Keywords:Family law; retroactive child support; special and extraordinary expenses; private school v. public school.
Synopsis:The parties divorced in 2000. The mother (Appellant) was granted sole custody of their child, and the father (Respondent) granted access. In April of 2014, the mother made an application for retroactive child support claiming s.3 (Presumptive Rule) arrears and s.7 (Special or Extraordinary Expenses) arrears pursuant to the Federal Support Guidelines. The mother argued the child’s private school tuition qualified as an s.7 expense. The chambers judge disagreed and found the mother had made a unilateral decision to enroll the child in private school without consulting the father. At the time, the father objected stating he could not afford his share of the high tuition cost. The father argued there was no evidence private school would bring significant additional benefits to his son (who had previously been succeeding both athletically and academically in the public system). Additionally, the chambers judge dismissed the mother’s argument that a new car, visits to university, donations to the child’s school, and estimates for university fees were s.7 expenses (at paras. 11-13).The mother appealed the decision to the Court of Appeal arguing the chambers judge misapprehended or disregarded relevant evidence, and misdirected herself on the law with respect to s.7 expenses. Appeal denied.
Importance: The Court of Appeal noted support decisions are fact driven, involve considerable discretion, and should not be overturned unless the decisions reveals: 1) an error in principle; 2) a significant misapprehension of the evidence; or 3) unless the award is clearly wrong; Hickey v Hickey,  2 SCR 518 (SCC) at para. 11. The chambers judge carefully considered all the evidence and properly concluded the private school expense was neither necessary nor reasonable. The chambers judge’s limit of $5,000 a year for sports-related expenses was appropriate. Although trial transcripts indicated counsel for the father suggested an annual budget of $12,000 to $15,000 for a similarly gifted child, it was not an error to cap the amount at $5,000. The direction of the chambers judge for the mother to produce receipts for all allowable s.7 expenses before the father was required to pay his share was a reasonable requirement and was not a basis for intervention. The Court of Appeal concluded:
“In our view, the chambers judge properly concluded that the private school expense was neither necessary nor reasonable. She based her careful analysis on the history of the parents, the report of the parenting coordinator, the financial means of the parents, the needs of the child, and the unilateral decision of the mother to place the child in private school. We find no error in her exercise of judgment” (at para. 31).
Counsel for Appellant (Applicant): Robert Calvert, Q.C. (Davis LLP, Calgary)
Counsel for Respondent (Respondent): Charles Eason (McGurk LLP, Calgary)