Court File and Parties

Court File No.: Goderich 2011-82 Date: 2012-06-06 Ontario Court of Justice

Between: Victoria Beasley, Applicant

— And —

Brian Martyn, Respondent

Before: Justice Brophy

Heard on: 11 May 2012

Reasons for Interim Order released on: 6 June 2012

Counsel:

• J. Meyer, duty counsel for the applicant
• Michael G. Blackburn for the respondent

Brophy J.:

INTRODUCTION

[1] This is an Interim Motion seeking child support for one adult child who is at Community College.

[2] This case began in July of 2011 by way of an Application. There was some difficulty setting the initial dates because of the Goderich Tornado that happened on 21 August 2011. This caused scheduling disruptions and the court had to be moved to Walkerton for a number of weeks.

[3] It is important to remember that this is an Interim Motion only and that the final Order is not being decided.

INTERIM MOTION

[4] A case conference was held on 4 October 2011. An interim Motion was argued on 29 November 2011 and an Interim Order was made that day requiring the Respondent to pay section 7 expenses for education purposes for Hayley in the sum of $387.50 per month from 1 September 2011 to 1 April 2012. This was after adjustments were made with respect to amounts that had already been paid by the Respondent and an analysis of the ongoing expenses and who should be contributing to same. It was a stop gap Order awaiting further consideration after better information was provided. The Motion was otherwise adjourned to 3 January 2012 to set a date for further argument and to set a date for a Settlement Conference. The matter is now set for a Settlement Conference on 8 June 2012 and the Motion was again argued on 11 May 2012.

[5] It should be noted that there is no claim for retroactive support. The claim is simply for ongoing support from June 2011 forward and a contribution to education expenses.

BACKGROUND

[6] The parties cohabited from September of 1987 until they separated in December of 1997. They entered into a Separation Agreement on 16 March 2004. It provided for child support to be paid for two children: Mitch Tyler Martyn, born 10 August 1990, and Hayley Nicole Martyn, born 16 March 1993. Mitch has left home, is not in school and is independent. Support is not requested for him. Hayley finished high school in June of 2011 when she was 18 and now attends Durham College in Oshawa.

[7] The Agreement provided for child support in paragraphs 5.02 and 5.03. Essentially child support for both children was to be paid at a set amount that was subject to variation depending upon income changes and the status of the children. With respect to post secondary education paragraph 5.02(d) of the Agreement allows for negotiations to take place about continuing support and if no resolution is possible an application may be made to court to determine the issue. Paragraph 5.03 says that the parties shall contribute to post secondary school expenses "in accordance with their ability to do so". It is also expected that the child will make a reasonable contribution to same. All of this is ordinary and in general keeping with Section 31 of the Family Law Act, R.S.O. 1990, c. F.3, as amended.

[8] The Applicant filed the Separation Agreement with the Family Responsibility Office. FRO initially sought to enforce the support payments called for in the agreement but has since indicated that they will not seek to enforce same until the court issues an Order to clarify what amounts are owing.

[9] The Respondent brought his own Motion seeking termination of the child support or a reduction in same. In his supporting Affidavit the Respondent acknowledges that he has a responsibility to assist in the post secondary education expenses of Hayley – simply put he says that his income and obligations are such that he needs a reduction in the quantum.

ENTITLEMENT

[10] Entitlement to support is not in dispute. There is an acknowledgment in the Separation Agreement that the Respondent has a continuing child support obligation if the child goes on to post secondary education. Hayley has graduated from high school, she is over the age of 18 and is attending College. As previously noted in his material the Respondent does not take issue with the entitlement question.

[11] In any event Section 56 of the Family Law Act provides that the court can determine what support should be paid for educational purposes.

[12] In calculating that child support section 3(2) of the Child Support Guidelines, O. Reg. 397/97, as amended, sets out a presumptive rule that support for a child over the age of majority who remains entitled to support is to be made in accordance with the guidelines, unless the court decides that to do so would be inappropriate.

ISSUES

[13] The issues for determination are:

• The amount of the section 7 education expenses.
• The amount of the Respondent's contribution to those education expenses.
• The amount to be contributed by the Applicant.
• The amount to be contributed by the child.
• What ongoing child support should be paid, if any.

EDUCATION EXPENSES

[14] On 29 November 2012 the court decided that a fair assessment of the education expenses for 2011-2012 was $15,000.00. There is nothing that has been brought to my attention that changes that opinion.

[15] I have been provided with a schedule for the proposed education expenses for 2012-2013. The Applicant submits that the expenses will be $18,131.96.

[16] The Respondent takes issue with some of the items on that schedule. Specifically there is exception taken to the transportation and housing expenses.

[17] With respect to housing the Respondent asks why the apartment is not sublet for the summer. That is a reasonable question. Unfortunately there is not enough information to tell me the answer. Nor do I know what market might be available for sublet apartments in Oshawa. Is there a summer student population that would want the apartment? There is no information that helps in that regard. The monthly rental amount of $550.00 is fair. I am not in a position to second guess Hayley with respect to her having to keep the apartment to maintain her Oshawa residence.

[18] As for transportation – as I understand the breakdown the only items that are flexible are the parking permit at $500.00 for the academic year and the monthly gas amount of $120.00. If the purpose in having the car is so that Hayley can come home to visit her mother then it seems to me the campus parking permit is not necessary. There will be other ways to get to the campus. The parking permit is optional. As for coming home every weekend – that is simply too expensive. It should be cut in half to $60.00. For eight months this amount to $480.00. In all a reduction in the transportation expense of $980.00 is appropriate.

[19] I therefore find that the education expenses are properly $17,151.96.

INCOME OF THE RESPONDENT

[20] In his Financial Statement sworn 13 March 2012 the Respondent deposes that his annual income is $61,784.64. However attached to that Financial Statement is a copy of his 2011 T4 Slip showing an income in 2011 of $75,864.98. No explanation is offered about the variance. I do not know if this is a typographical error or if some projection into 2012 would suggest that the income of the Respondent will decline. For the purposes of this decision it seems to me that the T4 Slip is the best evidence. I find that the income of the Respondent for the applicable periods is $75,864.98. This would apply to both the 2011-2012 and 2012-2013 academic years in Hayley's education program. If the income falls then adjustment can be made in the future.

[21] There is a suggestion in the material filed by the Applicant that the Respondent does not have any rental or mortgage expense. As a counterpoint the Respondent says that he has a large debt owing to the Canada Revenue Agency. Further he says that he is partly responsible for the education expenses of a child from a different relationship. However all of these issues are all factually under developed and in any event it is not necessary to deal with them on this Motion because the Respondent has not brought an undue hardship claim.

INCOME OF THE APPLICANT

[22] The Applicant submits that her income should be imputed at $22,000.00. The Respondent reports that she has business income of $10,396.92. This is a function of a small house cleaning business that she operates. In addition she has interest and investment income of approximately $200.00 per month that is a product of an education fund that was set up by her and her parents for her children. Her total income as reported is $12,796.92.

[23] Her parents have also provided the Applicant with a house to live in rent free. They also pay for the heat and maintenance.

[24] In light of the forgoing the Applicant has submitted that her income should be imputed to be $22,000.00.

[25] I have compared this to what an ordinary person working for minimum wage could earn, which is $10.25 per hour for a 40 hour week for 40 weeks. That earned income would be $20,500.00.

[26] I find that imputing income to the Applicant of $22,000.00 is therefore reasonable and I accept same.

CONTRIBUTION TO EDUCATION EXPENSES BY THE CHILD

[27] The child has some income and resources. She is very industrious with respect to part time and summer employment. She also qualified for a Student Loan in her first year of $8,152.00. She also received a grant in the amount of $1,919.00.

[28] My expectation is that she will continue to make significant contributions to her expenses. This is fair. It is her education. She is an adult person. Moreover her parents are not wealthy. In my view it is reasonable to ask her to accept responsibility for 40% of her post secondary education expenses. These can be paid by her through a combination of student loans and grants and summer employment. See Willcocks v. Lien, 2011 ONCJ 433, Razavi-Brahimi v. Ershadi, 2007 ONCJ 406, Nelson v. Nelson, 2005 NSSC 5, Cavanaugh v. Glass.

[29] It appears that Hayley will continue to be eligible for student loans. It is only sensible that she take advantage of those loans to help her through school. By requiring Hayley to fund her 40% share in part through student loans, she will have some indebtedness coming out of school – but with proper contribution by her parents to her education plan this should be modest and manageable. It is in keeping with her responsibility to work hard to obtain a good education.

SHARING OF COST OF EDUCATION EXPENSES

[30] I see no need on this Motion to revisit the education expenses calculation made in November of 2011. No new facts have been presented that persuade me on this interim Motion to adjust the contributions ordered 29 November 2011 for the 2011-2012 education expenses. That is better left to the trial.

[31] With respect to the education expenses for 2012-2013, which I have found to be $17,151.96, they are to be shared 40% by the child and 60% by the parents. Hayley is therefore responsible for $6,860.78. The remaining 60% is $10,291.17. This is the responsibility of her parents.

[32] The income ratio of the Applicant and Respondent is 22% for the Applicant and 78% for the Respondent. The Applicant's share is $2,264.05. The Respondent's share is $8,027.12.

[33] This means that the Respondent is required to pay for education expenses for the academic year 2011-2012 the sum of $1,003.39 for the eight months from September to April for a total amount of $8,027.12.

[34] These monthly payments on account of education expenses shall continue for each academic year thereafter until this matter is concluded.

ONGOING CHILD SUPPORT

[35] Guideline child support at an income level of $75,864.98 for one child is $689.61 per month. In keeping with section 31 of the Family Law Act and 3(2) of the Child Support Guidelines it is clear to me that the Respondent has a duty to pay that child support and that the obligation continued after 30 June 2011.

[36] Throughout the year the Applicant is required to maintain a home for the child. Obviously her expenses go down while Hayley is at school. In an ordinary situation those expenses do not disappear completely and an argument can be made that there should be some ongoing support even while the child is in school. See Willcocks v. Lien, ibid. However in this case where the fixed expenses of the Applicant are subsidized by her parents there is no significant expense incurred by the Applicant to maintain the home for the child. Therefore in my view no ongoing support is necessary while the child is away at school. This is a reflection of the terms of section 3(2)(b) of Child Support Guidelines that allows for variations where appropriate given the condition, means, needs and other circumstances of the child and the financial ability of the parents.

[37] Nevertheless there should be ongoing support paid when Hayley is at home in the four months of May through August in each year. In those months the regular child support amount should be paid.

[38] For the months of July and August of 2011 child support at the rate of $689.61 is to be paid. Starting in May of 2012 child support is then to be paid at the rate of $689.61 for the months of May to August of 2012. This pattern should continue each year until the education program is completed.

CONCLUSION

[39] For these reasons an Interim Order is to go as follows:

(a) The Respondent shall pay ongoing child support to the Applicant commencing 1 July 2011 and on the 1st day of each month thereafter in the amount $689.61 for the months of July and August 2011.

(b) The Respondent shall pay ongoing child support to the Applicant on 1 May 2012 and on the 1st day of each month thereafter in the amount of $689.61 for the months of May to August 2012.

(c) The Respondent shall thereafter pay ongoing child support to the Applicant in the foregoing manner in the amount of $689.61 for the months of May to August in each year.

(d) The Respondent shall pay section 7 education expenses in the amount of $1,003.39 commencing 1 September 2012 and on the 1st day of each month thereafter for the months of September 2012 to April 2013 and shall pay the same amount in those same months in each year thereafter.

COSTS

[40] If the parties are unable to agree on costs with respect to this Motion cost submissions in writing shall be served and then filed through the court office. The initiating party shall have ten days after receipt of this ruling to file submissions. The responding party shall have five days after receiving the initiating party's cost submissions to file submissions. Reply if any by the initiating party shall be filed within five days after receipt of the cost submissions of the responding party. Submissions shall be no longer than one double spaced page and any Offers to Settle or other documents in support of the submissions shall be attached.

Released: 6 June 2012

Signed: "Justice Brophy"