COURT FILE NO.: FS-10-016740
DATE: 20120731
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marcela C. Campos
Applicant
– and –
Dion Thomas Evans
Respondent
HEARD: April 30, May 1, 2 and 3, 2012
KITELEY J.:
REASONS FOR DECISION
[1] This application was brought by the former wife to compel the former husband to pay retroactive child support for both children and ongoing child support for one child.
Minutes of Settlement 1999
[2] The parties were married on August 8, 1986. They have two children: A. born December 24, 1988 and M. born September 23, 1991. They separated on September 14, 1997 when the children were 9 and 6. Both spouses had lawyers when they entered into Minutes of Settlement on December 1, 1999. Pursuant to paragraph 6, the spouses agreed to joint custody of the children with liberal and generous access that was described. Pursuant to paragraph 7, Mr. Evans was obliged to pay child support in the amount of $507.69 every second Friday for a total monthly of $1100 on the assumption that his gross annual income was $80639. The monthly total consisted of the table amount of $1038 plus the sum of $62.00 per month which was Mr. Evans’ proportional contribution to the children’s special and extraordinary expenses. Paragraph 7 also provided as follows:
(c) The Respondent shall ensure that all child support payments are made on a timely basis, meaning that the Petitioner shall have the payments “in hand” on the Fridays that they are due.
(d) The Child support payments shall be payable for each child until one or more of the following events occurs:
(1) A child ceases to reside full-time with the Petitioner, so long as “reside full-time with” includes the situation where a child lives away from home to attend an educational institution, pursues summer employment or enjoys a vacation, but otherwise maintains a residence with the Petitioner.
(2) A child becomes eighteen years of age and ceases to be in full-time attendance at an educational institution.
(3) A child obtains one post-secondary educational degree or diploma or turns twenty-three years of age, whichever occurs first. In the event that a child is still a child of the marriage under the Divorce Act after a child’s 23rd birthday, then the support shall continue until a child obtains one post-secondary educational degree or diploma.
(4) A child marries or dies.
(5) The mother dies.
(e) When the support terminates for one of the two children, the support amount for the remaining child shall be recalculated according to the Support Guidelines for the Province of Ontario.
(f) Subject to the Respondent’s life insurance coverage for the children, his support obligation shall survive his death and be a first charge against his estate, as set out in the Family Law Act. The Respondent shall continue to maintain the children as beneficiaries under a life insurance policy to ensure that the children are provided for in the event of his untimely death.
(g) The parties shall exchange no later than June 1st of each year their income tax returns, current pay stubs, current confirmation of income, bonuses and benefits from their employers to determine whether an adjustment to the child support and extraordinary and additional expenses for the children should be made.
[3] In paragraph 9 under the heading “Post-Secondary Expenses for the Children”, the following appeared:
(a) The parties acknowledge that the child support payments herein provide for ordinary, continuing living expenses and special and extraordinary expenses for the children that may be incurred by the wife from time to time. However, the parties acknowledge that the agreement does not cover post-secondary and other private school expenses for the children, nor does it cover additional health expenses. The parties shall therefore share, in proportion to their respective incomes, in the children’s: (1) medical, dental and drug coverage if neither party has a health plan in place; (2) post-secondary education costs for tuition, books, supplies and residence fees excluding meals, in the event that a child attend an institution away from his or her ordinary residence, subject to any reasonable contributions from the children so long as it is discussed in advance and agreed upon by both parties in writing, failing which further Court Order; & (3) the costs for and private school tuition, so long as it is discussed in advance and agreed upon by both parties in writing, failing which further Court order, and any other special activities that the parties may agree upon according to the proportion of the parties’ gross annual incomes at that time.
(b) The parties acknowledge that before any commitments are made or monies spent, that they shall mutually agree and consent to such expenditures, taking into account the needs and best interests of the children and the ability of the parties to pay such expenditures.
[4] Pursuant to paragraph 10, Mr. Evans was required to maintain health and dental coverage for the children for so long as the benefits were available to him. Pursuant to paragraph 11, Mr. Evans was required to pay spousal support in the amount of $700 per month on certain conditions. Pursuant to paragraph 13, Mr. Evans was required to make direct deposits every second Friday into the account of Ms. Campos in the amount of $830.79. Ms. Campos agreed not to file the agreement with the Family Responsibility Office unless there was a default that had not been rectified after five days notice. Pursuant to paragraph 15, Mr. Evans was required to make an equalization payment of $600 and in paragraph 16, he was required to deliver a computer with all accessories within 60 days. Pursuant to paragraph 22, the parties agreed that the Minutes of Settlement prevailed over any matter that is provided for in the Family Law Act, the Succession Law Reform Act, and the Divorce Act. In paragraph 26, amendments and material change in circumstances were described:
(a) In the event of a material change of circumstances, such that a Court of competent jurisdiction in the same circumstances would vary an Order or Judgment, only those provisions as set out in paragraph 6, 7 and 11 under these Minutes may be varied.
(b) If a variation is sought by one of the parties hereto, either party shall give the other thirty (30) days notice, in advance, in writing, in order to commence negotiations with a view to possible variation.
(c) If a variation is agreed upon by the parties, they shall be at liberty to amend those provisions, so long as the amendment is made in writing, signed by the parties, and witnessed thereto.
(d) If negotiations fail, then either party shall be at liberty to apply to a Court of competent jurisdiction to adjudicate the matter(s).
[5] Pursuant to paragraph 31 the spouses consented to the incorporation of paragraph 6 into a divorce judgment.
[6] On April 27, 2000, a divorce judgment was granted that incorporated paragraph 6 as to joint custody.
Claim by Ms. Campos at trial
[7] In her closing submission, Ms. Campos took the position that monthly support for A. should be reinstated effective September, 2011 and that Mr. Evans owed the following:
Child support and arrears
$20,379.00
Special and extraordinary expenses
$ 5,315.64
Contributions to A.’s post secondary education
$16,000.00
Costs
$ 1,800.00
TOTAL
$45,271.00
Response by Mr. Evans
[8] In closing submissions, Mr. Evans agreed that he owed $2000 for s. 7 expenses. He acknowledged that he is estranged from A. and that he would make a concerted effort to reconcile with her and would take immediate steps to contribute significantly to her educational costs in a manner of her choice.
Correspondence
[9] Ms. Campos and Mr. Evans both referred to correspondence that had been exchanged after the Minutes of Settlement.
[10] Mr. Evans wrote to Ms. Campos on December 18, 2002 in which he noted that pursuant to paragraph 3 of the Minutes of Settlement, a review of the spousal support payments was required because she had been cohabiting with SDM for over one year and her income was in excess of $20000 per year. He required a review of the $62.00 per month for the extraordinary and special support and insisted on supporting documentation. Observing that they had not exchanged financial information as required by s. 7(g), he included copies of his tax returns for 1999, 2000 and 2001 and asked her to provide the same documents. He also noted that based on his annual salary of $88871.05 as indicated in his 2001 tax return, his child support should increase from $1038 to $1098 per month.
[11] In a letter dated March 1, 2003, Ms. Campos confirmed that as of June 1, 2003, he was no longer required to pay spousal support and that a new amount for child support should be calculated and agreed to by both parties.
[12] Between October 2008 and April 2009, lawyers exchanged letters on outstanding support issues. Ms. Campos’ lawyer wrote on October 9 raising several issues: frequent late payments, failure to provide income verification to support increases he had made, payment of dental and health costs through his plan including receipts for charges in the amount of $7615.25 that had not been paid. A list of those receipts was attached. Mr. Evans was informed that M. required orthotics which would cost approximately $500 and that there were special and extraordinary expenses of over $12000 since 2000 and it was not clear how much he owed on a pro-rata sharing. Mr. Evans was informed that Ms. Campos had receipts for $9971.62 for post secondary expenses for A. and was still waiting for the tuition receipt for that year. It was noted that Ms. Campos had made verbal requests for special expense support to be paid and for exchange of income tax assessments from 2002 but Mr. Evans had refused. The letter indicated that for many years he had made it difficult to her to find out where he was and therefore it was difficult to consult on special and extraordinary expenses and obtain his agreement to pay as provided in the Minutes of Settlement. Ms. Campos’ lawyer asked for copies of income tax assessments for 2002, 2003, 2004, 2005, 2006 and 2007 within fourteen days and proposed that he pay immediately the sum of $7615.26. Once the arrears were calculated, he should enter into a payment plan to reimburse Ms. Campos for the arrears of special and extraordinary expenses and he should provide post dated cheques of six months for the bi-weekly child support and replace the cheques at intervals of six months. Mr. Evans was informed that if he did not respond within 5 days, they would assume he was not amenable to resolving it and Ms. Campos would prepare a statement of arrears and file it with the Family Responsibility Office.
[13] Mr. Evans’ lawyer responded in a letter dated January 20, 2009. A copy of the notices of assessment for the years 2002 – 2007 were provided. Mr. Evans took the position that he had not been provided with receipts for any health and dental expenses except one in 2003. The letter pointed out that Ms. Campos had a card to access health benefits directly and now it was too late for him to seek reimbursement although he would make an attempt for the more recent claims. In order to calculate the extraordinary expenses for the “last couple of years”, Ms. Campos was asked to provide her tax returns and notices of assessment for 2006 and 2007 as well as her 2003 tax return. The lawyer observed that it was unlikely they would reach an agreement as to the extraordinary expenses prior to the last three years because there was no explanation for why Ms. Campos had waited so long to make the request. Once Ms. Campos provided receipts for the extraordinary expenses from 2004 onwards, the calculation could be made to determine whether one spouse owed the other spouse any amount. As for the table amount of child support, the letter indicated that Mr. Evans was paying $725 by automatic bank transfer twice per month for a total of $1450, an amount which Mr. Evans said had been agreed upon in August 2006 based on his then income.
[14] In a letter dated February 18, 2009, counsel for Ms. Campos replied. She suggested that the ratio for payment of the medical and health claims was 75% by Mr. Evans to 25% by Ms. Campos. The lawyer pointed out that prior to 2004, Ms. Campos had frequently provided receipts for dental and health care expenses that she had paid and then he would lose them and then deny receipt. It noted that Mr. Evans would not answer the phone when she called, had almost no contact with his children and generally made himself unavailable for her to present receipts. The prescription drug card did not enable her to purchase medications at the drug store and Mr. Evans had failed to provide a replacement card. For health reasons, Ms. Campos was not then working and had no health plan. Nor did her common law partner have a plan. Since 2003, Ms. Campos had paid all health and dental expenses. Copies of all receipts from 2003 to 2008 were provided. Based on the notices of assessment, the child support payments should have been adjusted prior to and since 2006. Contrary to the letter dated January 20, 2009, Ms. Campos had not agreed to child support in 2006 in the amount of $1450; Mr. Evans had made that decision unilaterally. The arrears of monthly child support were calculated at $6895. The lawyer provided a list of the payment dates in 2008 that demonstrated that the deposits were frequently late 3 or 4 days and sometimes 10 or 11 days. The lawyer suggested that Mr. Evans increase his monthly payment to the guideline amount of $1710 commencing March 1, 2009 so that no more arrears accrued and that he supply his 2008 income tax assessment by June 1, 2009.
[15] In a letter dated March 30, 2009, counsel for Ms. Campos noted that a response to the February 18, 2009 letter had not been received and that Ms. Campos was still waiting for the payment required for the second half of March. Failing receipt of all monies owing by April 3rd, 2009, Ms. Campos intended to file a claim with the Family Responsibility Office.
[16] In a letter dated April 20, 2009, counsel for Ms. Campos noted that a response had not been received and that Ms. Campos intended to go to the FRO the following day.
[17] In a letter dated April 24, 2009, counsel for Ms. Campos reflected her understanding that Mr. Evans would be meeting shortly with his lawyer. A copy of the statement of arrears was provided that included the basic support and the $62.00. She intended to provide it to FRO the following day and then go to court to get an order for the balance of the extraordinary expenses and medical expenses.
[18] Counsel for Mr. Evans sent a detailed letter dated April 28, 2009. Counsel noted that “the fiscal year on which the parties have been operating” was based on the June 1st disclosure provision of their Minutes of Settlement, namely July to June. From July 2008 to June 2009, Mr. Evans should have been paying child support based on his 2007 income of $125782.49 or $1710 per month. He had been paying only $1450 and the shortfall was $260 per month for 10 months leading up to April 30, 2009 for a total of $2600 a cheque for which was enclosed. He agreed to begin paying $1710 immediately. As for the medical and health expenses, the letter indicated that Mr. Evans was not aware that there was a problem with the card or collecting benefits and he was “shocked to find this out”. He agreed to do his best to claim if Ms. Campos had original receipts for 2008 and 2009. He would not take responsibility for the years earlier and he did not accept that she had difficulties communicating with him because she had his address and could have sent the receipts by mail. The letter pointed out that he had been contacted about A.’s trip to Europe and queried why had Ms. Campos not contacted him about other expenses.
[19] As for post-secondary expenses he did not accept the documentation that had been provided and observed that A. had been working. He inquired if she had received scholarship funds or bursaries and whether the maternal grandparents had made a contribution. The letter indicated that Mr. Evans was not responsible for extra-curricular activities and that extraordinary expenses were covered by the $62.00 per month which he had paid until August 2006. The letter indicated that Mr. Evans and Ms. Campos had had a conversation at that point and had entered into a new agreement for a total amount of $1450. The letter observed that Mr. Evans was only responsible for extraordinary expenses that had been agreed upon and he had been consulted only three times between 2003 and 2008, namely a Quebec trip for M., a writing course for A. and a contribution of $1000 towards A.’s trip to France. The items claimed by Ms. Campos were not extraordinary expenses. The documentation provided by Ms. Campos was criticized. Based on the contribution of $62.00 per month and the contributions referred to above, he took the position that he had paid $3044.18 and that that exceeded his actual 75% contribution. The letter did indicate that had he been aware that tutors had been required he would have contributed and if proper receipts were provided, he would pay his 75% share.
[20] In that letter, counsel noted that Mr. Evans did not oppose turning the Minutes of Settlement into a court order and then having FRO enforce the order.
Ontario Court of Justice
[21] In her evidence, Ms. Campos described her efforts to have FRO enforce the order. Because the Minutes of Settlement had not been incorporated into an order, she eventually learned that she had to take that step. In March, 2010, she filed a Form 15, Motion to File Agreement with Ontario Court of Justice. She later abandoned that route.
Superior Court of Justice
[22] On May 25, 2010, Ms. Campos issued an application in this court in which she asked that the Minutes of Settlement be incorporated into a final order regarding child support and extraordinary expenses. It was served on Mr. Evans that day and he responded. On August 13, 2010, Justice Goodman held a case conference and directed the parties to bring documentation to the settlement conference on October 25, 2010. On October 25th, Justice Goodman noted that both parties were required to provide additional disclosure and she adjourned to another settlement conference on January 24, 2011.
[23] On January 24, 2011, Justice Goodman made an order on consent, without prejudice to Mr. Evan’s right to seek an earlier date for termination of support for either child, that the table amount of child support terminated as of September 30, 2010.
[24] Several other attendances occurred until it appeared that settlement would not happen and a trial date in March 2012 was set. On December 20, 2011, Justice Goodman conducted a Trial Management Conference and made a Trial Scheduling Endorsement. She set the trial for the week of April 30, 2012 for 4 days and directed further disclosure by both parties.
[25] In the Trial Management Conference, Mr. Evans had indicated he wanted to cross-examine his daughter A. and his son M. At the opening of trial, Mr. Evans indicated that he had reconsidered and would not require their evidence.
Evidence of Ms. Campos
[26] Ms. Campos made her opening statement on April 30th and then gave her evidence in examination in chief. At the conclusion of her cross-examination on Tuesday, May 1st, she indicated that she felt that in cross-examination, she had not been able to explain herself clearly enough to explain university costs. She was thinking about bringing her daughter to the trial although she was reluctant to do so. After a recess to consider her position, she decided she would ask A. to attend as a witness. A. arrived after the lunch recess and gave evidence from 2:25 to 3:15 including cross-examination. By that point, I had come to understand that Mr. Evans was estranged from his daughter. I encouraged both parents not to pursue the reasons in the course of her evidence because it was largely irrelevant to my task.
[27] Mr. Evans testified on May 2nd including cross-examination. On May 3rd Ms. Campos gave brief reply evidence on the issue of her income and then I heard oral submissions and received written submissions.
[28] In her evidence, Ms. Campos reviewed the documents and calculations that she and her daughter had made to support her claims. She said that as early as 2000, she would call Mr. Evans to ask if he would contribute to health care expenses. She delivered receipts to him. She said that she did receive repayment a couple of times. But for the most part, he was dismissive of her when she called and denied having received receipts. The biggest single expense was for a educational assessment for Matthew. Mr. Evans did not think it was necessary and did not want his child “labeled”. In February 2005, she found the $1800 to do it anyway. Because of his resistance, she stopped asking around 2005. She said she chose not to encounter his negativity and the stress of dealing with him. She reviewed the correspondence summarized above and pointed out how it took Mr. Evans 3 months to respond to the initial letter. She explained the efforts she had made trying to pursue the matter in the Ontario Court of Justice and in this court. She said that the last time they had spoken in 2006, he had told her to “sue me”.
[29] In his evidence, Mr. Evans took the position that because disclosure was required in June of each year, that their fiscal year for calculating annual adjustments was July to June. In cross-examination, she agreed that it was her understanding that the guideline amount of child support was based on the July of the preceding year to the June of the current year.
[30] Ms. Campos had been employed by the Toronto District School Board until her resignation in October, 2008. She said she resigned because her job had changed from elementary school to high school. She had been a special needs assistant working with autistic children and, having never worked with high school children and having had a car accident in 2006 in which she suffered herniated disks, she was not able to do the job when the students were as big as she was at 100 pounds and 5’1”. She began working part time for Arts for Children and Youth and was also a self-employed artist in which she created her own shows and participated in group shows. In examination in chief she noted that her income in 2011 was very low due to some tragic events. She did not go into detail. In his evidence, Mr. Evans suggested that she had resigned her employment in order to pursue the case against him and that her income was deliberately suppressed. In her reply evidence, she explained what those tragic events were.
Evidence of A.
[31] A. was 23 years old at the time she gave evidence. She finished high school and started at York University in the fall of 2006. At the end of her second year in 2008, she left York and transferred to University of Toronto. She was enrolled at U of T for the academic years 2008 - 2009 and 2009 – 2010. She started the term at U of T in the fall of 2010 but withdrew. She was not happy with her program at U of T and she was offered a full-time job opportunity and thought the break would be a good idea. In the fall of 2011, she went back to York University and expects to graduate in the spring of 2013 with an Honours Bachelor of Science degree with a double major in kinesiology and psychology. From November 2010 to mid March 2011, she moved out of her mother’s home and shared an apartment.
[32] A. had documented all of her income from employment, any bursaries she had received, the refund in the fall of 2010 when she withdrew and the contribution through an education plan from her grandfather. She has incurred student loan debt in the current amount of $17862 plus a student line of credit in the amount of $2500. She estimated that her total tuition costs 2006 to 2012 were $25741.10 plus books and supplies of $2500 for a total of $28,241.10 less refunds, contributions and bursaries of $8289.74. She said that her mother had paid $11953.26 including books ($698.36), fees ($713) and tuition ($10,541.90).
[33] In cross-examination, Mr. Evans pointed out that she had never taken a full course load in each year. She said that she met the requirement of being a full-time student in each year. She also explained how the transfer from York to U of T and back to York had resulted in credits not being recognized by each institution and consequently it was taking her longer than four years to accomplish her goal. She had not spoken with her father for over a year if not longer. Mr. Evans suggested that that was because her mother had started the court application. She said that that was not the case but that their relationship had consisted of occasionally speaking once every six months or so for a long period of time. She said that their conversations had been incredibly sparse. Mr. Evans challenged the accuracy of her calculations but she persisted. She agreed that she had worked full time during the summers and she had worked full time when she withdrew from U of T. Her line 150 income for 2010 was $13874.48; for 2009 it was $13673; for 2008 it was $11759; for 2007 it was $6194; in 2006 it was $5780.
Circumstances of M.
[34] According to Ms. Campos the younger child M. finished high school in June 2010. She said that by the end of June 2009, he did not have enough credits to complete grade 12 and he went back to school in the fall of 2009. It was a co-op program that she considered to be the equivalent of a full-time program.
Financial Circumstances of Ms. Campos
[35] Ms. Campos served a financial statement sworn March 29, 2012. Mr. Evans did not ask any questions about the contents but it is evidence. She has modest savings and investments as well as some debts. She does not reflect ownership of any real estate. She lives with SDM who is employed.
Evidence of Mr. Evans
[36] Mr. Evans took the position that Ms. Campos had failed to substantiate her claims and had failed to provide court ordered documentation. He said that he had not been consulted about special expenses and ought not to have to pay years later. He had had health insurance that covered the expenses claimed and it was now too late to process the claims. He was not willing to go back earlier than July 2008. He had made adjustments to child support over the years and she had not disputed the amounts. He had maintained the same business address and contact information since 1988. He produced a calculation that demonstrated he had overpaid by $8541.00. He was not asking for reimbursement but he wanted the overpayment taken into account in determining whether he owed any money.
[37] As for M., he said that pursuant to the Minutes of Settlement, he should have been able to terminate child support when he reached age 18 in September 2009 because he learned later that he had not been in full time attendance at school between the fall of 2009 and June of 2010.
[38] Having reviewed Ms. Campos calculation of the s. 7 expenses, he accepted that some qualified and he said it would be “fair and equitable” if he paid $2000.00 going back to 2003. At my request, he reviewed Exhibit 1, Tab C page 2 and indicated that he agreed with DaVinci for A. and Harbourfront and Mardy Gross for M. but he did not agree with swimming and bartending course and related expense for M. Nor did he agree with the expenditure for both children between 2007 and 2010 for computer equipment. He said he was not taking the position that he owed nothing but he was saying that he should have had a reasonable expectation of what he was required to pay and it wasn’t $52000 as Ms. Campos had claimed at the outset of the trial. He insisted that computers were not a special or extraordinary expense and in any event, since he has been in the computer industry for over 40 years, he could have purchased equipment at a discount.
[39] Mr. Evans agreed that for a period of time he and M. had been estranged but he had been able to reconnect with his son and they are now in contact on a weekly basis.
[40] As for A., it was his view that he had no obligation after she reached age 23 in December 2011 and that, given her own income the claim made against him was excessive. He did say that he had no objection to paying “a fair proportion” of A.’s university expenses but he had a problem paying if it meant “enriching Ms. Campos”. He proposed that he would contribute 1/3 of A.’s university costs. In response to my questions, he said he was very confused about the numbers. He said that it had been unfortunate that she had to come as a witness the day before and that it disturbed him greatly. Given her income, Ms. Campos income as it should be, he thought that a fair amount for him to contribute to A.’s university was $10000 but he insisted on paying A. directly.
[41] As for the health expenses, he insisted that Ms. Campos had a card that would cover. He would have submitted M.’s orthotics claim if it had been given to him in a timely way. He said that the expense for vision care was not within the plan because it allowed a maximum every 24 months. He thought that the educational assessment for M. would have been covered by his EAP but he said he was not consulted about it and he had been “shut out of these communications”. His stance was that Ms. Campos decided to incur the expenses and she should pay all of them except A.’s university costs.
[42] As for the s. 7 expenses, he had inquired in December 2002 as to the expenditure of $62.00 which he said was related to day care and yet it was no longer required. He wanted Ms. Campos to document what she was spending. He said that by claiming the $62 per month and additional s. 7 expenses, that Ms. Campos was double dipping.
[43] He understood that Ms. Campos had had “numerous tragedies in her life” but he insisted that she had deliberately reduced her income, that she was underemployed and that income of $40000 should be imputed to her.
[44] Mr. Evans is in the payroll business and is responsible when an employee is required to remit to the Family Responsibility Office. He said that dealing with FRO has been problematic. He knew that FRO garnishees to collect support. He knew that “for administrative and reputation reasons” he should not be subject to a garnishee and consequently he made sure that payments were made so that there was no opportunity for FRO to garnishee.
[45] In cross-examination, Mr. Evans agreed that he had never taken his children on holidays. He thought that in the “early years” he took them for the two weeks provided in the agreement. He said he did not contact Ms. Campos to arrange summer visits because he found that contact with her was “difficult”. In response to the question as to who would be responsible for children having a relationship with parents, he said it would be primarily the parent but that the children also bear some responsibility. He did not know that M. had a fear of water (that necessitated swimming lessons).
[46] In the context of his evidence that she had agreed to the calculation in his letter, she pointed out that if they had had no conversation, she could not have agreed to it. He conceded that there was no document that said she had agreed. She reviewed each year and compared his income and the table amount and his actual payment.
[47] In the context of the payment of $62 he said he stopped it because she had refused to supply receipts after multiple requests. He agreed that there was a section in the Minutes of Settlement that allowed for changes but he took her lack of response as consent. He agreed that the Minutes of Settlement required him to contribute to A.’s university costs and that he always intended to do so but so far he had paid nothing. He said that the only reason he had not contributed was because Ms. Campos had brought the matter to court and he added that A. had never asked him for a contribution.
[48] In response to my questions, he said that in hindsight that he should have contributed to her post secondary expenses. He denied having said to Ms. Campos that she should sue him and insisted that he would not have said that. In the context of the educational assessment for M., he said that what Ms. Campos had said was absolutely untrue. He believed she was referring to a different conversation in which he said he was against the medications that the doctor was giving to M. He said he would have processed the educational assessment through his EAP.
[49] Mr. Evans had filed a financial statement sworn March 30, 2012. Ms. Campos did not ask questions about the contents but it was a document contained in the trial record and is evidence. He resides in a home that he owns to the extent of 49%. He has savings and RRSP’s and a stock portfolio as well as some debts including a substantial mortgage. His financial circumstances are considerably better than those of Ms. Campos.
Credibility Issues
[50] There are some factual issues that are in dispute largely related to the extent to which Ms. Campos had made timely efforts to have Mr. Evans comply with his obligations. I accept the evidence of Ms. Campos that she had tried to secure compliance and she had given up. The correspondence largely corroborates her evidence. He knew no later than September 2009 that Ms. Campos was asserting a substantial claim for retroactive s. 7 payments. Furthermore, when it came to post-secondary expenses for A., he admitted that he had deliberately not paid because Ms. Campos started these proceedings and because A. had never made a request to him directly. I find that that attitude along with his failure to maintain a relationship with his children since the separation in 1999 makes it more likely than not that her evidence is more reliable than his. I am satisfied that the delay in seeking retroactive payment is not unreasonable.[^1]
[51] The other issue is Mr. Evans’ assertion that I should attribute income to Ms. Campos since she resigned from TDSB in 2008. I accept her evidence as to the reasons for her resignation and as to the steps she has taken since then to earn an income. The evidence does not support a finding that she has deliberately reduced her income in order that she can claim a greater amount from Mr. Evans. I will not impute income to her.
Analysis
[52] Having made those key findings, I turn to the remaining issues. In Exhibit 1, Tab A, Ms. Campos made calculations covering the period 2004 to 2011. In Exhibit 6, Mr. Evans made his calculations for 2008 to 2011. Ms. Campos reflects an underpayment and he reflects an overpayment.
[53] I do not find any arrears for the period 2004 to 2011 for these reasons. First, the necessary income tax information up to 2007 was available during the negotiations in 2008-2009. Mr. Evans did make an adjustment in the amount of $2600 on account of arrears for 2008 and 2009. The time to claim an adjustment for earlier years was during those negotiations. Second, while I do not accept that he made an overpayment to the extent that he calculates it, I am not persuaded that his underpayment is significant enough to make an adjustment.
(a) Child Support Guidelines Table Amount for A.
[54] Paragraph 7 of the Minutes of Settlement define a child as “residing full-time”. A. ceased living with her mother from November 2010 to March 2011. I am not prepared to find that that meant that Mr. Evans was relieved of his obligation to pay child support. I accept A.’s evidence as to the reason for leaving university and briefly leaving her mother’s home. But she did resume her education. Pursuant to paragraph 7(d)(3), she was a child of the marriage at her 23rd birthday and support would continue until she obtained her degree. I accept that six years will have elapsed between the fall of 2006 when she started and the spring of 2013 when she finishes. However, I accept her evidence that she was enrolled as a full time student although not required to take a full load of courses but that that allowed her to earn substantial income which was essential since her father was not contributing to her university costs. Ms. Campos has asked that the table amount of child support be reinstated effective September 2011. I am satisfied that Mr. Evans should have continued to pay child support for the period September 2011 to May 2012 with amounts derived from Exhibit 1 Tab A page 6:
September 2011 to May 2012:
Should have paid
Actual Payment
Arrears
$1088 per month based on 2010 ITR line 150 $126767
$0
$1088 per month
Total arrears (x 9 months)
$9792
[55] I agree with Ms. Campos that Mr. Evans should continue to pay during A.’s final year at university from September 2012 to May 2013, based on income of $135,632 in the amount of $1156 per month.
(b) Post-Secondary Education Expenses for A.
[56] I accept the evidence of A. summarized in Exhibit 1 Tab D as to her post-secondary educational expenses. The portion paid by Ms. Campos was $11953.26. A. has made a considerable contribution to her own expenses and will graduate with debt of over $20000.
[57] In his closing submissions, Mr. Evans provided this calculation:
Year
Dion
Income
Marcela
Income
Combined
Income
Dion
Percentage
Marcela
Percentage
2006
$114,759
$39,981
$154,740
74.16%
25.84%
2007
$125,782
$37,121
$162,903
77.21%
22.79%
2008
$122,406
$40,931
$163,337
74.94%
25.06%
2009
$135,141
$15,021
$150,162
90%
10%
2010
$126,100
$13,144
$139,244
90.56%
9.44%
2011
$126,767
$11,534
$138,301
91.66%
8.34%
2012
$135,632
$11,534
$147,166
92.16%
7.84%
[58] If the percentages were applied to A’s expenses in each year, I expect that Ms. Campos’ contribution would be less than what she has paid. Ms. Campos takes the position that the amount that Mr. Evans should contribute is $16,000 of the estimated total of $40000. That does not accord with the percentages. However, applying a lump sum rather than a percentage in each year is probably to Mr. Evan’s credit. Furthermore, it reflects the fact that A. has been diligent in earning income and will be saddled with substantial debt on the completion of her degree. Mr. Evans shall pay $16000 as his share of all of A.’s post-secondary education expenses.
[59] Mr. Evans wants to deal directly with A. in order to maximize the tax advantages because he has a higher marginal rate than does A. or her mother. In closing submissions, Ms. Campos agreed that the payment could be made directly to A. I do not agree. Given the hiatus in their relationship, it would not be in A.’s best interests to have to negotiate with her father as to how he can maximize the tax consequences of this payment. The obligation in the Minutes of Settlement was owed to Ms. Campos and he will be required to pay it to her.
(c) S. 7 expenses for M. and A.
[60] Having accepted Ms. Campos’ explanation for not being persistent in seeking compliance pursuant to the Minutes of Settlement, I turn to the specific items in the claim for retroactive s. 7 expenses. I have not allowed her claim for retroactive table support for the reasons indicated above. However, I am satisfied with her explanation for not pursuing the s. 7 expenses. I allow the claim for the specific items summarized in Exhibit 1 Tab C at page 2 in the amount of $4310.46. All qualify as special or extraordinary.
[61] Mr. Evans took issue with the medical and related claims. I agree that many of them could have been claimed at the time. However I find that he failed to co-operate to make the health coverage available or to contribute to the educational assessment through his EAP. I allow all of them summarized in Exhibit 1 Tab C at pages 3 - 4 for A. in the amount of $1858.37 and for M. in the amount of $4,462.46.
[62] The total of those items is $10631.29. Ms. Campos asks for only 50%. Given the percentages in the table above, that works to Mr. Evans’ advantage. I agree that Mr. Evans should pay $5315.
[63] Mr. Evans took the position that he ought not to have to pay the arrears of $62 per month together with specific items. I do not agree that by her silence in December 2002 that Ms. Campos agreed to vary the Minutes of Settlement and delete that obligation. I am not convinced that there is overlap and there is a possibility that both should be paid. But I do not have any evidence as to what the $62 was intended to cover (other than the reference to child care which would have stopped at some point) and I am cognizant that Mr. Evans took the position that he was entitled to an historical credit. For those reasons, I am not requiring him to pay the arrears of $62 per month.
(d) Pre-judgment interest
[64] Ms. Campos claims interest in the amount of $1776.10 based on a calculation of arrears commencing in July 2004 and ending in April 2012. There was no claim for interest prior to the commencement of these proceedings. Ms. Campos was not represented by counsel when she began these proceedings. She did not make a claim for pre-judgment interest. I am not prepared to impose that obligation on Mr. Evans.
(e) Incorporate terms of the Minutes of Settlement into court order
[65] Ms. Campos asked that the Minutes of Settlement be incorporated into a court order. Support is no longer payable for M. and the obligation to contribute to A.’s support is defined by this judgment. I do not see the need to incorporate that historical document into an order.
(f) Obligation binding on estate
[66] In paragraph 7(f) of the Minutes of Settlement, Mr. Evan’s obligation to pay child support was a first charge against his estate, subject to life insurance coverage. I heard no evidence on that issue. His recent financial statement does not disclose any insurance. The obligation should continue as against his estate.
(g) Costs
[67] Ms. Campos claims costs incurred by her when she had counsel. I agree that that is an appropriate claim and will require Mr. Evans to pay those costs in the amount of $1800 as reflected in Exhibit 1 Tab H page 11.
(h) Support Deduction Order
[68] Once I make an order for support I am required to make a support deduction order. To enable the Family Responsibility Office to act on the order, Mr. Evans must complete the SDO Information Form which I will direct him to do. As indicated above, Mr. Evans had wanted to avoid dealing with F.R.O. The only way to avoid that route of enforcement is if Mr. Evans makes arrangements satisfactory to Ms. Campos to pay the judgment in full and provides post-dated cheques for his remaining obligation. However, whether she withdraws is in the discretion of Ms. Campos.
ORDER TO GO AS FOLLOWS:
[69] Mr. Evans shall pay to Ms. Campos the following:
(a) Retroactive table amount of child support for A. $ 9,792
(b) Post-secondary education costs for A. $ 16,000
(c) S. 7 expenses for M. and A. $ 5,315
(d) Costs $ 1,800
TOTAL $ 32,907.
[70] Commencing September 1, 2012 and continuing until and including May 1, 2013, Mr. Evans shall pay to Ms. Campos the sum of $1156 per month based on annual income of $135,632 for the support of A.
[71] The obligation to pay all of the foregoing is binding on the estate of Mr. Evans.
[72] Support Deduction Order to issue. Costs referred to in paragraph 69(f) shall be enforced as support.
[73] Mr. Evans shall complete the Support Deduction Order Information Form within 10 business days of receipt of these reasons for decision and provide it to Ms. Campos in order that she can enforce the judgment through the Family Responsibility Office.
[74] Mr. Evans shall pay post-judgment interest at the rate provided in the Courts of Justice Act.
[75] The formal order incorporating the foregoing shall include the full names and dates of birth of A. and M. Those details have been omitted to protect their privacy.
KITELEY J.
Released: July , 2012
COURT FILE NO.: FS-10-016740
DATE: 20120731
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marcela C. Campos
Applicant
– and –
Dion Thomas Evans
Respondent
REASONS FOR DECISION
KITELEY J.
Released: July , 2012
[^1]: D.B.S. v S.R.G. 2006 SCC 37, [2006] 2 S.C.R. 231