SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-566-93
DATE: 20120118

RE: Melanie Anne Linkletter, Applicant

AND:

Shawn Gregory Fraser, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL:
Applicant, Melanie Anne Linkletter, Self-represented
K.S. Kieller, Counsel for the Respondent

HEARD: January 9, 2012

ENDORSEMENT

[ 1 ] The applicant, Melanie Anne Linkletter (“the mother”) brings a motion to change the final order of Justice Shaughnessy dated December 11, 2001. The respondent, Shawn Gregory Fraser (“the father”) opposes the motion. The mother originally sought to obtain an order for s.7 expenses from the father to assist with their child’s post-secondary education expenses. The application was commenced May 6, 2011. Upon receiving information about the father’s current and previous years’ income, the mother amended her prayer for relief to seek a retroactive support order to 2006, to require child support in accordance with the Guidelines.

[ 2 ] The following undisputed facts will provide context for the discussion that follows. The mother and father had a brief relationship while the mother was in high school and the father in college. Their child, Kyle Gregory Linkletter (“Kyle”) was born May 5, 1993. The father paid child support while he was in college and the parties consented to a child support order in 2001. Based on the father’s income of $52,500, Justice Shaughnessy ordered child support in accordance with the Guidelines of $450 per month. In addition, he ordered $150 per month for the father’s “proportionate share of the applicant’s [mother’s] daycare and extracurricular activities expenses”. The order also required that the father serve on the mother proof of his income each year. The father has paid $600 a month since the date of that order without fail. He is employed in the auto sector and his income rose steadily over the years, so that by 2008 his income was over $85,000. However, in accordance with the fortunes of the auto industry, his income went down in the years that followed. His income for 2011 was $70,300.

[ 3 ] In the years that followed the order, the father did not provide confirmation of his annual income, nor did mother request same. Nor did the father request receipts or a review of the $150 a month he was paying for daycare or extracurricular activities. The mother did not request or pursue the failure to provide annual information, nor did she provide an accounting of the extraordinary expenses or indicate that there should be reduction after child care was no longer a necessity.

[ 4 ] The affidavits indicate that the father has had no involvement in the child’s life. He did not seek an involvement with his son, nor did the mother seek to encourage a relationship between father and son. Both parents went on with their lives and re-partnered. The father married and has a child with his partner, who has income of $80,000 per year. The mother has had two children from a partner from whom she is now separated. Her tax return indicates she is receiving $520 a month of child support from her former partner. It is apparent that her former partner stood in loco parentis to Kyle for many years, but it is unclear from the material what, if any, support he is providing to Kyle for his post-secondary education.

[ 5 ] Kyle filed an affidavit in connection with this matter indicating that he was unable to earn any summer employment income in 2011 after he completed high school, and that he’s been accepted into a community college program in North Bay. His affidavit speaks to the relationship between his mother and her “ex-husband” and he indicates:

I understand that he may be obligated to help pay some of my tuition for college, but due to the lack of our past and future relationship, I feel that this is unfair to Chris [mother’s ex-partner] and I do not want to take money that would take from my younger sister or brother, but with respect to the courts, I understand that this matter is not in my hands.

[ 6 ] Kyle is in his first year at community college. His mother has acknowledged the importance of providing information about his attendance and results to the father from time to time. It is accepted by both parties that his budget is about $16,000. He obtained student grants and loans from the Canada-Ontario Student Loan Program totalling $9795. The loan portion of the total is $7,055. In order to make up the shortfall, Kyle will need, from various sources, about $6,000 for the academic year 2011/2012. He will need a similar amount for 2012/2013. He may be successful in earning summer income in 2012, or achieving some bursaries to assist him with that academic year.

RETROACTIVE SUPPORT

[ 7 ] As previously noted, the father paid $600 a month in child support on a consent basis since the 2001 order. The following chart indicates the father’s income each year for the last four years, together with the Guidelines of child support that would have been applicable.

Year

Income

Guideline Support

2008

$85,562

$759

2009

$72,500

$661

2010

$74,385

$673

2011

$70,300

$641

[ 8 ] The father was paying $150 per month towards extraordinary expenses. As he sets out in his affidavit:

I believe that I was seriously overpaying support by continuing to pay the extra $150 a month toward Kyle’s “hockey expense” but did not wish to incur the legal expense and the emotionally draining negotiations in order to relieve myself of that $150 per month expense. I thought that I was being more than generous and fair to Melanie. She never requested information.

POSITION OF THE PARTIES

[ 9 ] The mother submits that retroactive support should be based on the father’s income going back to 2006. However, she acknowledges that her son is now over 18 and she did not request retroactive child support until she commenced this application for post-secondary education expenses in May of 2011. Although the mother states she did not know where the father was residing, she was aware of his place of employment, his mother’s address and she was receiving support payments from FRO.

[ 10 ] In DBS v. SRG, [2006] S.C.C. 37, the Supreme Court of Canada provided the following guidance at para. 123, “It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.”

POSITION OF THE FATHER

[ 11 ] It is the position of the father that there should be no retroactive order for support under the circumstances of this case. Although he did not file annual financial statements with mother, he was not otherwise involved in any blameworthy conduct. He felt that the amount he was paying, including the $150 for extraordinary expenses was more than he was legally obligated to pay. He did not receive any accounting from the mother as to extraordinary expenses. He has a new family now and it would be a hardship for his new family if he was required to pay retroactive child support. The father also argues that the mother has not adequately explained her delay in seeking this retroactive child support award. The father relies on the comments of the Supreme Court of Canada in DBS, supra, at para. 63:

The immediate concern with such retroactive awards is that they disturb the certainty that a payor parent has come to expect. A payor parent who diligently follows the instructions of a court order may expect that he would not be confronted with a claim that he was deficient in meeting his/her obligations. After all, until it is varied, a court order is legally binding. It provides comfort and security to the recipient parent, but also provides predictability to the payor parent. Put most simply, the payor parent’s interest in certainty appears to be most compelling where (s)he has been following a court order.

[ 12 ] According to the mother’s affidavit, the amount that she seeks for retroactive support per year is as follows:

2011

2010

2009

2008

$840

$840

$672

$1,956

[ 13 ] If the three-year rule of thumb were applied, the total entitlement of mother, as sought, would be in the order of approximately $3,000. However, on the facts of this case, I am not satisfied that this is a fit and proper case for a retroactive child support order. Father made his payments diligently over the years, and thought that he was paying more than he was required to pay. Certainly the child care expenses referred to in the order of Shaughnessy J. were no longer applicable, and father could have anticipated that $150 a month for extraordinary expenses during many of the preceding years was more than his legal obligation. Father started a new family and has a child of that relationship. Mother has not provided an accounting of the s.7 expenses over the last ten years, nor has she indicated what, if any, child support or s.7 expenses that she is receiving from her separated spouse who stands in loco parentis to Kyle.

PARENT/CHILD RELATIONSHIP

[ 14 ] It is the mother’s position that the father should assist to the extent of 60% of the s.7 expenses for Kyle during his post secondary education years, including the two-year program he is currently enrolled in, and the possibility of a three-year bachelor’s degree thereafter in addition to monthly child support. Kyle is over 18, and according to the affidavit of the father, there has been no relationship between the parties. However, the father indicates that Kyle attended his residence on a number of occasions recently and was involved in demanding or threatening behaviour. These actions have now been discontinued. The father indicates that this is a repudiation or a rejection of the relationship between the parties. However, on the facts of this case, it is clear that there was never any relationship for Kyle to repudiate. This is not a case where the father has sought to foster a relationship with the child and been rebuffed or rejected by the child. In this case, the father has sought no relationship, nor has the mother encouraged a relationship. Where a parent seeks no relationship and does not attempt to reach out to a child during the child’s minority years, it is disingenuous for that parent to rely on his own conduct to discontinue support for his child who seeks to pursue post-secondary education. I am satisfied the father should contribute toward Kyle’s post-secondary education expenses in connection with the two-year program he is currently enrolled in.

CHILD SUPPORT GUIDELINES

[ 15 ] I am satisfied that father should provide support in accordance with the Child Support Guidelines from the commencement of the application, that is May 2011 until September of 2011 when Kyle commenced post-secondary education. Although mother did not amend her claim until several months after that date, she did not have the necessary information about his income to make an informed decision earlier. Once she commenced her application for s.7 expenses, father ought to have recognized that child support would be an issue given the change in his income from the 2001 order. I accept that his income for 2011 is $70,300 and therefore Guidelines support is $647. For the period May 2011 to the end of August 2011, father’s requirement to pay was $647 a month. His actual payment was $600 a month, is a credit towards this obligation.

[ 16 ] Child support would also apply during the four months from May until the end of August 2012, when it is anticipated that Kyle would be at home at the end of his first school year, based on the Guidelines of $647 per month.

[ 17 ] Section 7(1) (e) of the Child Support Guidelines (Ontario) , O.Reg. 391/97 as amended, provides that the court may order that the parent pay all or a portion of post-secondary expenses taking into account the child’s best interests and the reasonableness of the expense in relation to the means of the parents and those of the child. Based on his budget and the support he is receiving from student loans and grants, his needs are about $6,000 per academic year. Kyle was unable to contribute anything to his educational expenses in 2011. However, he has assumed the burden of a student loan which covers a substantial portion of his expenses. Mother has recently enrolled in university and does not have any financial resources to assist her son. However, her ex-partner, who stood in loco parentis to Kyle for many years, is providing her with child support and I see no reason why he should not be required to contribute. Kyle’s acknowledgement, in his affidavit, about his step-father and his step-father’s responsibilities should be noted. It is open to his mother to pursue this matter separately to assist her son’s financing of his post-secondary education. On the facts of this case, I am satisfied that Kyle should have assistance from his father with respect to his post-secondary education in pursuance of his first diploma, the two-year program he is currently enrolled in. Because Kyle is not living at home, it would be unfair to expect father to contribute to s.7 expenses and to continue to pay child support to his mother while away at school. This would amount to double-dipping.

[ 18 ] Mother’s income is limited based on a recent enrolment in university. Her affidavit in support of her motion to change indicates that she has student loans and grants totalling $24,780. This figure includes grants of $7,000. There is no information as to efforts to seek part-time or summer employment. Her financial statement indicates that she is receiving child support of $520 from her separated spouse. If this is in relation to her two younger children and if this is Guideline support, her ex-spouse has income of in the $35,000 range. She has not explained why she is not receiving spousal support from her separated spouse. The receipt of spousal support would add to her income and enhance her ability to contribute to s.7 expenses for Kyle. Neither has she explained why her ex-spouse is not contributing to s.7 expenses for Kyle in accordance with his obligations as a person in loco parentis .

[ 19 ] Father submits that in these circumstances, income of at least $30,000 per year should be imputed to mother. In my view, mother’s income should be imputed to be $21,200 per annum based on the minimum wage. Based on her ability to contribute to s.7 expenses for Kyle, together with her ability to collect some contribution from her separated spouse for Kyle’s s.7 expenses, I am satisfied that she should be responsible for 25% of Kyle’s net s.7 expenses for post secondary education.

[ 20 ] Father’s income has been impacted by the downturn in the auto sector, and he and his spouse now support their child. An order that is clear, concise, and provides certainty to the parties will assist them in moving forward for the next two years. There are a number of variables that may affect Kyle’s needs, but it is not in the parties’ best interests to incur the cost of coming back to court to deal with minor changes. On all the evidence before me, I am satisfied that child support should stop while Kyle is away at school, but be paid during the four summer months in 2011 and 2012. Section 7 expenses for post-secondary education ought to commence September 1, 2011 and continue until May 1, 2013, the anticipated completion date of Kyle’s current two-year program. As a requirement of this ongoing s.7 support, the mother is required to provide to the father proof of continuing enrolment at college, together with academic results from each term of study within 60 days of receipt of same.

QUANTUM OF SECTION 7 EXPENSES

[ 21 ] Kyle’s budget for post-secondary expenses is $16,000 per year. After loans and grants are considered, he has a shortfall of about $6,000 per year. Based on the circumstances here, I am satisfied that his father ought to contribute the sum of 75% of this shortfall for each of the two academic years. Father’s total obligation is therefore $9,000 toward Kyle’s post-secondary expenses.

SUMMARY

[ 22 ] Based on a combination of child support from May of 2011 to September 1, 2011 and May 2012 to September 1, 2012 in the amount of $647 per month for eight summer months, I am satisfied that child support for the months in question is $5,176. I am also satisfied that father’s contribution towards s.7 post-secondary expenses is $4,500 per year for two academic years, totalling $9,000. Father’s total obligation is therefore $14,176. However, father should be credited with child support of $600 per month which he has continued to pay monthly from May 1, 2011 up to and including the payment in January of 2012, giving him a total credit toward the above figures of $5,400. Therefore, his total obligation after credits are applied is $8,776. I am satisfied that this amount can be satisfied by a monthly payment to the applicant mother for 15 months in the amount of $585 monthly from February 1, 2012 to April 30, 2013.

FINANCIAL DISCLOSURE

[ 23 ] Father is ordered to provide disclosure with respect to his 2012 income by June 1 st of the following year. The mother is required to provide the father with continuing proof of full time enrolment at post-secondary education, together with Kyle’s academic results from the educational institution.

[ 24 ] An order will go on the following terms:

(i) The respondent is ordered to pay to the applicant $585 per month commencing February 1, 2012, for child support and s.7 expenses for Kyle Gregory Linkletter, born May 5, 1993.

(ii) A Support Deduction Order will issue.

COSTS

[ 25 ] The parties may make written submissions as to costs within 20 days if they are unable to resolve the issue of costs.

[ 26 ] Because the applicant is self-represented, her approval as to form and content of this order is waived.

MULLIGAN J.

Date: January 18, 2012