ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 785-09
DATE: 20120309

BETWEEN:

LESLEY DAWN MAYNARD (TURNEY) Applicant (Responding Party) – and – STEVEN ARTHUR MAYNARD Respondent (Moving Party)

Self-represented
Self-represented

HEARD: February 24, 2012 (Perth)

REASONS FOR DECISION ON MOTION

KERSHMAN J.

[ 1 ] The Moving Party (“Mr. Maynard”) brought a motion to change the Order of MacLeod-Beliveau J. dated April 4, 2011. Mr. Maynard seeks the following relief:

• that $5,652.00 in child support was overpaid by Mr. Maynard to the Responding Party (Ms. Turney) for Melanie Maynard from April 1, 2011, to March 1, 2012, and that this amount should be applied to the arrears owing by him, which is being enforced by the Family Responsibility Office;

• that $2,965.00 in s. 7 expenses was overpaid by Mr. Maynard from April 1, 2011, to March 1, 2012, and that this amount should be applied to the arrears owing by Mr. Maynard, which is being enforced by the Family Responsibility Office;

• that Mr. Maynard’s bi‑weekly arrears payments to the Family Responsibility Office be reduced to $282.16 per payment ($451.54 - $169.38).

Factual Background

[ 2 ] The Order of MacLeod-Beliveau J. dated April 4, 2011, is attached hereto as Schedule “A”.

[ 3 ] The issue on this motion relates to the eldest child, Melanie Maynard, who is over 18 and currently not in school.

[ 4 ] Melanie completed her school year at St. Lawrence College in Kingston, Ontario on April 30, 2011, in the Behaviour Science Technology Program. It is not clear to the Court whether she worked for the summer months from May to August 2011. She returned to St. Lawrence College in September 2011, having switched into the General Arts and Science Program. She remained in school for September, October, and part of November 2011. She returned home in December 2011 due to illness. She did not complete the semester ending December 2011 and did not start the semester in January 2012. It is her intention to return to school in September 2012 at St. Lawrence College to take the Veterinary Assistant Program. She has a letter of acceptance from the College as evidence of her acceptance into the program.

[ 5 ] At the present time, she is working at Tim Hortons. This started out as a part-time job; however, based on the information provided by her mother it is turning into a full-time job until she returns to school in September 2012.

Mr. Maynard’s Position

[ 6 ] Mr. Maynard has indicated that, if Melanie returns to school in September 2012 or thereafter, he will pay child support and s. 7 expenses at that time.

[ 7 ] It is Mr. Maynard’s position that since his daughter was not in school, he should not have to pay child support or s. 7 expenses.

[ 8 ] Mr. Maynard acknowledges that his son, who lives with him, suffers from severe depression and that he has missed lengthy periods of time from school because of it.

[ 9 ] Mr. Maynard acknowledges that his daughter likely suffers from depression as well.

Ms. Turney’s Position

[ 10 ] Ms. Turney’s position is that Melanie is ill and that Mr. Maynard is aware of this fact. She also feels that she has spent a large amount of time and effort trying to collect child support from the father, which Mr. Maynard acknowledged in August 2011 was approximately $50,000.00. She argues that in the MacLeod‑Beliveau Order at para. 2, the Court struck Mr. Maynard’s Answer and dismissed his case for failure to comply with Orders of the Court previously made. Lastly, she feels that Mr. Maynard should pay child support and s. 7 expenses.

Analysis

[ 11 ] The evidence before the Court is that Melanie was at St. Lawrence College during April 2011. Therefore, in the Court’s view, there is no reason why child support and s. 7 expenses should not be paid for that month. This Court finds that child support and s. 7 expenses should be paid for the month of April 2011.

[ 12 ] The evidence before the Court is that Melanie had taken student loans from September 2010 to September 2011 totalling approximately $15,562.00. This is in addition to grants which she received totalling $1,187.00. A student loan statement dated February 18, 2012, was filed which included loans, grants and a tuition refund. According to that statement, the outstanding balance as at February 18, 2012 was $11,473.00.

[ 13 ] This Court finds that Melanie has been contributing an appropriate amount towards her education by way of loans and grants with her parents contributing the balance.

[ 14 ] For the period from May 1, 2011, to August 1, 2011, the Court has no evidence of what Melanie was doing to earn an income. Notwithstanding this fact, at the time that the MacLeod-Beliveau Order was made on April 4, 2011, Melanie was an adult child. Knowing that Melanie was an adult child, the Court made an Order at para. 9 which reads as follows:

9. The child support as herein ordered is payable for the two children of the marriage, namely, Nicholas Steven Maynard, born June 23, 1996 and Melanie Tressa Maynard, born August 9, 1992. Nicholas Steven Maynard presently resides with the Respondent, Steven Arthur Maynard. Melanie Tressa Maynard is deemed to reside with the Applicant, Lesley Dawn Maynard, as she is living away from the home and attending a post-secondary education facility on a full-time basis. Child support for Melanie Tressa Maynard is payable on a twelve month basis until she completes her course of study at St. Lawrence College, estimated now to be three (3) years from September 8, 2011 and to conclude by June 1, 2014.

[ 15 ] Based on the wording of this paragraph, MacLeod-Beliveau J. deemed that Melanie was residing with the Applicant when she was living away from home and attending school at St. Lawrence College on a full-time basis. The Court went on further to say that child support is payable for Melanie on a twelve-month basis until she completes her course of study at St. Lawrence College. The Court made this decision for the payment of child support notwithstanding the fact that Melanie was living away from home.

[ 16 ] Mr. Maynard argues that s. 2 of the Divorce Act provides as follows:

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

( a ) is under the age of majority and who has not withdrawn from their charge, or

( b ) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

[ 17 ] Mr. Maynard relies on the case of Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C. S.C.), where Master Joyce says as follows at pp. 7-8:

Whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a "child of the marriage" requires examination of all of the circumstances. It is not a conclusion which follows automatically from proof of attendance at the institution [ McNulty v. McNulty (1976), 25 R.F.L. 29 (B.C .S.C.) ]. In my view the relevant circumstances include:

(3) 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;

(6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;

[ 18 ] There is no evidence before the Court as to how many courses Melanie has started or completed. The Court accepts the fact that she started her course in September 2011 and left school because of illness. While there was no evidence of the nature of her illness before the Court at the time of the hearing of the Motion, e‑mails were attached as exhibits between Mr. Maynard and Melanie to indicate that she was ill and was taking medication.

[ 19 ] Mr. Maynard argues that Melanie has changed courses three times. She started off in Behaviour Science Technology Program, switched to General Arts and Science Program, and then Veterinary Assistant Program.

[ 20 ] In reality, Melanie never completed the first semester of the General Arts and Science Program. Therefore this Court finds that for all intents and purposes Melanie has only changed her courses twice. There is no evidence before the Court that Melanie is going to school because she has nothing better to do. In addition, there is no evidence of what Melanie’s career plans are at all.

[ 21 ] Lastly, there is no evidence one way or the other of the child’s past academic performance.

[ 22 ] Based on the aforesaid and the wording of the MacLeod‑Beliveau Order, this Court finds that child support should be paid from May 1, 2011, to November 30, 2011, inclusive based on Melanie being in full-time attendance at school from September to sometime in November 2011.

[ 23 ] As to child support from December 2011 to February 29, 2012 inclusive, this Court finds that Melanie has been ill, and she falls within the definition of ‘child of the marriage’ in s. 2 (b) of the Divorce Act because by reason of illness she is unable to withdraw from her parents’ charge and she is unable to obtain the necessaries of life on her own.

[ 24 ] As to the period from March 1, 2012, to August 1, 2012, inclusive, the evidence before the Court is that she will be working almost full‑time in order to save money for her return to school in September 2012.

[ 25 ] On that basis, this Court finds that no child support shall be payable for March 1, 2012, to August 31, 2012.

[ 26 ] On the assumption that Melanie returns to school in September of 2012 on a full-time basis, child support will be payable as of September 1, 2012, in accordance with the MacLeod-Beliveau Order.

Section 7 Expenses

[ 27 ] Mr. Maynard seeks to obtain a credit of $2,965.00 for s. 7 expenses which he has paid from May 20, 2011, to August 28, 2011. These monies were paid during the summer between Melanie’s first and second years of school. $565.00 was paid for repair to her computer which she would have needed for school in September 2011. The balance of the monies was given directly by Mr. Maynard to Melanie during that period of time.

[ 28 ] The Court sees no reason why any of these s. 7 expenses should be credited to Mr. Maynard. It was his expectation that Melanie would return to school in September 2011 which she in fact did. It was only after she left school because of illness that he sought this credit. In the Court’s view, he cannot claim a credit in hindsight. Therefore, the portion of his motion to vary s. 7 expenses fails.

[ 29 ] This Court orders that if there were any s. 7 expenses for the period from September 1, 2011, to November 15, 2011, these shall be paid in accordance with the MacLeod‑Beliveau Order.

Credit with Respect to Bi-weekly Payments

[ 30 ] Mr. Maynard submitted a Voluntary Arrears Payment Schedule from the Ministry of Community and Social Services signed by him dated August 30, 2011. Mr. Maynard acknowledges as of that date that his arrears were $50,000.00 and offered to pay $403.54 bi‑weekly towards the arrears in addition to the regular support payments of $48.00 bi‑weekly. Mr. Maynard seeks to reduce the payments based on the credit sought in this motion.

[ 31 ] The arrears are very high and will take a long period of time to repay. The Court does not see any reason to reduce the amount of bi‑weekly payments. If there is any credit, it can be applied towards the arrears balance outstanding. The bi‑weekly payments towards the arrears shall remain at $403.54 together with any amount required to be paid towards the regular bi‑weekly supplementary payments.

Other Matters

[ 32 ] Para. 14 of the MacLeod-Beliveau Order dated April 4, 2011, reads as follows:

14. The Respondent, Steven Arthur Maynard, is prohibited from bringing before this or any other Court any further Matter, Application, Motion to Vary, Motion to Stay Enforcement of Arrears or any other motion or any other proceeding of any kind against the Applicant, Lesley Dawn Maynard, concerning child support, arrears of child support, custody, access, or any other matter in relation to their children, Nicholas Steven Maynard or Melanie Tressa Maynard, or arising out of their marriage, without first obtaining leave of this Court, upon 30 clear days notice being given to the applicant, Lesley Dawn Maynard, of any such Application for such leave.

[ 33 ] By Order dated January 20, 2012, McNamara J. granted Mr. Maynard leave to proceed with the Motion to change the Final Order of the Honourable Madam Justice MacLeod-Beliveau dated April 4, 2011, with regards to child support. That Motion has now been completed in accordance with the reasons set out above.

[ 34 ] Therefore, this Court orders that para. 14 of the MacLeod‑Beliveau Order dated April 4, 2011, be reinstated so that Mr. Maynard has to obtain leave of the Court upon 30 days notice in accordance with para. 14 of the MacLeod‑Beliveau Order to seek any other relief.

Costs

[ 35 ] Under the circumstances, there will be no order as to costs.

Mr. Justice Stanley J. Kershman

Released: March 9, 2012

SCHEDULE “A”

COURT FILE NO.: 785-09

DATE: 20120309

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Lesley Dawn Maynard Applicant (Responding Party) – and – Steven Arthur Maynard Respondent (Moving Party) REASONS FOR DECISION ON MOTION Mr. Justice Stanley J. Kershman

Released: March 9, 2012