Court File and Parties

Court File No.: D52429/10 Date: 2015-01-02

Ontario Court of Justice

Between:

Anna Yee Mae Chow Acting in Person Applicant

- and -

John Vincent Rider Respondent

Counsel: James B.C. Edney, for the Respondent

Heard: December 19, 2014

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The parties have both brought motions to change the child support order of Justice Geraldine Waldman, dated December 9, 2011 (the existing order) and the child support terms in their separation agreement (the separation agreement) dated May 27, 2002, filed with the court by the applicant (the mother) on July 31, 2014.

[2] The parties have two children (the children). Luke is 19 years old. He is in his first year at Brock University. He lives with the mother when he isn't in school. Melanie is 16 years old and lives with the mother.

[3] The mother seeks an order that includes the following relief:

a) Imputing the respondent's (the father) income at $375,000 per annum for child support purposes. She asks that this amount be non-variable.

b) That the father be required to pay the Child Support Guidelines (the guidelines) table amount for the children.

c) That the father be required to pay his proportionate share of the children's special and extraordinary expenses pursuant to section 7 of the guidelines (section 7 expenses), with the exception of Melanie's private school fees, an expense that she asks that the father pay in its entirety.

d) Crediting her with 50% of the funds in an RESP held by the father for the benefit of the children, or in the alternative, an accounting of her share of the RESP, had the father paid $150 per month into the account since the completion of their separation agreement.

e) That the father pay her the sum of $42,270.86 for child support owing.

[4] The father seeks an order that includes the following relief:

a) That his income be fixed at $218,211 per annum for child support purposes.

b) That the mother's income be imputed at $140,000 per annum for child support purposes.

c) That the parties pay their proportionate expenses of the children's section 7 expenses, after the children contribute 50% of their employment income towards their prospective university expenses.

d) That the guidelines table amount (table amount) of child support not be payable for the months that any child attends university outside of Toronto.

e) That the mother pay him $20,452, after retroactively adjusting his support obligations since January 1, 2012, in accordance with the parties' actual incomes since that date.

[5] The parties agreed to hold a focused trial of these issues pursuant to Rule 2 of the Family Law Rules. The affidavits, financial statements and document briefs filed by the parties constituted their direct evidence. The parties cross-examined the other and then made final submissions.

[6] The court was required to determine several issues including:

a) Has there been a change of circumstances since the existing order was made, that requires a change in child support?

b) Has there been a material change in circumstances since the execution of the separation agreement that requires a change in its child support terms?

c) What incomes should be attributed to the parties for child support purposes?

d) Did the father agree to pay the entire amount of Melanie's private school costs?

e) What amount should the parties each pay towards the children's section 7 expenses? In particular, what should Luke's contribution be to his post-secondary school expenses?

f) Is the guideline amount appropriate for Luke, given that he is attending university away from home?

g) If the guideline amount is not appropriate, what amount of support should the father pay for Luke?

h) Is either party entitled to a retroactive support order or to a retroactive adjustment of support obligations?

i) If so, how much?

j) Is the mother entitled to the RESP relief claimed, or to a support credit arising out of the father's breach of this term in the separation agreement?

Part Two – Background Facts

[7] The mother is 48 years old. The father is 50 years old.

[8] The parties were married in 1993 and separated in 2002.

[9] The parties entered into a comprehensive separation agreement dated May 27, 2002. It dealt with parenting, support and property issues. The separation agreement provided that the parties would have a shared parenting arrangement. Paragraph 16 of the separation agreement provides that its child support terms can only be changed if there is a material change in circumstances.

[10] In November of 2010, the mother issued an application for custody and child support, including claims for retroactive support.

[11] The parties eventually settled this case. The terms of that settlement were incorporated into the existing order. The order, in part, provided that the father pay ongoing child support in the sum of $4,763 per month until May of 2012, based on his income of $475,355 per annum. At the time, Luke was residing with the mother and Melanie was sharing her time between her parents. The existing order stipulated that all other terms of the separation agreement would remain in full force and effect.

[12] Luke has lived with the mother on a full-time basis since January 1, 2011. On June 22, 2014, Melanie decided to live with her mother on a full-time basis. She continues to do so.

[13] The father advised the mother, when Melanie left his home, that he was no longer prepared to pay for her private school costs.

[14] In response, the mother issued her Motion to Change on July 31, 2014. On the same day, she filed the separation agreement pursuant to section 35 of the Family Law Act (the Act).

[15] The mother changed Melanie's private school (grade 11) for the start of September of 2014. The father has not contributed to this expense. The mother testified that Melanie is doing very well at this school.

[16] In September of 2014, Luke began his first year at Brock University and lives in residence. He continues to live with the mother when he is not at school.

Part Three – Changes in Circumstances

[17] Subsection 37 (2) of the Act provides that a provision for support contained in a contract that is filed with the court under section 35 may be varied under section 37, as if it were an order of the court.

[18] Subsection 37 (2.1) of the Act reads as follows:

Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

[19] The court must also consider the parties' intentions when determining whether to change the terms of the separation agreement. The parties agreed that to change the child support terms of the separation agreement any change in circumstances must be material.

[20] The distinction in the tests are not important in this case. There have been several material changes in circumstances that have occurred, including:

a) Luke is now in university and living away from home while at school.

b) Melanie is now living full-time with the mother and attending private school. The parents are no longer sharing custody of her.

c) The father was terminated from his employment in February of 2013, found new employment in January of 2014 and has had a significant decline in his annual income. This will be reviewed in more detail below.

d) The parties' incomes and the nature and amount of the section 7 expenses have significantly changed since both the date of the separation agreement and the date of the existing order.

e) The interpretation and implementation of the separation agreement has become too difficult for the parties, creating costly litigation. This is understandable, since it was drafted in 2002 and it was challenging to anticipate the family's needs in 2014. It is important for this family that the court implement a clear and structured support regime.

Part Four – Incomes of the Parties

[21] The mother testified that she works as a consultant. She also has training as a law clerk, but has not practised in that field for over 10 years. In her affidavit sworn on October 23, 2014, she sought an order fixing her annual income at $115,000 per annum. At trial, she asked to have it fixed at $100,000 per annum. The father sought to impute the mother's income at $140,000 per annum.

[22] The mother testified that she bills her client $10,000 per month through her solely-held corporation, but will write off expenses of about $20,000 per annum, such as cell phone, legal, accounting and travel costs.

[23] The onus to impute income is on the father. See: Homsi v. Zaya, 2009 ONCA 322. He provided no evidentiary basis to impute the mother's income at the level he sought. The mother has not historically earned income at that level.

[24] The court accepts the mother's evidence that she will earn about $100,000 per annum. Her gross income comes to $120,000 per annum. The deduction of $20,000 for operating expenses appears to be reasonable.

[25] The father is a lawyer, but has not practised law since 1999. Instead, he has been involved in law practice management. He had been the chief client officer at a major Toronto law firm until he was laid off in February of 2013. The father received severance for the balance of 2013.

[26] The father's income in 2012 was $370,300. His income in 2013 was $360,097.

[27] The father testified that he actively applied for similar work after his layoff, but was unsuccessful. He was able to find a new management job on January 1, 2014. The father was initially paid at the rate of $125,000 per annum, plus commissions. In June of 2014, he received an offer from a major Toronto law firm that would pay him $200,000 per annum, without commissions. His employer matched this offer and he has remained there since. His job description is Chief Innovator. The father recently formed a corporation and will bill his employer through the corporation.

[28] The father also earns $5,000 per annum as a board member for a company, and approximately $10,200 per annum from interest income.

[29] The father asked that his annual income be fixed at $218,211 in his proposed draft order presented to the court.

[30] The mother believes that the father is deliberately under-employed and asks that his income be fixed at $375,000 per annum. She argues that this is reasonable, as it is less than the father's average income for the years 2011-2013.

[31] Clause 19(1)(a) of the Child Support Guidelines reads as follows:

19. Imputing income.— (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[32] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed or unemployed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See: Drygala v. Pauli.

[33] The court in Drygala v. Pauli sets out a three-part test to determine whether income should be imputed. The first part of the test is to ask whether the payor is intentionally under-employed or unemployed. The court stated that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than they are capable of earning. The court must look at whether the act is voluntary and reasonable.

[34] The onus is on the mother to establish that the father is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, supra.

[35] The mother did not meet her onus to establish that the father is intentionally under-employed. The father lost his job through no fault of his own, when his employer merged with an international law firm. He received a generous severance package that enabled him to maintain his support payments. The mother provided no evidence that the father is earning additional income and insufficient evidence to establish on a balance of probabilities that he should be earning additional income. The court is satisfied that the father made reasonable efforts to find work after being laid off. He is fortunate, given his age, to have found such a well-paying job in a difficult economy.

[36] Once the court determines that a payor is not intentionally under-employed, there is no need for it to explore the remaining two parts of the test in Drygala v. Pauli, supra.

[37] The mother asked the court to determine the father's income based on his average income for the past three years. It is not appropriate to do so in this case. The income earned by the father from 2011-2013 does not reflect what he is capable of earning at this time or what he will likely earn in the future. Both parties will need to adjust to this reality. When on a balance of probabilities, a payor's income will be substantially different from historical levels, the calculation for support should not be based on outdated historical information. See: Kajorinne v. Kajorinne, [2008] O.J. No. 2789 (SCJ).

[38] The mother asked, in the alternative, that the father's 2014 support obligation be based on his 2013 income of $360,097. She claimed that the separation agreement provides that child support for the current year be calculated in this manner. A review of the separation agreement indicates that this is not the case, although the parties have often adjusted their support obligations in this manner. Calculating support, at this time, in this way, would not be fair, given the material decline in the father's income in 2014. Courts should use the current year's income wherever possible in assessing support obligations. See: L. (R.E.) v. L. (S.M.), 2007 ABCA 169, 40 R.F.L. (6th) 239 (Alb.C.A.); West v. West, (2001) 18 R.F.L. (5th) (Ont. SCJ) and my comments in Lewis v. Adesanya, 2014 ONCJ 326.

[39] The father's income shall be fixed at $218,211 per annum, effective September 1, 2014, for support purposes.

Part Five – Did the Father Agree to Pay for the Entirety of Melanie's Private School Costs?

[40] In September of 2012, Melanie started grade 9 and began attending a private school. The father claims that the mother should pay her proportionate share of these costs for the 2012-2013 and 2013-2014 school years. The father paid the entire cost for these two school years.

[41] In September of 2013, Luke also attended a private school. The mother paid the entire cost for Luke's 2013-2014 school year. She has included in her claim a request that the father pay his proportionate amount of these costs.

[42] The mother claims that she only agreed that Melanie could attend private school if the father paid the entire cost. She said that she could not afford it on her income and that she would have instead sent Melanie to public school. She asks that the father be required to pay the entire ongoing cost of Melanie's private school.

[43] The mother changed Melanie's private school in September of 2014. She has paid the entire cost of the private school for the fall 2014 school term and asks for full indemnification from the father.

[44] The father says that he never agreed to pay the entire cost of Melanie's private school. He agreed at trial that he should pay his proportionate share of these costs on an ongoing basis.

[45] The parties agree that they communicate very poorly. It is reflective of that poor communication that there is no real evidence of the parties' intentions on the private school issues. The father paid the entire cost of Melanie's private school for two years and never made a request to the mother to contribute to this expense. On the other hand, the mother paid for Luke's private school, and before this case started never made a demand for payment of this expense. The father, after Melanie left his home, indicated that he did not believe that private school was appropriate for her. The mother then changed Melanie's private school, without consulting the father.

[46] The parties are highly educated and sophisticated. The father is a lawyer and the mother is trained as a law clerk. They spent two years in court litigating support issues in 2010 and 2011 and are aware of the importance of documenting their agreements. If they were going to enter into an agreement about private schooling and whose responsibility it would be, it should have been in writing.

[47] The mother deposed that Melanie flourished in the first private school she attended. She thought it was important for Melanie to continue in private school in September of 2014 and stated that Melanie has thrived there. This school costs $10,000 per annum less than the previous school.

[48] The court also notes that the mother agreed to pay her proportionate share of Luke's private school costs (prior to 2012) in the existing order. This lends credence to the father's argument that he never agreed to assume all private school costs.

[49] The court finds that the mother made a decision that the private school expense was necessary and reasonable for Melanie and in her best interests. She chose to enroll Melanie in private school in September of 2014, instead of a public school, even when she was aware that the father was balking at paying anything towards this cost.

[50] The court finds that there is no agreement that the father is entirely responsible for Melanie's ongoing private school fees.

[51] The mother argued that she cannot afford to pay her proportionate share of Melanie's private school expenses. The court disagrees. The mother earns a good income and reports a net worth in her financial statement of close to $900,000.

[52] The court finds that Melanie's private school expenses are a section 7 expense and should be paid in proportion to the parties' incomes.

Part Six – Is the Guideline Amount Appropriate for Luke?

[53] Subsection 3 (1) of the guidelines sets out the presumptive rule for the calculation of child support for children under the age of majority as follows:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

[54] The father has asked the court to find that the guideline amount for Luke is inappropriate since he is over the age of majority and attends university away from home. Subsection 3 (2) of the guidelines reads as follows:

3(2) Child the age of majority or over.— Unless otherwise provided in these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

[55] The onus is on the party alleging that the guidelines are inappropriate to establish this on a balance of probabilities. See: MacLennan v. MacLennan, 2003 NSCA 9, at paragraph 48.

[56] Subsection 3 (2) is presumptive and must be used unless the court considers that approach would be inappropriate. See: Lewi v. Lewi.

[57] The closer the circumstances of the child are to those upon which the usual guidelines approach is based, the less likely it is that the usual guidelines calculation will be found to be inappropriate. See: Rebenchuk v. Rebenchuk, 2007 MBCA 22, at paragraph 30.

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

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

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

[61] In Albert v. Albert, in the absence of specific evidence of the costs to maintain a room for the child at home for the full year, the court ordered the payor to pay $250 per month during these periods, on the basis that there is an obvious cost for doing this.

[62] This court followed this approach in Padua v. Gordon, 2008 ONCJ 421 and ordered monthly support of $200 per month for the months while the child was away at university. In Clancy v. Hansman, 2013 ONCJ 622, this amount was fixed at $300 per month. In Douglas v. Douglas, [2013] O.J. No. 2089 (Ont. C.J.), this court fixed this amount at $150 per month, noting that the additional costs for maintaining a home for a child away at university are less when other children remain at home.

[63] The mother argued that the separation agreement provides that child support is not to be reduced if a child is attending school out-of-town. If the separation agreement had stated this, the court would have likely found the guidelines amount to be appropriate. However, the separation agreement does not state this. It merely states that the entitlement of a child to support will not end, just because the child is attending school out-of-town.

[64] The court finds that the guidelines approach for Luke is inappropriate in these circumstances.

[65] This order will require the father to pay the full table amount for Luke for the five months that he will be at home (4 months in the summer school break plus holiday and weekend time).

[66] The mother did not provide specific evidence of the additional costs of maintaining a home for Luke while he is away at school. Melanie already lives there, which reduces the cost. The court has also considered that these children have enjoyed a higher standard of living than the children in the Padua and Douglas cases and a standard of living comparable to the children in the Clancy case, as set out in paragraph 62 above. The father will be required to pay the mother child support of $300 per month in the seven months that Luke is away at school.

[67] The father asked that Luke's section 7 post-secondary school expenses be reduced by 50% of Luke's annual earnings from working. The mother agreed that Luke should pay for some of his expenses, but felt it should be directed towards his spending expenses. Currently, the father gives Luke an allowance of between $80-100 per week and the mother gives him an allowance of $25 per week. The mother testified that Luke worked part-time during the summer at minimum wage.

[68] The court has discretion to determine what contribution a child should make to a section 7 expense. In paragraph 42 of Lewi v. Lewi, supra, the court wrote:

[42] In short, I accept neither of the extreme positions advanced by the parties, namely, that an adult child of the marriage with savings is required to contribute all of those savings towards his or her post-secondary education before the parents are called on to contribute or that such a child need contribute none of his or her savings. As a general rule, an adult child should be required to make a reasonable and meaningful contribution towards post-secondary education expenses. The amount of that contribution will depend on all of the circumstances but must include a consideration of the "means" of the parents and the children. In such a consideration, it is appropriate to consider income and savings of both the parents and the child. In fairness, when a child has savings that are being looked to for the purpose of determining the amount of his or her contribution, the savings and comparable assets of each of the parents ought also to be considered.

[69] The court finds that Luke should make some contribution to his post-secondary school expenses. Given the comfortable means of his parents, it is appropriate that he contribute 50% of his income to these expenses. Luke should be able to earn about $3,000 per year, reducing his post-secondary expenses by $1,500. The parties will be required to pay the remainder of these expenses in proportion to their incomes.

[70] It is premature to require Melanie to contribute to her section 7 expenses.

Part Seven – Claims for Retroactive Support and Overpayments of Support

7.1 Positions of the Parties

[71] The mother claims that the father should pay her support of $21,547 for the period prior to September 1, 2014.

[72] The mother claims that the father has not paid his proportionate share of private school, counseling, summer school, hockey and dental expenses for the children. She seeks an order that he pay these expenses back to 2012.

[73] The father claims that he has overpaid support in the sum of $20,452. He says that he has overpaid the table amount of child support since 2012 and that the mother has not contributed her proportionate share of private school and counseling expenses for Melanie or for the cost of a psycho-educational assessment for Luke. He seeks a retroactive adjustment of the existing order and the separation agreement in accordance with his actual income, as well as the respective contributions of the parties to the children's section 7 expenses, since January 1, 2012.

7.2 Legal Considerations

[74] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (D.B.S.) outlined the factors that a court should take into account in dealing with retroactive support applications. Briefly, there are four points that the court raised:

1. Reasonable excuse for why support not considered earlier.

2. Conduct of the payor parent.

3. Circumstances of the child.

4. Hardship occasioned by the retroactive order.

[75] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to take a holistic look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility (D.B.S. par. 133).

[76] A court order is presumptively valid when assessing conduct. However, the larger the difference between the order and what should be paid, the less reasonable it becomes to rely upon it. (D.B.S., par. 65)

[77] There is nothing in D.B.S. which distinguishes between special expenses and the table amount. See: Smith v. Selig, 2008 NSCA 54, 56 R.F.L. (6th) 8 (NSCA); Hetherington v. Tapping, 2007 BCSC 209; Surerus-Mills v. Mills, [2006] O.J. No. 3839 (Ont. SCJ).

7.3 Analysis

[78] The court considered that the support obligations are both judicial (the existing court order) and contractual (the separation agreement).

[79] Neither party had a reasonable explanation for their delay in seeking retroactive relief.

[80] The parties made a choice to not strictly comply with the terms of their separation agreement or the existing order after January 1, 2012. The father paid for Melanie's private school expenses for two years and did not seek contribution from the mother. The mother paid for Luke's private school expenses for one year and did not seek contribution from the father. The mother paid for Luke's hockey expenses for 2012-2013 and his counseling and summer school costs in 2014. The father paid for Melanie's therapy and Luke's Psycho-Educational assessment in 2014. Neither asked the other for contribution until this court case began. The father continued to pay the table amount of support, despite the drop in his income. In June of 2014, he adjusted the table payment in accordance with his higher 2013 income – not his 2014 income. He did not raise the issue of reducing this amount until the mother brought her claim.

[81] It became very clear to the court that the parties, for the most part, were content with the support arrangements until the end of June of 2014. The triggering event for this court case and the respective avalanche of claims was the father's indication that he would no longer pay anything towards Melanie's private school costs. He had also not responded to the mother's request that he pay his proportionate share of Luke's tuition costs for the fall of 2014. Once the mother issued her claim, the father felt aggrieved, particularly since his income had significantly dropped and he felt that he had shown good faith by not reducing his table payments.

[82] The court finds no blameworthy conduct by either party. Both have met their respective support obligations. The father paid the table amount of child support, even when his income declined.

[83] There was no evidence that the children's circumstances have suffered by non-payment of support. The children are well-supported. Their emotional and physical needs have been met.

[84] There is no evidence of hardship that a retroactive order would create on either parent.

[85] The court, in exercising its discretion, also considered whether either party would be unfairly disadvantaged if the court declined to conduct a retroactive analysis to the start of 2012. The evidence indicates that this is not the case.

[86] The competing claims of the parties, for the most part, offset those of the other. The father has overpaid the table amount of support for almost three years and paid all of Melanie's private school expenses for two years. However, there is some evidence that the father was content to pay these amounts, particularly since the mother paid Luke's private school expenses for one year (at a cost $10,000 less than Melanie's). Further, the offset in child support that existed due to the parties' shared parenting of Melanie should have ended when Melanie began to live with the mother full-time on June 22, 2014.

[87] Prior to the start of this court action, the parties assumed the payment of a variety of section 7 expenses as set out in paragraph 80 above, without seeking contribution from the other.

[88] The court reiterates that the parties are intelligent, sophisticated and well-versed in court procedure. If they had a claim against the other, at a minimum, they could have expressed this in writing by making a request for payment. They never did. The court finds that no claim was made because, until the father refused to pay for private school for Melanie in June of 2014, the parties were essentially content with their respective child support contributions.

[89] After taking into consideration all of these factors, the court finds that there should be no order for retroactive support or for a retroactive adjustment of support. The court finds that neither party owed the other support as of August 31, 2014 (the end of the month that the father was served with the application).

Part Eight – Child Support Calculation

8.1 Ongoing Support Obligation

[90] The father deposed in his Response to Motion to Change that he has paid the mother child support in the amount of $3,216 per month since June 1, 2014. The amount paid for the four months since September 1, 2014 comes to $12,864.

[91] The father has also paid the following amounts for section 7 expenses applicable to the period after September 1, 2014:

a) Tuition costs for Luke: $11,327

b) Therapy for Melanie (approx.): $1,140

Total paid: $12,467

[92] The father has not paid anything towards Melanie's private school costs of approximately $22,500 for 2014-2015, her hockey costs of $199 and dental costs of $130.

[93] The father did not seek a reduction of child support pursuant to section 4 of the guidelines, based on his earning more than $150,000 per annum.

[94] The table amount of child support will be applied for both children for five months each year. Based on the father's income of $218,211 per annum, this amount is $2,790 per month. This amounts to $13,950 per annum.

[95] The table amount of child support for one child will be applied for the remaining seven months. This amount is $1,768 per month. This amounts to $12,376 per annum.

[96] In addition, the father will be required to pay the mother child support of $300 per month during the seven months each year that Luke is away from home at school. This amounts to $2,100 per annum.

[97] The court will average this obligation out over the year, so that there are consistent monthly payments. The total support obligation comes to $2,369 per month.

[98] Due to the poor communication between the parties, the court finds that it is necessary to specify the monthly section 7 expense obligations of the father. It creates too much confusion and animosity when the parties each pay these expenses and subsequently seek (or delay in seeking) contribution from the other. This order will vary the existing order and the child support provisions of the separation agreement by terminating them and replacing them with this order.

[99] The payments set out in this order are to continue unless the parties agree otherwise in writing, or they are varied by a subsequent court order. This means that the father should no longer directly pay section 7 expenses for the children. His monthly support payment will include his contribution to section 7 expenses. The mother will be responsible for paying these expenses.

[100] The court finds that the following are the children's annual section 7 expenses:

Luke:

• Post-secondary expenses: $27,464

Melanie:

• Hockey: $199
• Dental: $130
• Private school expenses: $22,500
• Therapy/counseling (approx.): $4,800
• Total: $27,629

Total section 7 expenses for the children: $55,093

[101] The father earns $218,211 per annum. The mother earns $100,000 per annum. The father's proportionate contribution towards the section 7 expenses is 68.57%. His annual share of special expenses is $37,777. This comes to $3,148 per month.

8.2 Analysis of Possible Support Credit

[102] The father's total child support obligation, if calculated from September 1, 2014, comes to $22,068, calculated as follows:

• Table support (4 months @ $2,369 per month): $9,476
• Section 7 expenses (4 months @ $3,148 per month): $12,592
• Total: $22,068

[103] The father has paid a total of $25,331 since September 1, 2014 towards his child support obligation, which would appear to leave him with a credit of $3,263.

[104] However, there is still the mother's claim about contributions to the children's RESP to consider.

[105] Paragraph 13 of the separation agreement provides that the father is to deduct $150 from each child support payment and pay it into an RESP to the mother's credit. The father never did this. Instead, he paid the full amount of support each month to the mother. He paid $300 per month into an RESP, but only to his credit. The father is the RESP plan holder.

[106] The mother seeks an order that 50% of the current RESP amount be applied to her child support obligations, or that there be an accounting to credit her with the payments of $150 per month that were supposed to have been made since May of 2002, plus interest. The court is not prepared to do that. The mother had the benefit of receiving the full child support payments, without deduction, since 2002, and never complained about it. She was aware or should have been aware, when accepting the full amount of the child support payments, that $150 per month was not being put into an RESP to her credit. She should have at least inquired about it. She can't seek what essentially would be a double payment of the $150 per month at this time.

[107] The father acknowledged that the mother had paid $1,800 into the RESP prior to the separation and was willing to credit the mother with that amount. The court finds that the mother should receive a larger credit, as interest has accrued on that amount. Combined with the fact that the father breached the separation agreement by failing to fund the mother's portion of the RESP, costing her the benefit of her monies accruing interest-free, the court declines to grant the father any support credit as of this date. There will be a finding that neither party owes the other money as of the date of this order.

Part Nine – Conclusion

[108] To create clarity for the parties, this order will now be the operative child support order. The existing order is terminated and the child support obligations of their separation agreement will no longer apply.

[109] The court is not prepared, as requested by the mother, to make an order that the support obligations cannot be changed. Both parties could have significant changes in income. There could also be significant changes in the living and schooling arrangements of the children. The parties are strongly encouraged to mediate any changes before returning again to court. This decision should provide them with a roadmap on how the court would calculate their respective support obligations.

[110] A final order shall go on the following terms:

a) The existing order and the child support provisions contained in the parties' separation agreement dated May 27, 2002 are terminated.

b) Neither party owes the other money as of this date. The funds in the children's RESP will be entirely to the father's credit.

c) The father is to pay the mother child support of $5,517 per month, starting on January 1, 2015, as calculated in paragraphs 97 and 101 in these reasons for decision. This amount is non-variable unless agreed to in writing by the parties or changed by the court. This amount includes the father's contribution to the children's section 7 expenses.

d) The parties are to exchange their income tax returns and notices of assessment by June 30th each year, together with all invoices for section 7 expenses.

e) The mother is to immediately notify the father when section 7 expenses set out in this decision are no longer being incurred, or if new section 7 expenses arise. There is an expectation that the parties will then adjust the monthly section 7 payments.

f) The support obligation for each child will continue as long as they are entitled to support as defined in the Act.

g) A support deduction order shall issue.

h) The balance of the parties' claims are dismissed.

[111] The parties may make submissions about any mathematical errors (only) in this decision by January 12, 2015. This should be on notice to the other party, be in writing and be delivered to the trial coordinator's office on the second floor. The other party will then have seven days to respond to any such submissions.

[112] If either party seeks costs, they are to serve and file written submissions by January 27, 2015. The other party will then have until February 9, 2015 to make written response. The submissions should not exceed three pages, not including any bill of costs or offer to settle. If the mother had a lawyer assisting her with this case, she should attach the lawyer's bill of costs. The submissions should be delivered to the trial coordinator's office.

[113] Court orders require that support be paid through the Family Responsibility Office. If the parties wish to have support paid by post-dated cheques, as they have in the past, they must both agree to withdraw their case from the Family Responsibility Office and complete the necessary form provided by that office.

[114] The court thanks the parties and counsel for their thorough presentation of this case.

Justice S.B. Sherr

Released: January 2, 2015