[5] Mackenzie has a learning disability. She has seen a psychologist, Dr. Bresver, since she was about 2 years old, to assist her with her learning disability.

[6] The parties separated on December 15, 2005.

[7] The parties were (and continue) not able to communicate with one another about matters involving the Children. Regrettably, it is clear that the parties continue to exhibit all the sign of a high conflict case despite the fact almost 7 years has passed since their separation.

[8] During the marriage and after separation, the Father was a teacher at Sheridan College, teaching accounting and economics.

[9] The Mother was employed in marketing but had, prior to separation, lost her employment. She was able to obtain short term contracts or employment whenever possible.

[10] Family law proceedings ensued. The family law proceeding was scheduled for trial in October 2008.

[11] After intensive negotiations, over several days, both parties represented by experienced family law counsel, the parties entered into two separate sets of minutes of settlement (covering different issues) over the two days. The minutes of settlement were signed by the parties and their counsel.

[12] The two sets of minutes of settlement were incorporated into a consent final order dated October 2, 2008 ("Final Order").

[13] The Final Order included the following provisions:

• Para 3 - the Father pay or transfer to the Mother $80,000 from his RRSP by way of a spousal rollover;

• Para 8 - the Father was to maintain life insurance policy in the amount of $225,000 with the Mother as the irrevocable beneficiary, in trust for the children;

• Para 9 - the Father was to pay to the Mother child support in the amount of $1,671 based on:

(a) equal parenting time and shared residency;

(b) the Father's income of $129,000 (Guideline amount being $2,267 per month);

(d) the Father's contribution to Zachary's St. Michael's School tuition ($238 per month).

• Para 10 - the Father was to be responsible for 100% of the listed expenses of the "boys";

• Para 11 - The Mother was to be responsible for 100% of the listed expenses for Mackenzie;

• Para 12 - "The attendance of any child at college or university will warrant a review and recalculation of the amount of child support payable pursuant to the Child Support Guidelines;"

• Para 13 - The Father was to maintain extended health benefits "so long as he is able to do so through his place of employment…..Any uninsured costs will be shared equally by the parties";

• Para 14 - Any additional expenses were to be borne by the parties with whom the children are residing at the time;

• Para 15 - The Father was to receive tax credits for the "boys" and the Mother for Mackenzie;

• Para 16 - The Father was to pay ½ of Dr. Bresver's (Mackenzie’s psychologist) account and ½ of Zachary's St. Michael’s school trip;

• Para 18 - The Mother was to pay for Zachary's Go Train tickets for September and the Father was to pay for the balance of the year;

• Para 20 - The Father was to pay spousal support of $1,000 per month; and

• Para 21 - The Father was to pay to the Mother ½ of the specified retroactive child support and the balance into RESP's for the Children.

[14] The parties were divorced on October 2, 2008.

[15] The Father suggests that, despite being represented by able and experienced counsel, he really didn't understand the Final Order or where the "numbers came from". He testified he was simply told this is what the judge wants and to sign the minutes of settlement. I accept none of this evidence. There were extensive negotiations over several days. Each party had counsel. Two sets of minutes of settlement were executed (for different portions of the agreed upon issues), each with the signature of the parties and their respective counsel. The Father knew what he was signing and agreed to the terms at the time.

[16] Shortly after, the Father regretted that he had agreed to the terms in the Final Order.

Subsequent Legal Proceedings

Father’s First Motion to Change

[17] The Father commenced a Motion to Vary in 2009 but the court documents are not available. The Father described the proceeding as seeking to pay St. Michael's School directly rather than including a monthly payment to the Mother. It is not clear from the evidence what happened to this first motion.

[18] It is clear that the Father was not content or prepared to continue with the terms set out in the Final Order. As will be described below, the Father has since the Final Order been focussed on the financial consequences to him arising from the marriage breakdown and seeks to reduce those financial consequences.

Father’s Second Motion to Change

[19] On March 31, 2010 the Father commenced the Motion to Change seeking to reduce his child support obligation on the basis he had never agreed that Zachary go to St. Michael's School for his high school education. It is true the Final Order does not expressly set out whether Zachary would continue with St. Michael's School throughout his high school years.

[20] This Motion to Vary was served on the Mother on April 1, 2010.

[21] On April 30, 2010, the Mother sought a brief extension from the Father to reply to his motion to change. She made the request by giving Mackenzie an envelope to give to her Father. The Father admits he received the envelope but testified he did not open it for days, or so he says. In other words, the Father suggested he did not know the Mother had requested a brief extension.

[22] The Father brought a motion for judgment the Mother on May 3, 2010 on the basis the Mother had not responded to the Motion to Change. The court granted the motion on May 4, 2010.

[23] The Mother, realizing what had happened, retained counsel who sought to set aside the default judgment. The Father refused to consent to the setting aside of the order of May 4, 2010.

[24] The Mother appealed and moved to set aside the order of May 4, 2010 on June 14, 2010. The Father continued to oppose the Mother’s motion despite the fact that, by now, he must have realized the Mother had requested the brief extension before the expiry of the 30 days within which she was to have responded to the Motion to Change.

[25] A hearing was required. The May 4, 2010 order was set aside by this court.

[26] The Mother replied to the Motion to Change.

The Father’s Third Motion to Change

[27] On September 13, 2010, the Father brought a further Motion to Change.

[28] The Father sought to:

(a) Reduce his child support obligation to August 31, 2010 including that child support for Lucas “be terminated for the following child(ren)” effective August 31, 2010 as “Lucas is off to Brock University as of August 31, 2010”. As a result, the Father sought only to pay child support for Zachary and Mackenzie;

(b) Cease to contribute to Zachary’s St. Michael’s High School expense; and

[29] The Mother opposed to any variation to the Final Order except that each party’s contribution to post secondary school expenses be determined.

Pre-Trial Issues

[30] The Father, although required under the Final Order, to carry $225,000 life insurance policy with the Mother as the designated beneficiary in trust for the Children. The Father had not produced a copy of the beneficiary designation by March 2011. As a result, on March 7, 2011, this court ordered, among other things, the Father to produce a copy of the beneficiary designation on his life insurance policy. This was not produced by the Father until February 2012 for good reason. The Father had not designated the Mother as his beneficiary. He only designated the Mother as a beneficiary on February 8, 2012.

[31] The Father was to contribute, under the Final Order, $80,000 to the Mother's RRSP by December 31, 2008. The Father didn't do so in 2008, 2009. The Father made the payment in December 2010 after there was a threat by the Mother to bring a motion.

[32] The Father has held and continues to hold the RESP’s for the Children in his name. However, he had not produced copies of the RESP statement for the latter part of 2010 to the Mother. As a result, on March 7, 2011 the court ordered the Father to produce a copy of the missing RESP statements. These were eventually produced. However, the Father had not by the trial produced RESP statements subsequent to June 2012. His explanation - he was not asked to.

[33] The Mother had not produced copies of her job search efforts. As a result, on March 7, 2011, the court ordered the Mother to produce copies of documentation showing her effort to obtain employment.

[34] At a Trial Management Conference on June 8, 2011, the following issues were identified for trial:

(a) ...the issues regarding spousal support are whether it shall be terminated, having regard to the length of the marriage (16 years from commencement of cohabitation in July/1989 to separation on Dec. 15/05) and the period that has elapsed since separation and Mr. Crichton’s retirement which is expected to take place in January 2012 and if spousal support continues, the amount, having regard to Mr. Crichton’s reduced income after retirement and his allegation as to Ms. Crichton’s underemployment;” and

(b) The issues regarding child support are the income to be imputed to each party, having regard to the shared parenting and set-off calculation, and the amount of s.7 expenses, and, in particular, whether Zachary Crichton’s fees for St. Michael’s High School are to be included.

[35] The trial of this Motion to Change was scheduled for February 2012 but was not reached.

Relief Sought by the Father at Trial

[36] At the commencement of the trial, the Father sought the following relief:

(a) Termination of any spousal support as of August 31, 2012;

(b) Reduction in his child support obligation as of August 31, 2012;

(c) Variation of certain other terms in the Final Order on the basis some of his employment benefits were no longer available to him through his employment - he had retired; and

(d) To deal with an alleged child support overpayment since September 2010.

[37] The principal, if not sole, basis raised by the Father as the "material change" was that he retired on August 31, 2012.

[38] While the Father acknowledged there had been a greater amount of the Children's expenses paid by the Mother, the Father alleged there was an agreement reached between the parties in 2010 to share the children’s expenses equally.

[39] At the commencement of the trial, the Father agreed Zachary should remain at St. Michael’s School through the balance of high school. As a result, all calculations below will include Zachary continuing at St. Michael's School until he completes high school.

Relief sought by the Mother at Trial

[40] The Mother seeks a dismissal of the Father’s Motion to Change as it relates to the spousal support.

[41] The Mother agreed that Child Support needed to be revised in light of paragraph 12 of the Final Order.

[42] The Mother denies there was an agreement reached in 2010 regarding an equal contribution to the Children’s expenses.

Credibility of the Father

[43] The Father has no credibility with this court whatsoever. I reject his evidence in his entirety. I do so for the following reasons:

(a) By the time the Father's Motion to Change had come to trial, the fundamental basis for his seeking the termination of spousal support and reduction of the child support obligation was his retirement from Sheridan College and therefore a reduced income (some of which comes from a pension which had been previously divided). The Father filed a Financial Statement dated September 8, 2012 attesting to his retirement on August 31, 2012 showing no employment income. The Father's evidence-in-chief and in cross-examination was that he had retired from teaching because he was "burnt out," his health had deteriorated because of this litigation and because conditions at Sheridan College had become difficult and caused him stress. As a result, the Father testified he retired on August 31, 2012 and had no employment income but had retirement and investment income. The Mother called Mr. Rajnish, the payroll supervisor at Sheridan College, the Father’s alleged pre-retirement employer. Mr. Rajnish produced a copy of the Father’s employment contract with Sheridan College, signed in August 21, 2012 for part-time teaching for the period between September and December 2012 at an hourly rate of $136.62 per hour. The Father realized he had been caught in a blatant lie in his Financial Statement and his sworn evidence this court. Through his counsel, he requested and was given an opportunity to give further evidence on this issue - an issue which goes to the heart of the Father's motion. The Father was re-sworn. The following was the Father's evidence upon his being re-sworn and questioned by his counsel:

Q. Mr. Crichton, as you’ve heard from this court -- you can have a seat. You can sit down. We heard evidence from Mr. Rajnish this morning. And the evidence was entered as exhibit number 16 indicating that there was an employment contract signed to run from September 3rd to December 3rd, of 2012, and that’s in direct contradiction of your sworn financial statement of September 8th, 2012, will you, please, explain to the court circumstances surrounding this?

A. First of all, I’d like to thank the court for the opportunity to explain. I was not truthful when I signed that statement -- financial statement on the 8th. And I misrepresented my income. The last week of August, I was offered a contract that had become available. It’s a 14-week contract that had become available because someone had passed on it, and so I didn’t disclose that when I was in your office, and so I apologize for that. I apologize to the court, and I apologize to the other side. And I’m truly sorry for misrepresenting and misleading the court in the information I brought forth. It’s a non-recurring 14-week contract so I took it.

(b) The Father testified that he did not know how the "numbers" or the basis for the Final Order was arrived at. He suggested the Final Order was simply done at the instruction of the judge and told to simply sign the Minutes of Settlement. For the reasons set out above, I reject this explanation. The Father's evidence that he did not know what was in the Final Order is an attempt to distance himself from what was negotiated, agreed on, and what he now wants;

(c) The Father testified that he had always intended to retire when he was 65 years old. However, it was clear he had testified under oath at questioning, prior to the Final Order, that his plan was to retire at 67 and that this had always been his plan. Having reviewed the Father’s prior Motions to Change, there is no mention of his retirement at the age of 65. It is clear to me that the Father never had an intention to retire at 65. In my view, retirement at 67 made and continues to make sense. The Father had children late in life. He had expected to work until he was 67 because that is the year his youngest child finished high school. Given the Father’s ever changing evidence, the Father retired because he believed this would be a ground to establish a material change in circumstances and permit him to reduce the amount of his spousal and child support;

(d) The Motions to Change were brought shortly after the Final Order. There have been three such Motions filed by the Father. In each such motion, the Father seeks to reduce the support he pays. One of the grounds for reduced child support was that Zachary should not attend St. Michael’s College for high school. This was the same argument that the Father made during the separation and prior to the Final Order which was never accepted by the Mother. The Final Order could have but does not state that Zachary would not attend St. Michael's College for high school. Within months of the Final Order, the Father wanted to revisit this issue. However, now he agrees that Zachary should continue at St. Michael's College for high school;

(e) The Father was to have transferred $80,000 to the Mother's RRSP by December 31, 2008. However, this was not done by the Father until December 2010 and only after the Mother threatened to bring a motion to compel the Father to do so. It appears he had no intention of complying with the Final Order until required to do so by this court;

(f) The Father's evidence was entirely driven by financial matters - seeking to reduce the amount he pays regardless of the financial impact on his former wife or the children;

(g) The Father took every opportunity, during the course of his evidence, to make highly critical comments about the Mother even when unnecessary to respond to the questions. This was in direct contrast to the Mother's evidence which was entirely focussed on the Children and their best interests;

(h) In the Final Order, the Father was supposed to maintain life insurance in the amount of $225,000 with the Mother named as irrevocable beneficiary in trust for the Children. For years, the Father did not do so. The Father received a letter from his employer on August 30, 2011 confirming that his life insurance would be terminated on January 31, 2012 due to him reaching the age of 65. The Father had still not designated the Mother as the beneficiary. As of February 1, 2012 the Father's counsel wrote to the Mother's counsel confirming the Father's insurance benefits had been "changed drastically." The Mother had still not been designated as the beneficiary under the life insurance policy. Only after demands by the Mother's counsel, eight days AFTER the life insurance was to have expired and on the eve of the first scheduled trial date, the Father changed the beneficiary designation to the Mother. Fortunately, the Father continued his employment until August 2012 and as a result, his life insurance with the Mother as beneficiary, was effective for a number of months. However, it still does not excuse the Father's wilful failure to comply with the consent Final Order;

(i) I have no doubt that the Father encouraged the two eldest children to apply for OSAP loans and grants. Lucas had not applied for OSAP in the prior two years. The Father made calls to the OSAP program and other programs to obtain information all in pursuit of reducing his support obligation. He understood the process. He is a teacher of accounting and economics. His counsel wrote a letter to the Mother's counsel in the summer of 2012, essentially, demanding that the Children apply for these monies that were available. The Father also knew that, if the Children disclosed his 2011 income, of over $140,000, and that the Children lived with him 50% of the time, the Children would not qualify for loans or grants. As a result, the applications for Lucas and Mackenzie were prepared showing only the Mother's income. Lucas and Mackenzie signed the applications, as did the Mother. I have little doubt that the applications were orchestrated by the Father to reduce the amount he was to pay for the Lucas and Mackenzie's university expenses by the amount of the OSAP grants. Whether failing to disclose his income or the shared residency put his Children or the Mother at risk, was immaterial to the Father. While giving evidence, the Father tried to distance himself from the OSAP applications, leaving any legal consequences or issues to be dealt with by the Children or the Mother;

(j) The Father lied about the noting in default. When the Father brought his Motion to Vary, the Father obtained default judgment. The Father testified that his was done, not by him, but administratively by the court. What is clear is that the Father brought a motion seeking default judgment. It was not done administratively. When the Mother's counsel asked that noting in default be set aside, the Father refused resulting in a motion even though he, by then, knew the Mother had requested an extension; and

(k) The Father's disclosure of the RESP was less than candid. His explanation that the Mother's counsel had not asked for the most current RESP statements was clearly not accurate and, more importantly, a failure by the Father to produce documents which were at issue at this trial and solely within his control.

[44] Essentially, the Father's attitude is to pay as little as possible to the Mother and the Children and is prepared to say or do anything to advance that interest, regardless of whether it is the truth or not.

Credibility of the Mother

[45] I accept the Mother’s evidence. In stark contrast to the Father’s evidence, it is clear the Mother’s primary and over-riding interest was her children.

[46] The Mother’s evidence was clear and straightforward. Her credibility was not challenged at all during her cross-examination.

[47] I accept the Mother has made serious efforts to find employment. It is clear that she accepted whatever minimum wage jobs she can find and for as long as she can maintain that employment. She now works at a Montessori school part-time at $12.60 per hours and works part-time at a grocery store for minimum wage. This is not the picture of someone deliberately avoiding employment to continue receiving spousal support.

[48] Put simply, the Mother agreed to the imputation of $30,000 per year but, the reality is that in most years she made substantially less than $20,000 (exclusive of her spousal support).

[49] I find it difficult to accept that the Mother would continue to earn minimum wage in these circumstances for some 7 years if there had been a better, viable employment option available to her.

[50] I am also not persuaded that the Mother's valuation of the former matrimonial home (which she received under the Final Order) was undervalued or that the Mother's income has been understated because she fails to charge her elderly parents who live with her rent. In any event, these facts, even if accepted, would not have changed the judgment herein.

Analysis

(i) Spousal Support

[51] In order for the Father to succeed in the Motion to Change with respect to spousal support requires that he establish a material change in circumstances.

[52] Subsection 17(4.1) of the Divorce Act reads as follows:

Factors for support order - Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

[53] The Divorce Act and the Family Law Act include provisions allowing the court to vary a previous support order if there has been a material change in a party’s circumstances after the order has been made. A material change is, therefore, a condition precedent to a variation application. What constitutes a material change in circumstances has been set out by the Supreme Court of Canada in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 SCR 670 and L.M. P. v. L.S. (2011) SCC 64. In Willick, in dealing with subsection 17(4) of the Divorce Act, Sopinka J. said as follows.

This subsection authorizes the court to vary a previous support order if a change of circumstances occurs. The approach that a court should take is to determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances. In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as a basis for variation.

[54] For the reasons set out above, I am not persuaded that the Father’s retirement is a material change in circumstances. I am satisfied, based on the evidence before me, that the Father deliberately chose to take “early” retirement (being 65 instead of 67), not because of health or other reasons, but because he wanted to reduce the support payments to the Mother for spousal and child support.

[55] The Father cannot manufacture a material change in circumstances by retiring earlier than he had stated he would prior to the Final Order and then rely on the earlier retirement as the material grounds to vary the Final Order. This does not constitute a material change in circumstances.

[56] Given the disclosure during the trial of the Father's continued employment at Sheridan, in closing submissions, counsel for the Father admitted that spousal support should continue at $1,000 per month until the Father’s 67th birthday. In light of the serious issues with the Father’s credibility, this was not a concession.

[57] However, the Father continues to seek this court vary the Final Order by terminating spousal support effective January 31, 2014.

[58] I decline to do so for the following reasons:

(a) I am not persuaded that the Father's retirement at 67 was not foreseen in 2008. The Father's retirement was clearly an issue discussed during the negotiations and the Final Order makes no mention that spousal support would expire on the Father's retirement at 67 or any other age;

(b) It would be premature to determine, at this time, that spousal support should be terminated on January 31, 2014, the Father’s 67^th birthday and when he now states he will retire. We have already seen that the Father chose to “early retire” but was able to continue to earn substantial income working part-time, collect his pension and earn substantial additional monies. The true state of his “means” at January 31, 2014 will not be known until then;

(c) This was a relatively long-term relationship of some 19 years. While the Mother has an obligation to move towards self-sufficiency, spousal support for approximately 7 years is not an excessive period of time given the length of the relationship. Further, I note that SSAG suggests spousal support for an indefinite period of time; and

(d) The Mother continues to require spousal support at this time. She has limited means in comparison to the Father's means (I include current income and income which might be generated from assets). The Father's retirement income (assuming he does not continue with some other employment is set out in his September 8, 2012 Financial Statement) is approximately $95,000 per annum. The Father has approximately $1,454,000 in net assets. The Father has means. On the other hand, the Mother's September 10, 2012 Financial Statement shows current income of approximately $12,000 and an additional $12,000 from the existing spousal support. What must be added to the Mother's income is investment income of approximately $6,000. The Mother has net assets of approximately $800,000. She continues to have some need. I am not persuaded that the Father will necessarily get the relief he seeks when he actually retires notwithstanding his argument that the Mother has sufficient assets and there is double dipping with respect to the Father's retirement income. No change or a partial change in the spousal support might be in order. Whether there will be a material change to the party's financial position in the next few years is unknown. It is best for this determination to be made at that time.

[59] The Father’s motion to change with respect to spousal support is dismissed.

[60] The Mother’s submission that the spousal support be indexed for inflation is also dismissed. It is impossible to determine how or why the Final Order did not provide for indexing. For this court to now make the order requested by the Mother would be re-writing the “deal” made in October 2008.

[61] Paragraph 20 of the Final Order shall remain without change.

(ii) Life Insurance

[62] The Father seeks to reduce his obligation to maintain life insurance in the amount of $225,000 to $35,000.

[63] The Final Order did not provide for any reduction at any particular point in time. However, it would appear to me that this life insurance was available to the Father through his employment with Sheridan College.

[64] Given that the Father chose to voluntarily retire "early," I am not persuaded that I should relieve him of this obligation under the Final Order. If the life insurance is no longer available since he has "retired," that is a problem caused by him. He can and will have to make arrangements to obtain life insurance elsewhere.

[65] I am not prepared to vary this term of the Final Order. While I make no order to this effect, I would have thought it reasonable that the life insurance be reduced or eliminated in 2014, if the Father actually retires without continuing his employment on a full-time or part-time basis.

[66] The Father shall have 60 days to provide to the Mother written proof, from a life insurance carrier, that the life insurance required under the Final Order has been put into place, naming the Mother as beneficiary in trust for the Children.

(iii) Dependent Tax Deduction

[67] The Final Order provides that the Father is entitled to claim any tax deductions or credits for the “boys” and the Mother is entitled to claim any tax deductions or credits for Mackenzie.

[68] It is clear from both parties that this causes some difficulties with the Canada Revenue Agency (CRA). There was no evidence as to why this causes problems with CRA or possible alternative options.

[69] In an effort to assist the parties, given that the Children reside equally with the parties, the parties shall comply with CRA guidelines to ensure that, as may be available, the Father have 2/3 of the Children's credits and deductions while the Mother have 2/3 of the Children's credits and deductions. Perhaps by doing it this way, it will avoid the issue CRA has with the credits and deductions being divided on a child by child basis where the children live with both parents equally.

(iv) Health Benefits

[70] The Father seeks to eliminate paragraph 13 of the Final Order which requires him to provide extended health benefits for the Mother and the Children “so long as he is able to do so through his place of employment.”

[71] The Mother seeks to have these benefits continue.

[72] I agree that the decision by the Father to take "early retirement" (65 instead of 67 years old) by the Father is not a material change, and thereby a valid reason for this provision to be changed.

[73] I am satisfied that paragraph 13 of the Final Order should remain without change.

[74] It is clear from the collective agreement with Sheridan College, produced by the Father, that these benefits would continue during employment AND that the benefits could be continued after retirement provided that the Father has elected coverage within 31 days of his retirement date. Even if I am wrong about the continuation of these benefits after retirement, this is an issue the Father can raise when he actually retires.

[75] The Mother will provide written proof within 60 days that extended health benefits for her and the Children has been re-instated or purchased by the Father.

v) Child Support

[76] Lucas now attends his third year of university (2012 - 2013 school year).

[77] Mackenzie now attends her first year of university (2012 - 2013 school year).

[78] Zachary continues with Grade 11 at St. Michael's Choir school.

a)The Father's Financial Position

[79] I agree with the Mother's counsel's submission that, having found the Father deliberately chose to retire to reduce or avoid his support obligations, I should use the Father's 2011 income for the purpose of determining child support issues. The fact the Father's actual 2012 income may (I stress may as he will have additional employment income which he did not disclose for the balance of this year) be less than his 2011, that was a deliberate choice by the Father and the Mother and Children should not suffer as a result.

[80] Given the Father's substantial assets, even if his actual 2012 income is less than his 2011 income, this would not result in any hardship to him. The Father must live with the decision he made.

[81] The Mother sought to include the Father's prior nominal income as an investment counsellor. I have not done so as I am satisfied that Father gave up his license in 2010 because it was not financially worthwhile for him to maintain it given the level of earnings in the years leading up to 2010.

[82] The Father's annual income at Sheridan prior to his retirement was $102,000. The Father had Canadian Taxable Dividends in the amount of approximately $30,000. This amount has already been reduced because of the gross up that CDN taxable dividends receive. The Father now receives $12,000 for CPP starting in September 2012.

[83] I conclude that his 2012, 2013 and 2014 up until he turns 67 years old, would have been no less than $144,000 per annum had he continued with his full time position at Sheridan College. I am prepared to and do impute this income for child support purposes until January 2014.

b)The Mother's Financial Position

[84] The Mother has had difficulty finding similar employment. She is 57 years old and has a 1978 degree in a Home Economics Program. She had experience working in the hospitality area leading up to and for a period of time after she met the Father.

[85] The Mother has attempted to find employment in her area, but has not been able to do so. She has upgraded her skills (in 2009 with a Computer/accounting course) but continues with minimum wage jobs such as working at a grocery store or teacher's assistant.

[86] The Father submits the Mother's income should be imputed much higher than $30,000 (exclusive of the spousal support). I disagree. There is no evidence that the Mother's income (exclusive of spousal support) has ever achieved the $30,000 level (exclusive of spousal support) after the Final Order. The Father has had the benefit of this imputed income for years. To suggest the Mother should be earning a higher income and rely on evidence of potential jobs in an area where the Mother has not been employed for many years (and given her age) is simply not sufficient evidence to impute a higher income. I prefer to use actual employment and income over the past 4 years as more reliable evidence regarding the Mother's ability to earn employment income.

[87] I would have been inclined to use the Mother's actual historical employment income for child support purposes. However, I will use $30,000 per annum because:

(a) It provides a consistency with the Final Order and the basis upon which spousal and child support will be calculated;

(b) It was agreed as the Mother's income in the Final Order; and

c) Proportionate Responsibility

[88] The Father shall be responsible for 144,000/174,000 or approximately 82.5% of the s. 7 expenses.

[89] The Mother shall be responsible for 30,000/173,000 or approximately 17.5% of the s. 7 expenses.

d) Zachary's s. 7 Expenses

[90] Zachary continues to reside at home. The expenses for him to attend St. Michael's High School are approximately the following:

(a) Tuition $4,630;

(b) Go Passes approximately $1,400; and

[91] The Father shall pay 82.5 % of $6,000. This will be paid at the rate of $400 per month to the Mother for Zachary's high school expense. I reduced the amount from $412 per month to take into account that the Mother had agreed to pay for Zachary's Go Train ticket for one month each year.

[92] The Father shall also pay for 82.5% of the school trip cost (being the cost payable to the school) when this amount is determined and due to the school.

[93] I decline to include an amount for a cell phone as a s. 7 expense.

e) Mackenzie and Lucas s. 7 Expenses

Dr. Bresver's fee:

[94] The first item which needs to be dealt with is Dr. Bresver's January 2012 account of $2,937.50. In my view, this bill was properly incurred by the Mother and was of substantial benefit to Mackenzie. The Father acknowledges Mackenzie's disability and the need for such a report. In fact, Dr. Bresver was used by the parties prior to separation and the Final Order. The Father's position is that the Mother could have arranged this through the school, eventually it would have been arranged and it would have been available for free.

[95] I disagree. Mackenzie has a relationship with Dr. Bresver. Prior to separation this did not seem to be an issue to the parties. It makes little sense for the Mother to either have changed psychologists or put Mackenzie "on the waiting list" with the hope the report would come in time and be free - assuming it was done at all.

[96] As a result, this is a proper s. 7 expense.

[97] The Father shall pay $2,423 to the Mother within 30 days to reimburse her for the already incurred and paid expense of Dr. Bresver.

Mackenzie's University Expenses:

[98] The Father submits that for the 2012/2013 year, Mackenzie's university expenses are $16,558. I am prepared to accept this number as a starting point but it fails to include any transportation costs for Mackenzie to return home from time to time. I will round this amount up to $17,000 for this year.

[99] The Father suggests a contribution by Mackenzie of $3,500. The Mother suggests a contribution by Mackenzie of $2,500. Given that Mackenzie has earned between $7,000 and $8,000 in the past 3 years, I will set a contribution of $3,000 by Mackenzie each year.

[100] The Father's funding plan for Mackenzie's university expenses shows a substantial amount of grants, loans and scholarships.

[101] I will ignore the loans as there are sufficient monies available to Mackenzie from the RESP and her parents that student loans, at this time, are not necessary or reasonable in these circumstances.

[102] As for scholarships and grants, I agree that these amounts, provided that they have been properly obtained, should be deducted from Mackenzie's University expenses. However, I have a serious concern regarding some of the "grants" shown on the Father's calculations. The reason for my concern is that the Father's funding plan includes a substantial amount of OSAP grants. I am not persuaded that these amounts are properly or legally due to Mackenzie. If there is fault, there is enough for all concerned. As I said above, I do not accept the Father's evidence that he had nothing to do with the children completing their OSAP applications. He clearly made telephone calls, understood the "system" and he teaches accounting and economics. I believe the Father thought that, if his children received grants, it would reduce his obligation to contribute to the children's university education. It was the Father who, through his counsel, on July 19, 2012 wrote to Mother's counsel stating that "Mackenzie needs to apply through OSAP once enrolled…" The Father wanted the benefit of all monies potentially available to Mackenzie. I accept it is reasonable to reduce the university expenses by grants obtained by the child. However, this is reasonable only if the grants are properly applied for and legally obtained. Lucas and Mackenzie came to the Mother with completed OSAP application forms but the application forms only disclosed their residence with the Mother and only the Mother's limited income. It should have been clear to Mackenzie and Lucas that, since they resided with both parents, both their incomes should have been disclosed rather than just their Mother's income. The Mother was surprised to see the forms as the Children has not previously applied for OSAP but she signed the applications without question. When this issue arose during the trial, the Father did his utmost to distance himself from any responsibility for completion of the OSAP applications. The Father expressed no concern for the Children or the Mother. On the other hand, the Mother was very concerned and said she would look into it and, if the grant money needed to be returned, it would. As a result, in my view, any OSAP grant, if any, which the Children are legally entitled to receive should be deducted from the university expenses. The parties will have to decide how to deal with this issue.

[103] As a result for the 2012 Mackenzie's university expenses shall have the following deductions:

(a) Her work contribution - $3,000;

(b) Canada student grant for persons with permanent disabilities - $1,000;

(d) To the extent other grants are available, if the proper criteria is utilized by Mackenzie and grants are provided legally (dollar amount unknown)

Total: $4,600 (known at this time)

[104] As a result, the shortfall for Mackenzie's 2012 -2013 university expenses is $12,400 (expenses of $17,000 less $4,600).

[105] The remaining question is now how much should be funded from the RESP and how much by the parents.

[106] The parties have established RESPs for the Children. Some of this money was contributed by the Father through the years and some came from child support arrears which the Mother agreed would be paid into the RESPs as part of the Final Order. The RESPs are in the Father's name and issues have arisen regarding proper disclosure and use of funds by the Father.

[107] Mackenzie has $38,373.04 in her RESP account as at June 30, 2012. How much, if any, was deducted and used for Mackenzie this year is not clear.

[108] The parties agree that the amount which should be withdrawn from the RESP should be the evenly divided over the remaining years in the child's post secondary program. The expectation is that to the extent possible the RESP should be down to $0 after contribution has been made for the child's last year. I agree that this approach makes sense.

[109] The parties shall contribute to Mackenzie's post secondary expenses for each year shall be determined according to the following formula:

(a) Expenses to include tuition, residence, full residence meal plan, books and equipment, 1/3 contribution to a computer and printer (for 2012/2013 this amount shall be $17,000);

(b) Deducted from this amount shall be Mackenzie's contribution of $3,000, all scholarships, all legally received grants, the contribution from the RESP as determined above; and

Lucas' University Expenses

[110] The Father submits that Lucas' university expenses for this year are $14,616. I accept this amount and round it up to $15,000 for the return home transportation costs.

[111] The Father's funding for Lucas also includes grants and OSAP grants which are potentially problematic for the same reasons described above.

[112] Lucas' summer employment did not appear to be significantly different than Mackenzie's summer employment. As a result, $3,000 also appears to be a reasonable contribution by Lucas to his university expenses.

[113] Lucas has $23,124.26 in his RESP as of June 30, 2012. Again, it is not clear what amount if any has already been used for Lucas for this current year.

[114] There is no reason to differentiate the approach to university expenses between Mackenzie and Lucas.

[115] The parties shall contribute to Lucas' post secondary expenses for each year shall be determined according to the following formula:

(a) Expenses to include tuition, residence, full residence meal plan, books and equipment, 1/3 contribution to a computer and printer (for 2012/2013 this amount shall be $15,000);

(b) Deducted from this amount shall be Lucas' contribution of $3,000, all scholarships, all legally received grants, the contribution from the RESP as determined above; and

[116] Hopefully, the parties can work out what has been paid and who paid it for both Lucas and Mackenzie's university expenses for the current academic year and agree on how the above formula works for the current year.

[117] If not, the parties can bring the matter back before me to determine what amounts each wish a credit for, for the current year. The party will provide full back-up documentation. I will also require a copy of the RESP statements for the past 6 months and copies of all cheques paid out from the RESP accounts.

Future Year's University Expenses

[118] The above approach, using actual amounts for future years, should be used for all future university expenses for the Children.

g) RESP

[119] The RESP accounts are presently in the Father's name alone. This is not entirely satisfactory as the statements have not always been produced by him or produced on time.

[120] There was included in the evidence a significant withdrawal (approximately $8,300) from Lucas' RESP which was not fully explained and may have been a contribution claimed by the Father for Lucas.

[121] I agree with the Mother that this needs to be dealt with.

[122] The RESP accounts should be in the name of both parties. Simply, having it in the Mother's name (as suggested by the Mother) will not lessen the tension or issues between the parties.

[123] The following order is made:

(a) There shall be no further withdrawals from the RESP for any of the Children until after the Father has transferred all three RESP's into a joint account in his name and the Mother's name. This is to be done within 30 days. Thereafter, any withdrawals shall require the signature of both parties;

(b) The Father shall produce all RESP statements right up until the transfer into the joint name with the Mother; and

[124] I make no determination as to who is entitled to the funds in the RESP's should the Children not use the funds for their post secondary education. The parties will have to work this out or a future court will have to decide this. In the meantime, any monies withdrawn from any of the RESP accounts (that includes Lucas, Mackenzie and Zachary's RESP accounts) shall be solely and directly used for the Children's post secondary education.

h) Future S. 7 Expenses

[125] Any other s.7 or extraordinary expenses shall be agreed upon in writing in advance and divided in proportion so that the Father pays 82.5% and the Mother pays 17.5 %.

i) Child Support

[126] This is the more difficult issue.

[127] Zachary resides with both parents equally throughout the whole year.

[128] Lucas and Mackenzie are at university in residence with meal plans for 8 months of the year. In the summer months they reside equally with the parties.

[129] From September 1 through to April 1, the Father shall pay to the Mother $980 per month on the first of each month (8 months). This amount is calculated based on the Father's Guideline amount for one child ($1210) less the Mother's Guideline amount ($270) for one child.

[130] From May 1 through to August 1, the Father shall pay to the Mother $1,894 per month on the first of each month (4 months). This amount is calculated based on the Father's Guideline amount for 3 children ($2,492) less the Mother's Guideline amount ($598) for three children.

[131] The Father's Guideline contribution is based on his imputed income set out above continuing until January 2014, the date the Father turns 67 and the date he said he intended to retire. After January 2014 the parties shall provide updated income disclosure within 30 days of the anniversary of this order in accordance with s. 24.1 of the Child Support Guidelines.

[132] Paragraphs 10, 11 and 14 of the Final Order, except to the extent such expenses are included in the above s.7 expenses, continue in force. Without limiting the generality of the above paragraphs, the primary three items which are not dealt with above include clothing, allowances and haircuts. The Father shall be fully responsible for these expenses for Zachary and Lucas. The Mother shall be fully responsible for these expenses for Mackenzie.

j) Arrears

[133] It is impossible to determine whether there has been an overpayment by one party or the other of s. 7 expenses. I reject the Father's submission that the parties reached an agreement in 2010 that the children's expenses be shared equally. That simply makes no sense given the disparity in incomes. I prefer the evidence of the Mother that no such agreement was reached.

[134] The Mother testified she has paid the largest portion of the expenses for all the Children, including the "boys", despite the fact the Final Order provides that the Father was responsible for two of the three children. I accept this evidence. Both parties have produced documents which show that each contributed to various expenses of the Children while in school. I also take into account that full disclosure of the RESP monies has not been provided including a withdrawal by the Father of $8,390.23 as shown on the December 31, 2010 statement which is a similar amount to a cheque the Father gave Lucas in September 2010 as the Father's contribution to Lucas' university expense. The Father has provided no further explanation for the $8,390.23. The Father's contribution to last year's university expenses is simply not clear.

[135] It is clear that the Mother has borne Zachary's St. Michael's School tuition, transportation and trip expense with little or no contribution by the Father. In addition, the Mother's evidence that she was the primary purchaser of clothing for the Children was not challenged.

[136] The Mother's over payment of s.7 expenses has been substantial since 2010. The only certainty is that the Mother has over-contributed to the Children's s. 7 expenses for the past several years. That is the reason the Father attempted to establish an agreement in 2010 they would equally contribute to the s. 7 expenses. The Father did not want the Mother's over-contribution to off-set the Father's claim he has overpaid child support (as opposed to the s. 7 expenses).

[137] Let me now turn to child support arrears. If I were to calculate the Father's child support obligation since September 2010 when Lucas commenced university, the calculations would be as follows:

[138] The Father's child support obligation (excluding St. Michael's School for Zachary) was $1671 per month. This obligation would have changed on September 2010 when Lucas entered university.

September 2010 to August 2011 (Lucas at university - two children home):

[139] Using the same approach as above, for the period of September 2010 to April 2011, the Father should have been paying $1725 (Father Child Support Guidelines for 2 children based on his actual income of $126,977 based on a reduction for taxable dividends) less $444 (Mother’s Child Support Guidelines for 2 children) for a total of $1,281 per month.

[140] During the months of May through August, the Father should have been paying $1,671 (set off for 3 children).

[141] $20,028 was actually paid from September 1, 2010 to August 2011.

[142] $16,932 was payable from September 1, 2010 to August 2011.

[143] The Father overpaid approximately $3,000 in child support for this year, September 2010 to August 2011.

September 2011 to August 2012 (Lucas at university - two children home):

[144] Using the same approach as above, for the period of September 2011 to April 2012, the Father should have been paying $1760 (Father’s Child Support Guidelines for 2 children based on his actual income of $129,700 based on a reduction for taxable dividends) less $444 (Mother’s Child Support Guidelines for 2 children) for a total of $1,316 per month.

[145] During the months of May through August, the Father should have been paying $1,671 (set off for 3 children).

[146] $20,028 was actually paid from September 1, 2011 to August 2012.

[147] $17,212 was payable from September 1, 2010 to August 2011.

[148] The Father overpaid by approximately $3,000 in child support for this year, September 2011 to August 2012.

[149] As a result the Father's alleged child support overpayment is approximately $6,000. The issue is whether, in light of the Mother's overpayment of s. 7 expenses which cannot be quantified, should the Mother have to repay any child support arrears to the Father.

[150] Given the above identified issues and the magnitude of some of the Mother's s.7 expenses (such $4,600 just for St. Michael's tuition or clothing expenses for Zachary) to which she would be entitled to 82.5% re-imbursement from the Father, it would be equitable for all concerned that these amounts to offset each other.

k) Family Responsibility Office

[151] Unless both parties agree in writing to withdraw this support order from the Family Responsibility Office, a Support Deduction Order shall issue and all amounts set out herein shall be enforced by the Director and the amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.

v) Interest

[152] Interest shall accrue on all outstanding amounts at 3% per annum.

vi) Costs and Settlement of Order

[153] The parties shall exchange draft orders in advance of a hearing and attempt to agree upon the form of order embodying the above judgment.

[154] The parties shall arrange an attendance before me with the Trial Coordinator's Office to deal with the issue of costs. Cost Outlines will be exchanged by both parties prior to the hearing.

[155] I will deal with the issue of costs and any outstanding issues regarding the form of order or any mathematical error I may have made.

Ricchetti J.

Released: September 28, 2012

COURT FILE NO.: FS-06-000828-0-00

DATE: 2012-09-28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

William Crichton

Applicant

and –

Theresa Crichton

Respondent

REASONS FOR JUDGMENT