ONTARIO COURT OF JUSTICE

CITATION: Teston v. Sooley, 2018 ONCJ 756

DATE: 2018 10 29

Brampton 1487/98

BETWEEN:

BARBARA TESTON

Applicant

— AND —

ANTHONY SOOLEY

Respondent

Before Justice Philip J. Clay

Heard on September 24, 2018

Reasons for Judgment released on October 29, 2018

Mr. A. Baker ………………………………………………………..………for the Applicant

Mr. D. Furlan …………………………………………………………....for the Respondent

CLAY J.:

FINAL HEARING ON MOTION TO CHANGE

GENERAL BACKGROUND

[1] This matter concerns the financial obligations of the parties to their sons Bradley Sooley born October 3, 1996 and Ryan Sooley born October 3, 1996.

[2] The Respondent father (“father”) brought a motion to change the final order of the Honourable Justice L.S. Parent dated July 22, 2015. He sought to terminate child support for both adult children effective September 1, 2017. In the alternative he sought to reduce the amount of his table child support payment to the child Ryan to $232 per month beginning September 1, 2017. Finally he asked that his contribution to Ryan’s s.7 post-secondary expenses be fixed in the amount of $1,636.50.

[3] The Applicant mother (“mother”) filed a Response to Motion to Change. She opposed a termination of table child support. She sought a retroactive increase in table child support effective July 22, 2017 due to an undisclosed increase in the father’s income. She was agreeable to a suspension of the payment of table child support to Bradley effective April 30, 2018. She also sought a s.7 contribution to the post-secondary expenses of both adult children.

PROCEDURAL BACKGROUND

[4] At the first case conference on this Motion to Change held on May 10, 2018 the issues were identified and on consent this matter was scheduled for a final hearing on all of the issues raised in the Motion to Change and Response to Motion to Change on the basis of affidavit evidence only. Filing deadlines were set for a supplementary affidavit by the mother with attached educational disclosure and a responding and reply affidavit.

ISSUES

1. a) Should table child support be terminated on September 1, 2017?

b) If not what date should it be terminated or suspended for Bradley?

c) if not what date, if any, should it be terminated or suspended for Ryan?

2. a) Should the amount of table child support be retroactively increased effective July 22, 2017?

b) Should the father’s obligation to pay table child support for Ryan after September 1, 2017 be less than the table amount under the CSG upon his 2017 income?

c) What are the arrears, if any, of table child support?

d) If there are arrears how should they be paid?

3. a) What post-secondary expense are the parties required to contribute to as per the terms of the final order?

b) What proportion, if any, of those post-secondary expenses should be paid directly by an adult child?

c) What proportion of those post-secondary expenses should be paid by each party?

d) What are the father’s arrears, if any, in his contribution to post - secondary expenses since the final order?

THE LAW

[5] Motions to change child support are governed by s. 37 (2.1) of the Family Law Act which provides 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. 1997, c. 20, s. 6.

The sub-sections of the CSG that are relevant to a determination of this matter are as follows;

3. (2) Unless otherwise provided under 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. O. Reg. 391/97, s. 3 (2).

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(e) expenses for post-secondary education;

BRADLEY

Evidence and submissions

[6] The mother acknowledged that Bradley had not been successful in pursuing what she described as his “dream” of becoming a teacher and after three years of post-secondary education and an uncertain future it might be reasonable to suspend table child support for Bradley as at April 30, 2018 and keep it suspended until he had proven that he could succeed in a post-secondary program. Bradley was now registered in and attending at an electrical engineering technician program at Sheridan College. He continued to reside with his mother. The mother noted that Bradley would not be 23 years old until October 10, 2019. If Bradley was successful in the first term of this program then table child support should be retroactively re-started as of September 1, 2018 and that table child support should continue until at least his 23^rd birthday.

[7] The mother filed an affidavit dated August 24, 2018 that addressed each child’s educational path. Bradley graduated from high school in June 2015. He had hopes of being a teacher but his high school marks were not sufficient for admission to university. Bradley registered at Sheridan College for September 1, 2015 in the Early Childhood Education program. In the 2015/16 academic year he withdrew from one course, failed another and obtained two D’s a C and a C+. In the 2016/17 academic year he failed a course, and received a D, a C and a B on the other three.

[8] In the 2017/18 academic year Bradley registered at Humber College in a general arts and science diploma program. He hoped to improve his marks with his goal still to become a teacher. His transcript shows that he passed only one course with a grade of 51% and his highest mark on the other three was 37%. He was required to withdraw from the program in April 2018.

[9] Bradley then abandoned his goal of being a teacher and registered at Sheridan College for the Electronics Engineering Technician program for the 2018/19 academic year. At the time of the hearing there was no evidence available as to his progress.

[10] Mr. Baker argued that the father has financially supported Bradley for three years of post-secondary education. He said that Bradley had plenty time to reflect on his “dream” of being a teacher. Bradley has no identified learning disability and there was no evidence of any special challenges that he faced when he attended college. In these circumstances the father’s position was that as Bradley could not maintain a passing grade he must not have applied himself to his studies. As long as Bradley’s education was being fully financed by his parents he was not being held to account. Mr. Baker stated that the father has no assurance that the electrical technician program will yield any different academic results than Bradley was able to achieve in the past.

[11] Mr. Baker said that the father’s position was that Bradley had not pursued a reasonable education plan. At age 22 he is now embarking upon a totally different course of study. There is no evidence before the court as to his aptitude for this work and no explanation as to why he pursued an unrealistic plan of becoming a teacher for as long as he did.

[12] Mr. Baker referred the court to Luca v. Luca 2010 ONSC 6616. In that matter the parties had a total of five children, three of whom were still dependent. The high school age children lived with the mother and a 21 year old child lived with his father and attended college. The mother sought to terminate support for the 21 year old. That child was in the third year of what should have been a two year program as he had failed his second year. He worked throughout that academic year and earned $13,318. Justice C.A. Tucker stated the following at para 11.

The situation is troublesome. While the court wishes to support Nicholas decision to return to school and to support himself the court also questions the total lack of academic achievement last year while his mother worked three jobs to maintain two of her other children as well as Nicholas. Is a parent required to pay for a child who “attends” school full time without any success? Does a parent need to support a child who earns an income which I acknowledge is less than minimum wage but is sufficient for the needs of a child who is living at home and has his academic costs covered? Are you in school full time when you fail almost all of your courses?

[13] In the end result Justice Tucker chose to terminate Nicholas’ support at the end of his second year. The decision was noted to be very fact specific as all of the post-secondary entitlement cases are. There are some facts in common with the case before me. Mr. Baker noted that Bradley also lived at home while achieving very poor marks and he also earned a good income. It is noted though that his income included OSAP grants and was earned in the summer when he was not attending college. The father’s position was effectively that it was time for Bradley to “grow up” and support himself.

[14] Mr. Furlan for the mother relied upon Kosic v. Rejalda, 2011 ONCJ 706. In that case the father tried to terminate support for a 20 year old child who had only obtained 15 out of 42 credits with a 26% average. Justice S.R. Clark wrote the following in paragraphs 30 and 31;

30 Furthermore, there does not appear to be any arbitrary cut-off point based on age of academic achievement.

31. What is important as a general rule is that parents of a bona fide adult student remain financially responsible until the child has reached a level of education commensurate with his demonstrated abilities that fits entry level employment in an appropriate field within a reasonable period of time.

[15] Justice Clark stated at paragraphs 37 and 38;

37. The other live issue in this particular case is whether full time enrolment is enough or must the child be passing his courses? One line of cases suggests that the child owes a duty to pursue his education in a meaningful and diligent manner…(cases referred to)…. In other words the educational program must be for a legitimate purpose and the child must make a genuine effort at completing it.

38. However anther line of cases suggest that the analysis does not require a standard of devotion, priority and efforts as a condition of entitlement…(cases referred to)…Therefore, full time enrolment is all that should be required. The rationale for this is that in many cases failure to succeed may be a result of emotional upset which is so suffered by children as side effect of parental breakdown.

[16] At paragraph 41 and 42 Justice Clark said;

41. The ultimate question for the Court, therefore is what this particular child can responsibly manage.

42. The Court finds that Christopher has special educational needs.

[17] Ultimately Justice Clark found entitlement but he made a temporary order only as he found this to be a “borderline” case and he wanted to ensure that the 20 year old child had made education a priority.

[18] Mr. Baker distinguished Kosic by noting that there was no evidence that Bradley was so emotionally impacted by a separation that occurred when he was about two years old that it impacted his education. He also noted that there was no evidence that Bradley had any special needs.

Analysis and decision regarding Bradley

Entitlement

[19] I find that Bradley does not have any special needs or learning disabilities and therefore Kosic may be distinguishable. However, I also find that the principles outlined in that decision and in the Luca decision are applicable to the case before me.

[20] I find that there is no issue with eligibility for child support for the first two years of post-secondary education. I accept the evidence that Bradley had a dream of becoming a teacher. It may be that a more objective person might wonder if the dream was realistic given the high school marks that did not permit admission to university but then again some students are late bloomers. No parent should want to deny their child the opportunity to attempt to fulfill their dreams. To his credit the father is not raising an issue about paying child support during the first two post-secondary years. The mother should have provided the father with transcripts every year and had that happened the father might well have raised a formal objection to paying child support prior to the third post-secondary year.

[21] By the spring of 2017 it was quite clear that Bradley did not have the skills or aptitude to succeed in an academic field. It is at this point that he should have registered for education or training in a field which was more focused towards training for employment. Instead Bradley registered for a general arts diploma at Humber. Given his academic history this was ill advised. I cannot know on the evidence before me if Bradley did not succeed because he was academically incapable of doing so or if his lack of success was a product of his lack of effort. Either way it was entirely foreseeable that the academic year would not be productive and would not be a step towards Bradley receiving a level of education in the words of Clark J, that was “commensurate with his demonstrated abilities and that fits entry level employment in an appropriate field within a reasonable period of time.”

Suspension and possible re-instatement

[22] Mr. Baker provided to the court the decision of Justice M.T. Linhares de Sousa of the Superior Court of Justice in Musgrave v. Musgrave (2013) O.J. No. 5558. In that case the court dealt with an adult child Andrew’s eligibility for continued child support and Justice Linhares de Sousa stated at paragraphs 40 and 41;

40.…There is no evidence that he has progressed in this program. For this reason it is my order that child support for Andrew terminates as of August 31, 2013 until documentary proof of some advancement by way of a course credit or progress report card from…(the college)… is provided to Mr. Musgrave…

41. If such proof is provided then support for Andrew can resume and continue for as long as such documentary proof is provided by Ms. Musgrave and indicates some progress in the program on the part of Andrew.

[23] I will make a similar order in this matter but I will suspend not terminate support and I will identify very clearly the standard of achievement that Bradley must attain if child support is to re-start and continue.

[24] I find that Bradley was not eligible to receive child support during the ill-fated 2017/18 academic year. I find that child support should be suspended effective September 1, 2017. The child support should remain suspended until such time as Bradley has proven that he can succeed in post-secondary studies. There is already an obligation in paragraph 8 of the final order for the mother to provide to the father Bradley’s transcripts within a month of their issuance. (I recognize that only Bradley can access his transcripts but his mother is effectively acting on his behalf so if Bradley wants to be supported by his father he will provide his transcripts to his mother).

Ongoing review

[25] The transcripts should be released for the fall semester by January 2019. If Bradley has passed at least 80% of the courses taken and if he is not on academic probation then child support should be paid to the mother retroactive for the period September 1, 2018 to December 31, 2018. If he fails to meet this standard the child support shall be terminated retroactive to September 1, 2018.

[26] Child support shall be reviewed again after the end of the spring semester with the same standard to apply (80% of courses passed and not on academic probation). If Bradley fails to achieve that standard then the child support will be retroactively terminated effective December 31, 2018.

[27] If not already terminated child support for Bradley shall terminate on April 30, 2020 irrespective of the status of his diploma program. By then Bradley will be 23.5 years old and will have been out of high school for nearly five years. His father will have paid child support for four of those five years. There was no evidence before me as to the length of the electrical engineering technician program but it may well be two years and if so it should be completed by April 30, 2020. If Bradley is still at Sheridan College after April 30, 2020 he will have to meet his expenses with a combination of employment and student loans and grants.

Amount of support

[28] The next question is what the child support amount for Bradley should be if it is reinstated. As he is over 18 I am not bound by the table approach set out in s. 3(1) of the CSG. I must consider s. 3 (2). In the determination of Bradley’s “condition, means, needs and other circumstances” I can look at the fact that he was able to work in the summer of 2018, and that he resides at home with his mother and attends a local college. I can also look at “the financial ability of each parent or spouse to contribute to the support of the child”. The parents earn approximately $90,000 and $55,000 respectively. They have two sons in post-secondary education. I find that a payment of $475 per month to the mother should cover the father’s share of a notional room and board cost while Bradley is attending college and living with his mother.

RYAN

Evidence and submissions

Entitlement

[29] The evidence was that Ryan attended Carleton University for the 2017/18 academic year. He lived in residence and had a meal plan. He passed his courses and in 2018/19 he moved into an apartment with friends off campus.

[30] Ryan earned $13,355 in the summer of 2018 and he had grants totaling $8,089. The father’s position was that by September 1, 2018 Ryan’s “condition, means, needs and other circumstances” were such that he was effectively self-supporting. His grants paid for his tuition and books and he earned enough money in the summer to pay for the reduced expenses that he had as a result of sharing an apartment.

[31] The mother acknowledged that each of her sons was able to find summer employment at RBC Insurance for one summer due to her terms of employment at that company. In the summer of 2018 Ryan did earn a good income but he will not have that opportunity again. The mother said that Ryan’s one time higher than average summer income should not result in the father not being required to pay child support. The mother wanted to rely upon the wording of the final order which stated at paragraph 5;

5. The respondent father Mr. Sooley and the applicant mother Ms. Teston will each pay one half of post-secondary school fees (as defined and outlined on “full time fee invoice”) for Bradley and Ryan should he choose to pursue post-secondary education. Bradley and Ryan will be responsible for the cost of books, transportation and other miscellaneous expenses associated with enrollment in post-secondary educational institute. (sic)

[32] The father wanted the wording full time fee invoice to read full time tuition invoice. He maintained that the current wording is ambiguous and led him to initially not pay for meals and residence. He takes the position that Ryan should be responsible for his rent payments and groceries as those costs are off campus expenses not set out in a university invoice and therefore must be considered to be “miscellaneous expenses” under the terms of the order.

Material change in circumstances

[33] The father also maintained that when the order was made in 2015 Ryan was 17 years old. It was not anticipated that with a combination of summer employment and grants that he would have an income of over $20,000 to apply to his education. This meant that there had been a material change in circumstances since the order was made. In these new circumstances Ryan should be required to pay for all of his costs with the sole exception of his tuition fees which his parents would pay equally.

[34] The mother stated in effect that it was absurd to view basic costs such as food and shelter to be simply miscellaneous expenses. The reality is that students live in residence and have meal plans in their first year and that those costs are part of post-secondary costs. In the second and subsequent years there is no residence or meal plan but the student still needs money for food and shelter when living away from home. The mother sought an order that the father pay 50% of Ryan’s tuition and a 50% contribution to Ryan’s rent and food expenses. The rent is $750 a month so the father’s share is $375 per month. The mother has set out $500 a month as a food budget with the father’s share being $250 a month.

[35] The mother said that the father had not shown a material change in circumstances as at the time of the order the parties knew that each of their sons would be able to work at the mother’s employer for one summer.

Analysis and decision regarding Ryan

[36] There is no doubt that Ryan is entitled to be supported while attending Carleton as he is passing his courses. The issue is to determine the appropriate amount of base child support and ongoing s.7 expenses for Ryan since he began university in September 2017.

Set off for double counting

[37] The mother conceded that there was a double counting in the 2017/18 academic year as the father paid for his one half share of the Carleton invoice which included the residence and meal plan costs and also paid table child support for Ryan. I find that for the period September 1, 2017 to April 30, 2018 the father should not have had to pay any table child support.

[38] In the summer of 2018 Ryan earned $13,356 working at RBC Insurance. The father says that this means he should not be required to pay table support as Ryan was self-supporting. The mother’s position is that there has been no material change in circumstances. At the time of the final court order Bradley had earned over $8,000 in a summer job. It was known that each adult child would have the opportunity to work at RBC.

[39] The mother has not sought a contribution by the father to Bradley’s tuition invoices. It appears from the documents filed that Bradley received sufficient grants from OSAP to cover his tuition.

[40] I have already addressed the fact that the father paid 50% of tuition, residence and meal plan for Ryan in the 2017/18 academic year. I have reviewed Ryan’s OSAP funding for the 2018/19 academic year. He will receive $16,166 in funding of which $8,089 is a grant and the balance is a loan. Ryan’s tuition costs for this academic year are $4,022.05 for the fall term and presumably a very similar amount for the winter term. I find that the parties could not have anticipated the level of grants available to both Bradley and Ryan through changes to the student loan and grant system that came after the final order. I find therefore that the father should not be required to pay 50% of the tuition fees for 2018/19 when Ryan’s grant will pay for all of the tuition fees. The father’s obligation will be limited to paying his 50% share of the rent and food.

The party’s settlement

[41] The parties signed comprehensive minutes of settlement that became the final order. That order represents the parties bargain. If no agreement was reached a court would have applied the law under the FLA and the CSG to the facts of the case. It is likely that Ryan would have had to contribute a reasonable amount to the costs of his post-secondary education and the remaining costs would have been designated as the parental contribution which would have to be shared proportionally not equally to income.

[42] Both parties were represented by the same experienced family law counsel that represented them in this motion to change proceeding. They agreed to a relatively simple formula that did not require the calculation of the child’s contribution or the calculation of their proportionate shares on an annual basis. They did so knowing of the income disparity and the fact that their sons would have summer employment and one of those years would be at RBC insurance. I find that the father has not proven that there has been a material change in circumstances based upon the adult child’s income as that was not foreseeable at the time of the agreement and final order.

[43] It is clear that the parties simply expected that the university/college invoice would be divided between them equally. There should have been no issues for Ryan’s first year as the fees invoice from Carleton was a fixed number. The challenge to the simple formula they agreed upon comes with Ryan’s second and subsequent academic years when he lives off campus. There is no fee invoice that sets out the alternative to the residence and meal plan. Having said that both parties knew, or should have known, at the time of the final order that they had a financial obligation to pay a 50% share of Ryan’s post-secondary costs. This is so because they specifically set out that Ryan was to be responsible for books, transportation and other miscellaneous expenses associated with enrolment. I cannot accept the father’s argument that miscellaneous expenses was intended to cover rent and food.

Amount of support

[44] I find that the parties are responsible to pay for 50% of Ryan’s reasonable rent and food budget. The rent is $750 a month so the father’s share is $375 per month. The mother has set out $500 a month as a food budget. I find that this is not unreasonable for a 20 year old single man. The father’s share is $250 a month. This means that the father’s contribution to Ryan’s post-secondary expenses should be $625 per month effective September 1, 2018.

[45] Ryan did not rent the apartment until September 1, 2018. He lived at home with his mother during the summer of 2018. During that summer he earned $13,356. It is true that with that income he could have supported himself. However, that argument ignores the fact that the parties made an agreement that required the father to pay basic child support for Ryan and to pay an equal, not proportional to income, contribution to Ryan’s post-secondary expenses. It would not be fair to deny the mother the table basic child support while at the same time limiting to 50% the father’s post-secondary contribution.

[46] As Ryan was over 18 s. 3 (2) of the CSG applies to him as well. I find that the father’s contribution in the summer of 2018 for Ryan should be the same as his contribution for Bradley from September 1, 2018 to April 30, 2020 if he successfully returns to college. Ryan lived at home with his mother just as Bradley will while attending college. The father shall pay the sum of $475 per month to the mother for Ryan for the period May 1 to August 31, 2018.

Support for Ryan after April 30, 2019

[47] I then considered what should happen to the basic amount of support under s. 3 (2) after April 30, 2019. It is not yet known whether Ryan will live with his mother in the rest of the summers until he obtains his degree or whether he will stay in Ottawa year round. I have noted that the parties have not shown any ability to negotiate and that an order needs to be as clear and certain as possible. Child support is the right of a child but is generally collected by the primary resident parent. Ryan is not a party to this proceeding and even if he were it may create potential enforcement problems if I was to order that the father pay support to Ryan directly. Nevertheless at age 20 Ryan will be making his own financial decisions. I have found that $625 per month is a fair contribution by the father to his son’s rent and food expenses. Beginning May 1, 2019 the father shall pay that amount to the mother who will ensure that Ryan receives it. In this way when Ryan’s lease runs out he will know how much he has from his father for rent and food. If he chooses to live with his mother in the summers they can work out their own financial arrangements with respect to the father’s $625 per month contribution.

Retroactive increase in table child support

Evidence and submissions

[48] At the time of the hearing the father was paying table child support in the amount of $1,172. This sum was based upon his income of $80,000 at the time of the July 22, 2015 order and the 2011 CSG table then in effect. The mother stated that the father had not made financial disclosure as he was required to do under the order. In the course of this Motion to Change proceeding she discovered that his line 150 income was:

2015 $94, 412

2016 $88,422

2017 $92,919.

[49] The mother stated in her Response to Motion to Change that she sought a retroactive increase in table child support effective July 22, 2017. However, in her August 24, 2018 affidavit she calculated arrears of table child support from January 1, 2015 to December 31, 2017. She took the position in her affidavit that the total arrears of child support were $5,191 due to the underpayment of support during those years. She stated that she had taken into consideration in the calculations that Ryan was not living in her home on a full time basis once he began attending Carleton in September 2017.

[50] In his affidavit of September 14, 2018 the father admitted that he erred in not making financial disclosure annually. He noted though that the mother had not provided any income disclosure to him and had not provided any information regarding the progress of his sons in post-secondary education. He said that upon Ryan being admitted to Carleton University he simply received an account to pay for all of Ryan’s post-secondary costs. In addition to tuition he was asked to pay for residency and meal plan and miscellaneous expenses. He was not provided with his son’s income until the disclosure process in this Motion to Change.

[51] The father stated that he continued to pay his full table support amount. The mother submitted the Carleton costs to the FRO and his income was subject to a 50 % garnishment. He stated that the mother refused to consider any adjustment to the table support given that Ryan lived away from home for eight months of the year.

[52] The involvement of counsel for both parties helped narrow the issues. The father abandoned his claim for a reimbursement of 2017/18 post-secondary costs as he accepted that the reference in the order to a “full time fee invoice” meant not just tuition as he had earlier maintained but also residence and a meal plan.

Analysis and decision on retroactive child support

[53] I find that the father had a clear obligation in the court order to disclose his annual income. The table amount of child support is supposed to rise and fall with the payor’s income. The order was made on July 22, 2015. At that time the parties would have had available the 2014 Notice of Assessment. By July 1, 2016 the father should have received his 2015 Notice of Assessment if he had filed his income tax return by the April 30 deadline. I will retroactively adjust support to the correct table amounts upon income earned in the previous year as follows:

1. July 1, 2016 to June 30, 2017 $1,347 per month for two children based upon 2015 income of $94,412;

2. July 1, 2017 to August 31, 2017 $1,274 per month for two adult children based upon 2016 income of $88,422;

3. September 1, 2017 to April 30, 2018 no child support for either child. (Bradley not eligible and father paid his 50% share of Ryan’s residence and meal plan);

4. May 1, 2018 to August 31, 2018 basic child support for Ryan in the amount of $475 per month. (father’s share of notional room and board for Ryan living at home with mother);

5. September 1, 2018 and ongoing until April 30, 2021 $625 per month for Ryan (support terminates after four years of university); and

6. Provided that if Bradley meets the eligibility requirements the sum of $475 a month for the period September 1, 2018 to April 30, 2020. (this could result in a total of $1,000 a month in s. 3(2) support to be paid by the father if both of his sons are succeeding in their post-secondary studies).

FINAL ORDER

The order of the Honourable M. Justice L.S. Parent dated July 22, 2015 shall be set aside and replaced by the following order.

1. The Respondent shall pay to the Applicant for the support of the two children Bradley Sooley born October 3, 1996 and Ryan Sooley born June 30, 1998 the following;

a) For the period April 1, 2015 to June 30, 2016 the sum of $1,272 per month based upon the Respondent’s income of $80,000 in 2014.

b) For the period July 1, 2016 to June 30, 2017 the sum of $1,347 per month based upon the Respondent’s 2015 income of $94,412.

c) For the period September 1, 2017 to April 30, 2018 no child support for either child provided that the Respondent shall pay the sum of $9,692.50 to the FRO for his 50% share of Ryan’s tuition, residence and meal plan at Carleton University.

d) For the period May 1, 2018 to August 31, 2018 the sum of $475 per month for Ryan.

e) Beginning September 1, 2018 and on the first day of each and every month to and including April 1, 2021 the sum of $625 per month for Ryan provided that Ryan remains a student in good standing at a recognized post-secondary institution. If not already terminated the Respondent’s obligation to pay child support for Ryan shall terminate on April 30, 2021.

f) If Bradley passes 80% of his courses and is not placed on academic probation (“academic eligibility”) the child support for him that was effectively suspended on September 1, 2017 can be reinstated as follows;

i) At the end of every semester the Applicant shall send to FRO, with copies to the Respondent. Bradley’s Sheridan College transcript as proof of academic eligibility.

ii) For every semester of academic eligibility the Respondent shall pay to the Applicant the sum of $475 per month for each month of that semester. Provided that if there is academic eligibility on April 30, 2019 the said support shall be paid until August 31, 2019.

iii) If the Applicant does not provide proof of academic eligibility within 60 days of the end of the semester then the Respondent’s child support obligation for Bradley shall terminate retroactive to the end date of that semester.

iv) If it does not terminate earlier the Respondent’s obligation to pay child support for Bradley will terminate on April 30, 2020.

2. All claims in the Motion to Change and the Response to Motion to Change that are not addressed in this order are dismissed.

3. The parties may seek costs by submissions filed by November 23, 2018. The costs submissions shall include a bill of costs and any applicable offers to settle.

DATED: October 29, 2018

Justice Philip J. Clay