COURT FILE NO.: FC 03 915 2
DATE: 20121024
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LEILING ZHENG
Applicant
Sean Jones, for the Applicant
- and -
XIAOLONG JIANG
Respondent
In Person
HEARD: June 4, 5, 7,8; August 27, 30, 31, 2012
REASONS FOR JUDGMENT
J. Mackinnon J
[1] This is the trial of a motion to change the Final Order of Justice Panet, dated August 12, 2003. That Order required the father to pay child support to the mother, for their son, in the amount of $450.00 per month, based on the father’s declared income of $50,000.00 per annum. The Order did not make any provision in respect of s. 7 Child Support Guidelines, O. Reg. 391/97 expenses for the child.
[2] The Applicant, Leiling Zheng, now seeks an order that the Respondent, Xiaolong Jiang, pay her the table amount of child support for their son, Vincent, during the four months of each summer when he was and will be living with her during the years 2011, 2012 and 2013. She also seeks an order that the Respondent contribute $12,372.00 towards Vincent’s university expenses for the academic years of 2012 and 2013. Vincent has now completed two years of university and is expected to graduate with a four year Honours degree in Commerce from Queen’s University, in Kingston, in April 2014. On this basis, the Applicant proposes that the child support obligation would come to an end at that time.
[3] The Applicant has also asked for an order that the net proceeds of the sale of a jointly owned property be released to her and to the Respondent in equal shares.
[4] The Respondent is willing to pay the table amount for child support for the months requested after credit is given to him for amounts already paid. He says he is prepared to pay his proportionate share of university expenses after his son’s income and OSAP receipts have been accounted for. He asked for an accounting of the RESP and that he be given credit for 89 percent of the payments made from it towards his share of their son’s university expenses. His own motion seeks a determination that the Applicant held her undivided half-interest in the jointly owned home in trust for him and that, accordingly, all the proceeds should be released to him.
[5] The Applicant is 43 years old and the Respondent is 48 years old. They were married in China, in 1990. Vincent was born on October 19, 1992. The family immigrated to Canada in 1999. The final separation date was January 29, 2002. The marriage ended by Divorce Order granted July 3, 2003.
The Date of Separation
[6] A separation took place between January and June 2001. The Applicant maintains that the couple reconciled in July 2001 and resumed living together as a couple and family until the final separation on January 29, 2002. The Respondent submits that they did not really reconcile, but lived in some capacity under the same roof.
[7] I do not accept the Respondent’s testimony in this respect. In June 2001, he and the Applicant both contributed to the purchase of a new car for the Applicant. The Respondent put in $16,000.00 of the $22,441.00 purchase price. I accept the Applicant’s testimony that this purchase was made in anticipation of the fact that they were getting back together. The Respondent’s testimony that he was forced to buy her the car with no knowledge or expectation of reconciliation is not believable. He was vague as to the details of the timing of the purchase and of the Applicant’s return home. He acknowledged that he may be mistaken in terms of the sequence and dates. He could not explain why, since they had gone car shopping together in June and actually purchased a car together, he was taken by surprise when she returned home in July. His testimony that the Applicant unexpectedly just turned up on his doorstep is not consistent with the major purchase, jointly made, only a few weeks earlier.
[8] The Respondent also submits that the Applicant essentially lured him into purchasing the home and then, as soon as the deal closed, abandoned the marriage. This submission is completely contradicted by the serious assault perpetrated by the Respondent upon the Applicant on January 28, 2002. Her description of the assault was vivid and detailed. It was supported by the medical note filed in evidence that described her injuries. The Respondent did not cross-examine the Applicant on this testimony. His own testimony on the assault is somewhat difficult to describe. He did not admit to it. However, he did apologize to the Applicant and appeared remorseful in saying that what had happened to her was “unchangeable”. Further, he left the house immediately and stayed with a friend for several days.
[9] On January 29, 2002, the Applicant and Vincent moved to a women’s shelter. The Respondent made no effort to contact them for two months. In my view, this aftermath is consistent with the Applicant’s description of the assault, which I accept. I find that the separation date occurred on January 29, 2002. The separation was brought about by the Respondent’s assault on the Applicant.
6 Astoria Crescent, Ottawa
[10] This property was purchased in joint tenancy on January 18, 2002. The Agreement of Purchase and Sale was signed on December 11, 2001. The purchase price was $155,000.00. On closing, a down payment of $40,000.00 was made. It derived from $28,000.00 of savings in the Respondent’s savings account, $6,000.00 from the couple’s joint GIC account, and a total of $6,000.00 borrowed from two friends.
[11] The Applicant explained that her income went to cover the family’s rent and expenses and that the Respondent’s earnings were saved. She also testified that she repaid the sum of $4,000.00 that had been borrowed from one friend for the down payment. This was confirmed by the oral testimony of that friend. The parties agreed that the Respondent had paid back the $2,000.00 borrowed from the other friend.
[12] The Respondent testified that they had come to Canada with $15,000.00 USD, saved primarily from his earnings at a second job. He said that by July 2001, that amount had been depleted to $9,000.00. However, he was able to save from his earnings. He says that after they bought the car for the Applicant, she had no savings left and all of the down payment for the house came from his own bank account, which included the $9,000.00 remaining from the funds brought from China. The Respondent produced his bank account statement, which confirmed that $41,150.72 was paid out in connection with the purchase.
[13] The Respondent agreed that this amount also included the $6,000.00 borrowed from friends, which had been deposited into his account. He maintained that he, alone, repaid the entire loan. However, the Respondent was unable to provide satisfactory documentary proof that he had in fact done so. I prefer the testimony of the friend that the Applicant had repaid the $4,000.00 over time.
[14] I also accept the testimony of the Applicant that her income went towards family expenses, thereby enabling the Respondent to accumulate savings. The Respondent earned approximately $21,000.00 in 2000 and $56,000.00 in 2001. Were it not for the Applicant’s contributions, it would have been very difficult for the Respondent to have saved as much as he did prior to the house closing in January 2002. She earned nearly $18,000.00 in each of those years. I have no doubt that the Respondent was able to contribute more, and to set aside savings, given his higher income, but I do not accept that he can properly claim that all of the down payment money was his, and that the Applicant in no way contributed to it.
[15] Title to the house remained registered in joint names until it was sold in February 2011. The mortgage also remained in joint names throughout.
[16] The Respondent testified that he never intended to make a gift to the Applicant through the purchase of the house. His testimony was that title was taken jointly because it had been her idea to buy the house. He would not agree that this meant that, at the date of purchase, she was intended to be a half owner. He said, at that time, he had never considered this issue. Now, he submits that she always held her interest in trust for him. His testimony is unsatisfactory as to why title was taken in joint names if, as he now says, he intended at that time to be the sole beneficial owner of the property. Subsection 14(a) of the Family Law Act, R.S.O. 1990, c. F.3 [FLA] states:
The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,
the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants…
[17] I find that the presumption that the spouses were intended to own the property as joint tenants has not been rebutted by the Respondent.
2002 Divorce Agreement
[18] On April 20, 2002, a document titled “Divorce Agreement” was signed by the parties. The document was not witnessed. Legal advice was neither obtained in relation to it, nor was financial disclosure exchanged between the parties. The document came about because the Applicant wanted a divorce. She testified that she called the Respondent to arrange a meeting. This was the first contact between the spouses since the separation. The Applicant testified that the terms of the Agreement were discussed during the meeting and, based on her experiences in China, she believed a divorce required the consent of both parties. She says that the Respondent said he would fight her unless she agreed to his terms, one of which was that the house would belong to him. The Respondent testified that the Applicant simply showed up at the house, unannounced, with the fully prepared document. He testified that it was the Applicant’s idea that he keep the house. That scenario is far less probable and I accept the Applicant’s testimony in this regard.
[19] In addition to providing that the Respondent would own the house at 6 Astoria Crescent, the Agreement provided that the Applicant would keep the motor vehicle registered in her name. The Applicant would also get the television set and pay the amount of $4200.00 outstanding on it, as well as some small appliances. Everything else in the house would belong to the Respondent.
[20] The Applicant testified that she knew that the Agreement was not fair to her, given the equity in the house and her liability on the mortgage, but said she was afraid to ask for anything in case he would not consent to the divorce. As we know, she did not require his consent in order to obtain a divorce.
[21] The Respondent agreed that the Applicant would have custody and that he would pay child support of $548.00 per month.
[22] According to the Applicant, the Divorce Agreement was completed in only 30 minutes. The Respondent thought it might have taken even less time than that.
[23] The Respondent submits that the Divorce Agreement should be upheld. In his opinion, the tradeoff between the house with $34,000.00 equity and the car purchased nine months earlier for $22,000.00 was fair at the time, having regard to what each spouse put into the acquisition of each. He says that the Agreement is still fair now, having regard to the mortgage payments he has since made. He submits that the Applicant knew full well what the Agreement meant. He relies on several statements she made on subsequent occasions as verification of her understanding that he was the sole owner. In her divorce application, she referred to the Divorce Agreement and neither made any claims for property division nor possession of the matrimonial home. In her affidavit, in support of the divorce, she deposed that she did not want to make a claim for division of property and again referred to the parties’ “written consent” in terms of child support.
[24] In 2003, she submitted an OSAP application stating that she had no assets. There are also some emails from the Applicant in 2005, in which she refers to the Respondent as the owner of the house and herself as a potential tenant. The Respondent submits that these statements all confirm that the Applicant knew what the Divorce Agreement meant and by reason of that Agreement, that the Applicant intended that he be the sole owner of the house.
Enforceability of the Divorce Agreement
[25] Section 55(1) of the Family Law Act states: “A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.”
[26] In this case, the Divorce Agreement is a domestic contract as defined by the Family Law Act. It is a “separation agreement”, as defined by s. 54 of the FLA:
Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children;
(d) the right to custody of and access to their children; and
(e) any other matter in the settlement of their affairs.
[27] This Agreement was not witnessed. By virtue of s. 55(1), the Agreement is unenforceable. Section 2(10) of the Family Law Act provides that, “A domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise.” Because the Agreement was not witnessed and by virtue of s. 2(10), the Agreement does not override the power of the court to deal with ownership of property.
[28] Black’s Law Dictionary, 9th ed., at p. 374, defines “unenforceable contract” as a contract that is valid but incapable of being enforced:
A valid contract that, because of some technical defect, cannot be enforced; a contract that has some legal consequences but that may not be enforced in an action for damages or specific performance in the face of certain defenses, such as the statute of frauds.
[29] An unenforceable agreement may have some effect. For example, had the parties gone ahead and transferred title to the Respondent’s name, the court might not unwind that transaction simply because it was based on an unenforceable agreement. An unenforceable agreement might be given some weight if a court is asked to make related discretionary decisions, such as for spousal support or an unequal division of net family property. No such claims were made here. An unenforceable contract may be of some legal use, but it nonetheless lacks the vital characteristic of enforceability.
[30] The Respondent provided two cases where judges of this court have purported to exercise discretion to enforce an unenforceable domestic contract, despite the clear wording of s. 55(1) of the Family Law Act. The cases were: Sessions v. Froude, 2010 ONSC 2010 (Sup. Ct.) and Lecot v. Lecot, 1995 CanLII 10793 (ON SC), 1995 CarswellOnt 1396, 19 R.F.L. (4th) 14 (O.C. J. Gen. Div.). With respect, I do not agree that any such free standing discretion exists.
[31] There is a well recognized exception to compliance with the formal requirements set out in s. 55(1); namely, for settlement agreements negotiated under legal advice. The leading case in Ontario is Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 O.R. (2d) 763 (C.A.). The Court of Appeal, at para. 15, upheld a settlement agreement that was reached through the exchange of lawyers’ letters that “was complete, definite and intended to be binding.” Geropoulos relied upon the policy of encouraging settlements and the importance of preserving valid settlements that have been freely and properly entered into with legal advice.
[32] Harris v. Harris, [1996] O.J. No. 2430 (O.C.J. Gen. Div.) is another case that has been cited as an example of a freestanding discretion to enforce an agreement despite its noncompliance with s. 55(1). In Harris, discretion is said to be exercisable on a case-by-case basis. Harris was relied upon in Pastoor v. Pastoor, 2007 CanLII 28331 (ON SC), [2007] O.J. No. 2851, 48 R.F.L. (6th) 94 (Sup. Ct.), to extend the Geropoulos principle to a situation where Minutes of Settlement were negotiated freely, with legal advice, but before litigation was commenced. The facts in Harris emerge from paras. 11, 12 and 15:
In the case at Bar the parties and their respective counsel at a meeting in the offices of the plaintiff’s solicitor negotiated terms of a proposed settlement. By doing so it is obvious to me that unless one of the parties was not bona fide, the purpose of the meeting was to finalize some or all of the outstanding issues in the presence of and with guidance from legal counsel. Both parties solicitors are experienced and well respected and, from the evidence, can be taken to have advised the parties as to the purpose of the meeting which was to attempt to finalize issues and avoid litigation. It cannot be said that either party was at any disadvantage at the meeting or thereafter.
Counsel for the defendant, during the meeting, prepared a handwritten summary of matters that were agreed to and confirmed them in a letter the following day. Indeed, counsel begins his letter by stating: “I confirm the basis on which the parties are prepared to settle all matters”, and then sets out in more detail the content of the handwritten notes. He concludes the letter with:
I trust that the above reflects the results of our four way meeting. I shall proceed to prepare a draft agreement for your consideration. In the meantime, the proceedings may be adjourned to Tuesday, May 21st, 1996, as I may wish to have some of the terms of agreement incorporated into an order.
The essence and meaning of the correspondence is clear. The parties intended to settle matrimonial issues in dispute and believed they had done so. On my reading of the correspondence of defendant's counsel, if his secretary had not been ill the formal agreement incorporating the terms of settlement would probably have been completed and may very well have been signed. The evidence does not support the view of the defendant that “there was no ‘backing out’ of the agreement as there never was an agreement ‘back out from’” (sic). What is clear to me is that the Respondent concluded an agreement, had second thoughts about it later, and then relied on the provisions of subsection 55(1) of the Family Law Act in an attempt to vitiate it.
[33] Other than the fact that litigation had not been commenced, the facts in Harris are within the scope of the Geropoulos principle. The court found that both parties had legal advice and had freely entered into a settlement duly recorded by counsel, with the intent to avoid litigation. Subsequently, the defendant became unhappy with his previous agreement. There was no injustice which would give a court reason not to enforce the agreement negotiated with the assistance of legal counsel. In my view, the facts in Harris did not require the development of a free standing discretion to enforce agreements that are unenforceable by virtue of s. 55(1) of the Family Law Act. Rather, both Harris and Pastoor should be seen as illustrative of an extension of Geropoulos to include settlements fairly negotiated, with legal advice, before the commencement of litigation.
[34] Even if I agreed that there is a general discretion to enforce a contract, which the Family Law Act specifically states is unenforceable and does not fall within the Geropolous exception, I would not exercise it in this case. The Respondent did not comply with the Agreement: he did not pay the child support required by the Agreement and the Applicant was not allowed to take delivery of the television set that she paid for. The Agreement was incomplete: it did not contain release clauses; it did not address removal of the Applicant from her liability under the registered mortgage; and it did not deal with equalization of net family property. On its face, the Respondent retained more equity in the house in comparison to the depreciated value of the Applicant’s car.
[35] It seems to me that this is the very type of homemade agreement entered into by spouses who are not properly informed as to the facts and law surrounding their circumstances that s. 55(1) was designed to deter. I agree with the statement in Sagl v. Sagl, 1997 CanLII 12248 (ON SC), [1997] O.J. No. 2837 (O.C.J. Gen. Div.), at para. 16, that “the policy of the Act is to discourage ‘kitchen table’ agreements.” Unlike Geropoulos, there are no saving factors here, such as the involvement of counsel or subsequent approval by the court.
[36] The fact that the Applicant did not seek an equalization of property or possession of the matrimonial home in her divorce application is neither here nor there. Neither of those issues were covered in the Divorce Agreement. The fact that she may have thought that she was bound by the Agreement for some years until she obtained legal advice and commenced this application does not assist the Respondent. An agreement that is legally unenforceable does not become enforceable because of a mistake or misunderstanding of the law. As will be seen, the house continued to be registered in joint names, both parties continued to be liable under the mortgage, and both continued to reside in the home from time to time and contributed to its maintenance and upkeep in various ways until the date of its sale in 2011.
[37] The Respondent made some suggestion that the Agreement could be enforced because it met the requirements of the Statute of Frauds; namely, that the Agreement be in writing and signed. I disagree. s. 55(1) is a very specific legislative provision applying specifically to domestic contracts. In my view, the principle that the specific legislation takes precedence over the general applies here. As stated by the Ontario Court of Appeal in R. v. Greenwood, 1992 CanLII 7750 (ON CA), [1992] O.J. No. 271, 7 O.R. (3d) 1 (C.A.), at para. 17:
Applying this maxim of construction, the provisions of the special statute are not construed as repealing the general statute, but as providing an exception to the general. In the Supreme Court of Canada decision of Ottawa (City) v. Eastview (Town), 1941 CanLII 9 (SCC), [1941] S.C.R. 448, [1941] 4 D.L.R. 65, at p. 462 S.C.R., p. 77 D.L.R. Rinfret J. said:
The principle is, therefore, that where there are provisions in a special Act and in a general Act on the same subject which are inconsistent, if the special Act gives a complete rule on the subject, the expression of the rule acts as an exception of the subject-matter of the rule from the general Act…
By treating the special legislation as creating an exception to the general, the two statutes are then brought into harmony.
[38] For these reasons, I find that the Divorce Agreement is unenforceable. I dismiss the Respondent’s claim to enforce it.
The Respondent’s Alternative Claim
[39] The Respondent seeks a declaration that he is the sole owner of 6 Astoria Crescent based on making the down payment and the mortgage payments on the house. I have already found that both parties contributed in different ways to the down payment and that neither their individual contributions nor other circumstances at the date of acquisition have persuaded me that the presumption set out in s. 14(a) of the Family Law Act has been rebutted.
[40] The Respondent’s alternative claim may be understood as a request for a partial post- separation accounting as between joint owners. I say “partial” because, at times, he rented the home to third parties and he is not proposing an accounting of net rental income. Although he did not express it this way, he may also be understood as seeking a determination of unjust enrichment and a monetary remedy in his favour. This is an equitable remedy.
[41] I find that the Respondent did reduce the principal on the mortgage over the years of ownership by $86,505.00. In 2008 and 2009, the Respondent made two lump sum payments towards the principal, which totaled $30,825.00. In addition, he reduced the principal by way of regular bi-weekly payments as follows:
- From January 2002 to July 2002 by $2,363.00;
- From August 2002 to April 2003 by $3,344.00;
- From May 1, 2003 to July 25, 2005 by $10,750.00;
- From August 1, 2005 to June 30, 2010 by $34,372.00 and to the end of December 31, 2010, by an additional $4,851.00.
[42] There are other additional relevant facts.
[43] After the Applicant and the parties’ son moved out in January 2002, the Respondent continued to live in the home on his own. In July 2002, he contacted the Applicant because he lost his job and was in financial difficulty. He wanted her to return home to help cover the expenses. The Applicant and Vincent did move back home in July 2002, but the couple lived separate and apart, under the same roof. Neither saw this as a reconciliation of their marriage relationship.
[44] In the period between July 2002 and May 2003, the Applicant contributed her entire salary to the food, car expenses, property insurance and Vincent’s expenses. The Employment Insurance received by the Respondent paid the mortgage on 6 Astoria Crescent. In January 2003, the Respondent wanted a car. The Applicant paid $5,500.00 to buy a pre-owned vehicle for him. The Applicant produced her bank statement, confirming that she did make this $5,500.00 payment. The Respondent maintained that he had paid this back, but was unable to provide any documentary proof. I accept the Applicant’s evidence.
[45] In February 2003, the Respondent obtained employment in Peterborough. He worked there during the week, and returned to Ottawa on the weekends. However, in April 2003, he asked the Applicant and Vincent to move out because he was going to put tenants in the house, in their place. The Applicant and Vincent moved out on May 1, 2003. As of that date, until August 2005, the Applicant has had nothing to do with 6 Astoria Crescent.
[46] Between May 2003 and July 2005, the Respondent made all the payments related to the house. He had the house rented out. He also complied with the child support order during this period.
[47] By August 2005, the Respondent had obtained employment in Toronto and was no longer spending weekends in the Astoria property. He had tried, unsuccessfully, to increase the rent paid by the tenants. He then asked the Applicant to move back in as a way of getting the tenants to move out. He proposed that he would pay the mortgage in lieu of child support and that she would pay the taxes, insurance and utilities. The Applicant agreed. She and Vincent returned to live at 6 Astoria Crescent, remaining there until July 4, 2010.
[48] When the Applicant and Vincent moved back to 6 Astoria Crescent, the house was in a state of some disrepair. The Applicant immediately repaired a leak in the roof. Over time and with the consent and appreciation of the Respondent, she undertook other repairs and improvements. This included repainting the entire exterior and interior of the house, replacing all the flooring throughout the house, and other necessary work in the kitchen and bathroom. The Applicant produced her receipts showing her out-of-pocket expenses, which totaled $7,192.00. The Applicant and her fiancée also worked for more than two weeks painting, and installing flooring and landscaping.
[49] The Applicant and the Respondent spoke on the telephone in November 2009. He called to say he had been out of work since June 2009, was paying another mortgage where he lived with his partner, and was having difficulty keeping up the mortgage on Astoria Crescent. The Applicant says that she agreed to lend him $5,000.00. She produced her bank statement showing this payment out to him. She says the amount was determined by what it would cost to cover the mortgage until the end of June, when Vincent would graduate high school at which time they would move out. The Respondent acknowledges receipt of the money, but denies that it was a loan. He claims that it was a gift to help him out. The Applicant did not meet the onus of establishing on balance of probabilities that this was a loan. There was nothing in writing. Moreover, the agreement that the Respondent would pay the mortgage in lieu of paying child support was called into question by his loss of employment. The child support payment had been based on an income of $50,000.00, whereas his total income was only $16,750.00 in 2009 and $22,153.00 in 2010.
[50] The Applicant said that they went on to discuss the work to be done to prepare the house for sale. She agreed to cover the upfront costs because the Respondent could not afford it. She says the Respondent agreed to reimburse her after the house was sold. I accept that the Applicant spent $7,192.00 readying the house for sale, and that the Respondent agreed to reimburse her from the house proceeds.
[51] According to the Applicant, the Respondent went on to tell her that he had made two lump sum payments in reduction of the mortgage and wanted to be reimbursed for that. She agreed.
[52] The house sold in February 2011 for $250,000.00. The Respondent agreed to accept that price on the basis that his share would be determined as if the sale price had been $260,000.00; that is, he would receive an additional $5,000.00. The Applicant agreed. At present, the net proceeds of sale in trust are $205,860.00.
[53] The Respondent did not pay any child support to the Applicant during the period from January to June 2002. He was the sole occupant of the home during these months. From July 2002 until May 2003, when the Applicant and Vincent moved back in, I find that the parties shared their joint living expenses by agreement. The Respondent’s contribution went to the mortgage, while the Applicant paid the other expenses. During the period from August 2005 until July 2010, the Applicant and Vincent again returned to live in the home. The parties reached another agreement with respect to paying their expenses, including those of the house. The Applicant waived child support and paid an average of $235.00 per month for the property taxes and house insurance. The Respondent paid the mortgage.
[54] It would be inequitable to allow the Respondent credit for principal reduction during times when he was not paying child support or when he and the Applicant were actually operating under an expense sharing arrangement which dealt with the costs of the house and the support of their child. During the period from May 2003 to July 2005, the Respondent alone paid the housing expenses. However, he alone received the rental income during this period. He also paid the housing expenses during the period from August 2010 to February 2011. However, the Respondent had served a Notice to Vacate on the Applicant effective August 1st because of their disagreement over the division of the proceeds of the house when it was sold. He ought not to complain about a situation he himself created.
[55] For these reasons, I find that the Respondent is entitled to be credited for the two lump sum payments he made towards the mortgage principal reduction, which totaled $30,825.00. The Applicant should, however, be reimbursed the amount of the out-of-pocket expenses she incurred to ready the house for sale.
[56] The Respondent is entitled to receive a net credit of $23,633.00, plus the additional $5,000.00 the parties agreed that he would receive. Accordingly, the Respondent shall receive the first $28,633.00 from the net proceeds of sale and the balance shall be divided equally between the parties.
Child Support Issues
[57] The Applicant seeks table support for the four months each summer in 2011, 2012 and 2013 when Vincent resided or will reside with her during the university summer break. She also asks that the Respondent contribute a fixed amount to Vincent’s last two years of university expenses in the annual amount of $12,372.00.
[58] Vincent’s first year of university cost $30,460.00. He received a combined total of $21,244.00 from loans, grants, awards and bursaries, all of which went towards those costs. Of the balance, the Applicant contributed $7,000.00 and the Respondent contributed $2,701.00. In 2010, Vincent earned $5,400.00, but none of his earnings were applied to his university expenses. The Respondent believes Vincent should have contributed. I agree that Vincent should have contributed one half of his 2010 earnings. That would reduce the shortfall for the cost of first year university to be covered by his parents to $6,516.00.
[59] The Applicant’s income in 2010 was $61,701.00 and in 2011 was $59,345.00. The Respondent’s income in 2010 was $22,153.00 and in 2011 was $74,343.00. Dividing the shortfall equally between the two calendar years for purposes of determining the parents’ respective percentage contributions demonstrates that the Respondent contributed appropriately to Vincent’s first year.
[60] Vincent’s second year of university cost $30,458.00. Vincent, himself, contributed $5,000.00, leaving a balance of $25,458.00 to be divided between his parents. As I did for the first year expenses, I have allocated that amount equally between the 2011 and 2012 portions of the academic year. The Respondent’s percentage share for the 2011 portion is $7,077.32. His share of the 2012 portion is $6,794.74, based on his income for 2012 remaining at $74,343.00 and the Applicant’s income increasing to $64,929.00. An RESP for Vincent containing $20,674.28 was applied towards those expenses. The Respondent is entitled to a credit of 89 percent of the RESP payout ($18,400.00), having regard to my finding that he himself made all but two of the contributions to it, post separation. In addition, he also contributed $3,345.00 to second year expenses.
[61] Accordingly, I find that the Respondent over contributed by $7,873.00 in second year, to be credited to future years.
[62] I accept the Applicant’s estimate of Vincent’s third year university expenses of $27,262.00. Vincent should be able to contribute $5,000.00 again this year. The balance of $22,262.00, divided in proportion to the parents’ incomes, results in a contribution from the Respondent of $11,883.46 using the 2012 incomes set out above. That is reduced by the over payment, leaving a balance of $4,010.46 to be paid by the Respondent.
[63] The Applicant submits that the costs for Vincent’s fourth year of university will be similar to third year. I accept this. The Respondent’s share is $11,883.46, which I order him to pay to the Applicant on September 1, 2013 ($5,941.73) and on January 1, 2014 ($5,941.73). In addition, I order the Applicant to provide the Respondent with receipts for Vincent’s fourth year expenses and copies of Vincent’s income tax returns for 2012 and 2013. The parents shall also exchange their own income tax returns for 2012 and 2013 so that if any adjustment to the Respondent’s proportionate contribution is necessary, it can be made. If there is a disagreement that results in a court application with respect to the Respondent’s share of Vincent’s fourth year expenses, the Respondent shall nonetheless make the payment due for September 1, 2013 and for January 1, 2014, until or unless they have been changed by an order of this court.
[64] If there is any balance remaining in the RESP account, it should be allocated between the parents, 11 percent to the Applicant, and 89 percent to the Respondent.
[65] The Applicant seeks four months of table support for Vincent for each of the summers of 2011, 2012 and 2013. The Respondent stated that he was willing to pay these amounts, subject to being credited for amounts already paid.
[66] The Respondent paid $900.00 in child support for the summer months of 2011. He proposed to pay half that amount for 2012 because he said Vincent had lived with him for almost two months of that summer. Later, he admitted that Vincent had lived with him from June 17 to July 21, 2012, only a few days over a month. Based on his line 150 income in 2011 of $74,343.00, the Respondent is ordered to pay the Applicant $676.00 for four months less the $900.00 already paid. Based on his income for 2012 remaining the same as it was in 2011, he is ordered to pay her $676.00 for three months. Accordingly, the Respondent owes the Applicant $3,832.00 payable forthwith. On the assumption that Vincent resides with his mother during the summer months of 2013, the Respondent is also ordered to pay her the table amount of child support based on the line 150 income shown in his 2012 income tax return for each month that Vincent resides with her that summer.
[67] The Respondent wants to be credited for two trips he paid for Vincent to take in 2008 and 2009. This is denied. The Applicant told the Respondent at the time that she could not afford to contribute. He went ahead on his own. The Applicant, herself, has incurred many special expenses over the years for Vincent without contribution from the Respondent. She submitted that this should offset any entitlement the Respondent might have to a credit in relation to the RESP. I do not give effect to this request for the reason that no request was made for contribution as the expenses were incurred.
The Respondent’s Testimony
[68] It will have been apparent that where the testimony of the parties differed, I have generally preferred that of the Applicant. I concluded that significant aspects of the Respondent’s testimony were unreliable. A striking example was his testimony that he had withdrawn $5,295.00 from his bank account to repay the Applicant for purchasing the second hand car for him. It was obvious that he withdrew this money to replace that car after it had been “totaled” in an accident. The Bill of Sale for the replacement vehicle showing the balance paid on the same day as the withdrawal in like amount did not result in the obvious admission.
[69] The Respondent produced none of the cheques that would have been necessary to support his claim that he had repaid the $6,000.00 borrowed from friends for the down payment on Astoria Crescent. He even admitted that he could not actually say what the various bank withdrawals were for, at the same time he was relying on them as his proof of repayment.
[70] The Respondent tendered records to show what he described as child support contributions for Vincent. He included items that I concluded were birthday and Christmas gifts for Vincent. In some of his calculations, the Respondent treated Vincent’s rent as if it were payable for eight months whereas it was payable for the entire year. He included an additional $2,000.00 as income received from the university which Vincent did not receive.
[71] It was also established that the Respondent did not declare any rental income with respect to 6 Astoria Crescent, treated the sale as if Astoria had been occupied as his principal residence throughout, and deducted legal fees incurred in defending this child support application.
Disposition
[72] The net proceeds of sale of 6 Astoria Crescent shall be divided between the parties such that the Respondent shall receive the first $28,633.00 from the proceeds and the balance shall be divided equally between the parties.
[73] The Respondent shall contribute $4,010.46 towards the university expenses for Vincent’s current academic year.
[74] The Respondent shall pay to the Applicant the sum of $5,941.73 on September 1, 201,3 and $5,941.73 on January 1, 2014, as his contribution towards Vincent’s fourth year of university.
[75] The Applicant shall provide the Respondent with receipts for Vincent’s fourth year expenses, and copies of Vincent’s income tax returns for 2012 and 2013. The parties shall exchange their own income tax returns for 2012 and 2013 so that if any adjustment to the Respondent’s proportionate contribution is necessary, it can be made. If there is a disagreement with respect to the Respondent’s share of Vincent’s fourth year expenses, the Respondent shall nonetheless make the payment due for September 1, 2013, in the amount of $5,941.73, and for January 1, 2014, in the same amount until or unless they are changed by an order of this court.
[76] The Respondent shall pay to the Applicant the sum of $3,832.00 forthwith on account of table child support for the summer months of 2011 and 2012. Providing that Vincent resides with his mother during the summer months of 2013, the Respondent is ordered to pay her the table amount of child support for each such month based on his line 150 income shown in his 2012 income tax return.
[77] The amounts currently due to the Applicant pursuant to paragraphs 74 and 77 shall be paid to her from the Respondent’s share of the proceeds of sale of 6 Astoria Crescent.
Costs
[78] I will receive written submissions on costs from the parties. These should be limited to three pages in length plus necessary attachments, including a Bill of Costs and copies of any offers exchanged. The Applicant’s submissions are due on November 7, 2012. The Respondent’s submissions are due on November 21, 2012. The Applicant may exercise a brief right of reply, if necessary, on or before November 28, 2012.
J. Mackinnon J
Released: October 24, 2012
COURT FILE NO.: FC 03 915 2
DATE: 20121024
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LEILING ZHENG
Applicant
- and –
XIAOLONG JIANG
Respondent
REASONS FOR JUDGMENT
J. Mackinnon J
Released: October 24, 2012