Court File and Parties
Court File No.: Toronto D23107/03 Date: 2014-03-19 Ontario Court of Justice
Between: Daniella Costescu, Applicant
— And —
Sorin George Costescu, Respondent
Before: Justice Carole Curtis
Motion heard on: 20 February 2014
Reasons for Decision released on: 19 March 2014
Applicant appeared in person, unrepresented
Respondent appeared in person, unrepresented
CURTIS J.:
1. Over-view
This is the decision regarding the mother's motion to change child support in the separation agreement.
2. Background
The mother (the applicant and the moving party) was born 19 October 1959, and is 54 years old. There was no evidence as to the age or date of birth of the father (the respondent and the responding party).
The parents were married on 29 January 1990 and separated on 1 September 2002. They were divorced on 23 August 2004.
They have one child, Tudor Paul, born 25 June 1993, now 20 years old, and in university.
3. Litigation History
The parents signed a separation agreement on 27 September 2002. The agreement was not filed with the Family Responsibility Office. It was filed with the court under s. 35 of the Family Law Act, R.S.O. 1990, c. F. 3, as amended ("F.L.A."), on 30 August 2013.
The agreement provided for child support as follows:
a) father to pay $345 per month on income of $40,000 from 1 September 2002;
b) at the time of signing there were no special or extraordinary expenses other than summer camp (the child was then 9 years old);
c) the parents agreed to a process for the payment of s. 7 expenses as follows: if the mother wants a contribution from the father for that expense she will provide a receipt or invoice for the expense, together with the proof of her income to the father, who will then pay the mother in accordance with the formula in the child support Guidelines;
d) child support continues until the child obtains one post-secondary degree or diploma;
e) once per year, if either parent asks in writing, the parents will review the child support arrangements;
f) either parent may ask for disclosure from the other, in writing, once per year starting 1 September 2003, and a process was set out in the agreement for this;
g) the child support was to be indexed to changes in the Consumer Price Index published by Statistics Canada, and was to increase every year starting 1 September 2003; and,
h) child support was to be paid directly from the father to the mother, and not through the Family Responsibility Office ("FRO"). The mother may file the agreement for enforcement with the court and the FRO if the father defaults and does not pay within 5 days of getting a written notification from the mother.
At the motion to change, the separation agreement was a valid subsisting contract. The father was represented by a lawyer in the negotiating and signing of the agreement. The mother was not represented by a lawyer, and acknowledged in the agreement that she was told to obtain independent legal advice and chose not to. There was no issue raised with respect to this on the motion to change. At the hearing of the motion, both parents treated the agreement as binding. Neither parent suggested the agreement was in any way subject to attack at the time it was signed. Neither parent was asking to have the agreement set aside.
In August 2013, the mother wrote to the father and asked him to pay child support as due under the Child Support Guidelines based on his increased annual income of $41,000. The letter was filed in evidence. It was not clear how the mother knew, at that time, that his income had increased. As well, from the information produced at the motion, $41,000 was the father's 2011 income (at the time of the letter, he was earning considerably more, $62,200 in 2013). In August 2013, the father began paying voluntarily (that is, without court order or signed agreement) an increased table amount of child support ($370 per month), which he was paying at the hearing of the motion.
4. The Parents' Positions at the Motion
The mother claimed the following at the motion:
a) table amount child support should be changed to be based on father's income as follows:
i. on a go forward basis, $567 per month from 1 January 2014, based on income of $62,200;
ii. adjustment to the table amount of support for the years 2010, 2011, 2012, and 2013, based on the father's income in those years, that would result in a lump sum owing of $3,340.72; and,
b) contribution from the father for s. 7 expenses for university (for tuition, books, and medical and dental expenses) for the three years 2011, 2012 and 2013, with the father's share totalling $8,232.63.
The father claimed the following at the motion:
a) there should be no changes in the table amount whatsoever;
b) if there are to be changes in the table amount, the table amount should be adjusted retroactively back to 2008, and therefore, he has overpaid (as he paid the $345 per month in two years (2008 and 2009) in which he did not earn the $40,000 it was based on). He believes he is owed the net amount of $4,976.12 (for the years 2008 to 2013);
c) if there are s. 7 expenses owing for the university costs, the medical and dental portion claimed should not be allowed;
d) 100% of the child's income should be deducted from the cost of those three years of university costs, leaving no s. 7 amounts to be shared; and,
e) the child has stopped his relationship with the father unilaterally, since 2005, and therefore the child support should be terminated.
The parents produced income tax information for the court to determine their incomes over the recent years. This is the income information from their Notices of Assessments:
| Year | Mother | Father |
|---|---|---|
| 2008 | $8,366 | — |
| 2009 | $38,793 | $9,835 |
| 2010 | $56,710 | $33,252 |
| 2011 | $45,186 | $41,077 |
| 2012 | $41,663 | $49,692 |
| 2013 | $28,262 | $62,200 |
5. Issues
The issues for decision are these:
a) Should there be a retroactive adjustment of the child support table amount in accordance with the father's income, and if so, what is the proper start date?
b) Should there be a retroactive adjustment of child support for special expenses in accordance with the father's income and the special expenses incurred, and if so, what is the proper start date? and,
c) Is the child disentitled to support if the relationship with the father was terminated, and if so, from what date?
6. The Material Presented To the Court
Both parents were unrepresented when they prepared their court papers and at the motion to change. The material they presented and relied on was very limited, and did not address many of the issues they wanted the court to decide. The material either did not address the issues at all, or addressed them only in very limited terms. Their material was not detailed and was often not explicit. There was no evidence provided regarding tuition tax credits.
It was very difficult for the court to determine what had taken place. There was almost no evidence provided by the parents regarding what went on over the years about child support:
a) There was no evidence about whether the parents ever reviewed child support;
b) There was no evidence about whether the mother ever asked the father for disclosure or the efforts made by the mother to obtain disclosure from the father;
c) There was no evidence about whether or not the father ever provided disclosure; and,
d) There was no evidence from the mother about efforts made by her to get the father to increase child support (either the table amount or the s. 7 expenses), other than:
i. she claims she has been asking the father to increase the table amount and to contribute to s. 7 expenses for some time; and,
ii. she produced a letter dated 28 August 2013 asking the father to increase the table amount and to contribute to s. 7 expenses.
Much of the information the parents wanted to rely on was unsworn. There were various letters written by each to the court that the parties wanted to the court to consider. This material was not evidence as it was not under oath. All the material presented by the parents was read and was taken into account, whether sworn or not, and whether in the form of proper evidence or not.
Parties need to recognize that court cases about support can be complicated and difficult, and that legal advice and the help of a lawyer are often needed in order to be able to put forward their claims successfully. Both parties were disadvantaged in this case by their lack of legal representation.
7. The Motion to Change
The mother's motion to change the child support terms of the agreement dated 27 September 2002 was brought under ss. 35 (1) and (2), 37 (1) and (2.1) of the F.L.A., and s. 14 of the Child Support Guidelines, Ont. Reg. 391/97, as amended:
FAMILY LAW ACT
Domestic contract, etc., may be filed with court
35. (1) A person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice together with the person's affidavit stating that the contract is in effect and has not been set aside or varied by a court or agreement. R.S.O. 1990, c. F.3, s. 35 (1) ; 2006, c. 1, s. 5 (2) ; 2006, c. 19 , Sched. C, s. 1 (2, 4); 2009, c. 11, s. 32 (1) .
Effect of filing
(2) A provision for support or maintenance contained in a contract that is filed in this manner,
(a) may be enforced;
(b) may be varied under section 37; and
(c) except in the case of a provision for the support of a child, may be increased under section 38,
as if it were an order of the court where it is filed. 1997, c. 20, s. 5; 2006, c. 1, s. 5 (3) .
Application for variation
37. (1) An application to the court for variation of an order made or confirmed under this Part may be made by,
(a) a dependant or respondent named in the order;
(b) a parent of a dependant referred to in clause (a);
(c) the personal representative of a respondent referred to in clause (a); or
(d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6.
Powers of court: child support
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6.
CHILD SUPPORT GUIDELINES
Variation of Orders for the Support of a Child
Circumstances for variation
14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:
In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.
In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.
In the case of an order made under the Divorce Act (Canada) before May 1, 1997 , the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
In the case of an order made under the Act, the coming into force of subsection 33 (11) of the Act. O. Reg. 391/97, s. 14 ; O. Reg. 446/01, s. 3.
8. The Table Amount of Child Support
What is the Proper Start Date for Adjusting Child Support?
The test to be applied in a motion to change is whether there has been a change in circumstances of either the parent or the child: ss. 35 (2.1) of the F.L.A., and s. 14 of the Child Support Guidelines.
This test is a threshold test, that is, the court does not embark on a consideration of the merits of the motion to change unless and until the threshold test of change of circumstances has been satisfied.
The onus for meeting this threshold is on the person who is seeking the change. In a case such as this, where both parents are asking for a change in the agreement, there is an onus on each parent to produce evidence which supports their request for a change.
Even where this threshold is met, the onus continues, and the onus is to satisfy the court that the change that is sought is the appropriate change to be made based on the evidence.
Retroactive Child Support Framework
Retroactive child support must be considered in the framework of the principles set out by the Supreme Court of Canada in the D.B.S. decisions: D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (referred to as "D.B.S.", or "the D.B.S. cases").
The umbrella determination in the D.B.S. cases is this: courts have the jurisdiction to award retroactive child support, and, in appropriate cases they should do so.
These are the framework principles set out in the D.B.S. decision:
The obligation of support arises automatically upon birth: D.B.S., para. 36-37;
Child support is the right of the child: D.B.S., para. 60;
The term "retroactive" is misleading in the technical sense, as these "retroactive" awards do not hold parents to a legal standard that did not exist at the relevant time: D.B.S., para. 2;
It is clear that retroactive awards cannot simply be regarded as exceptional orders to be made in exceptional circumstances: D.B.S., para. 5;
The specific amounts of child support owed will vary based upon the income of the payor parent;
As income levels increase or decrease so will the parents' contributions to the needs of the children, just as they would if the family had remained together;
Under the general Guidelines regime, the underlying theory is that the support obligation itself should fluctuate with the payor parent's income;
Under the general Guidelines regime, when a payor parent does not increase the amount of his support when his income increases, it is the child who loses: the child is the one who is entitled to a greater quantum of support in absolute terms: D.B.S., para. 43, 45, 47;
The ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it. Any incentives for payor parents to be deficient in meeting their obligations should be eliminated: D.B.S., para. 4;
Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility: D.B.S., para. 5; and,
Courts must be open to ordering retroactive support where fairness to children dictates it, but should also be mindful of the certainty that fairness to payor parents often demands. It is only after a detailed examination of the facts in a particular case that the appropriateness of a retroactive award can be evaluated: D.B.S., para. 6.
While the payor parent does not shoulder the burden of automatically adjusting payments, or automatically disclosing income increases, this does not mean that he will satisfy his child support obligation by doing nothing. If his income rises and the amount of child support paid does not, there will remain an unfulfilled obligation that could later merit enforcement by a court: D.B.S., para. 59. This means that a parent will not have fulfilled his obligation to his children if he does not increase child support payments when his income increases significantly.
The certainty offered by an agreement does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support: D.B.S., para. 64.
Parents should not have the impression that child support agreements are set in stone. Even where an agreement does not provide for automatic disclosure, variation or review, parents must understand that it is based upon a specific snapshot of circumstances which existed at the time the agreement was made. For this reason, there is always the possibility that agreements may be varied when these underlying circumstances change: D.B.S., para. 64.
A retroactive child support order does not involve imposing an obligation on a payor parent that did not exist at the time for which support is being claimed: D.B.S., para. 68.
In a situation where the payor parent is found to be deficient in his support obligation to his children, it will be open for a court to vary an existing order retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable: D.B.S., para. 74.
Was there Delay by the Recipient?
Delay in seeking an increase in child support is a factor in determining whether a retroactive award is justified: D.B.S., para. 100, 101.
The mother says that she asked the father to increase child support in accordance with his income. There was no evidence as to when or how often this request was made, and no proof this request was made. However, the father did not deny this. The evidence on this issue was, however, quite Spartan. There was no evidence as to whether the parents ever reviewed child support (the separation agreement provided for an annual review, on written request). There was no evidence as to whether there was ever a request made to increase the child support in accordance with the cost of living, or if there were any discussions by the parents about this clause. There was no evidence about the efforts made by the mother to get disclosure from the father, the efforts by the mother to get an increase in the table amount of child support, the efforts by the mother to get a contribution to the s. 7 expenses, other than the mother claims that she has been asking the father to increase the table amount and to contribute to the s. 7 expenses for some time. The only evidence about this is the letter written by the mother dated 27 August 2013 regarding the s. 7 expenses and the table amount.
Blameworthy Conduct of the Payor
The payor parent's interest in certainty is least compelling where he engaged in blameworthy conduct: D.B.S., para. 105.
Blameworthy conduct is anything that privileges the payor parent's own interests over his children's right to an appropriate amount of support: D.B.S., para. 106.
A payor parent should not be permitted to profit from his wrongdoing: D.B.S., para. 125.
A payor parent cannot hide his income increases from the recipient parent in the hopes of avoiding larger child support payments: D.B.S., para. 106.
No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his obligations, he might still be acting in a blameworthy manner if he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his support obligation to his children should not be allowed to profit from such conduct: D.B.S., para. 107.
Whether a payor parent is engaging in blameworthy conduct is a subjective question: D.B.S., para. 108.
The father stated that he was aware of the Child Support Guidelines. Yet he made no disclosure to the mother of his increased income, and paid no increases in child support, until August 2013, after the mother wrote and asked for an increase in the table amount consistent with his increase in income. Even then, in August 2013, the father increased support only to the table amount based on an annual income of $41,000, the amount he had earned in 2011. In 2013 he was earning considerably more, $62,200. He was not paying the appropriate amount of child support, and he knew it.
The father engaged in blameworthy conduct in not paying any cost of living increases from 2002 onwards, in not disclosing his changes in income until 2013, and in not adjusting the child support according to his income.
Hardship in the Circumstances of the Child
Courts should consider the present circumstances of the child -- as well as the past circumstances of the child -- in deciding whether a retroactive award is justified: D.B.S., para. 110. There was no evidence about whether or not the child has suffered hardship.
Hardship to the Payor
The father did not plead hardship and did not argue hardship. He argued there is no reason why there should be any retroactive adjustment, and that there should be no changes in child support at all. In any event, a retroactive child support adjustment would not visit hardship on the payor in this case, and any such order can be structured to ensure this.
Start Date of the Order
The court in D.B.S. identified four choices for the date to which the award should be retroactive:
a) the date when an application was made to a court;
b) the date when formal notice was given to the payor parent;
c) the date when effective notice was given to the payor parent; or,
d) the date when the amount of child support should have increased.
The court adopted the date of effective notice as a general rule for the commencement date of retroactive support awards: D.B.S., para. 118.
"Effective notice" means any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his interest in certainty becomes less compelling: D.B.S., para. 121.
Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially (that is, the date when the amount of child support should have increased) will be the presumptive start date of the award: D.B.S., para. 134.
The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that he reasonably believed his child's support entitlement was being met: D.B.S., para. 124.
The presence of blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his informational advantage to justify his deficient child support payments: D.B.S., para. 124.
In this case, the only evidence about the date of formal notice is the letter dated 28 August 2013, when the mother clearly asked the father to increase the table amount and to contribute to the s. 7 expenses.
The father knew his child support obligation was tied to his income. He knew that his income had increased. He did not make any increases to the child support for the increases in the cost of living. There is no evidence that he disclosed his increases in income until 2013, and he did not increase the child support payment until August 2013, when he was asked by the mother in writing to do so. This is blameworthy conduct.
The court finds that the latest date the father can rely on as the date of actual notice, according to the evidence presented, is August 2013. The table amount should be adjusted starting in 2010 (three years before the date of actual notice). The mother is seeking s. 7 expenses from 2011, when the child started post-secondary school. The s. 7 expenses should be calculated starting in 2011, under the terms of the separation agreement.
The Fairness Umbrella Regarding Retroactive Child Support
In the D.B.S. cases, the Supreme Court of Canada inserted a new test in child support cases, that is, an umbrella test of "fairness", into this analysis. The court refers to the "balance between certainty and flexibility" in this area of the law, describing it as fairness to children and certainty for the payor.
The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for any delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail: D.B.S., para. 133.
This requires the judge to examine all the factors and weigh those factors, keeping in mind the need to balance these interests. It is curious that the S.C.C. suggests that the interest of the child in fairness is a competing interest to that of the parent in certainty. Surely the child's need for fairness and the child's entitlement to the appropriate amount of child support may compete with the parent's needs for certainty, but the child's needs should have a higher priority.
The father acknowledged that he was aware of the Child Support Guidelines. He acknowledged by his behaviour that he knew he had a responsibility to pay an increased amount of child support in accordance with the increase in his income. He increased the table amount of child support, at the mother's request, without a court order or agreement, in August 2013. He wasn't paying the correct amount of child support and he knew it. On an overall fairness analysis of all the circumstances in this case, it is fair, just and appropriate that there be an order for the adjustment of the child support (for the table amount and s. 7 expenses), starting in 2010 for the table amount, and in 2011 for s. 7 expenses (when the child started university).
The Claims re Table Amount Support
The separation agreement is clear that the child support agreed to, $345 per month, was based on father's income of $40,000 in 2002 (when the agreement was signed).
The clause in the separation agreement that the child support was to be indexed to changes in the Consumer Price Index appears to have been ignored by the parents in the years since the agreement was signed. No increases in the child support were made. There was no evidence that the mother asked the father to increase or adjust child support under this clause. Neither parent raised this clause or asked for adjustments based on this clause in the motion to change. Neither parent presented any evidence as to what the actual increases would be under this clause, or any evidence as to what the increased child support payments would be. Neither parent even mentioned this clause. In any event, this clause is not available for a court to use regarding child support (F.L.A., s. 34 (5)).
The father's income has changed since the agreement was signed. Those changes in the father's income are a change in circumstances. There should be adjustments in the table amount to reflect those changes. The table amounts shall be adjusted as follows:
| Father's Income | Table Amount |
|---|---|
| 2010: $33,252 | $307 |
| 2011: $41,077 | $378 |
| 2012: $49,692 | $448 |
| 2013: $62,200 | $567 |
9. The s. 7 Special Expenses Child Support
Legal Issues Regarding the Mother's s. 7 Claims
The mother's claim for special expenses is brought under the terms of the separation agreement and under s. 7 of the Child Support Guidelines:
SEPARATION AGREEMENT
5. Child Support
Definitions
5.1 In this section,
"Table" and "income" mean "Table" and "income" as those terms are defined in s. 2(1) of the Guidelines,
"special or extraordinary expenses" means "special or extraordinary expenses" as this phrase is defined in s. 7(1) of the Guidelines,
"child support" refers to the monthly amount upon which the parties have agreed and may include both Table support and special or extraordinary expenses.
5.2 For purposes of determining support for the child Tudor, the Husband's annual income is $40,000. Accordingly, beginning September 1, 2002 the Husband will pay the Wife the table amount of $345 (sic). At present there are no special or extraordinary expenses other than summer day camp. If the Wife wants contribution for that expense she will provide a receipt or invoice for the expense together with proof of her income to the Husband who will then pay the Wife in accordance with the formula in the Child Support Guidelines. This will be the process for any other special or extraordinary expenses which may arise.
CHILD SUPPORT GUIDELINES
Special or extraordinary expenses
7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1) ; O. Reg. 446/01, s. 2.
Definition"extraordinary expenses"
(1.1) For the purposes of clauses (1) (d) and (f)"extraordinary expenses" means
(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or
(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,
(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child,
(iv) the overall cost of the programs and activities, and
(v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. O. Reg. 391/97, s. 7 (2) .
Subsidies, tax deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. O. Reg. 159/07, s. 2.
Universal child care benefit
(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. O. Reg. 159/07, s. 2.
Under the terms of the Separation Agreement, the parents agreed to the following:
a) there may be s. 7 expenses in the future;
b) the father was obligated to contribute to them; and,
c) the contribution scheme would be the one set out in the Child Support Guidelines.
All special expenses must meet the tests of necessity and reasonableness set out in s. 7(1) of the Guidelines. To be allowed as s. 7 expense, the amounts claimed must be necessary in relation to the child's best interests, and reasonable in relation to the means of the parents. The onus falls on the applicant who seeks special or extraordinary expenses under s. 7 of the Guidelines to prove that the claimed expenses fall within one of the categories, and that the expenses are necessary in relation to the child's best interests, and reasonable having regard to the parental financial circumstances: Park v. Thompson.
The Claim for s. 7 Expenses
At the request of the court, the mother prepared a chart of the amounts she was claiming for s. 7 expenses. At the hearing of the motion, the mother claims a contribution from the father for the following s. 7 expenses for university (the child is at York University), and for medical and dental expenses:
| Category | 2011 | 2012 | 2013 | Total |
|---|---|---|---|---|
| Tuition | $2,714.39 | $5,907.75 | $3,555.86 | $12,177.99 |
| Books | $466.04 | $596.41 | $398.30 | $1,460.75 |
| Medical and dental | $1,750.00 | $1,678.00 | $1,678.00 | $5,106.00 |
| Total | $4,930.43 | $8,182.16 | $5,018.63 | $18,131.22 |
| Less tuition grant | $500 | $1,600 | $800 | $2,900 |
| Net cost | $4,430.43 | $6,582.16 | $4,218.63 | $15,231.22 |
The mother produced invoices for the expenses claimed. The mother claims that the father's share of these expenses, on a proportionate basis, totals $8,232.63.
The mother had also claimed a contribution for cellphone and internet expenses in her Notice of Motion, but these claims were not presented nor requested at the hearing of the motion.
The father did not dispute the categories of tuition and books as proper s. 7 expenses, did not dispute any of those amounts, that the amounts were paid, or that he had an obligation to contribute to those expenses. The mother's claims for a contribution to these expenses should be allowed.
The father said that he should not have to contribute to the medical and dental category, as those expenses could have been covered by his benefits plan. He said that 100% of the child's earnings should be spent on his university costs, leaving no s. 7 costs to be shared.
Is the Mother Entitled to Claim S. 7 Expenses on a Retroactive Basis?
Retroactive Child Support and s. 7 Expenses
The principles set out in the D.B.S. cases regarding retroactive child support apply to the table amount and to s. 7 expenses: Selig v. Smith, 2008 NSCA 54, para. 25, 26. The court in the D.B.S. cases makes no distinction between the table amount of child support and s. 7 expenses for child support. The mother is entitled to claim s. 7 expenses on a retroactive basis.
Do All the Expenses Claimed Properly Qualify as s. 7 Expenses? The Question of Entitlement
An order for contribution to special and extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and amount: Julien Payne and Marilyn Payne, Child Support Guidelines in Canada, 2009, Irwin Law (Toronto), p. 227, 231.
The list of special and extraordinary expenses under s. 7(1)(a) to (f) is exhaustive; if a claim doesn't fall within any of the listed categories, it must be dismissed: Kilrea v. Kilrea, [1998] O.J. No. 3677 (Gen. Div.), para. 13.
The father did not dispute the categories of tuition and books as proper s. 7 expenses, did not dispute any of those amounts, that the amounts were paid, or that he had an obligation to contribute to those expenses. The mother's claims for a contribution to these expenses should be allowed.
The father did not dispute the categories of medical and dental as a proper s. 7 expense, but said that he should not have to contribute to this as those expenses could have been covered by his benefits plan. There was almost no evidence about these expenses. It appears that some of these expenses were for chiropractic services. It is unclear what the rest of the claim is for.
The court should not have to struggle through the evidence provided to be able to determine whether or not the amounts claimed are properly claimed, whether the amounts claimed are proven, whether the amounts claimed fall properly under special expenses, and whether the amounts are reasonable. The onus to prove an expense is on the parent seeking contribution for that expense.
Although not specified in s. 7, chiropractic services may qualify as a proper s. 7 expense. However, there was no evidence on the need for these services, and no evidence that the expenses were reasonable and necessary (as required by the Child Support Guidelines). There was no evidence from the father about what coverage was available from his plan, whether it was available on a retroactive basis, and what amount was not covered. This claim is dismissed without prejudice. The mother may renew this claim on better evidence. The father should also produce better evidence to determine what portion of the expenses can be covered by his plan. If the expenses are found to be reasonable and necessary, the parents should proportionately share the amount of this expense that cannot be reimbursed under the father's plan.
Is the Mother Entitled to Re-imbursement for the Full Amounts she has Claimed? The Question of Amount
Claims for s. 7 expenses must be supported by relevant evidence. But the court has the discretion to make an order based on estimates (s. 7(1) Child Support Guidelines). The court also has discretion to order a contribution for all or any portion of a proper s. 7 expense (s. 7(1) Child Support Guidelines).
These are the net amounts for tuition and books that the father should be contributing to as s. 7 expenses:
| Category | 2011 | 2012 | 2013 | Total |
|---|---|---|---|---|
| Tuition | $2,714.39 | $5,907.75 | $3,555.86 | $12,177.99 |
| Books | $466.04 | $596.41 | $398.30 | $1,460.75 |
| Total | $3,180.43 | $6,504.16 | $3,954.16 | $13,638.75 |
| Less Tuition Grant | $500 | $1,600 | $800 | $2,900 |
| Net Cost | $2,660.43 | $4,904.16 | $3,154.16 | $10,718.75 |
What Contribution is the Child Expected to Make to these Expenses?
Section 3(1) of the Child Support Guidelines provides that the "amount of a child support order" for a minor child is composed of two components: the amount set out in the applicable table and the amount, if any, under s. 7. The amount of child support for a child over the age of majority is to be determined pursuant to s. 3(2) of the Guidelines. Section 3(2) should be read in the context of s. 3(1). Section 3 provides:
3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
3. (2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
Section 3(2) provides two ways of determining the amount of child support for a child of majority age. Under s. 3(2)(a), the amount of support for a child over the age of majority is calculated in exactly the same way as that for a minor child. The opening words of s. 3(2)(b) indicate that the amount determined by applying s. 3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency and efficiency in the resolution of disputes concerning the amount of support for children of majority age. Lewi v. Lewi, para. 127.
In these circumstances, even though he is over the age of majority, the table amount of child support for this child is appropriate. He is living at home with the mother while he is at university, and his expenses would be very similar to those incurred when he was under the age of majority.
Both s. 7 and s. 3(2)(b) require the court to consider whether a child of majority age is able to make a contribution to his or her post-secondary education expenses. Lewi, supra, para. 141.
Section 3(2)(b) requires the court to have regard to the "means" of the child. The section requires the court to consider the child's means in the context of the financial ability of each of the parents to contribute to the support of the child. Lewi, supra, para. 142.
There are several indicators in s. 7 that the court is required to consider the child's ability to make a contribution toward post-secondary education expenses. First, s. 7 requires the court to take into account the necessity and reasonableness of the expense in relation to the "means of the spouses and those of the child" (emphasis added). The phrase "all or any portion" in s. 7(1) allows the court to provide an amount to cover only a portion of the expense at issue. Most apparent is s. 7(2), which provides that amount of the expense to be shared by the parents is arrived at "after deducting from the expense, the contribution, if any, of the child". Lewi, supra, para. 143.
The issue is whether the child should be expected to contribute to his education expenses out of his own money. The court is not called upon to make an order requiring the child to expend his funds as the court directs. The issue is the amount of child support to be paid by one spouse to the other. In deciding that question, the court is obliged to consider the means of the child and the contribution he should be expected to make to his post-secondary education. The order made on the motion for child support could affect the legal rights and obligations only of the parents and not of the child. Lewi, supra, para 147-148.
The Means of the Child and Parents Considered Together
Neither s. 3(2)(b) nor s. 7 contain any indication whatsoever of the level of contribution a child of majority age with funds should be expected to make to his own post-secondary education expenses. Under both provisions, the question is largely a matter of discretion for the judge. Lewi, supra, para. 154.
Section 3(2)(b) simply specifies general criteria to which the court must have regard. The focus of s. 3(2)(b) is not on the payer's income, but rather on the amount of support and its appropriateness, having regard to the needs and condition of the child and the financial ability of the spouses to contribute to the child's support. Lewi, supra, para. 155.
Section 7 also specifies some general criteria and leaves it to the court's discretion to decide the following: Lewi, supra, para. 156:
a) whether the court should provide an amount to cover all or a part of an expense;
b) the reasonableness of the expense;
c) the means of the spouses;
d) the means of the child;
e) the family's spending pattern prior to separation;
f) the amount of the contribution of the child, if any; and
g) whether the court should depart from the guiding principle that the spouses should share the expense in proportion to their incomes.
The pattern of spending in this family prior to separation is a criterion of little significance in this case. There was no evidence regarding the pattern of spending in this family prior to separation. The separation was more than 11 years ago. Neither of the parents raised this issue. The separation agreement acknowledged responsibility on the part of the parents to contribute to the s. 7 expenses. The father did not dispute that he had an obligation to make a contribution to the child's university expenses (he argued that there were no net costs to be shared).
Both s. 3(2)(b) and s. 7 of the Guidelines require that the means of the child must be considered along with the means of the parents. Section 7, in addition, refers to the contribution of the child, if any. This does not indicate a greater expectation for the child's contribution under s. 7 compared to s. 3(2)(b). The court has the discretion under both provisions to decide the amount the child should be expected to contribute. The amount of child support that a parent is ordered to pay should be determined, as a general rule, on the expectation that a child will contribute something towards his post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. There is no standard formula under either s. 7 or s. 3(2)(b). Lewi, supra, para. 159.
The Contributions Expected of the Child
It is fundamental that the lifestyle of the child should suffer as little as possible as a consequence of his parents separating. If the parents would have paid all of the educational expenses of the child had they not separated, then, all things being equal, the child should be entitled to expect they would pay them even though the parents have separated. Lewi, supra, para. 171.
The father argued that the child was obliged to exhaust his own funds before requiring parental support. The wording of s. 7 does not support such an interpretation. Had the legislature intended such a requirement, there would be language to that effect. There is none. Rather, s. 7(1) directs the court to take a balancing approach - to set the amount of parental support taking into account "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 separation". Lewi, supra, para. 39.
Section 7(2) states, as a "guiding principle", that parents are to share post-secondary expenses "after deducting from the expense, the contribution, if any, of the child" [emphasis added]. On a plain reading, the words "if any" are an express contemplation that a child may be required to contribute nothing toward such expenses. Every child will have access to some type of financial resources, whether savings, earnings from part-time or summer employment or loans. If a child need not make any contribution toward his post-secondary education expenses, there can be no implied requirement that a child must fully exhaust his financial resources before the court can order parental support. The intent is that the child is to make a contribution; however, the words "if any" are an express contemplation that, in appropriate circumstances, the child may contribute nothing. Lewi, supra, para. 40.
As a general rule, an adult child should be required to make a reasonable and meaningful contribution towards post-secondary education expenses. The amount of that contribution will depend on all of the circumstances but must include a consideration of the "means" of the parents and the child. Lewi, supra, para. 42.
An adult child of the marriage has the obligation to reasonably contribute to his post-secondary education expenses. However, that obligation does not rise to the level of requiring the child to pay for all of his post-secondary education expenses where the parents have the ability to contribute to those expenses. Lewi, supra, para. 47.
It is important to bear in mind that the recipient of funds under s. 3 (the table amount) is different than the ultimate recipient of funds under s. 7 (special or extraordinary expenses). Table support paid to a recipient parent pursuant to s. 3 is partial compensation for the cost of the child residing with them. A child support payment for s. 7 expenses, on the other hand, is not intended to be a payment into the recipient parent's hands for her own use. It is not a contribution to costs borne by the parent with whom the child is residing. Rather, it is a contribution toward the cost of specified expenses. If such monies flow through the recipient parent, she is to act as a conduit and ensure that the money is used for the specified s. 7 expense. Consequently, s. 7 child support is specified separately from child support for living expenses (typically, table support) in child support orders. Lewi, supra, para. 49.
In these years, the child has earned the following:
| Year | Earnings |
|---|---|
| 2011 | $6,692.01 |
| 2012 | $3,580.32 |
| 2013 | $7,000.00 |
Not all of the child's income should be allocated as his contribution to his school expenses. The child should have some personal benefit from the fruits of his labour. In all of the circumstances of this case, the child's contribution to his education costs under the Child Support Guidelines shall be calculated as follows:
a) 100% of the tuition grants he receives (as conceded by the mother); and,
b) 50% of his earnings.
These are the net costs of the s. 7 expenses that the parents shall share:
| Category | 2011 | 2012 | 2013 |
|---|---|---|---|
| Tuition | $2,714.39 | $5,907.75 | $3,555.86 |
| Books | $466.04 | $596.41 | $398.30 |
| Total | $3,180.43 | $6,504.16 | $3,954.16 |
| Less tuition grant | $500 | $1,600 | $800 |
| Less child's contribution | $3,346.00 | $1,790.16 | $3,500.00 |
| Net cost | $0 | $3,114.00 | $0 |
What Is the Father's Proper Proportionate Share of the S. 7 Expenses?
The Separation Agreement provided that the parents would share the s. 7 expenses in accordance with the formula in the Child Support Guidelines, that is, in proportion to their incomes (s. 7(2)). These are their incomes and their proportionate shares for these years:
| Year | Mother | Mother's share | Father | Father's share |
|---|---|---|---|---|
| 2011 | $45,186 | 50.1% | $41,077 | 49.9% |
| 2012 | $41,663 | 45.6% | $49,692 | 54.4% |
| 2013 | $28,262 | 39.7% | $62,200 | 60.3% |
For the s. 7 expenses for the years 2011, 2012 and 2013, the father shall pay $1,681.56, which is 54% of the s. 7 expense for 2012 (54% of $3,114 = $1,681.56).
On a go-forward basis the father shall pay 60% of the net costs of the s. 7 expenses, to be calculated as set out in this decision (cost of tuition + books, minus tuition grant, minus 50% of child's earnings = amount for parents to share on proportionate basis).
10. Termination of the Parent-Child Relationship
The father asks that child support be terminated, as he does not have a relationship with the child. He says that he has not seen the child since 2005, other than two times at court during this case. There was very little evidence about this, from either the father or the mother.
The child Tudor, now 20 years old, did not give evidence to the court, but did write a letter to the court, attached to his mother's affidavit sworn 13 January 2014. The child says that the father, not he, terminated the relationship and that he was sad and sorry that this happened. He says that after the separation (which happened when the child was nine years old), the father came to see him only once, when he was 12. The father left him voice mails or texts on his birthday and sent birthday cards.
The child says he contacted the father when he was 18 to try to start a relationship. The mother had recently been diagnosed with cancer and the child was devastated, and afraid he would be losing his only parent if she died. He wanted to rebuild his relationship with his father and called him on the phone. The father said he would call the child back and set up a meeting. The child says that the father did not call him back for four months, and that no meeting was arranged.
The child says that the father lives with his girlfriend and her son. The girlfriend is the mother's former close friend, whose son was the child's best friend at one time.
The father filed an affidavit on 4 February 2014, after the letter by the son was filed with the court. The father's affidavit did not dispute, deny or explain any of this information. The father had an opportunity to respond to this information, and did not do so. This information was not addressed at all in the father's affidavit.
The father asked the court to make it clear to the child that support would be terminated if the child did not wish to establish a "civilized relationship" with the father.
There is case law which stands for the proposition that the unilateral termination of a relationship by a mature child with a parent without apparent reason is a factor to be considered by the court in determining whether it would be "fit" and "just" for the payor parent to provide continued support for the child. This is a factor to be considered — not the sole or determining factor in cases where a child is over the age of majority. The cases refer to the child unilaterally terminating the relationship and the relationship being terminated without reason. The test is high and there has to be a large portion of blamelessness on the part of the payor parent in order for this to be an overriding factor to defeat a claim of child support where a child would be otherwise entitled to support. Turner v. Ansell, 2012 ONSC 2598, para. 12, 13.
The information presented to the court about the end of the father-son relationship in this case does not meet the test for blameless behaviour on the part of the parent and unreasonable behaviour on the part of the child. The child is entitled to support.
11. Orders
There will be the following final orders:
a. The agreement dated 27 September 2002 is changed as follows;
b. The father shall pay the table amount of child support as follows:
i. From 1 January 2010, $307 per month, on income of $33,252;
ii. From 1 January 2011, $378 per month on income of $41,077;
iii. From 1 January 2012, $448 per month, on income of $49,692; and,
iv. From 1 January 2013, $567 per month, on income of $62,200.
c. For the s. 7 expenses for the years 2011, 2012 and 2013, the father shall pay his proportionate share fixed at $1,681.56;
d. On a go-forward basis, the father shall pay 60% of the net costs of the s. 7 expenses for university, to be calculated as follows: cost of tuition + books, minus tuition grant, minus 50% of child's earnings = amount for parents to share on proportionate basis;
e. The mother shall provide to the father proof of enrollment for each school year;
f. The father shall produce to the mother every year, by 1 June, starting in 2014, copies of his Income Tax Returns and Notices of Assessment, pursuant to s. 24.1 and the disclosure requirements of the Child Support Guidelines;
g. This order results in arrears in child support for both the table amount and the s. 7 expenses. The father shall pay arrears of child support, in addition to the ongoing table amount, in the amount of $125 per month starting 1 April 2014, until all arrears are paid in full. If there any payments for table amount or arrears not paid in full, the entire amount of arrears then owing is due and payable immediately; and,
h. Notwithstanding anything in this order, the Family Responsibility Office may enforce this order with garnishments.
Released: 19 March 2014
Justice Carole Curtis
