. This case provides a good illustration of the type of analysis judges undertake when considering the reasonableness and necessity of costly child care expenses, particularly where the parties’ incomes are relatively modest.
The parties’ final support order was issued in 2010. The father was ordered to pay Table child support and a fixed monthly contribution toward the children’s section 7 expenses that existed at the time.
The Table support portion of the final order was varied in 2011 to account for the father’s increased income in that year. In 2012, both parties’ incomes decreased, and the mother incurred additional section 7 expenses, including tutoring expenses, orthodontics, and a nanny expense (this expense doubled from the time of the original order). Although Justice Ramsay did not specifically state this, it is clear that these circumstances were sufficiently “material” in nature to warrant a variation of the final order.
Based on the father’s income of $34,500 and the mother’s income of $42,000, Justice Ramsay found that the father should, “in principle”, contribute 40% toward the children’s section 7 expenses. Interestingly, a strict proportionate sharing based on the parties’ incomes would require the father to contribute 45% toward the children’s expenses; however, Justice Ramsay does not provide a rationale for his decision to deviate from the “straight” apportionment.
Justice Ramsay accepted the orthodontic expenses ($5,300) and tutoring expenses ($150/month) as reasonable and necessary, and ordered the father to contribute his proportionate share both retroactively, and on a go-forward basis. Justice Ramsay did not order the father to contribute to previous dental expenses claimed by the mother, because there was insufficient evidence before him about the exact amounts paid by the mother and the exact amounts covered by insurance. This should serve as a reminder to all litigants about the importance of providing the court with enough information to make a determination about an outstanding issue. In the context of section 7 expenses, the court will always need to see evidence of the amounts paid to date, the amounts owing on a go-forward basis, and evidence of any subsidy or insurance coverage that may reduce or eliminate the expense.
Justice Ramsay then went on to consider the nanny expenses claimed by the mother, which were very high ($20,000/year after a subsidy), and accounted for 50% of the mother’s gross yearly earnings. He noted that the two older children (ages 14 and 12) had significant psychiatric issues (anxiety, depression, and anger management, etc) and made the following observations about the cost of the nanny [emphasis added]:
 The daughter is home schooled by a tutor provided by the school board. A nanny watches the children while the mother works. As a result of the children’s special needs and the mother’s work schedule, this is the most practical option. After school day care would be impractical. Neither of the older children is an apt caregiver for the youngest child, who is only five years old. It is expensive, but if not for the nanny, the mother would probably not be able to work. The net benefit of the arrangement is an additional $20,000 a year for this family. The father’s suggestion that the two older children should watch the youngest child is, to my mind, callous and unrealistic in the circumstances.
 I do not blame the mother for providing this care for her daughter. Hiring the nanny and the tutor were reasonable decisions. I accept that the child has benefitted from the tutor. Hiring the nanny has allowed the mother to bring in more money. I simply think that the father cannot afford it. As a result, I think s.7 requires me to award much less. The unfortunate fact is that the family’s resources are limited and hard choices have to be made. It is a fact of life in this case that the hard choices, like the hard work, fall to the mother.
As a result of his findings above, Justice Ramsay ordered the father to pay $350/month toward the children’s tutoring and nanny expenses. It is noteworthy that the father was originally ordered to pay $350/month toward these expenses, but at the time the original order was made, the cost of the nanny was only half the current cost.
Owens v. Owens illustrates the challenges that courts often face when the parties’ financial realities are at odds with the needs of the children. As the primary caregiver in this case, the mother was left to pay a significantly higher portion of the children’s child care expenses, out of necessity. This result that may be unfair, but it is, unfortunately, not at all uncommon.
Families going through separation or divorce will often experience a decrease in their standard of living as a result of the increased cost of running two separate households. It is not unusual for courts to find that an expense is necessary and clearly benefits the child(ren), while at the same time finding that the cost of the expense is financially unfeasible for the family. Under the Child Support Guidelines, only expenses that are both necessary and reasonable will be considered proper section 7 expenses.