Court File and Parties

Ontario Court of Justice

Date: 2015-01-28

Court File No.: Toronto DFO 99 473 00

Between:

Fanny McLeod Applicant

— And —

Omar Garfield McLeod Respondent

Before: Justice E.B. Murray

Heard on: January 21, 2015

Reasons for Judgment released on: January 28, 2015

Counsel

Ms. Gina Da Fonte — counsel for the applicant

Mr. Omar Garfield McLeod — on his own behalf

MURRAY, E. B. J.:

[1] Background and Jurisdiction

[1] Omar McLeod and Fanny McLeod (now Donaldson) have two children, Vanessa, born July 5, 1994, and Omar ("Omar Jr."), born February 28, 1991. They were married on August 9, 1990, and separated in 1996. On November 4, 1999, an order was made on consent which provided that he pay child support in a table amount of $360 monthly, based on his income of $26,000, and an additional $78.50 monthly for special expenses (daycare costs), calculated taking into account Fanny's income of $21,000. The order also provided for payment of arrears of support of $4,191.52 at a rate of $50 monthly. Pursuant to a prior order, Fanny had custody of the children and Omar had reasonable access on reasonable notice.

[2] In December 2012 Omar began a motion to change, seeking to terminate his obligation to support both children. Fanny conceded that Omar Jr. was no longer entitled to support as of January 1, 2013, but sought a retroactive increase in support for both children (including past s. 7 expenses) and ongoing support for Vanessa, including an amount for s. 7 expenses.

[3] A decision on a temporary motion was made by the case management judge on September 4, 2013 dealing with ongoing support for Vanessa, who had begun attending Purdue University in Indiana in September, 2012. Omar was ordered to pay support for Vanessa in an amount of $483 monthly. That decision was based on the evidence available at the time as to the amount of time which Vanessa continued to reside with Fanny in Toronto, her living expenses in Indiana, and the expenses which were covered by a scholarship.

[4] The hearing before me was conducted on the basis of all the documentary evidence filed. This is my decision on these motions.

1. Positions of the Parties

[5] Each party modified the relief requested in the motions filed by the time they argued the motions to change before me.

[6] Omar at the hearing requested as follows:

1. Termination of his obligation to support Omar Jr. as of July 1, 2009.
2. Termination of his obligation to support Vanessa as of August 1, 2012.
3. If these orders are granted, an order that Fanny repay him the amount representing his overpayment of support.

[7] Omar advances several reasons why his child support obligation should be retroactively terminated, including an allegation that the children rejected a relationship with him without justification.

[8] Fanny's lawyer asked at the hearing for:

1. Ongoing support for Vanessa in an amount of $483 month (the amount in the temporary order).
2. A retroactive increase in support for both children, including s. 7 expenses, from January 1, 2009.

[9] Fanny says that Vanessa will finish her undergraduate program in May 2016, and is content that Omar's obligation to support her terminate in June 2016.

[10] I deal with the parties' claims below.

[11] The court has authority under s. 37(2.1) of the Family Law Act to vary an order for child support if there has been a change in the circumstances of the parties or the children relevant to the issue. There have been several such changes since the order was made in 1999 which justify a change in support.

2. Estrangement Between the Respondent and the Children

[12] Omar argues that one reason why he should not have been obligated to pay support for either child after they reached the age of majority is their unjustified unilateral termination of a relationship with him. Omar has not seen either child since sometime in 2005. At that time Vanessa was 11 and Omar Jr. was 13.

[13] Omar says that he tried calling the children many times, but that Fanny always made up a reason why they were not free to talk. He says that he did not take more vigorous steps (such as such as a court application to set specific terms of access) to maintain a relationship with the children because he did not wish to involve them in conflict. He says that Fanny succeeded in a campaign to alienate the children from him which began 15 years ago.

[14] Fanny says that Omar drove the children away by his own behavior. She says that he was physically violent to her and to Omar Jr., that the children witnessed this violence, and that ultimately they wanted nothing to do with him.

[15] Vanessa says that she ceased having contact with her father after he "beat" Omar Jr. in 2005, and that she "lost respect" for him then.

[16] Father's common law partner Amanda Sweeney acknowledges that he pushed and yelled at Omar Jr. in 2004 in what she calls an "over-reaction", but says that he was cleared in an investigation by the police and the Children's Aid Society of Toronto. Ms. Sweeney suggests that it is Fanny who was violent to Omar Jr. as a child. Ms. Sweeney says that she has never known Omar to be violent.

[17] Records of police investigations indicate that while Fanny and Omar were cohabiting and for some time after their separation that police were called to the home to investigate complaints of loud arguments or allegations of violence or threats by Omar. There is no record of any conviction.

[18] The evidence falls far short of establishing a basis to deny either child support based on a unilateral failure of the children to communicate or maintain a relationship with their father. Courts have said that an adult child's entitlement to support should be denied on this basis only in extreme cases. The Manitoba Court of Appeal held in Rebenchuk v. Rebenchuk, 2007 MBCA 22, 35 R.F.L.(6th) 239:

Termination of the parent/child relationship is a particularly difficult issue. In my view, selfish or ungrateful children who reject the non-custodial parent without justification should not expect to be supported through their years of higher education. But this factor rarely stands alone as the sole ground for denying support unless the situation is "extremely grave."

[19] In a recent paper, "Child Support for Estranged Adult Children", Justice David Corbett summarized the caselaw on this issue. He observed that the statutory authority to take into account the quality of the child/parent relationship in determining support is dubious, and that, if conduct is ever relevant, then it should only be considered in egregious cases.

[20] This is not one of those cases.

3. Support for Omar Jr.

[21] The evidence indicates that Fanny refused to provide Omar with evidence that Omar Jr. was in a full-time program of education, despite his requests before he commenced this litigation. Omar says that it was only after he commenced his motion to change and obtained disclosure from Fanny that he realized that Omar Jr. had not been enrolled in a full-time program of education for over three years. He says that his obligation to support Omar Jr. should be varied retroactively and end after June 2009 because this was the last time that the boy, who at that time was 18 years of age, made any "meaningful effort" in school. He says that Fanny should repay him for his overpayment of support.

[22] Fanny now says that Omar's obligation to support Omar Jr. should be terminated as of January 2011, when he obtained his G.E.D.

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

[24] The evidence indicates that Omar was so enrolled up until June 2009. He then left school for a term, and re-enrolled in winter 2010 term and left in April without passing any course in which he was registered. I have no evidence as to Omar Jr.'s school attendance record during this period or as to the reason he gained no credits in that term.

[25] Although Omar Jr. obtained his GED in 2011, I have no evidence that he was enrolled full time (or part time) in any program after the winter term of 2010.

[26] Courts have held that what is considered a "full time" program of education may vary, depending on the child's circumstances. It is clear, however, that an adult child cannot maintain entitlement to support by simply enrolling in a program. There should be evidence that the child is participating in that program in "some meaningful way". If there was evidence that Omar Jr. had so participated in his school program after he re-enrolled in February of 2010, then, despite his failure to pass his courses, I would have been inclined to hold that his entitlement to receive support was revived as of that date and continued for that school term. However, that evidence was not presented.

[27] In my view, Omar's obligation to support his son terminated on July 1, 2009. I find that Omar's obligation to support his son ceased as of July 1, 2009.

[28] Omar may have anticipated that termination of his obligation to support Omar Jr. would result in a reduction of his monthly support payments. That is not the case. The termination of Omar's obligation to support Omar Jr. left him with a continuing obligation to support Vanessa. Section 37(2.2) of the Act provides that a variation order shall be made in accordance with the Child Support Guidelines. Omar's obligation to support Vanessa as of July 1, 2009 is properly determined in reference to his income in 2009 of $70,790 for which a monthly payment of $653 is indicated.

[29] I order that Omar pay support for Vanessa commencing July 1, 2009 in a monthly table amount of $653 monthly. Further changes in that order will be dealt with below, where Fanny's claims for retroactive support and for ongoing support for Vanessa are considered.

4. Support for Vanessa

4.1 The Facts

[30] Vanessa is an extremely talented athlete and a very good student. She reached the age of 18 years on July 5, 2012, and began attending Purdue University on August 19, 2012. By virtue of her abilities in track and field, Vanessa obtained a scholarship to Purdue which covers the cost of tuition, books, dorm fees and meal plans for the 4-year program in which she is enrolled. That scholarship is worth over $40,000 U.S. each year.

[31] The terms of Vanessa's university scholarship prohibit her from employment, and, by virtue of the scholarship, the child is expected to participate in track and field competitions throughout the year, including the summer months when she is back in Toronto with her mother.

[32] Vanessa is at Purdue from mid-August to early May each school year, and spends the summers and Christmas and spring breaks with her Mother. Fanny maintains a bedroom for Vanessa in her apartment in Toronto. Vanessa thus lives in Indiana for approximately 8 months each year and with her mother in Toronto for approximately 4 months each year.

[33] Vanessa has expenses that are not covered by the scholarship; she and Fanny both testify that Fanny pays those expenses. These expenses are:

• Living expenses for 8 months each year of about $300 monthly ($2400) during the time that Vanessa is at Purdue. This entails expenses for items such as food outside the meal plan, clothing, personal care items, entertainment, and cell phone.
• Cost of health insurance of $1092 annually.
• Round trip transportation expenses by air to and from Toronto to Indiana 3 times annually, estimated at $1000 annually.

[34] These expenses total $4492 annually.

[35] As indicated above, Fanny seeks ongoing support for Vanessa in the same amount as the temporary order of $483 monthly. Omar says that, even if his argument that Vanessa is disentitled to support because she has rejected him is not accepted, he should have no obligation to pay support because the bulk of the child's expenses are paid through her scholarship.

[36] Fanny also seeks pursuant to s. 7 of the Guidelines a contribution from Omar for the ongoing cost which she pays for track and field events in the summer for Vanessa. These costs are comprised of registration fees and the cost of travel and accommodation. The evidence indicates that these costs totaled $3265 in 2013 after Vanessa had completed her first year at Purdue, and that she anticipates continued expenses for track and field competitions while she is in university. The evidence further indicates that such expenses for prior years totalled $2365 in 2012 and $1920 in 2011. No more recent information is provided.

[37] Omar says that he is not satisfied that Fanny paid these track expenses, and that even if she did, that the amount involved does not qualify as an "extraordinary" expense.

[38] Both Vanessa and Fanny testify that Fanny has paid these expenses, and I accept that evidence. Vanessa has no independent income.

4.2 Vanessa's Entitlement to Support

[39] A parent seeking support for an adult child has an onus to prove entitlement. The Manitoba Court of Appeal in Rebenchuk v. Rebenchuk, supra, set out certain factors which can be considered in determining entitlement:

1. What would the parents have decided if their marriage had remained intact?
2. To what degree is the child able to earn an income to contribute to his or her own education?
3. Are the child's living expenses reasonable?
4. Are the child's career plans reasonable?
5. Is the child likely to benefit from the program of study?
6. Is part-time employment available and, if so, would it harm the student's ability to benefit from her studies?
7. Has there been an unjustified unilateral termination of a relationship with the payor parent?
8. Is the student eligible for student loans or other financial assistance?

[40] In this case, I have no doubt that Vanessa is entitled to receive support from both her parents. Vanessa's success in obtaining and maintaining her scholarship speaks to her abilities and work ethic. Her future in the world of sport appears bright. Her contribution through the scholarship to the costs of her education is substantial. It is speculative to consider what Fanny and Omar would have decided if they stayed together, as their separation occurred when Vanessa was only two years old. I have already determined that the breach in the child's relationship with her father was not "an unjustified unilateral termination".

4.3 Quantum of Support

[41] The amount of support to be ordered is determined under the Child Support Guidelines. The applicable provision is set out below.

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order 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 spouse against whom the order is sought; and

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

Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order 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 spouse to contribute to the support of the child.

[42] Courts have determined that an order which simply provides for support in a table amount for an adult child who lives away from home to attend university is usually inappropriate. In those circumstances, courts usually order an amount pursuant to s. 3(2)(b) which takes into account the child's expenses and orders a pro-rata contribution to those expenses from each parent after deduction of the child's contribution. In such situations the courts often also order additional support in a table amount for some months of the year, to deal with the child's expenses when at the home of the recipient parent during summers and holidays. The Ontario Court of Appeal addressed this hybrid approach in Park v. Thompson, 2005 CarswellOnt 1632:

Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply tables that are not designed with that living arrangement in mind. Furthermore, the table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks where appropriate, and apportion that between the spouses on a Paras approach after considering the child's own ability to contribute.

[43] Based on these principles, I find that using a hybrid approach Omar should pay support pursuant to s. 3(2)(b) of the Guidelines for 8 months annually based on Vanessa's additional costs of $4492 annually, and support in a table amount for 4 months annually, covering the period that the child lives in Toronto. These amounts should be "annualized" to provide a consistent payment throughout each year.

[44] In 2012 Omar earned $31,472 and Fanny earned $85,680. Vanessa started university at the end of August. For the period September 1-December 1, 2012, I order that Omar pay the sum of $188 monthly. This represents 4 months of support calculated pursuant to the hybrid approach as set out in the Appendix, attached.

[45] In 2013 Omar earned $46,173 and Fanny earned $75,908. I order that Omar pay the sum of $280 monthly on the first day of each month. This represents 12 months of support calculated pursuant to the hybrid approach as set out in the Appendix, attached.

[46] I have no income information for either party for 2014. My order for 2013 will continue for 2014 and following up to and including May 1, 2016. Omar's obligation to support Vanessa will terminate after that date. Vanessa shall forward to Omar documentary confirmation that she is registered at Purdue or some other post-secondary program each term.

4.4 Section 7 Expenses for Track

[47] Fanny claims a contribution from Omar for Vanessa's track and field expenses.

[48] The court has discretion to order support pursuant to s. 7 for certain expenses.

7. (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

(1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

[49] I acknowledge the argument of Fanny's lawyer that because Vanessa's continued participation in track and field competition is tied to the maintenance of her scholarship, that these expenses might be considered in some way expenses for post-secondary education. However, in my view they are more properly seen as expenses that fall within the category of "extra-curricular activities". As such, Fanny must demonstrate that these expenses are "necessary", "reasonable" and "extraordinary".

[50] Given Vanessa's talent and achievement and the central place which track and field holds in her career plans, it is clear that these expenses are "necessary" in relation to her best interests.

[51] The cost of track and field competitions for Vanessa in 2013 was $3265. Considering the incomes and means of Fanny and Omar, I find that the expense of $3265 is reasonable.

[52] I also find that this expense is "extraordinary". Considering Fanny's income and the modest amount which she will receive in ongoing support for Vanessa, it is not reasonable to assume that Fanny should pay this amount by herself without contribution from Omar. Omar should pay his proportionate share (38%) of that cost.

[53] I therefore order that Omar pay an additional amount towards Vanessa's special expenses for track and field in an amount of $103 monthly commencing January 1, 2013 and continuing up to and including December 1, 2013.

[54] I accept that Vanessa's track and field costs are likely to continue while she is in her undergraduate program. I have no evidence as to those costs for 2014, or projected for the future. In my view, the fairest estimate of those costs comes from an average of those costs for 2011-2013; that amount is $2516, of which Omar should pay 38%, or $956. I therefore order that commencing January 1, 2014 and up to and including May 1, 2016, Omar shall pay $79 monthly as a contribution towards Vanessa's track and field expenses.

5. Retroactive Claim

5.1 Omar Triggered the Retroactive Increase

[55] As pointed out above, Omar's success in his request to have the 1999 support order varied to remove his obligation to support his son had what was likely the unintended effect of increasing his overall support payments, as he continued to have an obligation to support Vanessa and as his income had increased substantially since 1999.

[56] It is thus Omar who has triggered a retroactive increase in his support obligation. For that reason, the jurisprudence as to claims for a retroactive increase in child support has little relevance to this case, except as it applies to Fanny's claim for a retroactive increase in s. 7 expenses. Having said that, even without Omar's claim, I would have been inclined to order an increase in the table amount back to January 2010, and would have taken into account his income fluctuations for 2010-2012. For that reason, I set out some analysis of Fanny's claims for increases of the table amount and of s. 7 expenses.

5.2 Law and Facts

[57] In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court of Canada set out a test applicable to claims for a retroactive increase in child support. The Court held that the following four factors should be considered:

1. Reasonable excuse for delay in requesting increase by recipient parent.
2. Conduct of the payor parent.
3. Circumstances of the child.
4. Hardship to the payor of a retroactive award.

[58] The Court held that it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor that payments need review, unless the payor has been guilty of "blameworthy conduct". The Court observed that potential hardship of a retroactive award could often be mitigated by appropriate terms of payment.

[59] Fanny claimed a retroactive increase in support from Omar from 2009, based on his incomes for those years:

• 2009 $70,790
• 2010 $70,259
• 2011 $78,387
• 2012 $31,472

[60] Fanny also claimed a payment from Omar totalling $6,124 towards Vanessa's track expenses for those years.

[61] Fanny says that she asked Omar for copies of his tax returns in the past, but he refused to provide them. She says that she never realized his income had increased so much until he brought his motion to change the support order in 2012 and was compelled to provide income disclosure.

[62] Fanny says in addition that she did not pursue legal action to obtain income disclosure over the years because Omar's past abuse of herself and Omar Jr. made her fearful of "pushing" the issue.

[63] Fanny's evidence is that she went into debt (for which she now pays $900 monthly) and sold her home in order to support the children adequately.

[64] Omar says that the 1999 order did not provide that he was obligated to provide Fanny with financial disclosure. He acknowledges that he may have been at fault for not responding to her requests for disclosure, but says that she was also at fault for not responding to his request in 2004 for evidence that there was still an expense for daycare for the children. He maintains that because Fanny's income increased substantially in the years after the order, that she should have been aware that he was likely also in a similar situation.

[65] Omar denies violence on his part, and says that Fanny's claims of fear of him do not hold water, pointing out that those "fears" did not prevent her from taking him to court twice in the past.

5.3 Conclusions

[66] Reason for delay. Although there may have been violence between Fanny and Omar during their cohabitation, Fanny was able to go forward with claims against him on two separate occasions. Fanny's comments about Omar's increased standard of living in the years after 1999 indicates that she was aware of the likelihood that his income was increasing. It appears to me that Fanny's primary reason for not bringing her claim for a retroactive increase earlier is that she could not stomach another round of litigation and was not sure that further litigation would be "worth it".

[67] A support recipient denied financial disclosure is expected to pursue her claim with some diligence. A lack of diligence will weigh against a retroactive claim, or, if the claim is entertained, contribute to a shorter period of retroactivity. Because of Fanny's delay in asserting her claim, I will not order a retroactive increase in support for the first 6 months of 2009, a period four years before she requested an increase.

[68] Conduct of the payor. The fact that the 1999 order did not provide for automatic annual income disclosure by Omar does not mean that he had no obligation to make that disclosure when requested, as provided by s. 21 of the Guidelines. Further, Omar's letter to Fanny of November 2, 2004 (responding to her request for a copy of his 2003 Notice of Assessment) makes it clear that he appreciated that a payor's support obligation changed as his income changed. He advised that he had not yet received that Notice of Assessment, but assured her that his then-current income accurately reflected his support obligations pursuant to the Guidelines.

[69] The Supreme Court in D.B.S. held that "blameworthy behaviour" is any behaviour by a support payor that privileges his own interests over his children's right to receive appropriate support. The Court held that the greater the increase in income, the less likely it is that a payor will be presumed to believe he was meeting his obligations to his children by complying with an outdated order.

[70] The evidence indicates that by 2009 Omar was earning far more than the $26,000 he earned at the time of the order. By that time Omar Jr. was 18 years old, and it is possible that Omar even then doubted whether he was entitled to support. But even if only Vanessa was entitled, Omar's support obligation based on his income was far greater than the amount he was paying under the 1999 order. Omar could not have believed that he was meeting his obligation under the Guidelines to pay proper child support.

[71] This factor weighs heavily in favour of a retroactive order affecting the table amount of support, and I will make such an order for the years 2010 and following.

[72] In my view, however, Omar cannot be faulted for not stepping up to contribute to Vanessa's s. 7 expenses for track prior to Fanny's claim. Fanny was not in communication with Omar about Vanessa's efforts in track and field, and never advised him of the related expenses or asked him for a contribution to those expenses until her cross-claim. A payor in Omar's situation knows that he is obligated to pay support for a child under the age of majority in a table amount related to his income. No such presumption can be made with respect to a payor's understanding with respect to the costs of a child's extra-curricular activities, especially in a situation such as this, where Omar had no contact with Vanessa and very limited contact with Fanny.

[73] Because of this factor, I will not make an order for retroactive s. 7 expenses for track and field costs for Vanessa.

[74] Circumstances of the child. The evidence is that Fanny—albeit at great cost to herself—has provided what Vanessa has required to pursue her track and field career and her education. Vanessa will graduate from her undergraduate program debt-free. The only respect in which it can be said that Vanessa has suffered because of lack of proper support from her father is indirect. Fanny had to sell the family home to pay expenses related to the children (primarily Vanessa's expenses) and thus Vanessa has been deprived of the comfort of living in that home during periods when she returns to Toronto.

[75] I consider this factor neutral as regards a retroactive order.

[76] Hardship for the payor. As I have said, Omar's own motion to terminate support for his son led to the retroactive increase in his support payments for Vanessa, to $653 monthly, approximately $200 more monthly than he had been obligated to pay.

[77] The result of my granting Fanny's retroactive claim covering the years 2010-2012 would not result in him paying support in an amount significantly higher than this $653 monthly. In 2010, Omar's income was $70,259; the resulting payment is $641 monthly. In 2011 his income was $78,387; the resulting payment is $712 monthly. In 2012 his income was $31,472; the resulting payment is $263 monthly, applicable for the first 8 months of 2012.

[78] The bottom line for Omar, when he receives credit for all payments made since June 2009, will be a debt of perhaps $5000-$5500 for retroactive support, a debt essentially of his own making.

[79] Omar and Ms. Sweeney have two children, aged 13 and 17. Ms. Sweeney is a legal assistant in a Toronto firm. Omar's financial statement does not indicate her income, as is required. Omar and Ms. Sweeney own a home that is mortgaged. He drives a late model vehicle, and is paying off a $56,000 loan for its purchase.

[80] It appears to me that Omar should be able to finance the relatively small amount of additional debt created by this order. However, if he does not do so, I will provide that the arrears created by this order shall be paid at a rate of $300 monthly, with the balance to bear interest as provided by the Courts of Justice Act.

[81] I order that Omar's support payment for Vanessa shall be as set out in paragraph 77 above.

6. Order

[82] My order is that the order of November 4, 1999 shall be changed as follows:

1. The Respondent's obligation to support the child Omar Nathan McLeod, born February 28, 1991, shall terminate on July 1, 2009.

2. The Respondent shall pay support for the child Vanessa Margarita McLeod, born July 5, 1994, as follows:

   a) Commencing July 1, 2009, the sum of $653 monthly up to and including December 1, 2009;

   b) Commencing January 1, 2010, the sum of $641 monthly up to and including December 1, 2010;

   c) Commencing January 1, 2011, the sum of $712 monthly up to and including December 1, 2011;

   d) Commencing January 1, 2012, the sum of $263 monthly up to and including August 1, 2012;

   e) Commencing September 1, 2012, the sum of $188 monthly up to and including December 1, 2012;

   f) Commencing January 1, 2013, the sum of $383 monthly up to and including December 1, 2013;

   g) Commencing January 1, 2014, the sum of $359 monthly up to and including May 1, 2016. Support for Vanessa shall end after this payment.

3. Vanessa shall forward to the Respondent each term documentary confirmation that she is registered at Purdue or some other post-secondary institution.

4. The Respondent shall receive credit for payments made since July 1, 2009 in the calculation of arrears. Arrears shall be paid at a rate of $300 monthly, commencing February 1, 2015, with the balance to bear interest as provided by the Courts of Justice Act.

[83] Success appears to be mixed. If costs are sought, written submissions of no more than 10 pages (with any offers to settle attached) shall be served and filed within 20 days. Any response of no more than 10 pages (with any offers to settle attached) shall be served and filed within a further 20 days.

Released: January 28, 2015

Signed: Justice E. B. Murray

Appendix

McLeod v. McLeod

Support Sept.-Dec. 2012

Modified table amount, 1/3 (representing 1/3 of year that child is in Toronto) of $263/mo (table amount re: income of $31,472) = $87/mo.

S. 3(2)(b) calculation

• Vanessa's costs at school = $4492/yr.
• Omar's income $31,472
• Fanny's income $85,680
• Omar's share 27% x $4492 = $1212.84, or $101/mo.

Total payable by Omar = $188/mo.

Support 2013 and Following

Modified table amount, 1/3 (representing 1/3 of year that child is in Toronto) of $417/mo (table amount re: income of $46,173) = $138/mo.

S. 3(2)(b) calculation

• Vanessa's costs at school = $4492/yr.
• Omar's income $46,173
• Fanny's income $75,908
• Omar's share 38% x $4492 = $1706.96, or $142/mo.

Total payable by Omar = $280/mo.

Footnotes

[1] As will be seen below, the evidence before me clarified that the material presented to the court in September 2013 was in error, resulting in a calculation of support based on some expenses that were in fact paid by Vanessa's scholarship.

[2] 30 C.F.L.O. 165

[3] Omar argued in early affidavit material that Omar Jr. had withdrawn from parental control when he was 16, and that his support obligation therefore ended earlier. The evidence did not support this argument, and he did not pursue it at the hearing.

[4] Fakomi v. Fakomi, 2006 ONCJ 148

[5] In other similar cases, a payor father succeeded in having his support obligation for older children retroactively terminated, but found that support payments for remaining children based on his current income reduced or wiped out the reimbursement he hoped to receive. See Boomhour v. Huskinson, 2008 O.J. 2139; Heubach v. Heubach, 2011 O.J. 715

[6] Fanny's lawyer asserted that Fanny spent $6,460 on these expenses in 2011, but the basis for this assertion is unclear.

[7] Quoting Justice Heeney in Merrit v. Merrit, (1999) O.J. 1732 (S.C.)

[8] Para. 116

[9] The evidence is that he did not subsequently forward that or any other Notice of Assessment.

[10] At para. 106

[11] Amount represents s. 3(2)(b) amount plus contribution towards special expenses.

[12] Amount represents s. 3(2)(b) amount plus contribution towards special expenses.