SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: Ottawa File FC-98-25123-3
DATE HEARD: February 27, 2012

RE: Smith v Smith

BETWEEN: Junior Smith and Joan Lorraine Smith

BEFORE: Honourable Mr Justice Martin James

COUNSEL:
Self-Represented Applicant
Self-Represented Respondent

ENDORSEMENT

[ 1 ] The applicant applies for reimbursement of child support paid in relation to his son Robert and his daughter Natasha. Robert is now 22 years old. He has been enrolled in post secondary school at various times but has failed most of his courses. Natasha is 20 years old. She is enrolled in university, living at home and will complete her program in April, 2013.

[ 2 ] The applicant relies upon the various considerations that make up the criteria known as the Farden factors, which are used to determine whether an adult child who is attending school is still entitled to child support.

[ 3 ] The respondent applies for re-instatement of child support claiming that Robert has an ongoing intention to return to school and that his support ought to be payable until April, 2012. The respondent disputes the applicant’s claim that Natasha should now be independent despite her substantial part-time income and says that the applicant is in arrears of child support.

[ 4 ] The applicant retired at the end of July, 2011 and now receives $59,000 annually, a substantial reduction from his previous employment income. Since September, 2011 he has been paying $538 per month child support pursuant to a temporary order and this is in effect until the end of March, 2012. This endorsement assumes these payments have been made.

[ 5 ] Robert enrolled at Algonquin College in September 2007 just after his eighteenth birthday. He registered in a two year program and ordinarily would have graduated in April, 2009. In his first semester Robert failed four of five courses. In his second semester he failed all five courses. He did not re-enroll until the second semester of the following year, being the semester running from January to April, 2009. He failed the four courses he enrolled in. He was then absent from school and working full time for at least part of the time from May 2009 until January, 2011, a period of about twenty months. He re-enrolled on January 4, 2011 and failed two of four courses. During the fall, 2011 semester commencing September, 2011, he failed four courses.

[ 6 ] The respondent has not produced any medical or other evidence to support a finding that Robert’s education was interrupted or compromised because of health issues.

[ 7 ] A dependent who struggles academically should not be deprived of support as soon as it is apparent that he or she is encountering difficulties. At some point, however, the try and try again approach cannot be justified.

[ 8 ] In the reverse situation to this case, when a support recipient seeks to recover retroactive child support where the support payor has not disclosed increases in income, as a general rule the claimant can go back as much as three years from when notice of an intention to make a claim is given. It seems to me the same factors that guide a claim for a retroactive increase should apply to a situation like this case, which is essentially a request for a retroactive decrease in support.

[ 9 ] The applicant says he tried to determine Robert’s enrollment status but was unable to do so from either Robert or the respondent. It is unclear to me the extent to which the applicant tried to get details but in my opinion both Robert and the respondent had an obligation to keep the applicant informed of Robert’s situation at school. The failure of the respondent to keep the applicant informed is an important consideration in assessing whether re-imbursement is appropriate.

[ 10 ] In the circumstances of this case, it seems reasonable to me to conclude that the applicant’s obligation to pay child support for Robert ended in April, 2009. This conclusion results in the possibility of an obligation by the respondent to repay a substantial sum to the applicant.

[ 11 ] One of the criteria relied upon by the applicant in applying the Farden factors is a consideration of the parent’s educational plans for their children, especially where those plans were made when they were together. The applicant says they had educational savings of over $41,000 that were left in the control of the respondent when the parties separated. I have examined the components of this assertion and conclude that the evidence falls far short of supporting this claim and I have not given any weight to this contention.

[ 12 ] I note as well that while the applicant’s child support payments were based on an income of $90,000 in 2006, his actual income in most of the years that follow was higher, except for 2009.

[ 13 ] I calculate that if support had been paid on his actual income from 2007 to April 2009 for two children and from May 2010 to July 2011 for one child versus an assumed $90,000 income throughout, the applicant would have paid about $1400 more in total child support.

[ 14 ] Also, I think that any entitlement to reimbursement needs to be weighed against the reimbursing party’s ability to pay. The respondent’s employment income is as follows:

2008--$37,400
2009--$45,000
2010--$41,500
2011--$37,700

[ 15 ] The respondent claims her annual expenses are $91,500. She does not disclose the value of her home, her vehicle or any other assets. This lack of candor does not assist the respondent.

[ 16 ] Also to be considered is the fact that the applicant has been out of pocket a significant amount of money by reason of his overpayments. There is a cost associated with both the fact that child support was overpaid and because re-imbursement will occur over time.

[ 17 ] I have considered the applicant’s request to terminate Natasha’s child support. Unlike Robert, Natasha appears to have thrived academically. She is involved in school sports and maintains part-time employment. She too, however, has a responsibility to keep the applicant informed of her school plans, expenses and performance. The applicant contends that it has been difficult to obtain this information. The applicant claims that Natasha’s total annual school expenses are in the $7,000 range but there is little evidence in support of this assertion. The guideline amount payable over the next 13 months until Natasha graduates in April, 2013 is $548 x13 months or $7,124.

[ 18 ] Taking all of these factors into account, I find that the applicant overpaid child support in relation to Robert starting in May, 2009. The net value of the overpayment that has to be repaid is $11,000. While I am not prepared to hold that Natasha is no longer entitled to child support, and although I find that the applicant has an obligation to pay ongoing guideline support for one child based on an income of $59,000 to and including April, 2013, the applicant shall be entitled to set off Natasha’s child support against the repayment obligation of the respondent. Natasha’s child support is payable to the respondent and the respondent will be obliged to credit the child support she would have received against the amount the respondent owes to the applicant.

[ 19 ] The value of the set-off is $7,124. This means the sum of $3,876 will remain owing. The respondent will be required to repay this amount over the 24-month period commencing May 1, 2012 at the rate of $161.50 monthly.

[ 20 ] The respondent is ordered to provide a copy of Natasha’s transcripts and tuition receipts to the applicant on an on-going basis.

[ 21 ] The respondent’s claim for payment of extraordinary expenses retroactive to September 1, 2008 is not particularized in any fashion and is dismissed. The applicant’s child support obligation to Natasha is in satisfaction of any extraordinary expenses, considering that Natasha is now an adult who generates her own income in addition to attending school.

[ 22 ] The respondent’s claim for the applicant to maintain extended health benefits is dismissed. There was no evidence of the extent to which these benefits are available to the applicant now that he has retired. Similarly, there was no evidence that extended health benefits are unavailable to the respondent by some other means.

[ 23 ] The applicant claims legal costs of $6,000 in his amended factum. He had a lawyer initially when the Motion to Change was filed. The applicant gave notice that he would be unrepresented as of February 15, 2012 when he filed a Form 4, Notice of Change in Representation. This notice is unsigned and undated. To the extent that the applicant is seeking payment of costs that were incurred prior to the filing of the Motion to Change on November 22, 2011, this will not be permitted. If the applicant is claiming costs incurred as a result of the Motion to Change, he will need to deliver details of his costs claim with a Bill of Costs and Costs Outline within 10 days of the date of this endorsement. The respondent shall have 10 days to deliver a written response if she wishes to do so.

James, J.

DATE: March 9, 2012

COURT FILE NO.: Ottawa File FC-98-25123-3
DATE HEARD: February 27, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO RE: Smith v Smith BETWEEN: Junior Smith and Joan Lorraine Smith BEFORE: Honourable Mr Justice Martin James COUNSEL: Self-Represented Applicant Self-Represented Respondent ENDORSEMENT James, J.

DATE: March 9, 2012