ONTARIO SUPERIOR COURT OF JUSTICE
FAMILY LAW
COURT FILE NO.: 92-ND-1960360001
DATE: 20120628
BETWEEN:
MARIE LUZ FULCHER Applicant – and – ROY DAVID FULCHER Respondent
Self-represented
Self-represented
HEARD: MAY 29, 2012
ENDORSEMENT: GREER J. :
[ 1 ] The Applicant Mother moves for relief set out in her Notice of Motion, with respect to S.7 expenses and child support for the parties’ daughter, Jordan Victoria Fulcher, B. December 17, 1990.
[ 2 ] The first Court Order respecting child support was made by Mr. Justice Potts on March 9, 1993. The second was made by Mr. Justice Meehan on April 22, 1997. On that date, the parties were also divorced. The third Order is that of Mr. Justice Matheson made January 31, 2001.
[ 3 ] All Orders dealt with the issue of child support. In the Matheson Order, the Father, Respondent, had moved to have certain child support arrears rescinded. That Motion was denied and Mr. Justice Matheson fixed the arrears at $46,430, with $21,055 of that amount payable to COMSOC, and the balance of $25,375 payable to the Mother.
[ 4 ] None of these Orders made reference to S.7 expenses and/or post-secondary education. The Father, however, continued to be in arrears of the child support, had EI benefits garnisheed. By mid 2008, the arrears were over $63,000. In the meantime the Mother had educated herself, worked hard, made contributions to an RESP for Jordan and raised the child.
[ 5 ] In January 2010, the Father purchased a house with his brother and financed the arrears payments of $55,458.05. COMSOC was paid off and the Mother received the balance. She continued to receive small amounts after that date. The FRO statement shows $879.15 arrears as of August 12, 2011.
[ 6 ] The Mother has carefully set out the S.7 expenses incurred by Jordan, who is presently attending University of Ottawa. She hopes to graduate in December, 2012, with a B.A. in Communications and Business. She may go back to school.
[ 7 ] The Mother asks the Court to order the Father to pay his share of the current S.7 expenses as well as arrears of expenses estimated at $32,000. The tuition for 2011 was $5,510.61. Jordan also has expenses from 2009-2011 inclusive. Jordan has amassed $22,398.26 in student loan debts as of January 24, 2012 as certified by the National Student Loans Services Centre. The Mother continues to pay off her own Student Loan through RBC.
[ 8 ] The Father now lives in the Niagara Falls area. He entered into a new relationship after his divorce, and has two more children from that relationship. They are currently residing with him on a full-time basis and he is their primary parent. He separated from the children’s mother in 2006. He says he now has a more orderly life and a more orderly financial situation. He did, however, have to settle with the children’s mother, since the house purchase was in her name and his brother’s name. That settlement cost him $25,000.00. He says he purchased his brother’s share and did the refinancing of it with the help of his mother’s good credit rating and she is on title with him. He says, however, there is no equity left in the home at this point.
[ 9 ] The Father also says that there is no evidence that Jordan has contributed anything towards her own expenses. He claims the Mother knew where he lived and could have brought a Motion for S.7 expense contribution but did not do so until May. He says he has had no relationship with Jordan over the past 19 years.
[ 10 ] Jordan’s T4 slip for 2011 shows that she has earned $3,643.20 employment income, which falls within the range of what the case law says a university student should be contributing towards his or her post-secondary education.
[ 11 ] The Mother has also asked that a new Restraining Order be put in place. This relief is dismissed. There is no evidence that the Father ever breached the old Order. He did agree that he made one phone call recently to the Mother, where he left her a voicemail. He says the message he left was courteous and not threatening. The Mother was startled to hear from him after so many years. This, however is not sufficient to support the granting of a new Restraining Order.
Analysis
[ 12 ] The Father agrees to continuing the child support payments in the amount of $266 per month to the end of December 2012. I, however, order him to continue such payments to the end of March 2013 when such payments shall cease. Although Jordan is scheduled to graduate in December 2012, that does not mean that she will be able to immediately find a job on January 1, 2013. The 3 months of additional payments will enable Jordan to seek employment or determine whether she will return to University for a further degree.
[ 13 ] The Father is aware that there are some arrears of child support outstanding and he has undertaken to pay them off at $100 per month until they are fully paid off.
[ 14 ] The Mother asks the Court to order the Father to pay a total of $32,000 for Jordan’s special expenses incurred by her during her years at University. The parties’ Divorce Judgment did not deal with these expenses. Jordan has had to take out student loans to assist her, as noted in Para. 7 of these Reasons.
[ 15 ] Student loans incurred by children have been found to constitute a “contribution…from the child” to his or her own post-secondary educational expenses. It is not considered a “benefit” within the meaning of the Child Support Guidelines (“CSG”). The cases have held that a student loan may reduce the contribution to be made by a parent towards the child’s education but it may not necessarily do that, depending on the circumstances of the case. It depends on the “reasonableness” of taking account of any such loans in light of the case. See: Blonski v. Blonski , 2010 ONSC 2552 .
[ 16 ] Section 7(2) of the CSG states that the parents are to share post-secondary expenses, after deducting the contribution, if any, from the child. In this case, Jordan has contributed to her expenses by summer earnings.
[ 17 ] Section 7 expenses, even when not in the Divorce Order, can be claimed retroactively. The Court, however, looks at a number of factors. The Father relies on the Court of Appeal’s decision in Park v. Thompson , 2005 14132 (On.C.A.). There the Court looked at the need on the part of the child and the parent’s ability to pay. It looks also at any blameworthy conduct on the part of the non-custodial parent, the need of the custodial parent to encroach on capital or borrow money and whether there is any excuse for the delay in bringing on the Application. It also looks on what notice has been given to the payor parent of the intention of the custodial parent to bring on a Motion for such S.7 expenses to be paid.
[ 18 ] It is the position of the Father that it would cause him to be unfairly and unreasonably burdened to have to pay for some of these expenses given that he is now supporting his own 2 young children, of whom he has custody.
[ 19 ] The difficulty with this case is that the parties have virtually had no contact for 20 years. The Father has no relationship with the daughter and has had no contact with her. There is no evidence that he ever tried to reach her. The Father only paid the arrears of child support when he was unable to obtain financing on the recent purchase of his home with the outstanding arrears as owing to F.R.O. In addition, the Mother never tried to claim S.7 expenses when Jordan started university. She would have had to bring on a Motion to change the original Order, but why would she when no regular support payments were being made? She has now however taken the step on August 26, 2011 to do so.
[ 20 ] Section 7 expenses are shared by the parents in proportion to their incomes. The Mother’s income as of her sworn Financial Statement dated August 26, 2011 is $85,704 for that year. She owns a residence that has only $16,000 equity in it. The Father’s Financial Statement was sworn by him on January 16, 2012. His total income for the year is shown as $45,760. The encumbrances on his home exceed the equity, since the financing produced the $55,458.05, which paid off the arrears to the date of payment.
[ 21 ] In D.B.S. v. S.R.G. , 2006 SCC 37 () , [2006] 2 S.C.R. 231, the leading case on child support, the Court said that the C.S.G. were meant to establish a fair standard of support for children that ensures that they continue to benefit from the final means of both spouses after separation. This maxim, in my view, applies equally to S.7 expenses.
[ 22 ] In the circumstances of this case, while the Mother now earns more than the Father, this was not always the case. The Mother went through great financial hardship during the years after the Father left. She received no support for 20 years. She educated herself and still carries student loans. She, alone, raised Jordan, who also has student loans to repay. The Mother is to be commended for not giving up in the face of financial difficulties, a huge unfair financial burden for her.
[ 23 ] I cannot, in the circumstances of this case say that the Father should have to retroactively take on his share of all Jordan’s S.7 expenses during her years of university. I do, however, order him to pay his proportionate share of Jordan’s expenses for the year January 2012 to December 31, 2012. Based on Jordan’s previous years’ expenses, I calculate that one full year S.7 expenses are as follows:
Tuition $5,305.24
Residence fees $9,816.00
Travel Via Rail
4x $350 per trip $l,400.00
- Books (my estimate) $500.00
$17,021.24
From that amount is to be deducted Jordan’s earnings of $3,643.20 to bring it to $13,378.04. In the event Jordan has received a further OSAP loan for 2012, it must be deducted before the percentages apply. Without any further deduction, the parties would share the S.7 expenses at 63.3% for Mother and 36.7% for the Father.
[ 24 ] This means that the Father pays $4,909.74of the S.7 expenses. He shall pay this amount commencing April 1, 2013 at $300 per month until the amount has been paid in full, when all payments shall cease. It is incidental to Jordan’s support and shall be collected by F.R.O.
Conclusions :
[ 25 ] The following Orders shall issue:
The Order of Mr. Justice Matheson made January 31, 2001, shall continue in force with respect to the $266 per month to be paid as child support until March 31, 2013 when child support shall cease, subject to the following 2 Orders.
Order to go that any arrears of child support as of the date of this Order shall be paid at $100 per month commencing July 1, 2012 until fully paid.
Order to go that the Father pay $5,083.65 of Jordan’s S.7 expenses for the 2012 year at $300 per month commencing April 1, 2013 until paid in full. S.D.O. to issue.
If Jordan receives any OSAP payments in 2012, these shall be deducted from the S.7 expenses which I fix for 2012 at $13,378.04 and the percentages applied to the lower amount accordingly for each parent.
[ 26 ] There shall be no Costs of this Motion.
Greer J.
Released: June 28, 2012
COURT FILE NO.: 92-ND-1960360001
DATE: 20120628
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY LAW
BETWEEN:
MARIE LUZ FULCHER Applicant – and – ROY DAVID FULCHER Respondent
ENDORSEMENT
Greer J.
Released: June 28, 2012