Kougioumitzidis v. Fontana – Consultation Regarding Section 7 Expenses

Kougioumitzidis v. Fontana is a 2007 decision of the Ontario Superior Court of Justice. This case deals with imputing income to the payor of Child Support as well as the consultation process involved in incurring section 7 expenses. In this case, the Court examined all of the father’s sources of income, including all of his employment benefits. Such employment benefits included the use of a car, including insurance and gasoline allowance, as well as the opportunity to write off personal expenses through the business. While this information was evidence of what the father actually earned on an annual basis, the mother adduced no similar evidence showing that the father lived a lifestyle that exceeded his income. Had the mother been able to prove this fact, this would have been a platform from which the Court could impute a greater income to him. As such, this case illustrates the importance of sufficient evidence when attempting to impute additional income to the payor spouse.

In terms of the issue of section 7 expenses, the mother had enrolled the children in a Montessori School and sought reimbursement from the father for his proportionate share of this expense. The Court found that the mother made this decision unilaterally and without consultation with father. Additionally, there was a previous Court Order in the matter requiring any party seeking to incur section 7 expenses to bring a Motion in this regard. Based on the foregoing, the Court absolved the father of any responsibility for the Montessori School tuition. This case illustrates the need for the party seeking to incur a section 7 expense to give the other parent reasonable notice of the said expense, as well as an opportunity to agree or disagree with same. Parties’ who fail to do this risk bearing the cost of the expense in its entirety.

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  1. Among the interesting issues raised in this case is the Court’s reminder that those instances where income may be imputed set out in section 19(1) of the Child Support Guidelines are not exhaustive. This opens the door to other factors that can be taken into account that may give rise to imputing income to support payers. This suggests that the Court takes seriously those principles of child support reiterated in Paras and Willik , especially those related to the notion that child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based on the income of the payor parent. The Court seems anxious to establish that the maximum support be put into the hands of the payee spouse to support the children. The court also reiterated that lifestyle is not income, but rather evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support.
    The Bak case considered in this case provides a good analysis of s. 19(1) of the Child Support Guidelines and the principles re: imputing income for the purposes of support.
    With respect to contribution to section 7 expenses, the need for consultation is a slippery slope. Theoretically any time the wife wishes to enrol the child in something that may well be reasonable and necessary she must go through the husband if she hopes to have him contribute. While this may be a reasonable approach for new expenses, this should not be the approach for existing or already agreed upon expenses. Otherwise the Husband would simply say ‘No” to everything and force the wife to bring costly motions (often in the process expending more money than the husband’s share of the expenses in question).

  2. This case is another good example of the need for spouses to consult with one another before enrolling their children in extra-curricular activities. This is particularly important where, like in the case at bar, consultation is specifically contemplated in the parties’ Separation Agreement or Court Order. The conclusion that the Court came to in this case is fair. If one party is not consulted before the other parent enrols the children in an activity, it is only fair that they be absolved from liability for the cost of same. Furthermore, the result in this matter shows parents that, if they fail to fulfill their obligation to consult with their former spouses regarding extra-curricular activities, they may be on the hook for the entire cost of the said activity.

  3. […] Kougioumitzidis v. Fontana – Consultation Regarding Section 7 30 Apr 2008. Fontana is a 2007 decision of the Ontario Superior Court of Justice. This case deals with imputing income to the payor of Child Support as Kougioumitzidis v. Fontana – Consultation Regarding Section 7 […]

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