Court File and Parties

Ontario Court of Justice

Date: 2018-02-02

Court File No.: Brampton 1452/05

Between:

Nadira Tirbeni Applicant

— And —

Faresh Somai Respondent

Before: Justice A. W.J. Sullivan

Heard on: May 5, 2016, September 21, 2016, January 30, 2017, February 2, 2017, June 5, 2017, September 21, 2017

Affidavit of Evidence considered in chambers: November 15, 2017 and November 17, 2017

Reasons for Judgment released: February 2, 2018

Counsel:

• Kaisree S. Chatarpaul, for the applicant
• Amarnath V. Misir, for the respondent

Decision

SULLIVAN J.:

Introduction

[1] This is the court's decision in a motion to change the final order of Justice Pawagi, dated April 18, 2011. The motion to change is brought by the respondent, Faresh Somai.

[2] Mr. Somai's motion to change is located at tab 1 of volume 3 of the continuing record. The grounds for the motion are that Mr. Somai suffered a heart attack and is seeking a reduction in his monthly child support as well as his percentage contribution to section 7 costs.

[3] The evidence regarding his health was provided as an exhibit C to his affidavit dated March 1, 2016.

[4] The respondent to the motion to change is the recipient mother, Nadira Tirbeni. She filed her response to motion to change located at tab 4 of volume 3 of the continuing record. In this response to motion to change, Ms. Tirbeni set out three distinct requests for ongoing child support.

[5] The first was that the respondent father's request for reduction in child support for the two children, Brandon born December 8, 1994 and Bradley born January 6, 1999 be dismissed as Mr. Somai has not complied with the order of Justice Pawagi, which was a combination of arrears in child support and costs set out in her Honour's June 6, 2011 order. As such, this motion to change should be dismissed. She also argues that although Mr. Somai may have had a heart attack he has always worked two jobs and that his lifestyle with his current family indicates he has more annual income than the declared $89,500.00. Part of her argument in this case is that although she has no clear medical evidence to contest Mr. Somai health problems, these are not as severe as he claims to prevent him from holding two jobs as he has done over the years and earn at the $130,000,00 level that he was at the time of Justice Pawagi's order.

[6] Secondly, she claims university section 7 costs for her son Brandon commencing September 6, 2012.

[7] The third request is payment of all arrears in child support owing.

Procedural History

[8] This motion to change has taken much time to be resolved. In part there were several attempts to conference the matter and to clarify the outstanding issues. As well was a need to file further and better evidence/disclosure from both parties.

[9] The court gave directions for the parties to file their evidence in this focused hearing via affidavits and filing deadlines were set that the parties complied with.

[10] Initially May 5, 2016 was set by the court to hear arguments on behalf of the respondent moving party. Arguments were started but not completed. The matter was put over to September 21, 2016 to complete Mr. Somai's arguments, however on that date Mr. Somai was in the hospital due to further medical difficulties. The matter was put over to January 30, 2017.

[11] On January 30, 2017, arguments continued and needed to be put over to February 2, 2017 to hear the arguments of the respondent Ms. Tirbeni.

[12] On February 2, 2017 after hearing submissions on behalf of the recipient Ms. Tirbeni I made an initial ruling on the argument to have Mr. Somai's motion to change struck. This court's initial ruling was as follows:

• Today there was the resumption of Mr. Somai's motion to change.

• This court on its own initiative adjourned this motion to change for final arguments to June 5, 2017 at 2:15 p.m. in courtroom 209.

• The principal reason for this adjournment was that during the course of argument on behalf of Ms. Tirbeni it was suggested that for this court to entertain any of Mr. Somai's motion to change would be an affront to the administration of Justice in so much as Mr. Somai has not complied with paragraphs 2 and 3 of Justice Pawagi's, April 18, 2011, order and paragraph 1 of Justice Pawagi's June 6, 2011 order.

• The court was directed to Rule 1(8) which provides the court with wide discretion when the court finds that a party has failed to obey an order. One of the several orders that a court may consider necessary for the just determination of the matter is postponing the trial or any other step in a case. This is what this court has done.

• This court is cognizant of the direction of Justice Quinn in Hughes v. Hughes (2007) Carswell 1977, 80 R.F.L. (3d) 505 (Ont. S.C.J.), in which the court indicated that… so long as the judge is satisfied that there is a failure to obey an order, sub rule 1 (8) is triggered. … "Just determination" are sufficiently wide to include protecting the integrity of the administration of justice and that is what is at stake if a party willfully disobeys an order.

• Justice Quinn in the above decision directs the following to all and to this court that a person cannot expect to come before this court and be given a voice in circumstances where that person has thumbed their nose at the legal system by breaching an order.

• Paragraph 2 and 3 from the April 11, 2011 order reads as follows:

  • The respondent/father shall pay retroactive child support of $26,881.68 within 60 days.

  • The respondent father shall pay $499.31 his 82% share of the eyeglasses expenses incurred on February 27, 2010, within 30 days.

• Paragraph 1 of the June 6, 2011 order reads as follows:

  • The respondent father shall pay the applicant mother $7,000.00 in costs, to be paid forth with.

• In the evidence presented by the parties there is a director's statement from the Family Responsibility Office (FRO), this is found at exhibit 16 to the March 1, 2016 affidavit of Mr. Somai, volume 4 of the continuing record.

• This director's statement is currently the best or the most up-to-date FRO statement available and it is dated February 25, 2016. On this statement Mr. Somai owes $30,743.28 in support.

• A review of this director statement from the date of Justice Pawagi's orders shows no payments of the amounts owed as set out in Justice Pawagi's orders of $26,881.68, $499.31, $7,000.00 for a total of $34,380.99.

• A review of this director statement reveals that Mr. Somai has made payments on a monthly basis but less than what has been ordered. This is part of the argument and eventually the discussion surrounding Mr. Somai's health in that he suffered a heart attack and although working, he is working less than what he had at the time of Justice Pawagi's orders. This issue has yet to be resolved in this motion to change.

• What caused this court to pause is the fact that on the face of the director statement of Justice Pawagi's orders has not been complied with.

• In discussing this issue with the parties, it is this court's preference that Mr. Somai be given an opportunity to comply with Justice Pawagi's orders rather than have this motion dismiss only for the parties to revisit this issue with further litigation in the near future.

• The parties agreed that it would be important to obtain an updated directors statement of monies owing to date. The parties further agreed that the bottom-line figure, in an updated directors statement, would encompass the monies owing by Mr. Somai pursuant to Justice Pawagi's orders as noted above, whether or not that number is higher or lower than the total owing under Justice Pawagi's orders being $34,380.99.

• Therefore this court adjourns this matter as follows:

Interim Order (February 2, 2017)

ORDER:

1. The applicant and the respondent, through their respective counsel, will jointly obtain an updated FRO directors statement and the parties have leave to file the same with the court attached to a brief affidavit.

2. Mr. Somai shall pay to FRO, on or before May 27, 2017, the lesser of the following amounts, either the amount owing in the updated FRO director statement to be obtained by the parties and file with the court, or the amount of $34,380.99.

3. The balance of the motion to change dealing with Mr. Somai's claim for an adjustment of his ongoing monthly child support, retroactive and ongoing, as well as the applicant's section 7 claims is adjourned to June 5, 2017, at 2:15 p.m. in Courtroom 209.

4. The applicant and the respondent shall file a 14-C one week prior to the next court date updating the court on what has transpired regarding the above order.

5. The court also encourages the applicant and the respondent with counsel to hold a four-way meeting once the updated FRO statement is received and Mr. Somai has made the payment, pursuant to the above noted order. The court is concerned about the escalating litigation and the ability of the parties to obtain orders that make financial sense to them in that there is a point which is fast approaching if not already passed in this litigation where there will be a zero sum gain given the cost of litigation and potential cost awards against parties eventually if this matter is argued fully.

[13] On the resumption date of June 5, 2017 the court heard from counsel that this court's order of February 3, 2017 regarding child support arrears owing had been resolved to the satisfaction of the parties. The parties sought a further adjournment to see if further discussions between them would resolve the last issues of ongoing support and section 7 costs. The court also heard that the child Brandon had completed his program of studies and that only one child was eligible for support as of July 1, 2017.

[14] This left the outstanding issues to be resolved between the parties as:

a) Whether Mr. Somai has made out a material change in circumstances based on health reasons and therefor his monthly child support for one child be reduced and from when?

b) Proof of Brandon's postsecondary educational costs and the proportionate share to be paid by the applicant and the respondent towards this section 7 costs, considering Brandon's contribution to his university education.

[15] The court heard final arguments on September 21, 2017. On that date there was a need for updates and the filing of further evidence on Brandon's OSAP loans, bursaries and any scholarships from Lakehead University, as well as, his notice of assessments for the years of his studies.

[16] The applicant and the respondent were given opportunities to file further affidavit of evidence for this court's consideration. They did this by the end of November 2017.

[17] The court was to provide an oral decision on December 29, 2017, but needed more time to review the filed material.

[18] The further material that this court has reviewed is the affidavit of the recipient Ms. Tirbeni found in volume 6 of the continuing record, being an affidavit dated November 1, 2017 and the final affidavit of Mr. Somai dated November 17, 2017.

Brandon's Post-Secondary Education Costs

[19] From Ms. Tirbeni's Affidavit she outlines Brandon's University tuition fees, which included accommodation/food for years 1, 2 and 3 with transportation to and from University for each year in the amount of $800.00 beginning in September 2012 and ending April 2015.

[20] For years 4 and 5 commencing September 2015 and ending July 1, 2017, she lists University tuition, shared accommodation costs off-campus and $800.00 each year for transportation to and from Lakehead University in Thunder Bay to Peel.

[21] Ms. Tirbeni provided as evidence tuition fees statements from the admission/Accounts Receivable office of Lakehead University. Also attached as exhibit B are printouts from the Ministry of Advanced Education and skills development outlining any bursaries or grants received by Brandon in years 1 through 4 from Canada and Ontario student loans as well as the OSAP loans received by Brandon for those same years.

[22] For the first 4 years of Brandon's education she outlines the total cost of tuition accommodation and transportation at $62,290.00. She backs out the grants totaling $7,788.00 leaving a net amount of $54,510.00 and seeks an 82% contribution from Mr. Somai have totaling $44,698.00.

[23] In her affidavit she outlines that Brandon was required to attend Lakehead for a 5th year to complete compulsory licensing courses for his Chiropractic License.

[24] For this year 5 she provides proof from Lakehead University Accounts Receivable department regarding tuition as well as from the Ontario Ministry of Advanced Education and skills development outlining the Ontario Student Assistance Program "OSAP" (loan and non-repayable grant). Brandon's tuition/accommodation and transportation amounted to $17,692.00 less the grant of $2,900.00 for a total amount of $14,792.00. Again she is requesting 82% contribution from Mr. Somai totalling $12,129.00.

[25] Ms. Tirbeni seeks a total of $56,827.00 from Mr. Somai for the five years that she claims Brandon attended University.

[26] As requested, attached to Ms. Tirbeni's affidavit is Brandon's income tax assessments which show that in 2013 he earned $2,192.00, in 2014, $3,161.00, in 2015, $17,145.00 and in 2016, $18,407.00.

[27] Ms. Tirbeni does not make any suggestion as to what if any contribution Brandon should make to his postsecondary University costs.

[28] As noted above, Mr. Somai filed a final affidavit dated November 17, 2017. In this affidavit there is a thorough analysis of the five years of Brandon's postsecondary education at Lakehead University.

[29] I have reviewed this analysis and have adopted some of the suggested arguments and facts in resolving this case as follows.

[30] Mr. Somai does not contest that Brandon attended and graduated University and completed his Kinesiology degree.

[31] It is further not contested that Mr. Somai has not contributed to Brandon's postsecondary education. There was some evidence that a request in this regard was made by the applicant to Mr. Somai on or before September 2012 when Brandon was admitted into Lakehead University, this is found in the affidavit of Ms. Tirbeni dated February 25, 2017 within the motion to change at tab 5 of Vol 3 of the continuing record.

[32] At this point in time, Mr. Somai is not arguing that he does not owe his contribution towards this section 7 expense. The issue is what were Brandon's exact costs and how to share these cost between the parties and Brandon.

[33] At this stage it becomes an analysis between the two different set of figures presented between the parties to the court.

[34] I have accepted Mr. Somai's analysis to understanding Brandon's costs as follows:

a) In terms of the best evidence regarding the fees incurred by Brandon for each year of study and the grants and scholarships that he would have received which would have reduced the fees to arrive at a net cost to him, I find the best evidence to be located in exhibit F to Mr. Somai's last affidavit. This is a letter signed by Josh Lavac, dated September 1, 2017 from the Lakehead University Student Awards and Financial Aid Department. I have compared the grants under the OSAP column with those presented by Ms. Tirbeni in her affidavit exhibit B and they line up and are exact.

b) I accept the fact that Ms. Tirbeni did reduce the gross fees by the Loans and grants received under the OSAP program but not the scholarships and bursaries which are found in exhibit F noted above that further reduce Brandon's net fees.

c) I also accept Mr. Somai's analysis that in year 4 Brandon did not attend full time, and therefore was not charged fees and the only money credited and/or received by Lakehead University from Brandon was actually a $500.00 scholarship from Lakehead University with the net result that in year 4 there were no costs incurred by Brandon.

d) I have accepted the modest transportation costs that were factored in for Brandon of $800.00 for each of the years that he attended full-time at Lakehead University in the amount of $800.00 per year to travel back home. This is not extraordinary from Thunder Bay. Therefore I have accepted that Brandon incurred $800.00 per year in transportation costs for the years that he attended. I have not included this cost in year 4 of his studies as I have concluded that he did not attend in year 4.

e) I've also considered in the final year referred to as year 5 the accommodations/food cost of $5,000.00 as acceptable. I recognize that Mr. Somai contests this charge as there is no documentation filed to support this, however, in accepting this I have considered the following: Mr. Somai is not contesting that his son attended year 5. A review of the invoices for years 1 through 3 from Lakehead University show the following costs: Year 1 for room and board approximately $9,000.00. Year 2 room alone and some meals is $6,800.00. Year 3 is $6,590.00 for room alone. This information is found in the invoices attached to Mr. Somai's affidavit exhibit F. Therefore the amount of $5,000.00 to cover Brandon's last year, year 5, off-campus accommodation is quite reasonable.

f) I have also concluded that the total University fees for Brandon's year 5 and final year of studies was $7,159.34, this is located not only in exhibit F from the student awards and financial aid department chart but also if one is to add up the Accounts Receivable office invoice dated April 30, 2017 which tracks the charges reversed from year 4 and the charges commencing add up to $7,159.34. For this year I have again accepted $800.00 in transportation cost and the $5,000.00 Room and food costs.

g) Given the above findings of fact and using exhibit F as the best evidence from Lakehead University of monies received by Brandon for bursaries and grants that were to be applied against his fees and tuition and add in transportation in year 5 accommodation and food of $5,000.00, I conclude that the following net fees for Brandon were as follows:

• Year 1: $15,033.02
• Year 2: $10,956.62
• Year 3: $12,229.04
• Year 4: $0.00
• Year 5: $9,459.34

Total: $47,678.02

The Law Re Changes to Child Support Orders

[35] The moving party only has to show a change in circumstances (not a material change) within the meaning of the Child Support Guidelines or that evidence not available on the previous hearing has become available (subsection 37 (2.1) of the FLA) to successfully change a child support order. Section 14 of the Child Support Guidelines sets out the circumstances that must be proven in order to warrant a variation in a child support order:

14. Circumstances for variation. — For the purposes of subsection 37(2.2) of the Act and subsection 17(4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

1. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

2. In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.

3. In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

4. In the case of an order made under the Act, the coming into force of subsection 33(11) of the Act.

[36] The burden of proof lies upon the moving party, on a balance of probabilities, to establish a change in circumstances that would result in a different order. Jardine-Hynds v. Grant, 2009 ONCJ 133.

[37] The court has the same powers in changing child support orders as it does with changing spousal support orders, as set out in section 4.2 above.

[38] The coming into force of the Child Support Guidelines created an automatic right to change pre-existing orders. Wright v. Zaver (2002), 24 R.F.L. (5th) 207 (Ont. C.A).

Law on Adult Child Contribution to Post-Secondary Education

[39] Entitlement – Farden Factors – Farden v. Farden (1993), 48 RFL (3d) 60 B.C. which sets out factors for entitlement as follows:

a) Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.

b) Whether or not the child has applied for or is eligible for student loans or other financial assistance.

c) The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do.

d) The ability of the child to contribute to his own support through part-time employment.

e) The age of the child.

f) The child's past academic performance, whether the child is demonstrating success in the chosen course of studies.

g) What plans the parents made for the education of their children, particularly where those plans were made during cohabitation.

h) At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

Analysis and Final Order

[40] I have considered the facts as I have found them as noted above and the law in this matter.

[41] I conclude that Mr. Somai has been able to make out a change in circumstances as set out in the legislation given the fact that he did suffer a heart attack requiring him to continue to be employed but at one job. I find that his income in terms of the latest and best income presented at the start of this motion and disclosed through the course of several years of this litigation to be $89,900.00 and found in Mr. Somai Financial Statement and supported CRA documents.

[42] I also have provided the analysis as to how I have reached the conclusion that Brandon's total net costs to attend 4 years of university to be $47,678.02.

[43] I will return momentarily to my findings regarding what amount is to be paid proportionately between the applicant mother and the respondent father.

[44] I wish to turn at this point to the issue of Brandon's contribution to his postsecondary education. As noted above, there are several factors that should be considered in this analysis.

[45] I find that as part of Brandon's contribution the grants and scholarships he received should be seen as his contribution to his education in that he maintained his studies and performance to the extent that the university recognized his academic achievements.

[46] Brandon did earn income during the course of his studies. The most significant years were in 2015 of approximately $17.000.00 and 2016 approximately $18,000.00.

[47] Mr. Somai in his latest affidavit argued that given this income Brandon had the ability to meet his educational expenses. He goes on to argue that the loans that were obtained by Brandon were personal to him and are to be repaid by him. He then suggests that Brandon should contribute 66.66% of his earnings to his educational expenses and goes on to suggest that no parental contribution would be required if this were the case.

[48] I agree with Mr. Somai only to the extent that Brandon was in a position in year 5 to contribute to his education.

[49] I find that in years 1, 2, 3, Brandon persisted and kept up his studies and received scholarships and bursaries as his contribution towards those years.

[50] Brandon is not to be penalized regarding the analysis surrounding the actual costs incurred or not or whether or not he attended full-time in year 4. I have accepted Mr. Somai's analysis that there were no expenses incurred for Brandon's in year 4 as referred to in this litigation.

[51] Brandon's income leading into his last year of school was close to a minimum wage. He did have the time between years of study to be able to work, it is not unusual for young students to take some time off to pursue other endeavors. He did persist and completed his education which is a credit to him. He completed his studies in the spring of 2017. The year before his income was approximately $18,000.00 as he had some time to work. He did however receive $3,500.00 in grants and scholarships which is to be considered as part of his contribution. I note that for year 5 the request is for $5,000.00 in accommodation only and no request is being made regarding food for that year. A food value of $400.00 a month for 9 months should also be considered as Brandon's contribution which represents $3,600.00. This combined with $3,500.00 grants is a total of $7,100.00.

[52] I would have suggested that it would not be unreasonable to consider Brandon's contribution to his last year at 25% of his earnings for that year which would have been $4,500.00 out of the $18,000.00 he earned.

[53] Considering the above, I conclude that Brandon has made his contribution towards his first degree.

[54] Turning to Mr. Somai's comments that Brandon's OSAP loans are personal to Brandon, this regrettably is probably the case, however this number cannot be forgotten in this analysis as part of Brandon's ongoing obligation towards his education.

[55] Brandon owes for the 4 years that he used OSAP being the year 1, 2, 3, and 5, a total of $36,497.00. This is the amount that was received and accounted for by Lakehead University towards Brandon's education. Having this debt is also part of Brandon's contribution and should never be forgotten. If Brandon were to apply $500.00 a month towards such a debt not considering interest it would take him approximately 72 months or slightly more than six years to pay this down.

[56] This leaves the total amount of $47,678.02 to be proportionately shared by the applicant and the respondent.

[57] In order to assign a proportionate share to the applicant mother and the respondent father regarding Brandon's education the court is required to establish their respective incomes.

[58] Both the applicant mother and the respondent father have indicated in their latest affidavits further evidence regarding their incomes.

[59] Ms. Tirbeni claims that she is currently unemployed and without income since October 2014 as she is on total disability due to Carpal Tunnel Syndrome and Osteoarthritis and Fibromyalgia.

[60] Mr. Somai in his affidavit indicates that his income is down from the income used by Justice Pawagi to establish his support payments which was an income of $131,000.00. He is prepared to accept his income at $89,000.00 although he argues it might be less.

[61] Mr. Somai does not present any arguments regarding Ms. Tirbeni's income but asks that his 82% contribution toward section 7 expenses be reduced.

[62] During the final arguments in this matter Ms. Tirbeni compromised and indicated that all arrears in support have been satisfied and that she is not seeking any further recalculation in this regard.

[63] At this point considering the evidence presented regarding Mr. Somai's health, I have concluded that he has made out to a change in circumstances as required in the law noted above this from the last order based on his health requirements. He does continue to work and his earnings are at least $89,000.00. Considering inflation and the years that this matter has been before the court this is probably somewhat higher.

[64] In the last order of Justice Pawagi, Ms. Tirbeni's income was set at $28,713.00. I have considered her argument that she is not earning income, however, I will maintain this amount as her salary base in which to calculate the proportionate share of Brandon's section 7 costs and maintain that Mr. Somai should pay 82% of the total costs that I have found to be Brandon's net costs after considering all of the necessary deductions and arguments made in this matter.

[65] I have granted the start date for this change in Mr. Somai's monthly child support to commence the month after his filing the Motion to Change.

[66] It now appears that at this time the children are aged out and there is no longer monthly child support obligation other than a recalculation based on the commencement date the final order in this matter as set out below.

The applicant and the respondent will be required to cooperate with The Family Responsibility Office (FRO) to conclude Mr. Somai's monthly child support obligation if indeed both children are now aged out and not attending school. If I am correct in this regard there will be a recalculation required to be conducted by FRO as to the final amount owed to be paid by Mr. Somai given my final order as follows:

Final Order

1. Mr. Somai's income as of May 1, 2016 is set at $89,000.00 for the purposes of calculating monthly child support payments for two children, Brandon Somai born December 8, 1994 and Bradley Somai born January 6, 1999. Mr. Somai shall pay to Ms. Tirbeni commencing May 1, 2016 and on the 1st of each month thereafter child support in the amount $1,281.00.

2. Commencing November 1, 2017, Mr. Somai's monthly child support is set at $1,338.00 given the publication of revised Child Support Guideline Tables as of November 1, 2017.

3. Mr. Somai shall pay 82% towards his son Brandon's postsecondary education costs which amounts to $39,095.97, which shall be paid to the Family Responsibility Office on or before March 29, 2018.

4. A Support Deduction Order shall issue.

5. On the issue of costs any party seeking costs shall serve and file within 30 days of this order submissions no longer than two pages, along with a bill of costs and signed offer to settle.

6. The responding party shall have 30 days from receipt of such submissions, reply submissions, limited to 2 pages, along with a bill of costs and signed offer to settle.

7. The court administrative staff shall bring this file to this court's chambers on April 1, 2018.

Released: February 2, 2018

Signed: Justice A. W.J. Sullivan