Court File and Parties

Court File No.: Toronto RFO 95-2169-01 Date: 2014-01-10 Ontario Court of Justice

Between: Angela Marks, Recipient

— And —

Richard Bolt, Payor

Before: Justice Penny J. Jones

Reasons for judgment released on: January 10, 2014

Appearances: No appearance by or on behalf of Applicant. Respondent appearing on June 5, 2013 and not on August 20, 2013 or October 21, 2013.

Decision

JONES, P. J. J.:

[1] This is my decision relating to an application brought by Angela Marks (the mother) under the Interjurisdictional Support Orders Act, S.N.B. 2002, c 1-12.05, ss. 5(2), 23(2) (ISOA) to vary the child support terms contained in a custody agreement dated November 27, 2002 filed in the Court of Queen's Bench of New Brunswick on November 27, 2002.

VARIATION APPLICATION

[2] The application to vary child support was commenced by the applicant under the ISOA on January 24, 2012. In her application the mother seeks a variation of the ongoing monthly support order, section 7 expenses and retroactive child support. She also asks the court to impute income of $180,000.00 to the respondent in the event that he does not provide sufficient, or any, financial information.

[3] The parties are former boyfriend and girlfriend. They never married and never lived together. They are the natural parents of one child, namely Ryan Alexander Charles Marks, born February 5, 1992. Ryan is now 21 years of age.

[4] The relevant financial provisions of the custody agreement read as follows:

1. Monthly child support is fixed at $475.00 per month based on the respondent's (father's) annual income of $56,000.00 pursuant to the Ontario Child Support Tables and pursuant to an order of the Ontario court, family division dated August 30, 1999.

2. Child care expenses are calculated as follows:

• 10 months (during school year) X $200.00 per month
• 2 months (during summer) X $245 per month
• Total yearly cost: $2,900.

Based on the father's annual income of $56,000 and the mother's annual income of $30,000, and an acknowledgement by the mother that she is receiving tax benefits of $1,035.00 per annum pursuant to the guidelines "child care tax relief chart" the after tax cost of child care to the mother is stated to be $1,865.00 per year. The agreement provides that the father is to pay, on a proportionate basis, 65% and the mother 35% of the after tax cost of day care. Accordingly, the father's share pursuant to the agreement is computed at $101.00 per month. This amount is to continue until further agreement of the parties or order of the court.

3. There is also a provision for the proportionate sharing of costs for preapproved extracurricular activities on the same ratio as above.

4. The father also agreed to pay $50.00 each month towards an RESP plan for the child.

5. The parties also agreed to share the cost of uninsured medical and dental expenses proportionate to their respective incomes. The mother agreed to continue her plan of medical and dental coverage for the child through her employment so long as such plan was available to her. Pursuant to paragraph 6(c) the parties agreed to provide one another with income tax returns on or before June 1st of each year, and the contract provided that the amount of child support and special expenses might be adjusted upon receipt of this information as agreed by the parties or upon order of the New Brunswick Court of Queen's Bench.

[5] This application for variation first appeared in this court before Justice Ellen Murray on June 5, 2013. I note from the affidavit of service filed in the proceeding that the respondent was served on April 18, 2013. The respondent appeared in person on June 5, 2013. Notwithstanding the fact that the Notice of Hearing, which was served upon him (a copy of which was attached to the affidavit of service), indicates on its face that if he wished to oppose the application, he must provide an Answer (blank copy attached) and a financial statement (blank copy of which was attached) within 30 days after service, no answer and no financial disclosure were filed by the respondent prior to his attendance at court.

[6] On June 5, Justice Murray ordered the respondent to serve and file his tax returns and notices of assessment and reassessment for the years 2007-2012, his current employment contract, and evidence of his current income. Justice Murray adjourned the matter to August 20, 2013 at 10 a.m. for an ISOA hearing.

[7] The matter came before me on August 20, 2013. The Respondent did not attend court nor did he seek an adjournment. In addition, he failed to produce the financial disclosure as ordered by Justice Murray.

[8] On August 20, 2013, I adjourned the matter to October 21, 2013 and I ordered the court staff to write to the respondent and to advise him of the new date. I also requested that the court advise him by letter that if he did not attend on the next date an order might be made in his absence. I note from the file that the letter was sent in accordance with my endorsement.

[9] On October 21, 2013 the Respondent did not attend, did not seek an adjournment and did not file a financial statement, nor did he file any of the financial disclosure ordered by Justice Ellen Murray.

IMPUTATION OF INCOME

[10] Section 33(b) of The Interjurisdictional Support Orders Act, 2002 (S.). 2002, c.13 (the Act) requires the respondent to appear at a place and time specified in the notice of the application and to provide the prescribed information or documents in accordance with the regulations passed under the Act. (Financial disclosure is required to be produced in the form of a completed and sworn financial statement served upon the respondent in blank form.) Section 37 of The Act sets out the powers of the court in the event the respondent, either does not appear as required by the notice, or, does not provide the information or documents required under clause 33 (b) of the Act. Section 37(1) provides that the Ontario Court may make an order in the absence of the respondent or of the information or documents and in making the order may draw any inference it considers appropriate.

[11] The respondent has not provided the financial statement required to be filed under section 33(b). Further, he has not complied with the order of Justice Murray. Given the total absence of financial disclosure from the respondent, I am left to determine the financial issues before me based solely on the paper record and by drawing such inferences as I deem appropriate based on that record and on the history of the proceedings.

[12] The applicant asks me to impute an annual income to the respondent of $180,000 for the taxation year 2011.

[13] The imputation of income does require an evidentiary base and I have reviewed the record to determine whether such an imputation of income would be appropriate in the circumstances. In deciding this issue, I considered the following evidence contained in the paper record before me:

(a) I note that the respondent is described in the application as being employed as a human resources/head hunter. (Information filed in support of the application includes a LinkedIn page for Rick Bolt indicating that he was a Managing Director-Accounting and Finance & I.T. at AveryHR Toronto, Ontario in 2012.)

(b) The applicant has filed copies of the respondent's 2002, 2003, 2004 and 2005 income tax returns in the package of materials before me. The income tax returns provided show line 150 income as follows:

• 2002 line 150 income $68,001.93
• 2003 line 150 income $76,804
• 2004 line 150 income $87,430
• 2005 line 150 income $115,428

(d) In her affidavit in support of her application, the applicant deposes that she has not received any other more recent income tax returns notwithstanding numerous requests made by her and her lawyer for such disclosure.

(e) The income tax returns previously provided by the respondent, although somewhat dated, show a steady increase in income of at least $10,000 per annum. Given the pattern of annual increases it is reasonable to expect such increases would continue into the future. If such were not the case, the respondent had the opportunity to provide information to the contrary, but has chosen not to do so, despite the fact that he was on notice that such an imputation of income was claimed.

[14] In the result, based on a pattern of annual increases of approximately or more than $10,000, I have, on an imputed basis, determined the respondent's income from 2006-2012 for guideline purposes to be as follows:

• 2006 line 150 income $125,000
• 2007 line 150 income $135,000
• 2008 line 150 income $145,000
• 2009 line 150 income $155,000
• 2010 line 150 income $165,000
• 2011 line 150 income $180,000
• 2012 line 150 income $180,000

GUIDELINE SUPPORT

ISSUE OF RETROACTIVITY

[15] The applicant seeks retroactive guideline support from 2000, which was the first date annual disclosure was to have been made under the 1999 court order. The applicant's affidavit filed in support of the application for a variation speaks generally to her annual requests for disclosure from the respondent and his annual refusal to comply. The applicant explains that she took no action to enforce the disclosure requirement because of her poor financial situation, including a period when she went back to school to retrain for a period of time and was without any income. Upon review of her financial situation, it would appear that her income over the last decade has ranged between $1,312.00 and $29,411.08 per annum.

[16] I note it was not until 2009 that the applicant made any documented efforts to obtain disclosure or to enforce compliance of the respondent's duty to disclose. (If any earlier efforts had been made other than efforts that might be seen as routine inquiry, such efforts were not documented in the paper record before me.) The evidence indicates that in October 2009, the respondent, in response to the applicant's request for annual financial disclosure, sent to her copies of his income tax returns for 2002-2005. The applicant deposes that for the first time she was aware that the respondent had been earning substantially more than the annual income set out in the agreement. She then requested through her lawyer more current income tax returns, with a view to renegotiating child support. These requests were ignored until January 2011, when the respondent indicated that he was unemployed and had not filed income tax returns for the last number of years. In support of this contention the respondent agreed to send financial information and disclosure to the applicant's lawyer, but failed to do so.

[17] Frustrated with the respondent's refusal to provide updating financial information and his refusal to negotiate a new support order, the applicant instructed her lawyer to commence this ISOA application to vary the order both prospectively and retrospectively.

[18] On the information I have, I am satisfied that there is sufficient evidence to support both a retroactive and prospective change to the child support order. I am satisfied on the information in the file that at the time the application for variation was commenced Ryan, although over the age of majority, was in full time attendance at a post-secondary educational facility, namely, at the Centre for Arts and Technology in Fredericton, New Brunswick and accordingly was still eligible for support.

[19] In exercising my discretion to order retroactive child support and to determine the date such retroactive support should commence, I have considered the factors set out in D.B.S. v. S.R.G, (2006) 2006 SCC 37:

[20] 1. Reason for the delay. The applicant indicated in her affidavit that she requested disclosure on an annual basis from the respondent. She hired a lawyer sometime in 2009 or early 2010 to assist her in obtaining information after she finally received copies of the respondent's 2002-2005 income tax returns which showed a substantial increase in the respondent's income. She indicated that she had delayed bringing the action because she had few resources and was having difficulty in putting together a retainer for a lawyer. Her income tax returns filed over the last decade show an income fluctuating between $1,312 and $29,411.08 which speak to her meager financial resources.

[21] On my reading of the affidavit, it would appear that the applicant became serious about seeking a change in the order some time in 2009 when she began to systematically pursue financial disclosure. I find that this was the time that she became aware that the respondent was earning substantially more than he was at the time the order was made and that, as such, the respondent was not contributing his guideline share towards the support of Ryan. It was at this point that she put the respondent on notice that she wished to renegotiate the child support in accordance with the guidelines. Before she received partial disclosure in 2009, I suspect that she was satisfied with receiving the extra $101 per month which she treated as child support once she did not have to pay care expenses and for a few years simply let the matter "slide". Her material indicates that she continued to receive the $101 per month child care expense long after child care expenses ended in 2004 and that she did not tell the Family Responsibility Office to cease collection of this sum.

[22] 2. Conduct of the payor. The payor knew about the operation of the Child Support Guidelines since his attendance in court in 1999. Both the court order and the custody agreement include an automatic annual financial disclosure clause which he has chosen to ignore. I draw the inference that he has ignored his disclosure obligation because he knew his income was increasing substantially and he wished to withhold this information from the applicant because he wished to avoid his responsibility to contribute the appropriate amount of support for the child. As well, I have concluded that the respondent never complained about paying for child care expenses long after such costs could reasonably be expected to be paid because he knew he was not overpaying and he knew that if he complained, the financial aspects of the agreement would be reopened and his underpayment would be brought to light. I find that he engaged in blameworthy conduct in an attempt to defeat any claim for an increase in child support throughout and should not be allowed to benefit from his failure to provide financial disclosure as required under the contract.

[23] 3. Circumstances of the child. Ryan has grown up in a home where the lack of financial resources has always been a problem. When he went off to college, he incurred a significant student loan debt which would not have been incurred if his father had been contributing to his post-secondary educational expenses in according to his income and in accordance with the provisions in the guidelines.

[24] 4. Hardship occasioned by a retroactive award. No information on this issue is available because of the respondent's decision not to provide disclosure and not to participate in the proceeding.

[25] The decision to order retroactive child support depends on the individual facts of each case. In this case, and on these facts, I am prepared to go back to 2006 being three years before the date the mother gave notice to the father that she was serious about obtaining disclosure and renegotiating an agreement. I am satisfied that as of June 1, 2009, the respondent was on notice that the applicant wished to renegotiate the terms of the custody agreement relating to child support. Although I have found that the respondent engaged in blameworthy conduct throughout in withholding his financial disclosure, I find that the applicant did not really pursue the matter until 2009. What I have concluded from the record is that she simply let the matter "slide" for a number of years. It would appear that she never provided her annual disclosure to the respondent and she never advised the respondent or the FRO that the day care expenses as of 2004 were no longer payable. In all likelihood, she was reasonably content with the unreduced child support order once special expenses ceased to be payable because she was unaware that the respondent's income had substantially increased.

[26] Given the state of the evidence in the paper record before me, I have decided that it would be appropriate to adopt the usual three year rule after notice was given as enunciated in the D.B.S. case supra para 123. Para 123 reads as follows:

Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent's reasonable interest in certainty has returned. This, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting a recipient parent's request for historical income information to a three-year period: see s. 25(1)(a) of the Guidelines. In general, I believe the same rough guideline can be followed for retroactive awards: it will usual be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.

I am calculating the quantum of retroactive support in accordance with the child support guidelines. According to ISOA section 35(2), the law to be applied in determining the amount of support for a child is the law of the jurisdiction in which the payor ordinarily resides, which, in this case is Ontario.

VARIATION OF ORDER PROSPECTIVELY AND RETROSPECTIVELY

[27] Accordingly, guideline support shall be varied as follows from June 1, 2006 to September 30, 2010 during the period of time Ryan was a minor and living at home as well as the period from February-September, 2010 when he was no longer a minor but was at home finishing high school (see Lewi v. Lewi, [2006] O.J. No. 1847 para 138 ff):

1. For 2006, (June 1, 2006-December 30, 2006) child support in the amount of $1,076 per month based on the respondent's imputed income of $125,000

2. For 2007, child support in the amount of $1,151 per month based on the respondent's imputed income of $135,000

3. For 2008, child support in the amount of $1,226 per month based on the respondent's imputed income of $145,000

4. For 2009, child support in the amount of $1,300 per month based on the respondent's imputed income of $155,000

5. For 2010 until September 30, 2010 child support in the amount of $1,374 per month based on the respondent's imputed income of $165,000

[28] Although the payor's income is imputed to be over $150,000 per annum for the years 2009, 2010, and for the years thereafter, and although, section 4(b) would permit the court to increase or decrease the amount of support otherwise payable under the guidelines for incomes in excess of $150,000 in situations in which the court finds the guideline amount otherwise payable under section 3 to be "inappropriate", in these circumstances, I find no reason to deviate from the guidelines as I see nothing inappropriate in applying the guidelines. See Francis v. Baker, [1999] 3 S.C.R. 250.

[29] As of October 1, 2010, Ryan, who was then over the age of majority, became a full time student at the Center for Arts and Technology in Fredericton, New Brunswick. I am advised that the program he enrolled in is a twenty one month course which was to run from October 2010 to July 2012 consecutively in Audio Engineering. Until Ryan left home and attended a post-secondary institution, I am satisfied that the guideline amount is the appropriate amount.

SUPPORT FOR ADULT CHILD

[30] Paragraph 3(2) of the Child Support Guidelines (Ontario) deals with determining support for children over the age of majority and reads as follows:

3(2) CHILD THE AGE OF MAJORITY OR OVER — Unless otherwise provided under the guidelines, where a child to whom an order for the support of a child relates to 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.

[31] In situations where the adult child resides away from home for the majority of the year to attend a college or university, it is now generally accepted that the guideline table amount should not be applied to determine the quantum of support. In such situations, applying the table amount is inappropriate during the period the child is away at college or university. Educational expenses are to be dealt with under section 7(1)(e). I have taken a Paras and Paras approach as suggested by the wording employed in section 3(2)(b) of the guidelines.

Determining section 7(1)(e) special expenses

[32] I begin my analysis by determining, if possible, the actual post-secondary costs incurred by the child under section 7(1)(e). Once the costs have been determined, I intend to apportion such costs between the mother and the father taking into consideration the ability of the child to contribute his or her own costs. This procedure was approved of in the case of Park v. Thomson.

[33] At para. 28, In Park v. Thomson, Rosenberg, J. writes:

At the hearing of the appeal, Mr. Epstein on behalf of the father presented us with a detailed chart showing that generally courts reduce the amount of child support during the academic year where the child is not living at home, in accordance with s. 3(2) (b). Heeney J. explained the rationale for this approach in Merritt v. Merritt, [1999] O.J. No. 1732 (S.C.J.) at para 73:

Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply tables that are not designed with that living arrangement in mind. Furthermore, the table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems 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.

[34] The applicant has attached to her affidavit sworn June 30, 2011 a copy of Ryan's budget for the 2010-2011 academic year. As Ryan is over the age of majority and can only qualify for support while he is in full time attendance at a post-secondary institution, I intend only to deal with the period from October 2010 to July, 2011 and will require further confirmation of his school attendance before making any support order past July 1, 2011. I note that the applicant's material suggests that Ryan will have completed his studies by June, 2012, all being well.

[35] In deciding how to apply the child support guidelines to this situation, I have adopted the approach taken by Justice Herman in Mark Barry Albert (Applicant) and Noreen Albert (Respondent), 40 R.F.L. (6th) 203.

[36] The student budget attached to the materials I consider to be evidence of expenses for post-secondary education within the meaning of section 7(1)(e) of the Child Support Guidelines (Ontario). In that monthly budget only tuition ($1,500), rent ($475), food ($200), trips home ($30), gas/parking ($10), medication ($228.26) are included. It appears to be a very modest budget and adds up to monthly expenses of $2,443.26 or $21,989.34 for nine months (October 2010 to June 30, 2011, June 30, 2011 being the last date evidence of school attendance is before me). I am allowing all such expenses as set out therein as expenses for post-secondary education within the meaning of section 7(1)(e) of the guidelines.

[37] Having now determined the post-secondary educational costs, I must determine what portion of such costs should be the responsibility of the child and what portion of the costs should be the responsibility of the parents. In making this determination, I am instructed to first consider the means, needs and other circumstances of the child as referred to in section 3(2)(b) of the Child Support Guidelines (Ontario). After reviewing his budget statement, I am satisfied that Ryan has maximized his own contribution to his further education for the following reasons:

1. He worked part time during the school year ($60 per month or $540 for nine months of the 2010-2011 school year);

2. Ryan had a summer job in 2010 and earned $4,959.22 from employment at Old Navy Canada Inc. After an allowance for reasonable summer expenses, I have determined that it would be reasonable to expect Ryan to be in a position to contribute $2,000 of these earnings towards satisfying his post-secondary education costs for the 2010-2011 school year.

3. Ryan applied for available grants and bursaries; I note that for the 2010-2011 academic year. Ryan applied for and received grants of $1,600 and a bursary of $1,750. His statement of funds received also include grants for special expenses, namely a grant of $5,000 (hearing aids) and a further grant of $3,000 (laptop), however, since the cost of a lap top and the cost of hearing aids are not mentioned as expenses in Ryan's budget, these funds will not be considered further.

4. Ryan cashed in his RESP of $4,079.83 and applied this sum to help defray his educational costs.

[38] The fact that Ryan applied for a substantial student loan I see as evidence of his need for support, and not as further evidence of his ability to contribute to his own costs. In these circumstances I feel it is inappropriate to reduce the child support obligation by requiring Ryan to rely on student loans to defray costs. Student loans are not income and must be repaid when Ryan graduates. I adopt the reasoning of the court in Coghill v. Coghill, [2006] O.J. No. 2602 at paragraph 44 (12) when the court quoted 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.

[39] Adding up the Ryan's contributions, namely, $2,000 summer earnings, $1,600 grant, $540 part time earnings from October 2010-June 30, 2011, a bursary of $1,750, and a contribution from a collapsed RESP of $4,079.83, I have arrived at a figure of $9,969.83. When I deduct this sum from the educational costs already determined, namely, $21,989.34 I find a balance outstanding of $12,019.51.

[40] I must now consider the financial ability of each parent to contribute to the support of the child. The mother's line 150 income for 2010 is $29,141.29 and the imputed income for the father as set out herein is $165,000 for 2010 and $180,000 for 2011. In the circumstances, I find that the parents have an ability to contribute to Ryan's education, and should be required to do so. Given the financial situation of the father in particular, Ryan should not be required to pay for his education through a student loan. On a pro rata basis, I find the father and the mother should contribute to these costs on an 85% (father)-15% (mother) basis.

[41] Assuming the eligibility period on a temporary basis to be nine months, I find that the monthly balance after deducting the child's contribution to be ($12,019.51 divided by 9 months equals $1,335.50. The father's share is 85% or $1,135.18 per month.

Reduced Table Guideline Amount

[42] Recognizing there is an obvious cost to the mother of maintaining a room for the child while he is away at college and meeting his expenses when he returns for weekends and holidays, even in the absence of specific evidence of the costs incurred by the mother, I am prepared to order a monthly amount payable for the nine month eligibility term currently established and ending on June 30, 2011. I have reviewed the budget submitted by the mother and I find it to be a very modest budget reflective of a single parent earning just over $29,000 per annum. In the circumstances, I am ordering the respondent to pay to the applicant $250 per month for nine months as drop down guideline amount to cover the expenses born by the mother even when the child is away at college. [See Mark Barry Albert (Applicant) and Noreen Albert (Respondent) supra]

[43] However, I require further information from the mother before I am in a position to order section 7(1)(e) expenses, or to determine appropriate guideline expenses for the summer of 2011 and the school year 2011-2012. I require evidence that this adult child is still enrolled in a post-secondary institution and is therefore eligible for support. As well, I require a budget from the applicant as well as further educational budget from Ryan for the following school year.

Drug Expenses

[44] The mother's asserts a claim for a proportional sharing of Ryan's drug/prescription section 7 expenses from October 2010 on the basis that the father's drug coverage through his employment was terminated as of that date. From my reading of the material, I have concluded that this claim need not be dealt with separately as I note that Ryan included this expense in his budget, and I included this expense in computing section 7(1)(e) expenses. Accordingly, I make the following order:

ORDER

[45] On a final basis:

1. Child support for Ryan from June 1, 2006 to December 31, 2006 payable at the rate of $1,076 per month based on the respondent's imputed income of $125,000 per annum in accordance with the Child Support Guidelines (Ontario)

2. Child support for Ryan from January 1, 2007 to December 31, 2007 payable at the rate of $1,151 per month based on the respondent's imputed income of $135,000 per annum in accordance with the Child Support Guidelines (Ontario)

3. Child support for Ryan from January 1, 2008 to December 31, 2008 payable at the rate of $1,226 per month based on the respondent's imputed income of $145,000 per annum in accordance with the Child Support Guidelines (Ontario)

4. Child support for Ryan from January 1, 2009 to December 31, 2009 payable at the rate of $1,300 per month based on the respondent's imputed income of $155,000 per annum in accordance with the Child Support Guidelines (Ontario)

5. Child support for Ryan from January 1, 2010 to September 1, 2010 payable at the rate of $1,374 per month based on the respondent's imputed income of $165,000 per annum in accordance with the Child Support Guidelines (Ontario)

On a Temporary Basis

6. Child support for Ryan from October 1, 2010 to June 30, 2011 $250 per month.

Section 7(1)(e) expenses

7. The Respondent shall also pay directly to Ryan the sum of $1,135.18 per month commencing October 1, 2010 to June 30, 2011 for post-secondary expenses under section 7(1)(e) of the guidelines. This calculation is based on the following information. The respondent's gross income for 2010 is imputed at $165,000 and for 2011 is imputed at $180,000. The applicant's gross income is $29,411.08 for 2010 and is imputed at $30,000 for 2011 with the payor's percentage for special expenses being set at 85% of said expenses.

8. Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

9. In the event that further child support is sought on the basis that the child continues/or continued for a period to be eligible for support, the applicant shall submit within sixty days after this order is served upon her further evidence under section 11(2) of the ISOA to the designated authority in New Brunswick that the child is/was in full time attendance at a recognized college or university for a period after July 1, 2011. If the child has completed his studies, the applicant shall provide proof of his attendance at a post-secondary institution for the period for which support is sought. Further, the applicant shall submit a further education budget from the child for the period support is sought and a further personal budget for the same period.

[46] I have adopted the reasoning of Murray, J. in Browning v. Browning, 2008 ONCJ 388, [2008] O.J. No. 3420 para 48, in making a final order on those parts of the application where sufficient information is available to me and adjourning that part of the support application where further information is required. Para 48 reads as follows:

In my view, subsection 21(2) and section 11 and section 14 of the ISOA should be interpreted to mean that, if the court requires further information to deal with any part of a support application, then that part shall be adjourned to await the information and that the court may, if so advised, make a temporary order under section 11 of the Act with respect to the issues in the unresolved part of the application. With respect to any part of the application upon which there is sufficient evidence to make a final order, the court may make a final order under section 14 of the Act.

[47] I am therefore sending a direction to the designated authority under section 11 of the Act to request the information or documents as identified in para 46(9) of my decision, namely, I require proof that Ryan is/was in attendance at a post-secondary institution after July 1, 2011, proof of the period he was so enrolled, and I require a copy of his education budget and a budget from the applicant for the periods of time child support is sought.

Released on: January 10, 2014

Signed: Justice Penny J. Jones