Superior Court of Justice - Ontario

Court File No.: FC-01-302
Date: 2012-01-11

RE: Karen Sarah Clark, applicant

AND: David John Clark, respondent

BEFORE: Mr Justice Ramsay

COUNSEL:
Ms Gratia W. Ip for the applicant
The respondent in person

HEARD: January 9-10, 2012 at St Catharines

Endorsement

[ 1 ] The wife moves to vary the terms of a separation agreement that have to do with child support.

[ 2 ] The parties separated in October 2000 and divorced in 2001. The separation agreement provided that the husband would pay child support for the only child of the marriage at a rate of $400 per month, and that the parties would share in proportion to their incomes the portion of post-secondary education expenses that the child could not afford to pay herself. There was no other provision for extraordinary expenses apart from medical and dental expenses.

[ 3 ] In 2008 the wife asked the husband for more money. It is not clear to me just what was said but the husband started to pay $475 a month, which he continues to do. On October 27, 2010 the wife filed the present application.

[ 4 ] The wife asks for

a. a retroactive increase in child support to 2008 to reflect the husband’s income and the Child Support Guidelines;

b. a contribution of 60% of the child’s past and future cell phone expenses;

c. guideline child support for the four months of the year in which the child is not away at university and $400 a month for the other eight months; and

d. enforcement of certain provisions of the separation agreement that have to do with financial disclosure and designation of beneficiaries for the husband’s pension and RRSP.

Retroactive child support

[ 5 ] The child turned 18 on May 11, 2011. In September 2011 she enrolled in film studies at Carleton University. On September 2, 2011, on consent Scott J. ordered the husband to contribute $2,157.46 to 2011-12 post-secondary education expenses, “subject to recalculation when the account from Carleton University is received.” This amount has been paid. Recalculation results in an additional $343 owing by the husband, which he is content to pay. Added to the $475 a month that the husband paid from September to December 2011 this would cover the child’s costs for the 2011-2012 school year.

[ 6 ] To me, the language of the agreement makes it clear that entitlement to spousal support was meant to be invariable, but entitlement to child support was not. The provision for annual financial disclosure is part of the paragraph that deals with child support. There have been material changes in circumstances. The husband’s income has increased and the Child Support Guidelines have been amended twice since the agreement was executed.

[ 7 ] The wife asks for retroactive child support to April 2008. She testified that she accepted the $475 a month and did not go to court for more in order to preserve a positive co-parenting relationship with the husband. Given this voluntary choice, I think it appropriate to award retroactive child support from the date of the present application.

[ 8 ] Since the application was made on October 27, 2010 I propose to award retroactive child support to November 1, 2010. The husband earned about $70,000 in 2010. According to the Guidelines, the husband should have paid $647 per month from November 1, 2010 to December 31, 2011. He paid $475 per month during that period. The difference, $172 a month, multiplied by the 10 months from November 1, 2010 to August 31, 2011, is $1,720. I fix retroactive child support at $1,720.

[ 9 ] The husband initially asked that I give him credit for $2,000 that the wife agreed to put into the child’s RESP at the time of separation, but withheld until September 2011, when she paid it directly to the university. He did not press this issue in closing argument. He might have had a point if the wife had included the $2,000 in her 40% share of the expenses for 2011-2012, but she did not. She paid the $2,000 in addition to her share.

[ 10 ] I order the husband to pay $1,720 in retroactive child support within 30 days.

Extraordinary expenses

[ 11 ] The separation agreement does not provide for extraordinary expenses that are not related to health or post-secondary education. The cell phone does not strike me as necessary or extraordinary in any event. I decline to order a contribution to the cost of the cell phone.

Ongoing child support and contribution to post-secondary education

[ 12 ] The parties agree that the husband should pay the table amount for the four months of the year that the child is home from school. According to the brand new guidelines, that would be $647 a month based on the current annual income of $71,000. I do not consider it appropriate to order table support for the other eight months, even reduced as requested by the wife. The child’s living expenses for those eight months will be included in her post-secondary education expenses. As child support, I order $215 a month, which is $647 multiplied by four and then divided by 12.

[ 13 ] The child is enrolled in a four-year programme that costs about $18,000 a year, all in. She chose the programme and the venue. Given the circumstances of the family, which is better off than most, but not wealthy, and her ability to contribute through summer employment, student loans and bursaries, I think it is fair to expect her to take responsibility for half of the expense.

[ 14 ] If the child contributes $9,000, the parents should cover the remaining $9,000 in proportion to their incomes, which is 60/40 as between father and mother. (The mother’s income is currently about $47,000 a year.)

[ 15 ] The husband is therefore responsible for $5,400 per year, or $450 a month, for three years. I order the husband to pay to the wife $16,200 as contribution to post-secondary expenses in 36 monthly payments of $450 commencing January 1, 2012.

The husband’s life insurance and RRSP

[ 16 ] The parties resolved these issues during the trial. The husband undertook to provide proof to Ms Ip within 14 days that his designations of beneficiary have been made irrevocable.

Financial disclosure

[ 17 ] The husband is ordered to fulfil the obligation imposed by the last sentence of paragraph 10 of the separation agreement. The wife shall be deemed to have asked for disclosure for the years 2011, 2012, 2013, 2014 and 2015 on June 1 of the following year.

Costs

[ 18 ] The parties may make written submissions to costs within 10 days, if they wish.

[ 19 ] An order will go in the following terms:

a. The respondent is ordered to pay to the applicant $1,720 within 30 days on account of retroactive child support for Devin Nicole Clark, born May 11, 1993.

b. The respondent is ordered to pay to the applicant $343 within 30 days as a contribution to past and current post-secondary expenses;

c. The respondent is ordered to pay to the applicant $215 a month commencing January 1, 2012, and ending April 30, 2015. This amount represents child support at the table amount of $647 per month based on an annual income of $71,000, reduced by two-thirds and prorated over a year to reflect the fact that the child’s living expenses are covered by s.9 support for eight months of each year.

d. The respondent is ordered to pay to the applicant $16,200 as a s.9 contribution to post-secondary expenses in 36 monthly payments of $450 commencing January 1, 2012.

e. A support deduction order will issue.

J.A. Ramsay J.

Date: 2012-01-11