E. J. Gunn QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 266 Date: 2007 07 26 Docket: F.L.D. 129/2007 Judicial Centre: Saskatoon, Family Law Division BETWEEN: DENISE RAE FRANSON (formerly TRIBBLE) and BRUCE HARRY FRANSON Counsel: Ms. Carla L. Haaf for the petitioner Ms. Tiffany M. Paulsen for the respondent FIAT WILSON J. July 26, 2007 [1] This matter was before me in Chambers on July 20, 2007. On that date made number of orders regarding child support as well as an order regarding summer access. The remaining issues to be resolved are as follows: 1) What, if any, should the father pay to the mother for extraordinary expenses relating to tutoring for one or both children? 2) What, if any, retroactive support should be ordered in this matter? 3) What, if any, interim spousal support should be payable by the father to the mother? [2] Dealing firstly with the issue of extraordinary expenses for education, the mother’s evidence discloses that both children, but more particularly Kody, born October 6, 1998, is in need of specialized educational program given his current problems at school. The mother proposes that Kody be registered in the Sylvan Learning Centre, during the summer of 2007, due to Kody’s educational difficulties. According to the mother, Kody is eight years old and is just now learning his alphabet and his numbers. [3] The mother has provided the court with letter from Pat Nostbakken, learning disabilities classroom teacher at the Westmount Community School where Kody attends. According to Ms. Nostbakken, Kody is currently in the half-time program for students with learning disabilities. Ms. Nostbakken states that it would be very beneficial for Kody to participate in some form of summer camp or learning support program, over the summer, to help him with his present learning difficulties. [4] The father is not opposed to Kody receiving some additional educational assistance. However, the father believes the Sylvan Learning Centre program is too expensive and says that he wishes to speak to teachers in the fall about other programming. The father did not provide any evidence, at the hearing of this matter, regarding any possible educational programs for the summer of 2007. It is clear the father has taken no steps to research alternatives to the Sylvan program. [5] agree with the father that the Sylvan Learning Centre fees are significant. As set out in the mother’s affidavit, for one child, for 12 week program, with initial testing and consultation, the cost would be $1,261.00. For both children, the total cost would be $2,522.00. The mother proposes that Zachary also attend Sylvan Learning Centre because he has ADHD. In my view, the mother has not filed enough evidence regarding Zachary’s circumstances. cannot, thus, make decision regarding any extraordinary expenses for Zachary’s special needs. [6] The mother’s claim for the father’s assistance is made pursuant to s. 7(1)(d) of the Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”). Section 7(1)(d) reads as follows: 7(1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; [7] I am satisfied on the evidence before me that the expense in question is a necessary expense for Kody. The real issue is whether the father has the means to contribute to this expense given the child support I have ordered him to pay pursuant to my fiat of July 20, 2007. [8] My July 20, 2007 fiat includes monthly s. payment for the four children in the sum of $843.00 per month, as well as contribution by the father for the children’s daycare costs. have ordered the father to pay an amount equal to 71% of the net after tax childcare cost. [9] In order to determine whether the father has the means to contribute to the Sylvan Learning Centre fees have estimated that the mother’s childcare costs will be the approximate sum of $650.00 per month, although it is clear on the evidence that her costs may reach figure of $1,950.00 per month. [10] Utilizing the Childview program, with childcare costs of $7,800.00 per year, Sylvan Learning Centre costs for Kody for the summer of 2007 at $1,261.00, income for the father at $37,900.00 and the mother at $13,085.00, it appears that the father’s share of both childcare costs and Sylvan Learning Centre costs would equate to the sum of $472.00 per month. If the father paid this amount, in addition to his s. child support amount, the father’s total child support payment would be $1,315.00 per month, until Sylvan fees are paid in full. The father would have net monthly cash flow remaining in the sum of $1,066.00 while the mother, and four children, would have available cash flow in the sum of $2,700.00 per month. [11] Although I recognize the father will be stretched, I believe that the Sylvan Learning Centre expenses are necessary and reasonable. The father shall pay to the mother his proportionate share of the Sylvan Learning Centre expense being an amount equal to 71% of the total cost. [12] Turning now to the question of retroactive child support, the mother seeks retroactive support for the time period from February, 2006 to February, 2007. Both the mother and father acknowledge that the father did commence making reasonable child support payments as of February, 2007. [13] am not, on this interim application, prepared to make retroactive child support order. There is significant conflict on the evidence regarding the payment of loans by the father during this period of time and the issue of whether or not the mother refused to accept payments being offered by the father. If the mother wishes to pursue the issue of retroactive support she may do so when and if this matter proceeds further to pre-trial. [14] Finally, the mother requests interim spousal support. Although it is clear from the evidence that the mother has an entitlement to interim spousal support, the father does not have the ability to pay. am directed by s. 15.3(1) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) to give priority to child support in determining child and spousal support applications. In the matter before me, find am unable to make spousal support order because the father does not have necessary resources to pay monthly sum to the mother once he has satisfied his child support obligations. My determination of this matter, at this interim stage, should not affect the right of the mother to pursue spousal support in the future. [15] Although the father has been voluntarily providing child support to the mother, at least since February, 2007, the mother was required to bring this motion to obtain an appropriate sharing of s. expenses. The father shall pay costs in the sum of $400.00 forthwith. J. D.L. Wilson
FIAT: The primary issue is whether the father should pay for tutoring expenses. HELD: 1) The father is not opposed to Kody receiving some additional educational assistance. However, he believes that the Sylvan Learning Center is too expensive. The father did not present any evidence with regard to other possible educational programs for the summer. It is clear that he has not researched alternatives to the Sylvan program. On the evidence, the expense is necessary for Kody. The real issue is whether the father has the means to contribute given his child support payments. If the father pays $472 per month for the Sylvan program, in addition to his s. 3 child support payments, the father's total child support payable would be $1,315 per month. The father would have a net monthly cash flow in the sum of $1,066 while the mother with four children would have available cash flow in the sum of $2,700 per month. Although the father will be stretched, the Sylvan program is necessary and reasonable.  2) Although the mother has an entitlement to spousal support, the father does not have the ability to pay. 3) The father shall pay costs in the sum of $400.