Court File and Parties

Court File No.: D20933/02 Date: 2013-05-06

Ontario Court of Justice Toronto North Family Court

Between:

Gillian Mary Douglas Acting in Person Applicant

- and -

Thomas Frederick Douglas Respondent

Counsel: Kathryn R. Hendrikx, for the Respondent

Heard: April 30, 2013

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] Both parties have brought motions to change child and spousal support provisions contained in my order of December 18, 2007 (the existing order).

[2] The respondent's (the father's) motion to change seeks orders terminating his spousal support obligation for the applicant (the mother) and his child support obligation for his daughter Veronica, age 22, as of April 30, 2013. He agrees that he should continue to pay the child support guideline (the guideline) table amount for his daughter Claire, who is 15 years old.

[3] The mother's motion to change seeks an order increasing the father's support obligation retroactive to January 1, 2008. She also seeks an accounting of special expenses (as defined in section 7 of the guidelines), that she says the father owes to her pursuant to the terms of the existing order. She claims that the father is in substantial arrears of support and asks for an order for repayment. The mother asks that the father's motion to change be dismissed and that his spousal support payments continue.

[4] At the trial of these issues, the parties modified their requests. The father still sought to terminate his spousal support obligation and child support obligation for Veronica, but was prepared to pay $16,000 towards Veronica's outstanding student loans over a period of four years. The mother asked for two more years of spousal support. She also stated that she was agreeable to terminating child support for Veronica when Veronica completes her undergraduate degree in August of 2013. The mother maintained her other claims for relief.

[5] The affidavits and financial statements of the parties constituted their direct evidence at the trial. The father also filed an affidavit from Veronica supporting his request to terminate child support. The parties both gave additional oral evidence and questioned the other. No other witnesses were called.

[6] There were multiple issues to determine in this case such as:

a) Is Veronica still entitled to child support, and if so, for how long?

b) If Veronica is no longer entitled to child support, when did her entitlement end?

c) Have the parties reimbursed each other for section 7 expenses in accordance with the existing order?

d) If not, what section 7 expenses are owed, and by whom?

e) Should child support be adjusted retroactively?

f) If there should be an adjustment to the existing child support order, was the guideline amount appropriate for Veronica?

g) If the guideline amount was not appropriate for Veronica, what was the appropriate amount of child support for her?

h) If the father owes child support in any recalculation, how should these arrears be repaid, and to whom?

i) Is the mother still entitled to spousal support?

j) If so, how much spousal support should be paid, and for what duration?

Part Two – Background Facts

[7] The parties were married on December 7, 1991 and separated on July 1, 1998. They have not divorced.

[8] The parties are both 52 years old. Veronica and Claire are their only children.

[9] The father is a high school teacher. The mother has struggled to earn income since the parties separated.

[10] The parties entered into a separation agreement on March 9, 2001. The agreement resolved all parenting, property and support issues between the parties. It included a provision that the father would pay the mother spousal support of $200 per month, subject to a review after two years.

[11] The father paid the mother spousal support through February 1, 2003. He stopped paying spousal support at that time, contrary to the terms of the agreement.

[12] Both parties brought claims seeking to vary terms of the separation agreement in this court in 2006. That proceeding was resolved through minutes of settlement that were incorporated into the existing order. Both parties were represented by experienced counsel at the time. The existing order included the following terms:

a) The father would pay the mother the table amount of child support of $1,130 per month for the two children, based on his annual income of $77,500.

b) The father would pay spousal support of $525 per month to the mother. The parties agreed that the mother's income would be imputed at $17,000 per annum for the purpose of this calculation.

c) Spousal support could be reviewed by either party after 4 years.

d) Child and spousal support arrears were fixed for the period of March 1, 2005- August 31, 2007. The child support arrears were fixed at $5,583 and the spousal support arrears at $14,500. The order required the father to repay these arrears at $450 per month starting on January 1, 2008.

e) The parties were to share special expenses as set out in section 7 of the guidelines in proportion to their incomes – the proportions were initially set at 77% for the father and 23% for the mother. The parties were required to consult in advance about section 7 expenses and provide receipts for these expenses to each other. Special expenses were defined to include school trips, school uniforms and medical, dental and orthodontic costs not covered by the father's extended health plan.

f) The parties were required to annually exchange financial disclosure and adjust child support in accordance with their incomes.

[13] The parties did not exchange financial information on an annual basis. They did not adjust child support in accordance with the father's increased income. The father continued to pay the table amount of child support in accordance with the existing order.

[14] In the fall of 2009, Veronica started her undergraduate degree at the University of Ottawa. She has almost completed her four-year degree. She has two more courses to complete this summer, which she will take at York University. Her plan, once she completes her degree, is to work full-time for one year and then apply for a post-graduate program in the fall of 2014. Veronica stayed in residence in her first year at Ottawa, and in subsequent years in Ottawa shared an apartment with friends.

[15] Veronica is presently living with the mother.

[16] Claire has continued to live with the mother and is in full-time attendance at school. She plans to go to university in the fall of 2014.

[17] The father has paid the mother the amounts of child and spousal support set out in the existing order since January 1, 2008. He also paid the support arrears, as required, in the existing order.

[18] The mother made a written request to the father to increase support in September of 2011. This was her first request to increase support or seek contribution towards special expenses since 2009. The father started this court proceeding seeking his own support adjustments in July of 2012.

Part Three – Veronica's Entitlement to Child Support

3.1 Positions of the Parties

[19] The father has asked that his child support obligation for Veronica terminate as of April 30, 2013. He also argued that his support obligation for Veronica should have terminated in August of 2010 and that he has overpaid child support. He said that he is not seeking repayment, but he does want the court to take any overpayment of support into consideration if it re-calculates his support obligations, as requested by the mother.

[20] The father deposed that Veronica has only spent 4 of the last 48 months living with the mother. He said that Veronica has spent her holidays and summer vacations elsewhere, such as in Ottawa and Quebec.

[21] The mother gave a different version of events. She deposed that her home has always been Veronica's primary residence. She said that Veronica has spent most of her summer holidays and school vacations at her home. She claims that Veronica has continued to remain her dependant.

3.2 Legal Considerations

[22] Subsection 31(1) of the Family Law Act provides that each parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full-time program of education, to the extent that the parent is capable of doing so.

[23] Child support for a child under 18 years of age generally consists of two components: the amount set out in the guideline tables (the table amount) and the contribution, if any, to special and extraordinary expenses. See: Lewi v. Lewi, [2006] O.J. No. 1847 (C.A.) at paragraph 126.

[24] The onus of establishing the entitlement of an adult child to support is on the party seeking the support. See: Rebenchuk v. Rebenchuk, 2007 MBCA 22 (Man. C.A.).

[25] Most courts have followed a flexible approach to the determination of what constitutes a full-time program of education. A full-time program does not necessarily mean full-time attendance at school. A child can be found to be enrolled in a full-time program of education while taking less than a full course load, so long as his or her participation is meaningful and consistent with the program's purposes and objectives. See: Wilson v. Wilson, 2002 CarswellOnt 3838 (Ont. S.C.); 2009 CarswellOnt 1629 (Ont. C.J.); and Kapounek v. Brown, 2000 CarswellOnt 1406 (Ont. Fam. Ct.). The court must examine the individual circumstances of each case when making this determination. See: Turner v. Turner, [2011] O.J. No. 4802 (SCJ).

[26] Where a child is 18 years or older and is entitled to support there are two possibilities with respect to the table amount portion of support: either the table amount is to be paid or, if the table amount is inappropriate, an amount is to be paid that the court considers appropriate. In determining what is appropriate, the court needs to consider the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute. See: Albert v. Albert.

3.3 Veronica's Living Arrangements

[27] I preferred the mother's evidence about Veronica's living arrangements. She provided detailed and credible evidence about this.

[28] The mother set out in her affidavit that in 2010 Veronica spent the month of May at a French immersion program, the month of June with her in Toronto, and except for some time at a summer camp, the balance of the summer with her. She deposed that she spent some time in Ottawa with Veronica that summer helping her to find an apartment.

[29] The mother deposed that Veronica maintained her apartment in Ottawa during the summer of 2011 and went back and forth between her home in Toronto and her apartment in Ottawa.

[30] The mother deposed that Veronica stayed at home from May-August in 2012 and worked part-time at Starbucks.

[31] In the fall of 2012, Veronica attended school in Paris, France as part of an exchange program with the University of Ottawa. She returned to Ottawa in January of 2013 for the winter semester.

[32] I accept the mother's evidence that Veronica would return home on school holidays, such as the two-week winter school break, reading weeks and most long weekends.

[33] The father acknowledged that Veronica did not spend these holiday periods with him.

[34] The evidence was clear that the mother's home has continued to be home-base for Veronica while she has attended university.

[35] I find that Veronica spent the following amounts of time at the mother's home from 2010-2012:

• 2010 – 4 months
• 2011 – 3 months
• 2012 – 4 months

[36] I find that Veronica has continued to be eligible for support since the date of the existing order. The issue is whether she will continue to be eligible for support after April 30, 2013. Is she still in full-time attendance at school?

[37] In support of her father's claim, Veronica swore an affidavit stating that she no longer wanted child support. This is a factor for the court to consider, but is not determinative of the issue.

[38] Veronica needs to complete the two courses at York University to complete her undergraduate degree. The parents agree that it is important that she complete this degree.

[39] Veronica's situation is not uncommon for university students. Students often require an additional school term to complete the necessary credits to obtain a degree. This does not necessarily disentitle them to support under the Family Law Act. They are still in the process of completing a full-time educational program. A full-time educational program does not necessarily equate to requiring a full-time course load each term. The additional time that a student might have available to them to work part-time (as a result of not having a full course load) can be a factor in determining whether the guideline amount is appropriate and what the appropriate amount of support should be.

[40] The mother will be providing a home, food and household supplies for Veronica while she completes her education this summer. She remains a dependant under the Family Law Act. I find that Veronica will continue to be in full-time attendance at school and be eligible for child support until the end of August of 2013.

[41] The child support order for Veronica will terminate on August 31, 2013.

Part Four – Section 7 Adjustments

[42] The mother claims that the father has failed to pay his share of section 7 special expenses required under the existing order. The father claims that he has paid more than his share of these expenses.

[43] I have decided to address the special expense issue in two parts. In this section I will deal with all of the section 7 expenses, excluding post-secondary school expenses. Later, when analyzing the appropriate amount of child support to be paid, I will address the father's contribution to Veronica's post-secondary school expenses.

[44] The mother provided a list of purported section 7 expenses that she says she has incurred since January 1, 2008. The list was problematic. Many of the expenses did not qualify as special expenses as defined in section 7 of the guidelines. There is no indication that she consulted with the father about incurring any of these expenses as required by the existing order (I accept the father's evidence that he was not). The mother claimed naturopathic and immunology expenses as medical expenses but provided no evidence, such as a medical report, that these expenses were reasonable and necessary.

[45] Some of the special expenses provided by the mother were appropriate section 7 expenses, including expenses for French immersion camp, medical equipment, medication, school trips and school uniforms for the children. The list also included legitimate contributions to Veronica's post-secondary expenses, such as moving expenses. The evidence indicates that the father reimbursed the mother for some of these expenses in 2008 and 2009.

[46] The father also provided a list of purported special expenses that he has paid. He has paid orthodontic expenses for Claire. Half of this expense was covered by his insurance plan. The balance of the expense was an appropriate section 7 expense. He included expenses incurred for activities of the children that the parties had agreed were not appropriate section 7 expenses at the time of the existing order (such as piano expenses), or were not agreed upon in advance (such as purchases of a computer and a camera).

[47] When examining both lists in their entirety, I find that the father has paid his fair proportion of section 7 expenses (not including post-secondary expenses) as set out in the existing order. When I combine this finding with: neither party consulting with the other about these expenses, the failure of the parties to provide the other in a timely manner with receipts of the special expenses, the failure of the parties to annually exchange financial disclosure as required in the existing order and the parties waiting until the fall of 2012 to advance these claims, I will not make an order that either party owes the other any monies for this category of special expenses.

[48] The court was not provided with evidence of ongoing section 7 expenses for Claire. The existing order about section 7 expenses was problematic and ignored by both parties. Claire will likely be going to university in the fall of 2014 and it may be necessary at that time for the parties to renegotiate the support obligations for her. Whether the guideline amount of support remains appropriate once she turns 18 years old will likely depend upon where she goes to school. At this point, I am not prepared to make any order about the sharing of these expenses - there are too many unknowns. The parties are encouraged to attempt to negotiate or mediate these issues prior to bringing another change motion.

Part Five – Child Support Adjustment

5.1 Positions of the Parties

[49] The mother has asked for an increase in child support commensurate with the annual increases in the father's income since the date of the existing order. She also asks that he be required to contribute his proportionate share to Veronica's post-secondary expenses for the past four years.

[50] The father agreed that he has not paid any of Veronica's post-secondary expenses, except for contributing $700 to her rent in 2011. He claims that he believed that the table amount of guideline support was intended to cover this expense. He acknowledged that he did not disclose to the mother his annual increases in income. He argued that if Veronica is found to be entitled to support, his child support obligation should be recalculated, as the guideline amount was inappropriate once Veronica went out-of-town to university.

5.2 Change in Circumstances

[51] The motions to change child support are governed by subsection 37 (2.1) of the Family Law Act that reads as follows:

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.

[52] There have been several changes in circumstances in this case since the date of the existing order. The income of the father increased, Veronica turned 18 and then attended university away from home for four years.

5.3 Retroactive Adjustment

[53] I have no difficulty finding that child support should be adjusted retroactively to January 1, 2008, despite the delay by the mother in making this request. The existing order was clear that child support was to be adjusted annually after the exchange of financial disclosure and in accordance with the guidelines. The father knew or ought to have known that he was underpaying child support when his income increased and did not disclose this to the mother. This was blameworthy conduct as defined by the Supreme Court of Canada, in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. The circumstances of the children were adversely affected by the father's failure to pay appropriate support. Veronica had to incur significant debt and the mother struggled to support the children, relying on support from family and friends.

[54] The father also asked to retroactively adjust the support terms of the existing order, in the event that the court determined continued entitlement for Veronica – he did not want have to pay both the full table amount of support and his proportionate share of post-secondary expenses for Veronica.

[55] Readjusting child support for 2008 was simple. The father's monthly support payment only had to be increased in accordance with his T4 income.

[56] The support calculation became more complex in 2009. This was because Veronica turned 18 and the court had to consider whether the guideline amount was still appropriate. Further, Veronica started attending university in Ottawa in the fall of 2009.

5.4 Was the Guideline Support Appropriate for Veronica Starting in 2009?

[57] Subsection 3(2) of the guidelines reads as follows:

(2) Child the age of majority or over. — Unless otherwise provided in these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child 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 parent or spouse to contribute to the support of the child.

[58] The onus is on the party alleging that the guidelines are inappropriate to establish this on a balance of probabilities. The closer the circumstances of the child are to those upon which the usual guidelines approach is based, the less likely it is that the usual guidelines calculation will be found to be inappropriate. See: Rebenchuk v. Rebenchuk, supra, at paragraph 30.

[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. See: Lewi v. Lewi, supra; Park v. Thompson; Coghill v. Coghill.

[60] I find that the guideline amount was inappropriate for Veronica for the four years that she attended at the University of Ottawa. The father should not have to both contribute towards Veronica's post-secondary school costs and pay the full table amount of child support, while she was away at school.

[61] I will order the father to pay the full table guideline amount for the times that Veronica lived at home with the mother during this four-year period, as set out in paragraph 35 above. He will also be required to contribute to Veronica's post-secondary costs for the past four years. The particulars of this calculation will be set out in section 5.7 below.

[62] The next question then is what level of support the father should have paid to the mother in the months that Veronica was not living with her each year.

[63] In paragraph 151 of Jordan v. Stewart, 2013 ONSC 902, the court observed that many courts have maintained robust support obligations even during periods when the child is residing away from the recipient parent's home (citing: Birch v. Birch, 2010 ONSC 2915 and Armaz v. Van Erp, [2000] O.J. No. 1544 (SCJ)). The court in Jordan observed that this continued support obligation is based on the reality that while the recipient parent will realize modest reductions in expenses when the child is away at school, maintaining a permanent home for the child results in incidental expenses that subsist even in the child's temporary absence. In the circumstances of that case, the court saw no reason to change the guideline amount of support while the child was away at university.

[64] Providing the court with evidence of the costs required to maintain a home for a child who is away at university is important in cases of this nature.

[65] In Albert v. Albert, supra, in the absence of specific evidence of the costs to maintain a room for the child at home for the full year, the court ordered the payor to pay $250 per month during these periods, on the basis that there is an obvious cost for doing this. I followed this approach in Padua v. Gordon, 2008 ONCJ 421 and ordered monthly support of $200 per month while the child was away at university.

[66] Similar to the cases of Albert and Padua, this court received little evidence of additional costs to the mother of maintaining a home for Veronica while she was away at school. A review of the mother's budget shows that she lives modestly. She rents a two-bedroom apartment at a cost of $1,300 per month, with some additional utility costs. There are really no other expenses that she would need to incur to maintain this home for Veronica. In Padua, support was only payable for one child. Here, there are two children. The guideline table amounts reflect the reality that a parent will incur less cost for each additional child (for instance, housing costs are generally fixed). The logical extension of this is that it takes less money to maintain a home for a child away at university when other children remain in the home. Taking this into consideration I will order a lower monthly payment than in Padua. I will recalculate support by providing that the father should have paid the mother $150 per month for the months that Veronica was living away from home in addition to his contribution to her post-secondary expenses.

5.5 The Income of the Parties

[67] There was no dispute about the father's income. His annual income during the relevant period was as follows:

• 2008 - $84,794
• 2009 - $85,382
• 2010 - $89,023
• 2011 - $90,800
• 2012 - $92,780
• 2013 - $93,000

[68] The mother agreed that there had been no change in her financial circumstances since the existing order. She was imputed income at that time at $17,000 per annum. She continues to earn well under that amount ($9,811 in 2012). However, despite being given several opportunities, she provided no independent evidence, such as a medical report, indicating that she was not able to earn the income imputed to her. The mother also failed to provide a meaningful job search list. For the purpose of the child support recalculation, I find it appropriate to continue to impute this income to her.

5.6 Child Support Recalculation (Excluding Contribution to Post-Secondary Expenses)

[69] The table amount of child support that the father should have paid for 2008 based on his income of $84,794 per annum was $1,218 per month or $14,616 for the year.

[70] For 2009, the father's child support obligation is recalculated as follows:

a) Eight months of the table amount for two children based on his annual income of $85,382, for a total of $9,800 ($1,225 per month for 8 months).

b) Four months of the table amount of child support for one child, for a total of $3,048 ($762 per month for 4 months).

c) Four months at $150 per month for Veronica for a total of $600.

Total 2009 – $13,448

[71] For 2010, the father's child support obligation is recalculated as follows:

a) Four months of the table amount for two children based on his annual income of $89,023, for a total of $5,076 ($1,269 per month x 4 months).

b) Eight months of the table amount for one child in the sum of $6,320 ($790 per month x 8 months).

c) Eight months at $150 per month for Veronica for a total of $1,200.

Total for 2010 – $12,596

[72] For 2011, the father's child support obligation is recalculated as follows:

a) Three months of the table amount for two children based on his annual income of $90,800, for a total of $3,873 ($1,291 per month x 3 months).

b) Nine months of the table amount for one child in the sum of $7,236 ($804 per month for 9 months).

c) Nine months at $150 per month for Veronica a total of $1,350.

Total for 2011 – $12,459

[73] For 2012, the father's child support obligation is recalculated as follows:

a) Four months of the table amount based on his annual income of $92,780, for a total of $5,312 ($1,328 per month for 4 months).

b) Eight months of the table amount for one child in the sum of $6,592 ($824 per month for 8 months).

c) Eight months at $150 per month for Veronica for a total of $1,200.

Total for 2012 – $13,104

[74] The calculation for 2013 is different. Veronica went to school in Ottawa for four months and the mother should receive $150 per month for these four months. Veronica will be working part-time until the fall. She is only taking two courses. This costs $1,309. The guideline amount is inappropriate in these circumstances. Veronica is now 22 years old and she should be able to contribute a significant amount to her own support, given that she is taking only two courses this summer and she, herself, asked to terminate support. Taking into account all of these circumstances, the father will be ordered to contribute $350 per month for Veronica's support starting on May 1, 2013 and ending on August 31, 2013. This is inclusive of his responsibility to contribute to her post-secondary costs.

[75] The re-calculation for child support in 2013 up until April 30th is as follows:

a) Four months at $150 per month for Veronica = $600

b) The table amount of support for one child based on the father's annual income of $93,000 per annum for four months = $3,300 ($825 per month x 4 months).

Total for 2013 (as of April 30) - $3,900

[76] The summary of child support owing by the father since January 1, 2008 until April 30, 2013 is as follows:

• 2008 - $14,616
• 2009 - $13,448
• 2010 - $12,596
• 2011 - $12,459
• 2012 - $13,104
• 2013 - $ 3,900

Total: $70,123

5.7 Calculation of Father's Share of Veronica's Post-Secondary Expenses

[77] Post-secondary expenses are a special expense pursuant to clause 7 (1) (e) of the guidelines.

[78] Subsection 7 (3) of the guidelines states that in determining the amount of an expense referred to in subsection 7 (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.

[79] Subsection 7 (2) of the guidelines states that the guiding principle in determining the amount of a special expense 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. Clause 3 (2) (b) of the guidelines also requires the court to consider the child's contribution to his or her post-secondary expenses. See: Coghill v. Coghill, supra, paragraph 7.

[80] The father's average annual income was $91,400 per annum in the four years that Veronica attended at the University of Ottawa. I will use this income to calculate his share of Veronica's post-secondary expenses. I will use the mother's imputed income of $17,000 per annum to calculate her share.

[81] The father's proportionate share of Veronica's post-secondary expenses, after taking into consideration grants, bursaries, subsidies and benefits, and Veronica's contribution to these expenses for the relevant years will be 84.3%.

[82] The next step in this analysis is to calculate the total amount of Veronica's post-secondary expenses for the four years and what Veronica's reasonable contribution should be to these expenses.

[83] The mother testified that Veronica's first three years of post-secondary expenses cost $13,000 per annum and the last year cost $16,000. I found this to be a reasonable and possibly even a conservative estimate of Veronica's actual costs. These costs total $55,000 for the four years.

[84] The court was provided with evidence that Veronica received bursaries, scholarships and grants totaling $15,336 over the four years. These benefits reduced the post-secondary expenses to $39,664.

[85] The evidence provided to the court was that Veronica earned about $4,000 over the past four years. Adult children are expected to make reasonable contributions to their own education. The amount of that contribution will vary depending on the circumstances in each case. See: Lewi, supra, paragraph 40. Ordinarily, courts will not require a student to contribute all of his or her earnings to their post-secondary expenses (Coghill, supra, paragraph 9). Veronica clearly worked very hard to obtain her loans, bursaries and scholarships. I find it appropriate to have her contribute 50% of her earnings to her post-secondary expenses. This contribution takes the post-secondary expenses down to $37,664.

[86] The evidence showed that Veronica has incurred student loans of $36,852 to finance her education (there was some indication that there may have been some loan forgiveness in the amount of $4,582). Most courts are reluctant to allow the payor parent to avoid child support obligations by requiring that the child rely on student loans, since student loans are just costs that must be repaid when the child finishes school. See: Caterini v. Zaccaria, 2010 ONSC 6473, [2010] O.J. No. 5291, at paragraph 203, citing Rebenchuk, supra; Jordan v. Stewart, supra. While student loans are often available to serve as temporary assistance for those in financial need, as stated above, they simply delay the expense rather than defraying it. For this reason, the court in Coghill, supra, paragraph 12, adopted the following statement from Julien D. Payne's text, Child Support in Canada:

A student loan is not a "benefit" within the meaning of section 7(3) of the Child Support Guidelines that must be automatically taken into account in determining the amount to be ordered in respect of expenses sought under section 7 of the Guidelines… nor should the availability of student loans automatically require the child to obtain such loans. Student loans are not to be equated with bursaries, grants, or scholarships. A student loan delays the payment of expenses rather than defraying them.

[87] I find that Veronica should contribute 20% to her remaining post-secondary expenses. This is in addition to the grants, bursaries and scholarships she obtained and her income that the court applied to her post-secondary school expenses. I find that this reflects a reasonable contribution by her in light of the financial circumstances of this family. Veronica should not be inordinately saddled with a huge student loan, particularly in light of her father's financial circumstances. He had the ability to assist her throughout her education and he put both her and the mother in difficult financial circumstances by not adequately contributing to these expenses.

[88] Once Veronica's 20% contribution is deducted, the remaining post-secondary expenses for her are $30,130 for the four-year period.

[89] The father's share of post-secondary expenses for the four-year period is $25,400 ($30,130 x 84.3%).

5.8 Calculation of Child Support Arrears

[90] The father's recalculated support obligation from January 1, 2008 to April 30, 2013 is as follows:

a) Support owing as calculated in section 5.6 $70,123

b) Contribution to post-secondary expenses as calculated in section 5.7 $25,400

Total support owing: $95,523

[91] The father has continued to pay the table amount of child support based on the amounts in the existing order. The father provided a table of these amounts at trial. This was not disputed. Including the amounts that he has paid in 2013, the father has paid total child support of $72,320 since January 1, 2008 ($1,130 per month x 64 months) through to the end of April of 2013. In addition, the father paid $700 in 2011 for Veronica's rent and he will be credited with this payment for a total credit of $73,020.

[92] The father, based on this recalculation, owes $22,503 in child support arrears ($95,523 – $73,020) as of April 30, 2013. This will be rounded off at $22,500. While at first blush it might appear that the father has only obtained minor relief for the times that Veronica was away at university, his relief would have been much more significant if he had paid the table amount of child support during these years in accordance with his actual income and not his 2007 income.

5.9 Repayment of Support Arrears

[93] The father proposed in submissions to repay Veronica's student loans directly to the Ontario Student Loan Program in the sum of $16,000.

[94] The request to direct the payment of support arrears in this manner is an unusual request and I am skeptical about my authority to make such an order, or for that matter the ability of the Family Responsibility Office to enforce it.

[95] Courts should also be wary of ordering child support to be paid directly to an adult child. Such orders might not recognize the custodial parent's indirect contributions to a child and can create hurdles to enforcement. The court also has to be alive to whether such requests are being made as an instrument of control. See: Jivraj v. Jivraj, 2010 ONSC 4949.

[96] There have been several cases where the court has ordered child support to be paid directly to adult children. See: Coghill, supra, paragraph 52.

[97] In Danyluk v. Danyluk, 2008 ABQB 276, 55 R.F.L. (6th), 141 (Alberta Q.B.), direct payments were ordered to be made to an adult child, as the court felt it would be beneficial to the parent/child relationship. In Rondeau v. Rondeau, 2002 NSSC 318, 65 R.F.L. (6th) 72 (Nova Scotia S.C.), the court ordered that part of a payor's support payment be made directly to the mother, recognizing the costs she was incurring for the child, and ordered that part of the payment be made directly to the child, recognizing that it was the child who was directly incurring expenses.

[98] The issue was also reviewed by the Saskatchewan Court of Appeal in Burzminski v. Lewis, 2010 SKCA 16, 78 R.F.L. (6th) 1 (Sask. C.A.). The court noted that while a decision to pay child support directly to the child is not the norm, a court has discretion to make such an order (paragraph 19). The court distinguished this case from cases where direct payments were not permitted by courts, noting that the child was living away from home at university and that the support payment was not a diversion of funds needed by the mother to maintain the child's home. The court found that all of the child's expenses would be generated in the city where she attends university and enforcement difficulties were unlikely as the father had a good relationship with the child.

[99] The case law informs this court that it should be cautious before ordering direct payments to a child and such orders should only be made in the limited cases where the evidence clearly establishes that such an order is warranted.

[100] This is one of those cases. One of the unique features of this case (as opposed to the cases set out above) is that we are dealing with support arrears as opposed to ongoing support and the analysis is retrospective as opposed to prospective. In many respects, this affords the court greater clarity. There is a direct correlation between the child support arrears and Veronica's student loans. The arrears, for the most part, reflect the father's failure to pay his proper share of Veronica's post-secondary expenses, as opposed to his failure to pay the proper table amount of support. The child, more so than the mother, had to obtain significant loans to finance the costs that the father should have been contributing to all along. If all of the arrears were paid to the mother and not applied to the student loan, the child would potentially be seriously disadvantaged. Essentially, the mother would be receiving a windfall at the child's expense. Further, this is not a case where payment to a child reflects a control issue. Lastly, Veronica has a good relationship with the father. There is no evidence to support a belief that there will be any difficulty enforcing the father's direct obligation to Veronica.

[101] The repayment order will reflect that most of the arrears are attributable to the accumulation of Veronica's student loan, and a smaller part of the arrears are attributable to the father's underpayment of support to the mother (taking into account her contributions to the child's post-secondary expenses as set out in her list).

[102] I will not order that the ongoing support be paid directly to Veronica, as this order primarily reflects the mother's additional costs for Veronica until August 31, 2013.

[103] Accordingly, I am going to order that the father pay child support arrears directly to Veronica in the sum of $20,000. He is to satisfy this order by making payments to her of $6,000 on or before December 31, 2013, $7,000 on or before December 31, 2014 and $7,000 on or before December 31, 2015. He will also be required to pay child support arrears directly to the mother in the sum of $2,500. This amount will be repaid in the sum of $500 per month until satisfied. The payments will start on September 1, 2013, after his support obligation to Veronica terminates. I find, upon reviewing the father's financial statement, that this repayment plan is affordable. If necessary, he can obtain a loan to meet the obligations he should have been meeting all along.

Part Six – Spousal Support

[104] The existing order provided that either party could seek a review of spousal support after four years without the requirement of establishing a material change in circumstances. Paragraph 8 of the existing order reads as follows:

The quantum of spousal support shall be reviewed upon the earlier of the applicant obtaining full-time employment or four years from the date of this Order. A party shall not be required to establish a material change in circumstances for the purpose of such review.

In view of the Applicant and Respondent having acknowledged in the Minutes of Settlement dated December 18, 2007, that the terms of the Minutes of Settlement are intended to assist the Applicant to become able to contribute to her own support and the Applicant having acknowledged her obligation to seek employment, with a view to economic self-sufficiency, the Applicant shall keep the Respondent advised, in writing, if in the event she obtains employment whether it be part-time or full-time.

[105] The father argues that he has met his spousal support obligation and asks to terminate it.

[106] The mother seeks a further two years of spousal support at the existing level of $525 per month.

[107] The father has paid spousal support as follows since the separation:

• January 1, 2001 - February 1, 2003 – 2 years at $200 per month.
• March 1, 2005 - December 31, 2005 – 10 months at $458 per month.
• 2006 – 1 year at $500 per month.
• January 1, 2007 - August 31, 2007 – 8 months at $490 per month.
• September 1, 2007 - April 30, 2013 – 5 years and 7 months at $525 per month.

[108] Spousal support has been paid for slightly over ten years.

[109] There was no issue that the mother was initially entitled to spousal support on both a compensatory and non-compensatory basis. There was a wide disparity in the earning ability of the parties. The mother was significantly disadvantaged by the breakdown of the marriage. The mother also has assumed most of the child-raising responsibilities since the breakdown of the marriage. This has had an adverse effect on her ability to earn income.

[110] The evidence indicated that the mother has made little effort to become self-sufficient since 2007. She has not attended any retraining courses. She has not actively sought work. She didn't provide the court with a meaningful job search list. I have drawn an adverse inference against her due to her failure to provide this. See: Filippetto v. Timpano, 2008 O.J. No. 417 (SCJ).

[111] The mother also failed to advise the father, as required by the existing order, about any part-time employment she obtained.

[112] The mother claimed that she has been medically unable to work full-time. She says that she suffers from fibromyalgia and from constant neck and back pain. She says that she also suffers from depression. These claims are similar to her medical claims made in 2007. She also claimed to have suffered a herniated disk in the past week. In Cook v. Burton, [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen, [2006] O.J. No. 2902 (SCJ), the courts set out that cogent medical evidence in the form of detailed medical opinion should be provided in order to satisfy the court that a party's reasonable health needs justify his or her decision not to work. The mother provided no new medical evidence to support her claims of being medically unable to work despite being asked to do so. She has not seen a specialist. She provided no evidence of attending for therapy. She deposed that she only sees her family doctor.

[113] The mother is clearly an intelligent person. She testified that she has many skills. She is literate and articulate. She worked many years ago as an x-ray technician. She said that she works many hours – she just doesn't get paid for it. She spends many hours as a volunteer at Claire's school and works part-time at her building's garden.

[114] There has really been no change in the mother's circumstances since the existing order. She is showing no real inclination to obtain employment and become economically self-sufficient. However, there are real limitations on the mother's ability to earn income, given her age and time out of the workforce. The father asked the court to impute the mother's income at $25,000 per annum for the purpose of any support calculation, but I find that the previous amount imputed to her remains appropriate for this purpose.

[115] The court was not provided with updated Spousal Support Advisory Guidelines (Ottawa: Minister of Justice and Attorney General of Canada, 2008, by Carol J. Rogerson, and D.A. Rollie Thompson (SSAG)), software calculations. However, this court is aware that the "with child" formula in the SSAG provides that in a relationship of this duration, there will be indefinite (unspecified) spousal support, with a minimum duration of 4 years and a maximum duration of 7 years from the date of separation.

[116] I note that the parties agreed on a support amount well below the "low level" of the SSAG in 2007, as the father had already paid spousal support for over four years (again in amounts well below the "low level" in the SSAG). Essentially, the parties engaged in a restructuring arrangement as envisioned by the guidelines – a lower payment with a longer term.

[117] I gave serious consideration to terminating the spousal support order at this time. There is merit in the father's argument that at some point, perhaps even now, it is no longer his responsibility to support the mother, despite her continued dependency, given that they were together for only six and one-half years.

[118] However, I have decided to continue spousal support until the end of June, 2014 for the following reasons:

a) The mother has continued to assume the primary responsibility of caring for the children. This has compromised her earning ability.

b) Claire will finish high school in June of 2014 and perhaps leave home to attend school at that time – freeing the mother to more actively concentrate on her self-support.

c) The father has often been responsible for causing financial hardship for the mother. He stopped paying the low level of spousal support contained in the parties' 2001 separation agreement in February of 2003, contrary to the terms of the agreement. He was required to pay significant support arrears in the existing court order and there have been substantial arrears ordered in this proceeding due to the father's underpayment of support. As a result, Veronica and the mother have had to struggle and borrow to make ends meet. The mother still has the need for spousal support.

d) The spousal support payments have been very low, despite the long duration of payments. Priority was given to the father's child support obligations.

e) An additional year of support will relieve the financial stress on the mother and Claire as Claire plans to move forward with her life.

[119] I have taken the mother's failure to make meaningful efforts to become self-sufficient into consideration in keeping the monthly support payment well below the low level in the SSAG and not increasing the spousal support payment once the father's support obligation for Veronica ends on August 31, 2013.

[120] Spousal support will terminate on June 30, 2014.

[121] The mother has not paid an order of costs made against her in the sum of $500 on February 25, 2013. This court expects costs orders to be paid. Accordingly, the amount of spousal support shall be reduced by $50 per month, starting on September 1, 2013.

Part Seven – Conclusion

[122] The father asked that I include terms in the final order that will define when Claire's support will end (for example, he asked that support end at age 22). While I understand his motivation in asking for such terms, it is not in Claire's best interests to place any limitations on her eligibility to child support. She will continue to be entitled to child support for so long as she remains a dependent as defined in the Family Law Act.

[123] There will be a final order on the following terms:

a) The father shall pay the guideline table amount to the mother of $825 per month for Claire, based on his annual income of $93,000, commencing on May 1, 2013.

b) The father shall pay the sum of $350 per month to the mother for the support of Veronica, on the first day of each month, starting on May 1, 2013 and concluding with his payment on August 1, 2013.

c) The father owes $22,500 in child support arrears as of April 30, 2013. He shall satisfy these arrears as follows:

i) He shall pay Veronica directly the sum of $20,000. This shall be repaid at a minimum of $6,000 on or before December 31, 2013, $7,000 on or before December 31, 2014 and $7,000 on or before December 31, 2015.

ii) In addition, he shall pay the mother the sum of $2,500, repayable at $500 per month on the first day of each and every month, until the arrears are satisfied, starting on September 1, 2013.

d) The father shall continue to maintain Veronica and Claire on his medical, dental and extended health plan so long as they are eligible for support.

e) The father shall continue to maintain the mother on his medical, dental and extended health plan until June 30, 2014. Thereafter, he is to notify her if he removes her from this plan.

f) Paragraphs 11 and 12 of the existing order with respect to extended health benefits are now deleted.

g) The father shall continue to pay the mother spousal support of $525 on the first day of each month. This sum shall be reduced to $475 per month starting on September 1, 2013, to account for the set-off of $50 per month for outstanding costs.

h) Spousal support shall terminate on June 30, 2014.

i) Paragraph 7 of the existing order will be deleted. There will be no specific order about section 7 special expenses.

j) A support deduction order shall issue.

k) The parties shall exchange their complete income tax returns and notices of assessment by June 30th of each year, starting in 2014.

l) The parties will be expected to negotiate the issue of post-secondary expenses for Claire, as well as any changes to this child support order, prior to bringing any motion to change this order.

[124] If either party believes that there is a mathematical error in this decision they may serve and file any submission in writing by Form 14B by May 13, 2013. The other party will then have until May 20, 2013 to serve and file any written response. Submissions are to be delivered to the trial coordinator's office on the second floor of the courthouse. If no submission is made, the order can be taken out after May 13, 2013.

[125] If either party wishes to seek costs they are to serve and file written submissions by May 27, 2013. The other party will then have until June 5, 2013 to serve and file a written response. The submissions are not to exceed three pages, not including any offer to settle or bill of costs. They are to be delivered to the trial coordinator's office on the second floor of the courthouse.

[126] I thank the parties for their civility during a difficult process for them. In particular, I wish to thank Ms. Hendrikx for a highly professional and sensitive presentation of the case.

Justice S.B. Sherr

Released: May 6, 2013