ONTARIO COURT OF JUSTICE
DATE: April 23, 2014
COURT FILE No.: Halton 277/08
Citation: Monbourquette v. Simpson, 2014 ONCJ 206
BETWEEN:
GREGORY MONBOURQUETTE
Applicant
— AND —
VICKI SIMPSON
Respondent
Before Justice Roselyn Zisman
Heard on April 16, 2014
Reasons for Judgment released on April 23, 2014
Gregory Monbourquette ............................................................................... on his own behalf
Vicki Simpson ............................................................................................... on her own behalf
Zisman, J.:
Introduction
[1] This is a motion to change by the applicant, Gregory Monbourquette (“father”) to change the order of Justice Wolder dated November 14, 2008. The order required the father, based on his 2007 income of $44,500 to pay child support of $686.00 per month for two children, Donna Lynn Monbourquette (“Donna”) born November 9, 1994 and Kelly Ann Monbourquette (“Kelly Ann”) born March 24, 1997.
Position of the parties
[2] The father seeks to terminate child support for Donna as of September 1, 2012 when she began to attend Carlton University and therefore lived away from home. He is prepared to pay what he can afford and submits that $100 per month is reasonable. He seeks a credit of $6,000 relating to funds the parties had saved for Donna but that the mother used for her own purposes. He also seeks credit for any overpayment of child support he has continued to pay. He is prepared to pay child support for Kelly Ann in accordance with the Child Support Guidelines.
[3] The mother submits that the father should continue to pay child support for both children in accordance with the Child Support Guidelines. She submits that she has continued to send to Donna half of the child support she has received from the father. She also seeks reimbursement for half of the funds she has paid for Donna’s university applications and deposit for her residence fees. She is not prepared to credit the father for the $6,000 she used to support herself when the parties initially separated. Further, the mother submitted that the court should order any amount that is fair.
[4] The father commenced the herein motion to change in August 2013. There were several attendances before the case management judge and orders for disclosure.
[5] At the settlement conference held on November 25, 2013, the endorsement states that the father’s position is that he is not obligated to pay any child support for Donna as she has withdrawn from parental control of the mother and pays for her education through student loans, scholarships and some employment income. A summary judgment motion date was scheduled before me to determine if the matter could proceed summarily on the written materials filed or if an oral trial was necessary.
[6] The mother filed a motion and affidavit in support of a summary judgment motion. The notice of motion states that there is no genuine issue for trial, that the only question is a question of law and that there is factually no basis for a “material change in circumstances”. The motion further requests that the father pay the appropriate amount of child support for Donna for his share of her tuition and reimburse the mother for his share of the $825 she had already paid.
[7] The summary judgment motion was before me on December 23, 2013. I dismissed the motion essentially because it was ill conceived, stated the wrong test for a change of child support and that there were factual disputes that required oral evidence. Further disclosure was ordered and the matter adjourned for a brief hearing.
Summary of relevant background facts
[8] The parties were married on June 5, 1993 and separated on January 1, 2005. The mother had been a stay at home mother for 11 years when they separated. The issues of custody, access and child support were settled on consent in the Ontario Court of Justice.
[9] The relevant order relating to child support is the order November 14, 2008. In addition to requiring the father to pay guideline child support, it required the father to provide annual disclosure of his income. No annual disclosure was ever provided. The father testified that it was his understanding that he only needed to provide disclosure if it was requested and the mother never requested any disclosure. He has therefore continued to pay $$686 per month.
[10] The order also provided that the parties share specified special expenses equally but the order did not have any general provision for sharing other expenses or for the sharing of any post-secondary expenses.
[11] The father submitted a handwritten equalization calculation and release, signed by the parties and witnessed by the father’s counsel, which the parties entered into on May 8, 2007. It provided the mother pay the father for his share of the matrimonial home, assume joint debts and release her claim for spousal support He also provided proof that at the time of the separation there was approximately $6,000 in a savings fund, in the mother’s name, that the parties had been contributing to for future education expenses. The mother agreed that she cashed in this fund, in March 2005, that is, several months after the separation to meet her expenses. The mother did not agree that there was a verbal agreement that she would pay back these funds or that she would be required to give the father a credit for any future educational expenses for the children. The handwritten “equalization” dated several years later did not refer to these monies.
Financial circumstances of the parties
[12] The father is employed for Cogeco Cable providing technical support. He is a salaried employee and his income can fluctuate based on overtime. His base salary is $37,000. He does not expect any large fluctuations in his 2014 income.
[13] His income for the last three years is as follows:
2011 - $44,561
2012 - $43,893
2013 - $41,532
[14] The father also provided evidence that his financial circumstances have deteriorated since his financial statement was submitted. He is no longer living with his girlfriend and is only renting a room in a friend’s home. He needed to buy a used old car for $1,000 as he could no longer use his girlfriend’s car. He has no assets, aside from this old car and has no debts.
[15] The mother is currently employed at Tim Horton’s but is hoping to find better employment. Previously she was also working driving a school bus while working at Tim Horton’s.
[16] The mother’s income for the last 3 years is as follows:
2011 - $18,746
2012 - $21,944
2013 - $19,726
[17] The mother was recently forced to sell her house as she could no longer afford to maintain it. She is now renting a 3 bedroom townhouse. She testified that she needed an extra bedroom for Donna whenever she came home and that it would not be fair to Kelly Ann to have to share a bedroom with her sister.
Evidence regarding Kelly Ann
[18] Kelly Ann is currently in Grade 11 and a good student. She earns a small amount of extra money working 9 hours a week for minimum wages at Tim Horton’s.
Evidence regarding Donna
[19] Donna completed high school in June 2012. She did not work for that summer and lived at home. She commenced her 1st year at Carlton in September 2012.
[20] Donna is currently completing her 2nd year in a 4 year psychology program. She may enter into a Master’s program. She is now living in a home she rents with several other friends.
[21] During her first year, Donna returned home for Thanksgiving, Christmas and for several weeks at the end of the school year. As Donna obtained a job in Ottawa for the summer of 2013, she remained there for most of the summer. Since September 2013, she again came home for Thanksgiving and Christmas. She does not yet have a summer job so the mother is not certain how much time she will spend at home this summer.
[22] The mother paid $125 for her university applications and a further $700 a deposit for residence at Carlton. The mother testified that she has continued to pay for Donna’s gym membership and cellphone for a total of $90 per month but did not provide any receipts.
[23] The mother testified that she has been paying Donna about half of the child support she has been receiving from the father. The father provided a calculation based on bank statements the mother had previously been ordered to provide, that the mother only paid Donna about a quarter of the child support money he paid. However, the mother provided further proof that she had paid Donna further sums when her house sold to make up the shortfall. I am satisfied that the mother did forward to Donna about half of the child support she received from the father.
[24] The evidence provided regarding Donna’s expenses and income was somewhat scanty. The mother testified that Donna did not want to get involved and was not prepared to provide the mother with much documentation substantiating her expenses. But she did provide the mother with some estimates of her expenses for the last several months and the mother did provide proof of the OSAP loans and grants she received.
[25] For the 1st year of university, Donna did not work during the school year. The mother provided a letter from Carleton and from OSAP that indicated Donna received the following funds:
OSAP $4909
Grants $4802
Academic Scholarship $2000
Tim Horton’s Scholarship $1000
TOTAL $12711
[26] The only evidence presented regarding Donna’s expenses for first year was a statement of account from Carleton for $6,613.40 that outlines various student fees and residence fees but did not include the tuition or the cost of a meal plan. The mother was not cross-examined about any of the expenses and I did not notice at the time that the account summary did not include the tuition or clarify the cost of any meal plan. Further, there was no evidence of any other expenses.
[27] For the school year September 2013 to April 2014, the mother testified that Donna had worked the summer in a restaurant and earned about $800 per month for 4 months. Donna continued to work part-time during the school year and earned about $800 per month.
[28] The mother provided a letter from OSAP outlining the funds Donna received for this school year as follows:
OSAP $12600
Grant $1730
TOTAL $14330
[29] The mother provided the following evidence regarding Donna’s expenses for this school year:[^1]
Tuition $6799
Fees $500
Books $500
Rent $6000
Food $2500
Utilities, internet, cable $3700
Transportation, entertainment, misc. expenses $4600
TOTAL $24599
Statutory framework
[30] Other than the expenses related to school and rent, the evidence related to the other expenses were based on estimates by the mother or extrapolated from the calculation done by Donna for the months of October to December 2013.
[31] As this is a motion to change child support, section 37 (2.1) of the Family Law Act is the applicable test. That section only requires a moving party to show a change in circumstances (not a material change) within the meaning of the Child Support Guidelines or that evidence not available on the previous hearing has become available to successfully change a child support order.
[32] Section 14 of the Child Support Guidelines sets out the circumstances that must be proven in order to warrant a variation in a child support order:
Circumstances for variation.— For the purposes of subsection 37(2.2) of the Act and subsection 17(4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:
In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.
In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.
In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
In the case of an order made under the Act, the coming into force of subsection 33(11) of the Act.
[33] The burden of proof lies upon the moving party, on a balance of probabilities, to establish a change in circumstances that would result in a different order.[^2]
[34] Section 31(1) of the Family Law Act requires a parent to pay child support for a child over the age of majority if that child is enrolled a full-time program of education and is a dependent.
[35] If an adult child is determined to remain a dependent who is eligible for support, section 3(2) of the Child Support Guidelines requires that the court must determine whether or not applying the Child Support Guidelines, as if the child were under the age of majority, is appropriate. There is a presumption in favour of the application of the table amounts in the Child Support Guidelines and the onus of proving that this approach is appropriate is on the party so claiming.[^3]
[36] If the usual Child Support Guidelines approach is determined not to be appropriate, the court must then determine what amount would be appropriate having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child.
1. Has the father met the onus of proving a change in circumstances?
[37] The father’s motion to change states that he is seeking to lower the amount of child support he is paying based on a dramatic decrease in his income in the last few years and he states that his income is only $37,000. The father’s income has in fact not changed dramatically at all and the $37,000 is only his base salary and does not include any overtime that he has always earned. If this was the only basis for the father’s motion to change he would not be successful.
[38] The order of November 14, 2008 that the father seeks to change was based on both children being under the age of majority and living full-time with the mother. Based on the fact that the Donna as of September 2012 began to live away from home to attend university and is over the age of majority, the father has met the onus on him to prove there has been a change of circumstances.
2. Is Donna a dependent child and entitled to child support?
[39] There is no dispute that Donna is enrolled in a full-time program of education and is diligently pursuing her studies. Both parents are supportive of her completing her undergraduate degree and continuing to obtain a Master’s degree if she desires.
[40] I find that Donna is still a dependent child. I do not accept the father’s position that she has withdrawn from parental control. The mother continues to send her money to help her meet her expenses. When the mother testified and provided proof that in fact she was sending Donna money from the child support he paid, the father’ reply was that it was his money to send not the mother’s. I find this statement to be an admission that the father recognizes and accepts that Donna requires financial assistance from her parents but the father wished some control over the amount of money he paid designated for her support.
3. Is the Child Support Guideline table amount inappropriate?
[41] An application of the presumptive rule pursuant to section 3(2) (a) and (b) the Child Support Guidelines requires a parent to pay not only the applicable table amount of support but also a proportionate share of the child’s special expenses.
[42] It has generally been held that when a child is away attending university that this approach would be inappropriate and that the table guideline amount while the child is away at school should be significantly reduced.[^4]
[43] I find that this general approach is applicable in this case and it would be inappropriate to require the father to pay both full table amount of support and his proportionate share of Donna’s university costs.
4. What amount of support is appropriate?
[44] I found the father’s position perplexing, as he sincerely appeared to want to assist Donna and recognized his obligation to do so and yet he resented having to give the mother child support to help Donna meet her expenses. He submitted that some of Donna’s expenses were much too high but then also submitted that overall he found them to be reasonable.
[45] The father submitted that the mother was in better financial circumstances than he was. He submitted several times that the mother was able to buy a new car and he could only afford a very old car, that he was living in a room in his friend’s home whereas the mother was able to rent a three bedroom townhouse. However, in his cross-examination of the mother he did not question the mother’s lifestyle or ask her any questions about her financial statement.
[46] I find that both parties have limited financial means. Although the father earns almost double what the mother earns, nevertheless, after he pays child support and meets his basic expenses, I accept his evidence that he has limited excess funds. But in his financial statement there are some discretionary expenses that could be reduced. I do not find that the mother is in a better financial position than the father. She has had to sell her home and she has only been able to obtain a minimal wage job and is struggling to meet her expenses.
[47] I accept the mother’s evidence that she needs an extra bedroom for Donna to stay in when she comes home for the holidays. I can see how it is comforting to a child who only moves away from home for school to still know that she has a place in her home and she is not treated as a guest and relegated to a couch as if a guest in her own home.
[48] Even though Donna did not spend the summer at home last year, where she spends this summer is not yet known. I suspect much will depend on where she is able to find a summer job. The mother was not asked the difference in rent for a two bedroom or a three bedroom townhouse so the court has no evidence as to the actual cost of maintaining a room for Donna. I also accept the mother’s evidence, even though she did not provide any receipts which she pays about $90 per month for Donna’s cell phone and gym membership. I also accept her evidence, as verified by father’s calculations and the bank records she submitted, that she has sent Donna about half of the child support she has been receiving from the father.
[49] Unfortunately, other than the mother’s testimony there is very little documentary evidence to substantiate any of Donna’s expenses except her tuition and compulsory school fees and there was no proof of her earnings. Even though the father, in his closing submissions seemed to concede that he accepted Donna’s expenses as being overall reasonable and he did not question how much she earned, it would have been preferable to have a much more detailed budget with some back up documentation.
[50] I find that Donna is making a reasonable contribution to her own expenses. She obtained summer employment and she is also working part-time during the year. Based on the evidence of the mother, Donna earned about $3,200 last summer and about a further $6,400 during the school year. She has also obtained grants and scholarships that have reduced her expenses. However, she has been required to obtain student loans in order to meet the shortfall between her expenses and her own income and the amount of money her mother has been sending her. The amount she is required to incur in student loans should not automatically reduce the amount of the contributions to her expenses as these are debts, not a benefit, that she will be required to pay back when she graduates. Rather than the parties assisting her to pay back her student loans, as the father testified he is prepared to do, it is more beneficial to her to reduce the necessity of incurring such debts. This requires the parties to contribute to her expenses while she is attending school.
[51] On a motion to change the court has the ability to vary the outstanding order retroactively. The father seeks to vary the order as of September 2012 when Donna began university. The father only commenced his motion to change in June 2013 with a first court attendance on July 26, 2013. He offered no explanation as to why he did not commence his motion to change when Donna commenced university in September 2012. He has paid child support of $686 per month but made no contribution to any of Donna’s post-secondary expenses. If his child support were reduced to reflect support for one child, based on his 2012 income, he would have been required to pay $396 per month. If he was also required to pay a reduced amount for Donna for the time she is home and for the mother to maintain a bedroom for her,[^5] his total child support obligation would have been $479 per month. By this calculation he would have overpaid child support of $207 per month or $2,484 but still not contributed to any of the post-secondary expenses. His contribution to those expenses would have been greater than this amount. I have also considered that there would be a financial hardship to the mother if she had to reimburse the father for these funds.
[52] There was also no evidence before me regarding Donna’s expenses for the school year 2012 to 2013 except for her tuition and residence fees. Accordingly I am not able to determine with any degree of exactitude what the father’s contribution for the post-secondary should have been.
[53] The mother was only seeking the father pay his share of the costs the mother incurred of $825 for the university applications and the deposit for residence. In view of the disparity incomes and the modest amount requested by the mother, I find that the father should pay his share of 67.8% namely, $561.00.
[54] I would not deduct or credit the father for the $6,000 savings he alleges was to be used for Donna’s education. The parties agreed that the mother could use those funds shortly after the separation in 2005 and several years later despite agreeing to divide their assets and agreeing to child support payments there is nothing in writing to substantiate the father’s claim that the mother was to repay this money. I also note that the father did not request this relief in his motion to change.
[55] Therefore, I find that any adjustment to the father’s child support obligations should only be as of August 1, 2013 being the first month after the court proceedings were commenced.
[56] I find that reasonable expenses for Donna for the school year commencing September 2013 are $20,000. I have reduced her expenses from $24,499 to $20,000 as I have deemed it reasonable that some of her earnings pay for her entertainment and miscellaneous expenses. Of her earnings of about $9,600, I find that it is reasonable that she contribute one half of her earnings to her university expenses and the remainder then would be used for her personal expenses. Therefore, Donna’s contribution would be $4,800. As Donna received a grant of $1,730 for the school year 2013 to 2014, the expenses are further reduced and the net amount of her post-secondary expenses is therefore $13,470. I note that the amount of the student loan Donna obtained for this school year was $12,600 which is quite close to the amount I have calculated as her shortfall.
[57] Based on the calculations[^6] I have prepared, that are attached as an appendix to this judgement, the father would be required to pay $ 452 per month as child support being full table amount for Kelly Ann and a reduced amount for Donna. In addition he would be required to pay his proportionate share of the $13,470 which is 67.8% or $761 per month for a total child support payment of $1,213. This would leave him with only $1,530 per month of disposable net income.
[58] Section 7 of the Child Support Guidelines require the court to require a parent to pay all or a portion of the expenses that takes into consideration the child’s best interests, the reasonableness of the expense in relation to the means of the parents and those of the child. In this case, it is clear that it would not be reasonable to require the father to pay his entire share of these expenses as he simply is not financially able to do so.
[59] I have concluded that it is reasonable that the father pay his share of only $6,000.00 of post-secondary expenses. This would mean that in addition to paying table child support of $452 per month he would pay $339 per month for his share of the reduced post-secondary expenses for a total child support payment of $791 per month. This will increase the amount of child support he is currently paying by only $105 which I find he can manage based on his income and by reducing some of the discretionary expenses in his financial statement. Donna will still have to incur a student loan to cover the shortfall, about half of the amount she currently receives, but the father does have the ability to pay at least a portion of those expenses. It is not in Donna’s best interests that she be burdened with a substantial student loan when she graduates as opposed to the father assuming some of that financial responsibility now.
[60] Although I recognize that the numbers I have chosen are somewhat arbitrary, I believe they strike a balance between the amount of reasonable expenses and the parties’ ability to pay those expenses. I would also add that I have no doubt that the mother will provide Donna with the funds that are allocated for Donna in this judgement to assist her in meeting her post-secondary expenses.
[61] I wish to thank both parties for their presentation. I recognize that it is exceedingly difficult for parties to represent themselves in such proceedings and to present the necessary evidence. Both parties are to be commended for keeping their children out of this financial dispute.
[62] On an ongoing basis, the parties may have to re-adjust the amounts for their contributions to Donna’s expenses and also determine their contributions when Kelly Ann begins university. It is important that both parties exchange their income tax information, as their share to the post-secondary expenses will change in accordance with income and based on the actual costs and the children’s contributions to those costs. I am hopeful that this decision will give them a basis to determine any future changes without the necessity of court proceedings.
[63] There will be an order as follows:
The order of November 14, 2008 is varied in it’s entirely and the following order is made:
Based on the Applicant, Gregory Monbourquette’s 2013 income of $41,532.00 and the Respondent, Vicki Simpson’s 2013 income of $19,726.00 and in accordance with the Child Support Guidelines, the applicant will pay support to the respondent in the amount of $452.00 per month as of August 1, 2013 for the benefit of Donna Lynn Monbourquette born November 9, 1994 and Kelly Ann Monbourquette born March 24, 1997.
The Applicant will further pay as his share of the special expenses for Donna Lynn Monbourquette born November 9, 1994, the amount of $339.00 per month as of August 1, 2013 until she completes her first undergraduate degree unless the parties decide otherwise.
The Applicant shall pay the Respondent $561.00 as his share of post-secondary expenses for 2012.
The Applicant shall be given credit for all funds paid to date and the Family Responsibility Office shall re-adjust their records in accordance with this order.
Both parties shall exchange copies of their income tax returns with all attachments and Notices of Assessment or Notices of Re-Assessment, if any as of June 1st, 2014 and each year thereafter as long as the Applicant is required to pay child support.
Support Deduction Order to issue.
There will be no order as to costs.
Released: April 23, 2014.
Signed: “Justice Roselyn Zisman”
[^1]: For ease of calculations I have converted all expenses on a yearly basis and averaged some of the monthly expenses that were provided
[^2]: Jardine-Hynds v. Grant, 2009 ONCJ 133, [2009] O.J. No. 1444 (OCJ)
[^3]: Lewi v. Lewi (2006) 2006 15446 (ON CA), 80 O.R. 321(Ont. C.A.); Rebenchuk v.Rebenchuk 2007 MBCA 22 (Man.C.A.)
[^4]: Arnold v. Washburn 2000 22732 (ON SC), [2000] O.J. No.3653 (SCJ) varied on other grounds 2001 21149 (ON CA), [2001] 57 O.R. (3d) 287 (Ont. C.A.); Park v. Thompson (2005) 2005 14132 (ON CA), 77 O.R. (3d) 601 (Ont. C.A.); Lewi v. Lewi, supra.
[^5]: Using the Divorcemate calculation for table support for 4 months averaged over 12 months
[^6]: I have not calculated any tax credit for Donna’s tuition or books as no evidence was led as to amount of the applicable tax credits or whether or not Donna claimed this credit on her tax return.