Proctor v. Klammer, 2023 ONSC 5279

CITATION: Proctor v. Klammer, 2023 ONSC 5279

DIVISIONAL COURT FILE NO.: DC-22-2702

DATE: 20230921

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J.R. McCarthy, Sheard and Schabas JJ.

BETWEEN:

SIMON JOHN LEWIS PROCTOR

Appellant (Applicant)

– and –

JOY DARLENE KLAMMER

Respondent

Michael Swindley, for the Appellant

Taayo Simmonds, for the Respondent

HEARD at Ottawa, virtually,

on September 14, 2023

REASONS FOR JUDGMENT

SCHABAS J.

Overview

1This is an appeal of the decisions of Johnston J. (the “motions judge”), dated December 23, 2020 (the “First Decision”), and March 11, 2022 (the “Second Decision”). Both are about child support.

2In the First Decision, the Appellant, Simon John Lewis Proctor, was ordered to pay child support to the Respondent, his ex-wife, Joy Darlene Klammer, in relation to their daughter, Alexandra, at 25 percent and 20 percent of the Federal Child Support Guidelines, SOR/97-175, amount for time periods when the child was attending university and not residing with the Respondent full-time. The First Decision also changed child support for the parties’ other daughter, Rhyanna, for July 2017 and October 2018. The motions judge found that in July 2017 Rhyanna had resumed living half her time with each parent and that in October 2018 she lived exclusively with the Respondent. As a result, support was owing for those two months. As the parties could not agree on quantum based on income, Johnston J. calculated the arrears in the Second Decision.

3The Appellant submits that the motions judge erred in making these changes to child support, arguing that no support should be paid respecting Alexandra when the child was attending university, and that he erred in calculating support payments for Rhyanna for the two months in question.

Standard of Review

4We see no merit in the appeal, which raises issues of fact or issues of mixed fact and law. In the absence of a palpable and overriding error by the motions judge, or an error of law on an extricable legal issue, it is not the role of this court to second-guess the motions judge: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36. This is especially true in cases involving support. As the Court of Appeal stated in Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at para. 88: “The standard of review on all matters relating to support is highly deferential. Appellate courts should not interfere with support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong” (citation omitted).

5No such error exists here.

Child Support for Alexandra

6The motions judge was considering a motion by the Appellant to vary the terms of a Final Order resolving matters between the parties dated April 11, 2017. The motions judge accepted the Appellant’s position that there had been a material change in circumstances relating to Alexandra, and that less than the “table amount” contained in the Final Order ought to be paid as child support while Alexandra was attending university in Kingston. He then considered s. 3(2) of the Guidelines which provides as follows:

(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.

7As required by s. 3(2)(b), the motions judge considered the condition, means, needs, and other circumstances of the child and the financial ability of each parent to contribute.

8The motions judge observed that the Respondent continues to incur fixed costs in providing a home for Alexandra, who is a student and requires the continued support of her parents. He observed that Alexandra has no relationship with her father and returns to her mother’s home on weekends, during school breaks and during the summer. This was amply supported by uncontradicted evidence from the Respondent and from Alexandra that in her first 2 years at university she spent at least 2 months of the 8 months of the academic year (or 25 percent of her time) with her mother, and it was expected she would spend about 20 percent of her time at home with her mother during the third and fourth years. This is more than just occasional weekends.

9The motions judge noted the special needs of Alexandra requiring support from her mother including having a home available during her studies. The motions judge also considered the relative incomes of the parties and the financial ability of each parent to contribute to Alexandra’s support.

10Some cases suggest that when children leave to attend post-secondary institutions, a separate approach should be taken rather than applying a percentage of the table amount, such as only awarding support during summer months when students return home. However, it is also recognized that, in applying s. 3(2)(b) of the Guidelines, factors such as “the expenses associated with maintaining a home for children who live away” while attending university are relevant: Bodnar v. Blackman (2006), 2006 31803 (ON CA), 82 O.R. (3d) 423 (C.A.), at para. 23. As was observed in Douglas v. Douglas, 2013 ONCJ 242, at para. 59:

Most courts now find the guideline amount inappropriate when a child attends university out-of-town and only returns home during the summer and school breaks. Although each case must be examined on its own facts, most courts will order the full table amount in the months the child is living at home with a lesser amount when the child is away at school. [Citations omitted.]

11The motions judge’s conclusion, therefore, that “some level of support is appropriate and required” is amply supported by the case law and the evidence: First Decision, at para. 25.

12Although the motions judge did not engage in a detailed review of the parties’ incomes over several years or of the specific costs associated with the Respondent maintaining a home for Alexandra, no such detailed analysis was conducted in other cases either. For example, in Douglas, the Court referred to cases (Albert v. Albert (2007), 2007 29972 (ON SC), 40 R.F.L. (6th) 203 (Ont. S.C.), and Padua v. Gordon, 2008 ONCJ 421, 58 R.F.L. (6th) 226) in which amounts of $250 and $200 per month had been ordered while the child was away. In Douglas, $150 per month was ordered. In Coghill v. Coghill (2006), 2006 28734 (ON SC), 30 R.F.L. (6th) 398 (Ont. S.C.), the amount ordered paid to the mother while the daughter was away attending school was $300, or just under 25 percent of the table amount of $1,254.

13In Park v. Thompson (2005), 2005 14132 (ON CA), 77 O.R. (3d) 601 (C.A.), a judge had ordered full table amounts be paid even while the child was away at university, and had not considered s. 3(2) of the Guidelines. The Court of Appeal quoted with approval the statement by Heeney J. in Merritt v. Merritt, [1999] O.J. No. 1732 (S.C.), at para. 73, that it is “more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks where appropriate, and apportion that between the spouses on a Paras approach after considering the child's own ability to contribute” (emphasis added).

14Each case must be decided on its facts. Here, the motions judge had a basis in the evidence for selecting a percentage of the table amount having regard to the time Alexandra spent at home, her particular needs, the recognition of fixed costs to the mother and the relative financial abilities of the parents. He did not apply “an incorrect standard” or fail “to consider a required element of a legal test” such that he could be said to have erred in law in applying s. 3(2)(b) of the Guidelines: Housen, at para. 36.

15Further, the motions judge’s reasons were adequate. As it was put in Bodnar, at para. 23, the motions judge gave “due consideration” to the following: “the expenses associated with maintaining a home for children who live away while undertaking post-secondary education; the financial position of each of the parents; and the financial means and needs of the children.” The motions judge did not commit any palpable and overriding error in reaching his conclusions as to the appropriate level of support for Alexandra.

Child Support for Rhyanna

16Turning to Rhyanna, the parties’ prior agreement, contained in the Final Order, created a joint custody arrangement in which the Appellant paid monthly support to the Respondent. However, the motions judge properly considered the departure from the parties’ agreement as he found that, beginning in February or March 2017, until June 2017, Rhyanna lived full-time with her father, and from October 2018, until March 2019, she lived full-time with her mother. He also found Rhyanna resumed living half the time with each of her parents in July 2017. Based on these findings of fact, the motions judge made orders arising from these changes in circumstances for July 2017 and October 2018. We see no error, let alone any palpable and overriding error, by the motions judge in reaching his conclusions or in calculating the amount owing.

Conclusion and Costs

17The appeal is dismissed with costs, payable by the Appellant to the Respondent in the agreed upon amount of $7,500.

Schabas J.

I agree _______________________________

J.R. McCarthy J.

I agree _______________________________

Sheard J.