COURT FILE NO.: D28983/94

DATE: 20031204

ONTARIO

SUPERIOR COURT OF JUSTICE

Divisional Court

B E T W E E N:

CARLOS CECIL FREWIN

W. Ross Milliken, for the Petitioner

Petitioner/Husband

• and -

WILMA FAYE FREWIN

Barbara Byers, for the Respondent

Respondent/Wife

HEARD: July 7, 2003

REASONS FOR JUDGMENT

Dunn J.

1The petitioner, Carlos Frewin, seeks to terminate his obligation to pay support for the parties’ son Daniel born September 13, 1978. He also seeks rescission of arrears of child support. By cross-motion the respondent seeks a declaration that there are child support arrears of some $43,891.00 and that the petitioner owes an additional $35,000.00 as a proportionate share of extraordinary expenses for the child Daniel.

Brief Overview of Facts

2The parties were married in 1973 and separated in 1992. They had two children, Gregory and Daniel, the latter of which only is the subject matter of this dispute.

3The parties entered into a Separation Agreement dated January 22, 1993. It provided that the eldest child Gregory would be in the sole custody of the petitioner husband and that the wife had sole custody of Daniel. The petitioner agreed to pay to the respondent the sum of $700.00 a month for the support of Daniel commencing January 1, 1993 until:

(i) the child becomes 16 years of age, but payment shall continue until the child is 23 years of age so long as he is in full time attendance at an educational institution;

(ii) the child ceases to reside with the wife. The child shall be deemed to reside with the wife notwithstanding that the child may reside away from the wife’s residence while attending a post secondary educational institution or while on vacation with the husband or otherwise;

(iii) the child marries;

(iv) the child dies;

(iv) the wife dies.

4The agreement also provided for yearly increases based on the Consumer Price Index.

5Paragraph (f) of the agreement provided “the husband shall be responsible for 75% and the wife 25% of all reasonable expenses in connection with the attendance by Daniel at post secondary educational institution (to the extent that Daniel is not reasonably able to pay for his own expenses) including tuition, books and residence.

6As a result of disagreements between the parties and notwithstanding the separation agreement, two Court Orders were issued with respect to child support for Daniel. The first Order issued by Webber J. September 26, 1994 required the petitioner to pay the sum of $700.00 per month for that child’s support. This Order was made on an interim, interim basis. As well, on December 12, 1994 Simmons J. made a further order requiring the petitioner to pay $700.00 for September and October only with the sum of $400.00 per month from November 1994 to October 1995. Further, this latter Order also stipulated the payment of $700.00 per month commencing November 1, 1995 “till final determination”.

7It is also clear from the evidence that the petitioner paid support for Daniel to and including the month of October 1995.

8The evidence established that Daniel attended school from September 1994 for that school year. In September 1995, though enrolled, he did not attend. He began his high school again in January 1996 with sporadic attendance until April 18, 1996. He achieved no credits for this school year, however. For the balance of 1996 he attempted to take correspondence courses but these were cancelled presumably by reason of his lack of diligence.

9Sometime after separation the respondent moved to Florida with Daniel and later moved to North Carolina where she instituted divorce proceedings culminating in a divorce decree September 2, 1997. There were no provisions with respect to child support in that divorce decree.

10In September 1996 the child Daniel left his mother’s residence in the United States and travelled back to Canada but resided with his brother in St. Catharines until the end of the year. He apparently then re-visited his mother and sporadically his father, beginning in the year 1997 to attend college courses at Brock University. He was apparently not enrolled but in any case dropped out in short order.

11From the time he ceased attending school full time he had only occasional or part-time jobs, insufficient to support himself in part because he had no work permit to allow his employment in the U.S. The evidence established that by and large the respondent mother supported him both for his accommodation and for his food. Occasionally his father contributed to same.

12In September 1998 Daniel enrolled in Niagara Community College. This time he persevered and completed his studies and graduated in April 2001.

13While he was in attendance at Niagara College the respondent mother paid the bulk of the Daniel’s expenses. The evidence establishes that the petitioner advanced for one reason or another to Daniel the sum of $9,576.00 and offered to provide assistance when needed. Daniel accumulated student loans to some $23,319.00 during his attendance at Niagara.

14Daniel continued to have part-time jobs during this period but for the most part it appears he was supported in the main by the respondent.

15The respondent alleges that the post secondary school expenses of Daniel amount to some $48,320.00 including tuition, accommodation and food expenses. The evidence supporting this sum is somewhat speculative. It is clear, however, that Daniel incurred the following expenses during his time at Niagara:

Tuition $7,096.00

Texts/materials 2,500.00

Rent 8,990.00

Total $18,586.00

Less Awards 400.00

NET $18,186.00

Conclusions on Evidence

16It is clear that Daniel ceased to attend an educational institution in September 1995. He began again his high school education in January 1996 and continued until April 18, 1996 although he received no credits. His attendance while sporadic should be termed full time. I cannot conclude that he was in full-time attendance while he then took correspondence courses. As with this evidence I am not as satisfied that he could be said to be in full-time attendance while he monitored courses at Brock University and then dropped out.

17It is clear, however, that he began full-time attendance at Niagara College in September 1998 and continued in full-time attendance there until the end of April 2001 upon graduation. The evidence also establishes that the petitioner’s approach to supporting his son was one to instill in him the value of an education, that is by making him earn it himself. He appears to have ignored his obligation under the Separation Agreement by which he assumed responsibility for 75% of those post secondary educational costs. He also takes the position that Daniel was independent and on his own by the time he attended Niagara College. This is manifestly not the case.

18The evidence also established that notwithstanding the petitioner’s approach to his obligation of support that Daniel was in fact dependant upon the respondent and in part upon the petitioner until he began a full-time job in July 2001 after graduation from Niagara. The issue then becomes whether or not the petitioner still had an obligation to support Daniel in the face of the Separation Agreement and two Orders of this Court requiring him to do so.

19I am prepared to conclude on the evidence put before me that Daniel’s non-attendance at high school was a temporary situation only. It is clear that he was struggling with education from his attempts to reapply himself for high school credits and correspondence courses as well as his monitoring of courses at Brock University. They are at least evidence of his intentions to re-establish efforts at higher education although they may have been unsuccessful.

20I agree that the petitioner’s obligation to support Daniel should cease temporarily for the period November 1, 1995 to and including December 31, 1995. I find the petitioner responsible to continue support at the rate of $700.00 per month from January 1996 to and including the month of April 1996. The petitioner’s obligation to support should then again cease temporarily until Daniel enrolled full time at Niagara College, that is September 1, 1998 and should continue from that date to and including the end of June 2001.

21There is evidence which I accept that Daniel resided with his father from the end of June until he obtained a full-time position on July 1, 2001.

22The next question to be answered is whether or not the petitioner is obliged to support Daniel for the extraordinary expenses of the post secondary school education in addition to the obligation of paying monthly support. That interpretation is easily supported by a broad reading of the Separation Agreement. In any case I believe this Court has the jurisdiction to so order this support. I am inclined to do so notwithstanding the defensible position that the petitioner has taken with respect to teaching Daniel the value of an education.

23It is appropriate then, in addition to the monthly support of $700.00 as set out above, that the petitioner pay 75% of the extraordinary expenses which I find the evidence has proven on a balance of probabilities. Those extraordinary post secondary school expenses or costs are in the amount of $18,186.00.

24The petitioner’s responsibility then is as follows:

1. Monthly support

(i) January 1996 to April 1996 $700.00 x 4 = $ 2,800.00

(ii) Sept. 1998 to June 2001 $700.00 x 34 = 23,800.00

Total $26,600.00

Deduct sums advanced by petitioner

directly to Daniel re his support - 9,576.00

NET 17,024.00

25I therefore fix the arrears of child support on a monthly basis at $17,024.00 to be collected by Family Responsibility Office.

26Extraordinary expenses (Education) $18,186.00

75% of $18,186.00 $13,639.50

The petitioner will be responsible for extraordinary expenses in the amount of $13,639.50. It is appropriate that this additional sum be collected by the Family Responsibility Office and paid directly to Daniel and applied to his outstanding student loans or if they are paid off then to himself.

Costs

27In view of my disposition of this matter the parties may address costs in writing with the respondent making submissions within 30 days of the date of this order and the petitioner responding within 30 days of receipt of the respondent’s submissions.

Dunn J.