Court File and Parties
Ontario Court of Justice
Date: 2014-11-04
Court File No.: Halton 324/11-01
Between:
Camille Louise Pierce Applicant
— And —
Dale Allen Neville Respondent
Before: Justice Victoria Starr
Heard on: October 27, 2014
Reasons for Judgment released on: November 4, 2014
Counsel:
- Wendela M. Napier, counsel for the applicant
- Ryan Gibson, counsel for the respondent
STARR J.:
Introduction
[1] On October 27, 2014, this court heard a Motion to Change the child support provisions of the order of Justice Zisman, dated December 7, 2011.
[2] The evidence at this hearing consisted of the following:
a) Motion to Change of Camille Louise Pierce, issued October 23, 2013;
b) Change of Information Form of Camille Louise Pierce, sworn December 7, 2011;
c) Response to Motion to Change of Dale Allen Neville, sworn January 22, 2014;
d) Affidavit of the Applicant, Camille Louise Pierce, sworn September 26, 2014;
e) Affidavit of the Respondent, Dale Allen Neville, sworn October 16, 2014;
f) Financial statement of the Applicant, Camille Louise Pierce, sworn September 26, 2014;
g) Financial Statement of the Respondent, Dale Allen Neville sworn January 20, 2014;
h) Affidavit of the Respondent, Dale Allen Neville, (sworn in compliance with Rule 13 of the Family Law Rules), sworn May 9, 2014;
i) Oral evidence of Camille Louise Pierce of October 27, 2014;
j) Oral evidence of Dale Allen Neville of October 27, 2014
[3] At the conclusion of the hearing I reserved my decision and asked the parties to attend before me on November 4, 2014 at 9:15 a.m. as I intended to give my decision and reasons orally at that time. I have decided to release these written reasons instead.
The Order and Relief Sought
[4] The order of Justice Zisman, dated December 7, 2011 required, among other things, that the Respondent pay the sum of $712 per month in support for the parties' daughter, Dayna Anne Elizabeth Neville, born July 26, 1991 [now 23 years old], for the months of May through to and including August of each year and $356 per month for the months of September through to and including April each year. The order also required the Respondent to contribute the sum of $5817 directly to the University of Toronto, for his share of the 2011-2012 post-secondary expenses incurred up to the date of the order, by way of installments of $250 weekly until paid in full. An additional term of the order was that the Respondent was to pay 39% of the post-secondary expenses still to be incurred for the winter of 2012 [residents and meal plan] and the summer of 2012 post-secondary expenses when determined. With respect to the amount he was to contribute towards the post-secondary expenses, paragraph 5 required the parties to exchange their income tax returns and notices of assessment for 2011 and each year so long as support is payable. Paragraph 6 provided that "once the proof of income has been produced for 2012, the parties will calculate their respective contributions for the 2012-2013 post-secondary expenses."
[5] At the hearing and in her final analysis after making some corrections to her calculations, the Applicant requested that I vary the order of Justice Zisman, dated December 7, 2011, and make the following order:
The Respondent pay, commencing November 1, 2014:
i. ongoing table support of $375.50 monthly for the months November to April each year, as well as September and October each year;
ii. ongoing table support of $751 for the months of May to August each year;
The Respondent pay $1,273 as arrears of table support;
The Respondent pay $11,124 as arrears of the Respondent's proportionate share of their daughter's post-secondary education costs for the following periods: Winter 2012 and Summer 2012 ($2,017.47); Fall 2012 and Winter 2013 ($4,840); Fall 2013 and Winter 2014 ($4,077.49); and, Fall 2014 and Winter 2015 ($6,63.98);
The Respondent pay $480 on account of the Respondent share of Dayna's application for teacher's college; and,
Costs.
[6] At the hearing the Respondent requested that I make the following order:
Commencing November 1, 2014, the Respondent pay ongoing table support of $344.01 monthly. This amount being based upon his annual income of $75,683 and one half of the table amount of $688.01(to account for the fact that the child does not reside with the Applicant);
The Respondent pay 37.5% of the child's Fall 2014 and Winter 2015 tuition expenses, and service charges on any arrears owed by the Respondent, directly to the University of Toronto;
The Respondent pay 37% of the child's rent, utilities, and book expenses, upon receiving copies of receipts;
Child support terminate on April 30, 2015;
The Respondent be granted a credit in the amount of $609.69 for overpayments of child-support and S.7 expenses [reimbursement to him by the Applicant for her share of the $1,475 he paid in total for the 2011\2012 to 2013\2014 hockey season]; and,
The Family Responsibility Office release the overpayment funds In its account to the Respondent; and,
Costs.
The Family Responsibility Office
[7] The Respondent's request that I order the Family Responsibility Office to release the over-payment of funds in its account to him is dismissed. The Director of the Family Responsibility Office was not given notice of the Respondent's request and thus, had no opportunity to participate in this hearing. Such notice is required in order for me to make any order binding the Director.
Reimbursement for Hockey Expense
[8] The Respondent asks me to make a retroactive order assigning the Applicant proportionate responsibility for the $1,475 he paid in total for the 2011/2012 to 2013/2014 hockey season. The order of Justice Zisman, dated December 7, 2011, contains no requirement that the parties share in this extracurricular activity cost. There was no evidence before me to support either the making of a retroactive order or the findings that I would have to make to support such a result pursuant to s. 7 [1] [f] and s. 7 [1.1] of the Ontario Child Support Guidelines. That is, that the hockey expense was:
a) Necessary in relation to the child's best interests;
b) Reasonable in relation to the means of the parents and those of the child and to the spending pattern of the parents prior to separation; and,
c) An extraordinary expense for an extracurricular activity.
I therefore dismiss the Respondent's request in this regard.
Termination of Support for Dayna Effective April 30, 2015
[9] Both parties in essence want me to determine whether the Respondent's obligation to support Dayna should continue beyond April 30, 2015, the date upon which she hopes to complete her current program of study.
[10] Determining whether or not an adult child should be supported beyond her first post-secondary degree involves a review of the case law that has developed with respect to the intersection of s. 31 of the Family Law Act and ss. 3(2) and 7 of the Ontario Child support Guidelines. The case law makes it very clear that the determination is fact driven and is to be performed on a case by case basis. A body of case law has developed which provides guidelines with respect to the factors and thus, the kind of evidence I would need to have before me to make such a determination. Master Joyce list some of those factors in Farden v.Farden, (1993), 48 RFL (3d) 60 (which have come to be known as the "Farden Factors"). The "Farden Factors" are as follows:
(a) Whether the child is in fact enrolled in a course of studies and is it full-time or part-time;
(b) Whether or not the child has applied for or is eligible for student loans or other financial assistance;
(c) The career plans of the child, and are they reasonable;
(d) The ability of the child to contribute to his or her own support through part-time employment;
(e) The age of the child;
(f) The child's past academic performance, and whether success is being demonstrated in the chosen course of studies;
(g) What plans the parents made for the education of their children, particularly when the marriage/cohabitation was intact;
(h) At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from who support is sought
[11] In Bradley v. Zaba, the Saskatchewan Court of Appeal lists a number of similar factors, which have come to be known as the "Bradley Factors". The Bradley Factors are similar to the Farden Factors. They include one additional factor: Whether the child could have reasonably expected one or both of the parents to have continued to furnish support if the marriage/cohabitation had not broken down. In Rebenchuk v. Rebenchuk, 2007 MBCA 22 there is yet another similar, but not identical, list of considerations. However, in that case the Manitoba Court of Appeal, added to the list of factors: "What would the parents have decided if their marriage remained intact?". This question is also referenced by the Ontario Court of Appeal in Lewi v. Lewi, (2006),28 R.F.L. (6th) 250 at paras. 149, 169 and 171.
[12] The evidence on this issue was limited. They key portions were: Dayna has applied to teacher's college and hopes to be granted admission to the program starting in the fall of 2015 and the application fee was $1,190. Although there was little, if any, evidence to support the argument, counsel for the Applicant argued that the obligation should extend because: Dayna is unlikely to find a job with only a B.Sc.; her parents have the financial means to support her through teacher's college; Dayna does not have the financial resources to support herself through teacher's college; and, making the determination now will prevent the litigation that will likely ensue in 2015, if in fact Dayna is accepted into teacher's college for the fall of 2015.
[13] In my view, the evidence in this case fails to address most of the factors outlined in these case law. Given that neither parties' evidence is sufficient to support the order each asks for, as well as the fact that it is uncertain whether Dayna will be accepted teacher's college, and possible that she may need to extend her studies as she has in the past given her learning disability, it is premature for me to grant either party the order they are seeking and I decline to do so.
[14] While I am mindful of the fact that making no order with respect to the Respondent's obligation to continue to support the parties' daughter beyond her first-degree may mean future litigation in 2015, this is not a basis upon which I can ground making the order one way or the other now.
Teacher's College Application Fee
[15] Having determined that it is premature to deal with the second degree issue, I also find that it is premature to deal with the apportionment of the fee associated with Dayna's application to teacher's college. I therefore dismiss the Applicant's claim in this regard without prejudice to her right to seek reimbursement from the Respondent for the Respondent's proportionate share of same at a future date.
Arrears Calculation
General Approach
[16] There was no issue in this case with respect to whether or not there should be a retroactive calculation of support arrears, both table and Section 7. The issues in dispute related to the issues I have addressed below including what income levels to use for each of the parties for 2013 and 2014 and what expenses are and are not to be included in the calculation. Each party presented me with charts setting out their calculations. I preferred the approach to the calculations used by the Applicant and thus, when recalculating the arrears based on the findings in this decision, I have used the three schedules that were attached to the Applicant's September 26, 2014 affidavit. My revised version of those schedules is attached to these reasons as schedules "A", "B" and "C".
The Applicant's Calculation Errors
[17] At the outset of the hearing counsel for the Applicant pointed out that she had made two errors in her calculations. The first related to a payment that the Respondent had made to the University of Toronto of $1,482.77. The Applicant conceded that the Respondent should be given credit for this payment. I find therefore that in the recalculation of arrears, the Respondent is to receive credit for this payment. My adjustment is reflected in Schedule "C".
[18] The second was that she forgot to include in her calculation an additional amount representing the Respondent's share of the amount the Applicant paid in tuition fees for the summer 2013. In her amended calculations she indicated that the amount is $577 which sum is to be added to what the Respondent owes. I find that this amount is to be included as owing by the Respondent for the summer of 2013 tuition. My adjustment is reflected in Schedule "C".
[19] Counsel for the Respondent also highlighted two additional errors made by the Applicant in her calculations, both of which were conceded by the Applicant. The first of these was that Dayna took two courses in the summer of 2012 and not three, and four courses in the winter 2014 and not five. The tuition fee amounts for each of these periods is thus too high – by $577 for each term. I find therefore that the Respondent's proportionate share of the tuition fees in each of these two periods is to be adjusted downwards by giving him a credit of $577 in the Applicant's calculations to reflect the elimination from the Applicant's calculation of the additional cost of each of these two courses. My adjustment is reflected in Schedule "C".
The Respondent's Calculation Errors
[20] The Respondent also made certain concessions with respect to errors noted by the Applicant in his approach and calculation. The first of these related to the fact that he did not include in his calculation [omitted any reference to] post-secondary costs for the winter of 2012. Based on his concession, I find that the Applicant's figure for the total cost of tuition for the winter of 2012 is correct and is to be used in the calculation.
[21] The second conceded error related to his calculation of the Applicant`s income for 2013 and 2014 in that he did not adjust it down to take into account the employment expenses that the Guidelines permit the Applicant to deduct from income when determining her income for support purposes under Schedule III of the Guidelines. I find that the Applicant's income for support purposes is $123,275 for 2013 and that her projected 2014 income, and thus the amount to be used in calculating her share of the prospective section 7 expenses, is $123,275.
[22] For greater certainty I note the following findings with respect to the Applicant income for the purposes of proportionate sharing of the postsecondary education expenses:
a. Fall 2012 and winter 2013 – $110,842
b. Fall 2013 and winter 2014 – $123,493
c. Fall 2014 and winter 2015 – $123,493
The Correct Percentage to Use as the Respondent's Share of Summer 2012 and Fall 2012 Tuition
[23] The Applicant argued that the Respondent used the wrong percentage when calculating his proportionate share of the tuition fees for summer 2012 and fall 2012. The Respondent used 36.4% rather than 39%. The Applicant argued that the percentage for these two time frames must be 39% because that is the percentage determined and directed by Justice Zisman in the December 7, 2011 order, as the Respondent's share of tuition for those two time frames. The Respondent's counsel did not address this in his submissions.
[24] At paragraph 3 of her order Justice Zisman specifically sets the Respondent's percentage share of the winter 2012 still to be incurred and summer 2012 at 39%. I therefore accept the Applicant`s submission in this regard because to do otherwise would be tantamount to going behind Justice Zisman's, December 7, 2011, order. This is not I am prepared to do as I must assume that her order is correct. For these reasons I find that the Respondent's percentage share of the post-secondary expenses incurred by the Applicant for the fall 2012, winter 2012, and summer 2012, is 39%.
Table Support to be Paid During the Academic Year and for the Summer Months
[25] Justice Zisman's order makes clear that the Respondent was to pay ½ of the table amount, the sum of $356 per month for the months of January through to April and September through to December each year, and, the full table amount, for the months of May through to and including August of each year [see paragraph 1 of her order].
[26] As I have noted above, the Respondent seeks an order varying the December 7, 2011 order such that he would only pay half of the table amount every month year around. Counsel for the Applicant argued against this approach on the basis that the parties reached an agreement on June 27, 2014, that they would follow the general principles with respect to table and section 7 expenses applied in the December 2011 order.
[27] In support of her position counsel for the Applicant referred me to Justice Zisman's endorsement of that day as well as the minutes of settlement of the parties dated June 27, 2014, filed. Justice Zisman's endorsement clearly makes an order as per the minutes of settlement filed; and the minutes of settlement address this issue at paragraph 2. That paragraph reads as follows:
The parties agree that the general principle of the order of December 7, 2011 with respect to how to apply the table amount of child support and that the parties are responsible for their proportionate share of the child's post-secondary school expenses apply to this Motion to Change, with the exception of the payee of the post-secondary expenses and table amount which remains to be determined.
[28] The Respondent did not address this issue in any substantial way during his submissions and there was nothing in either party's affidavits that spoke to this issue, save and except that the difference in position is reflected in their schedules/calculations.
[29] Given: the clear approach in the December 7, 2011 order; the clear language of the minutes of settlement dated June 27, 2014, that the same general principles are to be followed; and the Respondent's failure to adduce any evidence or make submissions that would support a finding by this court that a different approach was agreed to or appropriate; I find that the same approach as was used by Justice Zisman is to apply here. That is, that the full table amount is payable for the months of September through to and including April of each year and ½ of the table amount is payable for the months of May through to and including August of each year – both prospectively and retroactively.
Credit Against Arrears for the Payment to U of T
[30] The order of Justice Zisman dated December 7, 2011, at paragraph 2 directed the Respondent to pay the sum of $5,817 directly to the University of Toronto, on account of arrears owing at the time of her order on his share of the 2011 – 2012 post-secondary expenses. This amount was to be paid, according to that paragraph, in installments of $250 weekly until paid in full (emphasis added).
[31] The Respondent argues that he should receive a credit when calculating his arrears for all of the payments he made to the University of Toronto as reflected in Exhibit A and Exhibit B to his affidavit. The Applicant presented me with a chart summarizing all of the payments for which the Respondent seeks credit. The total credit that the Respondent seeks, based on this chart $12,380.10. The Respondent does not dispute that the total credit he was seeking with respect to the payments made to the University of Toronto is $12,380.10.
[32] What the Applicant disputes is that the Respondent should receive a credit against the arrears for the total amount, $12,380.10. In this regard she asserted that the Respondent should only receive a credit of $5,170.33, as that is the amount that he paid to the University of Toronto in excess of what was required in paragraph 2 of the order of December 7, 2011.
[33] In support of his position the Respondent relied upon a letter written to him by the Applicant's counsel dated January 30, 2013 (Exhibit C to the Applicant's Affidavit sworn September 26, 2014), wherein she wrote:
It is my understanding that you have now paid your share of the 2011-2012 post-secondary expenses pursuant to paragraph 2 of the order of Justice Zisman.
[34] The Applicant's counsel argued that her understanding was a mistaken one as he had not in fact satisfied his obligation in this regard when she wrote the letter. The Respondent did not dispute that the Applicant's counsel's understanding was mistaken.
[35] In my view, the understanding of counsel for the Applicant is completely irrelevant. What matters is whether or not the Respondent had paid all of the arrears Justice Zisman ordered him to pay to the University of Toronto. The fact he does not dispute the assertion that he had not, in fact, satisfied the obligation under Justice Zisman's order, means that he should only receive a credit for the portion of the total payments he made to the University of Toronto in excess of that obligation. I find that credit to be $5170.33. This is in addition to the credit to be given to him of $1,482.77 referred to above.
Should the Respondent's Previous Year's Income be Used When Calculating his Arrears for a Particular Year?
[36] The Respondent's counsel urged me to use the previous year's income for the Respondent when calculating his retroactive support obligation for any particular year. For example, when calculating his support obligation for 2013, he urged me to use his 2012 income. The Applicant's counsel argued that this approach is inappropriate and that when determining his obligation in any particular year, I should use his actual income for that year.
[37] Support for the Applicant's position is found in both the language of the Guidelines and in the case law. Section 1(3) of the Guidelines stipulates that where, for the purposes of the Child Support Guidelines, any amount is determined on the basis of specified information, the most current information must be used. In this case the most current information for 2012 and 2013 is the actual income of the Respondent in each of those years; and, in my view, I must use that income and not the previous year's income.
[38] This approach is the same as that directed by the Ontario Court of Appeal in the case of Vanos v. Vanos, 2010 ONCA 876 where the court stated that when calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid. Also see: Wright v. Christie, 2011 ONCJ 109.
Imputing Income to the Respondent
[39] According to his notices of assessment and after making the adjustments to his income according to Schedule III of the Guidelines for union dues, the Respondent's reported income is as follows:
- 2011 - $79,828.84
- 2012 - $89,707
- 2013 - $75,902
[40] There is no dispute as to the Respondent's income for 2011 and 2012 and I find his income for support purposes to be as shown above.
[41] The Applicant asks me to use both the Respondents and her 2013 income when setting the parties support obligations for arrears of support in 2014 and prospectively. Consistent with the approach I am directed by the Ontario Court of Appeal to take where neither party's actual income for 2014 is known, I find that it is appropriate to use each party's 2013 income to set the child support obligations.
[42] The Applicant also asks me to impute the Respondent with an additional $7,785 in income for the years 2013 thereby setting his income for support purposes for both 2013 and 2014 at $83,687 ($75,902 reported adjusted income plus $7,785 imputed income).
[43] The Court's ability to impute income to a payor is clearly set out in the Guidelines. Section 19(1)(a) of the Guidelines:
s. 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances includes the following:
(a) The spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse.
[44] The Court of Appeal decision in Drygala v. Pauli, 2002 CarswellOnt 3228 (Ont. C.A.) has established that there is a three step approach in determining whether or not to impute income:
Is the spouse intentionally underemployed or unemployed?
If so, is the spouse required to be under-employed or unemployed by virtue of the needs of a child or by reasonable educational or health needs?
If no, what is the appropriate amount to be attributed to the spouse?
[45] The Court of Appeal has defined "intentionally" as "a voluntary act" or, in this context, as "the parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning" or "intentionally unemployed when he or she chooses not to work when capable of earning an income". There is no need to find that the parent acted in bad faith but simply that it was a voluntary act. In this circumstance, the onus is on the person seeking to impute income to establish an evidentiary basis for the imputation of income.
[46] Turning to the first part of the three part test: The Respondent's own evidence at paragraphs 16 and 19 of his affidavit makes it clear that he is choosing not to work the full amount of hours available to him to work. It also reflects his overall attitude to working a 48 hour work week. He deposes at paragraph 16: "A regular work week at Chrysler is six week days and 48 hours… but I have often been working 40-hours per week": At paragraph 19 he deposes: "I am 52 years old and working a physical job. I submit that it is not unreasonable that I work a 40 hour week rather than a 48 hour week."
[47] The Respondent's choice to work less than he is capable of working and thus, to earn less than he is capable of earning, is also reflected in the Attendance Inquiry report [see Exhibit I to the Applicants affidavit sworn September 26, 2014]. This report summarizes that the Respondent had 350.1 in lost time hours in the 12 month period [from June 2013 to June 2014 presumably]; 120 hours of the 350.1 "lost time hours" was for vacation or paid absence days; and, 230 hours was time taken off by the Respondent without pay – hours he could have worked but chose instead to take off without pay. Based on his own evidence and the evidence in the form of the Attendance Inquiry produced by the Respondent to the Applicant, I find that that the Respondent is intentionally underemployed.
[48] Turning to the second part of the test: was/is the Respondent required to be underemployed due to health needs? Here the onus shifts to the Respondent and it is he who must demonstrate, on the balance of probabilities, that one of the recognized justifications apply and require him to work less and earn less than he is capable of working and earning.
[49] In paragraph 16, the reason that the Respondent gives for working a 40 hour work week instead of a 48 hour is: "…because of a medical issue with my shoulder, repetitive strain disorder". In support of his position he attaches to his affidavit at Exhibit "E" - a letter from his doctor dated August 5, 2014. That letter simply states: "Dale Neville is a patient of mine who suffers from a repetitive strain injury of his left shoulder. His job aggravates the chronic injury if he works too long of hours – a forty hour workweek is advisable rather than a forty-eight hour. He has been given some medication for his disorder. He also suffers from right hand pain intermittently" (emphasis added).
[50] There are significant problems with the doctor's letter. First, the doctor uses the word "advisable" not "required". Second, it provides no information as to how long the Respondent has had this repetitive strain injury and no information as to prognosis, or how long it has been or is advisable that the Respondent work a 40 hour work week.
[51] The June 27, 2014 order of Justice Zisman, made on consent, required that the Respondent, within 30 days, do the following:
a. Provide a letter from his family doctor setting out his diagnosis, treatment, and prognosis for any issue affecting his ability to work; and
b. A letter from his employer setting out his reduced work schedule relating to his work hours for 2013 and 2014 (emphasis added).
[52] The letter from the doctor, in my view, falls short of providing all of the information that the Respondent was ordered to produce, and in any event, does not provide me with sufficient evidence upon which to determine how long this injury has been affecting the Respondent's ability to work or is expected to affect his ability to work. For all these reasons I give very little weight to the doctor's letter. The Respondent also failed to provide the letter from his employer. The Respondent's failure to provide the evidence he was required to provide leads me to draw a negative inference – an inference that he does not have health needs that require him to work less than a 48 hour work week.
[53] Given the foregoing, I find that the Respondent is intentionally underemployed and that such underemployment is not required due to health issues.
[54] Turning to the third question: what level of income should the Respondent be imputed with? According to the Respondent's Attendance Inquiry, it is clear that in a 12 month period there were 230 hours of time that the Respondent could have worked but chose not to and as a result earned less than he was capable of earning. There is no dispute that the Respondent's hourly rate is $33.85 or that he is entitled to a $.33 per hour adjustment upwards for every hour he works on account of a Cost of Living Adjustment (COLA). I find his hourly rate for the purposes of setting the quantum of income to be imputed to him to be $34.18. Taking this hourly rate and multiplying it by the 230 lost hour's yields a total of $7,861.40. This is the amount that the Applicant asks me to impute to the Respondent and that I do impute to the Respondent in additional income for 2013 and 2014.
[55] The Respondents income for child support purposes under the Guidelines is imputed to be $83,687 in 2013 and $83,687 in 2014 and this is the level of income to be sued when calculating his prospective support obligation.
Cost of Books and Internet
[56] In his calculations of support for the years 2012, 2013 and 2014 the Respondent makes no allowance for sharing of anything other than tuition fees, rent and utilities. The Applicant takes issue with the Respondent's failure to include in his calculation any amount for Dayna's books or Internet expenses.
[57] I could not make out what the retroactive internet expenses were and so I make no retroactive accounting for those expenses. I have to assume that these are included in utilities.
[58] The Applicant did however make clear the amounts she was seeking retroactively and prospectively for book expenses:
- $480 for 2012
- $1000 estimate for the 2012- 2013 school year
- $1000 estimate for the 2013 - 2014 school year
- $1000 estimated for the 2014 - 2015 school year
[59] The Respondent does not address this in his affidavit however, he does include the cost of books in the order is seeking. His issue is not whether to include books but as his counsel, in his submissions argued, no allowance of $1,000 should be allowed as there is no evidentiary basis upon which to ground a finding that the books cost $1,000. The Respondent is correct in this regard as the Applicant did not keep receipts for the amounts she paid for books in these years and this is why the $1,000 she seeks is an estimate.
[60] I am certain that Dayna needed books for school in each of the years for which the arrears are being calculated however, the lack of evidence beyond the $480 incurred in 2012 have lead me to only allow the sum of $480 for the 2012 – 2013 school year and for the 2013 – 2014 school year. I have adjusted schedule "B" by discounting the total by $520 (%1,000 - $480) and the totals in schedule "C" accordingly.
[61] I am prepared to include in the calculation of the Respondent's 2014 – 2015 postsecondary contribution obligation, an allowance of $1000 per academic year for books along with $600 per year for internet. Both are necessary expenses for a child attending at university and the cost reasonable. They are proper section 7 expenses. Thus, the Applicant's claim for these costs for the 2014 – 2015 school year are to be included in calculating the prospective section 7 obligation. This allowance is reflected in the schedules. I have also made provision below to adjust for any overpayment or underpayment by the Respondent on account of book expenses.
Arrears of Support
[62] My findings with respect to the Respondent's income, table amount due based on his income and arrears of table support are all set out in schedule "A". The total arrears of table support as at October 31, 2014 are $1,273. This total is reflected in schedule "C".
[63] My findings with respect to the post-secondary expenses to be shared, the income of the Applicant and Respondent and their proportionate percentage share of the post-secondary education costs not including those attributable to the 2014 – 2015 school year, are set out in schedule "B". The arrears of postsecondary expenses are $4,832.35. This total is reflected in schedule "C".
Prospective Support
[64] Based on the findings I have made and an imputed current annual income to the Respondent of $83,687, the table amount for one child is $751; half of that is $375.50. Consequently, the Respondent shall pay to the Applicant: ongoing table support of $375.50 monthly for the months November to April each year, as well as September and October each year; and, ongoing table support of $751 for the months of May to August each year (see schedule "A" for a summary of my findings in this regard);
[65] Based on the findings above and the Applicant's projected 2014 income of $123,493 and an imputed projected annual income to the Respondent of $83,687, the Respondent's proportionate share of the Dayna's fall 2014 and winter 2015 post-secondary education costs is 40.4%.
[66] The Applicant's evidence is that Dayna's expenses for the 2014 – 2015 academic year total $16,495, This total is comprised of the following:
- Tuition $6195
- Books $1000
- Rent $8700 ($725 per mos. X12)
- Internet $600 ($50 per mos. X12)
[67] The Respondent's 40.4% is $6663.98.
[68] The Applicant asks that I order the $6663.98 be paid to her as a lump sum and as part of the arrears. The Respondent asks that I allow him to pay the tuition portion directly to the University of Toronto. I am not prepared to do either. Instead, I order that the sum of $6663.98 shall be paid to the Applicant in 6 equal installments of $1110.66 due on the first day of the month starting November 1, 2014 and continuing on the first day of each month thereafter to and including April 1, 2015. My calculations are re-elected in schedule "C".
Final Order
[69] For all of the foregoing reasons, I make the following final Order:
The Respondent's request for an order directing the Family Responsibility Office release the overpayment funds in its account to the Respondent is dismissed;
The Applicant's request for an order directing that the Respondent's obligation to support the parties' daughter beyond her first degree and the Respondent's request that support for the parties' daughter terminate effective April 30, 2015, are both dismissed without prejudice to either party's right to apply for such relief at a future date;
Paragraph 1 of the order of Justice Zisman dated December 7, 2011 is varied such that commencing November 1, 2014 and continuing on the first day of each month thereafter, the Respondent shall pay to the Applicant as table support for the child, Dayna Anne Elizabeth Neville, born July 26, 1991,:
i. Ongoing table support of $375.50 monthly for the months November to April each year, as well as September and October each year;
ii. Ongoing table support of $751 for the months of May to and including August each year;
These amounts are based upon an imputed gross annual income to the Respondent for child support purposes of $83,687 and the table amount for one child for this income level of $751 per month.
In addition to the ongoing table amount of child support provided for in the foregoing paragraph, the Respondent shall pay to the Applicant as his 40.4% contribution towards the child's 2014 – 2015 post-secondary education costs (tuition, rent, books, utilities, Internet), the sum of $6663.98. This amount shall be paid to the Applicant in 6 equal installments of $1110.66, each installment/payment due on the first day of the month starting November 1, 2014 and continuing on the first day of each month thereafter to and including April 1, 2014. The percentage share set in this paragraph is based upon the Applicant's 2013 and projected 2014 gross annual income for support purposes of $123,493 and the Respondent's imputed gross annual income for 2013 and projected 2014 income including imputed income of $83,667;
The Respondent shall pay to the Applicant arrears of support for the child named above fixed as at October 31, 2014, in the amount of $4,832.35. These are to be paid to the Applicant in full on or before December 31, 2014. These arrears are made up of the following amounts:
i. $1,273 - arrears of table support for 2012 through to and including October 31, 2014;
ii. $2,548.47– arrears owing for the Winter 2012 and Summer 2012 post-secondary education expenses;
iii. $4,199.57 - arrears owing for the Fall 2012 and Winter 2013 post-secondary education expenses;
iv. $4101.41 - arrears owing for the fall 2013 and winter 2014 post-secondary education expenses;
v. Plus $577 – Respondent's share of missed fee summer 2013
vi. Less $577 – adjustment for 2 courses instead of 3 summer 2012
vii. Less $577 – adjustment for 3 courses instead of 4
viii. Less $1,482.70 to be credited to the Respondent for missed University of Toronto payment made by the Respondent;
ix. Less $5170.33 to be credited to the Respondent for payments made by him to the University of Toronto in excess of what was required in paragraph 2 of the order of December 7, 2011.
The Applicant shall retain receipts for all books purchased for the child's fall 2014 and winter 2015 post-secondary education program. On or before June 1, 2015, she shall provide a copy of all such receipts as well as an itemized list of each receipt and the total of all of them to the Respondent. The parties will recalculate the Respondent's proportionate share of the book expenses based on what is actually paid to cover books and if the Respondent has underpaid in his contribution, he shall reimburse the Applicant for any shortfall on or before July 1, 2015. If the Respondent has overpaid his proportionate share of the cost of books, than the Applicant shall reimburse him for the overpayment on or before July 1, 2015. The Applicant may not seek contribution from the Respondent for any book amounts for which there is no receipt;
For so long as the child named above is entitled to support, the parties shall continue to share, proportionate to their respective incomes, the child's postsecondary education expenses (tuition, rent, utilities including internet, books).
SDO to issue;
If the parties are unable to resolve the issue of costs on their own, then the Applicant shall serve and file written cost submissions along with her bill of costs by November 30, 2014 [not to exceed three pages double spaced]. Thereafter, the Respondent shall have until December 12, 2014 to serve and file his written cost submissions and his bill of costs [not to exceed three pages double spaced]; and, the Applicant shall serve and file written reply submissions, if any, on or before December 19, 2014 [not to exceed one page double spaced].
[70] If I have made any mathematical errors in my calculations the parties shall contact the judicial secretary to speak to the matter by way of conference call.
Released: November 4, 2014
Signed: Justice Victoria Starr