COURT FILE NO.: 2215/07

DATE: 2012-11-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ERIK VENEMAN

Applicant

– and –

KATHLEEN VENEMAN

Respondent

Pawel Wojtis, Counsel for the Applicant

Kathleen Veneman, Self-Represented

HEARD: October 2, 3 & 4, 2012

GRAY J.

1This is a motion to change a final order of Coats J. dated April 1, 2009, made on consent, in which, among other things, the applicant was ordered to pay child support for the parties’ two daughters, and that he pay 75% of their post-secondary educational expenses. The older daughter, Margaret (Maggie), will be 19 years of age on November 28, 2012, and she is enrolled at Queen’s University. The younger daughter, Abigail (Abbey), was 16 years of age on October 29, 2012, and she is still in secondary school.

2The respondent has brought a cross-motion to increase the applicant’s required contribution to post-secondary educational expenses from 75% to 79%, based on the increase in his income since the making of the order.

3Both children are now completely alienated from the applicant, and want to have nothing to do with him, notwithstanding many efforts made by the applicant to have a relationship with them. Now that Maggie is of the age of majority, the applicant wishes to terminate any obligation to pay child support and post-secondary school expenses for her.

4As much as I sympathize with the position of the applicant, I am compelled to dismiss his motion. In order to be granted relief, he must establish a material change in circumstances since the making of the order. He has not done so. I am also dismissing the respondent’s cross-motion.

5My reasons for dismissing both motions follow.

Background

Background

6The parties were married in 1993, and separated in 2004. They have two daughters, Margaret Elizabeth Veneman, born November 28, 1993, and Abigail Maureen Veneman, born October 29, 1996.

7For approximately two years after the parties separated, the relationship between them, and their children, was relatively good. They lived rather close to each other, and the applicant saw his children frequently. He had a very good relationship with them.

8Until 2006, neither party developed an intimate relationship with anyone else. Indeed, towards the latter part of that two year period, Abbey asked the applicant why he did not have a girlfriend.

9As it happens, Mr. Veneman ultimately did develop a relationship with one Michelle Gore. He met her through the internet in the fall of 2006. It was then that problems developed.

10Naturally, Mr. Veneman wanted his children to meet his new companion, and hopefully develop a positive relationship with her. Unfortunately, the steps he took to accomplish this were somewhat clumsy and insensitive.

11First of all, he did not apprise the respondent, Ms. Veneman, of his new relationship. She found out about it from the children.

12Second, after he had told the children about Ms. Gore, he was not particularly sensitive about how a meeting should take place.

13According to the applicant, when he first discussed his new relationship with the children, they did not seem concerned and they expressed an interest in meeting Ms. Gore. This quickly changed.

14After finding out about Mr. Veneman’s new friend in early November, 2006, Ms. Veneman asked him about it in late November. He said he had a girlfriend. Ms. Veneman testified that she asked him to take baby steps with the children.

15Ms. Veneman testified that, from the children’s perspective, Mr. Veneman had tricked them into meeting Michelle when they were not yet ready. Mr. Veneman apparently took Michelle to what was supposed to be a birthday dinner for Maggie with her grandparents, Mr. Veneman’s parents, without telling the children beforehand.

16I have little doubt, having heard all of the evidence, that Ms. Veneman’s attitude towards Michelle Gore played a role in what subsequently developed into an extreme case of alienation of the children from their father.

17Ms. Veneman testified that she was concerned about Mr. Veneman’s relationship with Michelle Gore. Ms. Gore had three children of her own, and she had met Mr. Veneman through the internet. Ms. Veneman knew nothing else about Ms. Gore. Nevertheless, her attitude towards Ms. Gore and the prospect of her meeting the children are, in my view, fairly captured in an email she sent to Mr. Veneman on November 20, 2006:

O’kay so let me get this straight. You are going to force the kids to meet the INTERNET WHORE because you can’t handle someone calling her what she obviously is. Is that the reason ? Wow, you are so responsible. I thought you’d wait until you knew for sure the INTERNET WHORE was going to keep you around.

I can just picture you and the INTERNET WHORE shedding tears over how you’ve been done wrong by your spouses. Does she have the personality of a crumb like you as well ? She probably doesn’t have any friends either, right? Maybe just strange men she’s met on the internet. Enjoy your pity party with your INTERNET WHORE just keep my 2 innocent children out of it. You’ve obviously run out of things to talk about and do with your INTERNET WHORE and that is why you want to use the children, right?

You go ahead and screw around with the money and see what happens Erik. I have a hard copy of you threatening to do just that. You can also explain to your daughters why they won’t get any presents this year. [Emphasis added]

18In an email dated November 30, 2006, Ms. Veneman stated:

You only get the girls for a couple of hours every other day so use your time wisely and give them your full attention. What kind of a mother calls her “boyfriend” in the middle of his daughters’ B’day dinner??? She does not sound like the SELFLESS type. She sounds very insecure and clingy. I do not want my girls around her.

[Emphasis added]

19Ms. Veneman’s attitude is confirmed in some correspondence from the children. In a handwritten letter dated May 10, 2007, among other things, Maggie stated, “When we met Michelle, our concern wasn’t just mom’s reaction. It was also if we were ready, why you tricked us, and what kind of person lies to their kids?” She also stated, “Yes, mom has talked negatively about Michelle, but I wasn’t far behind her.” [emphasis added]

20At approximately the same time as Mr. Veneman commenced his relationship with Michelle Gore, money was becoming an issue. For the first two years after their separation, the parties maintained a joint bank account, and Ms. Veneman would simply withdraw what she needed. Eventually, Mr. Veneman decided that separation of the parties’ finances would be preferable, and he stopped depositing his paycheque into the joint account. He commenced paying Ms. Veneman what he thought was an appropriate amount for support, but Ms. Veneman obviously thought it was insufficient. What had been a relatively amicable separation became less so.

21While Ms. Veneman denied it in her evidence before me, there is little doubt that she discussed financial issues with the children.

22In a letter to Mr. Veneman from Maggie dated January 4, 2007, Maggie states:

Second, I am super mad at you for taking our money away. I guess you didn’t think about how that would affect me and Abbey, did you? And Lily [Lily is a dog]. Because we don’t have money, we won’t be able to pay the bills, and will probably lose the house. What will happen to Lily then? We’ll need to find an apartment, and most apartments don’t allow dogs. I’m willing to forgive you for most of the stupid things you’ve done, but won’t just stand by and let us lose our house and our dog, I will NEVER forgive you for it.

23In her letter dated May 10, 2007, to which I referred earlier, Maggie said:

You have paid child support but you keep paying us less and less every month since we should definitely get more money than you. You’re only one person, we are three people, a house, and a dog.

Money arguments are not just between you and mom because we need money too.

24I do not accept Ms. Veneman’s evidence that she did not discuss money issues with the children. I do not accept her assertion that the children must have found documents relating to money issues somewhere in the house. It is far more likely that their perception of money issues would have been obtained from Ms. Veneman.

25What began as a rocky start to the children meeting Michelle Gore got worse. Ultimately, it resulted in a complete rupture of the relationship between Mr. Veneman and his children.

26The girls wanted to visit Mr. Veneman over Christmas in December, 2006. He insisted that Ms. Gore be present. As a result, no visit occurred, and Mr. Veneman did not give the children any Christmas presents.

27In Maggie’s letter dated January 4, 2007, that I referred to earlier, she states:

I am writing you this letter to tell you how I feel about what you’re doing to us and to give you some suggestions on how to fix it. First of all, Abbey and I miss you but no matter what you do, we refuse to visit with you and Michelle. It’s not Michelle we want to spend time with, it’s YOU. I don’t understand why you can’t take a break from her a couple times a week to see your kids. Is she some kind of desperate loser or what?

28In the same letter, Maggie states:

I know that you’re sad about not seeing us, but I want you to know that I’m not sorry, and we’re not changing our minds. Abbey and I have been sad and crying for awhile now thanks to you and your precious girlfriend. It’s her or us dad. So far, you’ve made it pretty clear that you’ve chosen her.

29Things went from bad to worse. I could use many examples, but I will mention only a few.

30On May 7, 2007, Mr. Veneman sent Maggie a long letter in which he expresses regret that he has had virtually no contact with his daughters for five months. It is fair to say that he blames Ms. Veneman for the problem. He says:

I just want you to know that I love you and still want to be a big part of your life. I will do whatever it takes except apologize for my own actions because we have a very different opinion of what my actions have been. There’s no use arguing about the past anymore. I want to share my life with you and Abbey and I want you guys to share your life with me again.

31I have already referred to Maggie’s response, dated May 10, 2007, earlier. It is a long letter. It concludes as follows:

I am so sick of you and your crap. Even if you apologized now, I really doubt I’d accept. You’ve had five months to do the right thing, and it hasn’t happened yet. If you were a good person and a good dad, you would have apologized. Since you failed to do so, you’ve lost the right for me to call you dad. From now on, I will refer to you as Erik. See ya, Erik.

32On July 31, 2007, Snowie J. made an interim order. It included the following paragraphs:

3The parties acknowledge that if the children continue to refuse to see the applicant or the access relationship breaks down, the parties and the children will engage in the assessment process. However, if the children are agreeable to access and visits continue beyond the initial first two (2) weeks of visitation, the parties acknowledge that there may be no need for an assessment.

4The parties may revisit the issue of an assessment or the appointment of the Office of the Children’s Lawyer if at some later point problems with access or the relationship arise.

33A visit between Mr. Veneman and the children was attempted. He wanted to engage in certain activities. They wanted to do something else. An argument ensued. The children got out of the car and the visit was over.

34On November 13, 2007, the parties agreed to a final order of Snowie J. that contains the following paragraphs:

1The respondent, Kathleen Veneman, shall have sole custody of the children of the marriage, namely Margaret Elizabeth Veneman, born November 28, 1993, and Abigail Maureen Veneman, born October 29, 1996.

2The applicant, Erik Veneman, shall be entitled to obtain and be given information about the children of the marriage from all educational and medical providers concerning the children’s health, education and general welfare.

3The applicant shall be granted reasonable access on reasonable notice to the children in accordance with the children’s wishes.

35Subsequently, Mr. Veneman brought a motion to require an assessment, as contemplated in the interim order of Snowie J. dated July 31, 2007. In paragraph four of his affidavit filed in support of the motion, he deposed as follows:

4. On November 13, 2007 I agreed to a final order with respect to access that it be in accordance with the children’s wishes. I had hoped with the passage of time that the children would miss me and would want to see me. I have heard nothing from my children since that time. I have done nothing to justify my having no contact with my children.

36Mr. Veneman’s motion was dismissed, on the ground that the interim order sought to be enforced had no further life, and had been superceded by the final order granting access to Mr. Veneman in accordance with the children’s wishes.

37Mr. Veneman has made many overtures to his daughters. He has told them he loves them, and wants to resume a relationship. For the most part, these entreaties have been ignored. On occasion, when any response from the children has been forthcoming, it has been filled with words of hatred. As an example, an email to Mr. Veneman from Maggie, dated June 4, 2007, includes the following:

Erik, you are such a selfish, greedy, lying, back-stabbing, neglecting, blackmailing, bribing, idiotic, mean, and just overall stupid person. I really don’t get why Michelle’s kept you as long as she has. Unless she’s just as big of a jerk and you guys are just the perfect little couple from hell. You have to admit, it’s very probable.

As I’ve explained in previous emails, you are dumb and mean and you don’t want to be our dad and you don’t miss us. Everything that’s happened was preventable, and you’re the only one that could have prevented it, therefore, this is really all your fault and you haven’t figured that out yet stupid.

38On June 27, 2007, Maggie graduated from grade 8. On Sunday, June 24, 2007, Maggie and her father exchanged some emails.

39On Sunday, June 24, 2007 at 6:14 p.m., Mr. Veneman emailed Maggie, telling her that he was planning on coming to her grade 8 graduation ceremony. Maggie responded, at 7:07 p.m. as follows:

Erik,

You know why I don’t want you at my graduation but I guess I’ll have to explain it to you anyway: you haven’t been my dad for the past six months, you’ve neglected me completely, you chose a woman over me, and you’ve been a huge idiot. If you come to my graduation it will be completely ruined. You don’t deserve to be at my graduation and I DON’T WANT YOU THERE. I have been looking forward to this day for so long and if you come I don’t know how I’m going to react but I know it won’t be good for anyone. If you want to see me cry, if you want to see Abbey cry, if you want to see me leave my own graduation because you showed up, and if you want to show the whole school and all the parents the jerk that you really are, then come to my graduation. If you want to do something for someone other than yourself, stay away.

I don’t want to have a relationship with you anymore. I’ve explained to you before that you’ve had plenty of chances and you blew them all, but apparently you have to hear it again. I don’t want to see you again, I don’t want to hear from you, and I really, really don’t want you at my graduation.

Maggie

40There were some further emails, to much the same effect. Ultimately, Mr. Veneman and his parents (the children’s grandparents) attended the graduation ceremony. They did not take the initiative to speak to Ms. Veneman or the children. Ms. Veneman testified that she found it shocking and surprising that Mr. Veneman did not come over to speak to them. In view of what had gone on, she should not have been shocked and surprised.

41Virtually every attempt Mr. Veneman has made to have a relationship with his children has been rejected. Emails and letters have been ignored. Gifts have been unacknowledged or returned. They have been characterized as bribes when they have been acknowledged at all.

42The situation is captured by the following letter to Maggie from Mr. Veneman, dated August 15, 2010:

Maggie,

I’m writing this letter to tell you how disappointed I am that you continue to choose not to talk to or have anything to do with me.

Your mom continues to claim that I “ditched” you. If I really did, why would I have called your house 164 times to try to talk to you?? Every time either you, your mom, or Abbey would tell me to stop calling and hang up on me. 164 times... The number of times you or your sister called me is ZERO. Please think again about who really “ditched” whom??

It makes no sense to me that you won’t even accept gifts from me like free pizzas I had sent to the house on two separate occasions.

You and Abbey will always be my children and my sincere hope is that one day, you will be able to grow up and truly see how wrong you have been to treat me the way you have.

If you want to call me you can at (226) 486-1068. If you want to email me you can at eveneman68@gmail.com. I would love to hear about what’s new in your lives and tell you how I’ve been doing as well.

Love always,

Dad

43On April 1, 2009, pursuant to final minutes of settlement, a final order was issued by Coats J. Among other things, it included an order that Mr. Veneman pay spousal support which would end on November 28, 2011. It also included child support in the amount of $1,328 per month, based on Mr. Veneman’s annual income, at that time, of $93,808.

44Of particular relevance here, the order contains the following paragraph:

The applicant shall pay 75% and the respondent shall pay 25% of the children’s special expenses, this is based on an annual income of $93,808 for the applicant and imputed income of $31,000 for the respondent. Such expenses shall include grade 8 trip of Abigail Maureen Veneman and high school uniforms for both children, orthodontics, counselling, medication, eye care and post-secondary educational expenses for both children in accordance with the Child Support Guidelines.

45It was directed that amounts owing under the order are to be enforced by the Director, Family Responsibility Office.

46Currently, Mr. Veneman earns approximately $149,000 per year. Ms. Veneman has recently become unemployed, but she is agreeable to income being attributed to her in the amount of $36,000 per year.

47In June, 2011, Maggie completed secondary school. Earlier, she had investigated post-secondary education. Mr. Veneman was not consulted about her plans.

48Ms. Veneman, in various emails, advised Mr. Veneman what the cost would likely be for university. She advised him that it would likely cost approximately $18,000 per year.

49Maggie was accepted by three universities: Western, Toronto, and Queen’s. Mr. Veneman was not consulted about which university Maggie should attend. Ultimately, Maggie decided to attend Queen’s.

50Maggie earned some money during the summer of 2011. Mr. Veneman was not advised as to how much she earned, and was not provided with her income tax return or notice of assessment.

51Ms. Veneman eventually advised Mr. Veneman how much she wanted him to contribute to Maggie’s fees and expenses for the academic year 2011-2012. Ultimately, it was necessary for FRO to enforce payment.

52On July 18, 2011, Mr. Veneman wrote the following letter to Maggie and Ms. Veneman:

Kathy and Maggie, July 18^th, 2011

Over the last almost 5 years I have continued to try to contact the girls to no avail.

I went to Maggie’s grade 8 graduation with my parents with gifts in hand and she or you never blinked an eye that we were there....do you know how hurtful that was for both me and my parents??

Even after that sad sad night over 4 years ago I have continued to try and make a connection with our girls with tons of phone calls and left messages and you and girls always hang up on me over and over and over and over again.

I went to Maggie’s work to hand her a letter with pictures of me and the kids having fun and what do you do ?? You call the police and have them do a full investigation including two interrogations of me which, they admitted in the end, was a complete waste of their time. They understand that any normal parent will continue to try to contact their kids and that’s what I told them I would do even though you didn’t want me to.

I have phoned and asked if the girls would like to go to Canada’s Wonderland, camping, Justin Beiber tickets and even asked them to attend our wedding in 2009 and with no response. I have sent gifts that have been turned down including free pizza’s over Valentine’s Day, March Break and birthdays.

Because you and the girls maintain that all of you still want nothing to do with me, and because I have no idea how my kids are doing, and because I have no idea what my kids are good at, and because I have no idea what makes my kids happy, and because I have no idea what my kids do for fun, and because I have no idea what Maggie is good at or what her interests are, and because I never agreed or had any say in he going to one of the most expensive universities taking I don’t know what – I am going to do whatever I can to not have to pay for her education. There are more and more cases out there that identify parental alienation and there are more and more Dads out there who do not contribute to kids who have clearly demonstrated that they want nothing to do with them. Thank you for clearly demonstrating this over the past almost 5 years.

Therefore you should expect to be back in court this fall.

And – why have you bothered me at my work and called to ask me now to come and visit you to get the updated school documentation for Maggie?? What game are you up to with that? I already provided you with two letters, asking for all the information I need and now you call me at work to ask for a visit?? Curious. I’m so sorry that the kids have had to suffer and lose a parent, uncle and grandparents because of you.

[Emphasis added]

Erik.

53Mr. Veneman, through this motion to change, now seeks to eliminate his obligation to pay child support for Maggie, and his obligation to contribute towards any post-secondary educational expenses for her. He acknowledges that he must continue to contribute child support for Abbey, who is still under the age of majority.

Submissions

Submissions

54Mr. Wojtis, counsel for Mr. Veneman, submits that his client should no longer have to pay child support for Maggie, or contribute to her post-secondary educational expenses.

55Mr. Wojtis submits that there has been a material change in circumstances since the making of the order. He submits that it is now crystal clear that Maggie wishes to have no relationship with her father, and now that she has become an adult, it is also clear that the choice is hers.

56Mr. Wojtis submits that while the parties agreed, in the April, 2009 order, that each party would contribute to the children’s post-secondary educational expenses, they agreed to do so “in accordance with the Child Support Guidelines”. Pursuant s. 3(2) of the Guidelines, the amount of a child support order for an adult child who remains a child of the marriage, including an order made under s. 7 of the Guidelines, is to be the amount determined as if the child were under the age of majority, or the amount that the Court considers appropriate if the Court considers that approach to be inappropriate. In this case, an order requiring Mr. Veneman to contribute to Maggie’s post-secondary school educational expenses is inappropriate because Maggie does not wish to have a parental relationship with her father. It cannot be appropriate to require Mr. Veneman to contribute to Maggie’s well-being, where she has rejected any parental relationship.

57Ms. Veneman submits that Mr. Veneman’s motion to change the order should be dismissed, and an order should issue increasing the amount of child support, and requiring Mr. Veneman to contribute 79% of Maggie’s post-secondary school educational expenses. She points out that Mr. Veneman’s income has increased substantially since the order was made, and while she is currently unemployed, she is prepared to agree that income of $36,000 per year be attributed to her.

58Ms. Veneman submits that there has been no material change in circumstances since the making of the order. It is true that Maggie wishes to have no relationship with Mr. Veneman, but she submits that the situation is entirely of Mr. Veneman’s own making. Further, any rupture of the relationship between Maggie and her father does not absolve Mr. Veneman of his obligation to support his children.

Analysis

Analysis

59It is clear that there is no meaningful parental relationship of any kind between Mr. Veneman and his children. Ultimately, however, the question is whether there has been any material change in circumstances since the making of the final order in April, 2009, that would justify changing the order.

60There are two schools of thought on whether parental alienation is a factor that can ever absolve a parent from his or her obligation to contribute to an adult child’s welfare, assuming the child remains a child of the marriage. Those schools of thought are captured in two recent articles: Philip M. Epstein and Ilana Zylberman, Support for Adult Children in Cases of Estrangement: The Parent as Wallet, Law Society of Upper Canada – Special Lectures in Family Law (2006), p. 233; and Justice David L. Corbett and Claudia Schmeing, Child Support for Estranged Adult Children – “Parent as Wallet” or “Can’t Buy Me Love”?, 30 C.F.L.Q. 165.

61Mr. Epstein and Ms. Zylberman advocate the proposition that courts should be more willing to reduce or terminate support in cases of alienation. At p. 234, they state:

It is our position that adult children who unilaterally terminate a parental relationship without cause, and who are old enough to be held accountable for their actions, should be visited with a reduction of support or even a termination of their support entitlement in egregious circumstances.

62On the other hand, Justice Corbett and Ms. Schmeing summarize their conclusion, at p. 166: “Estrangement, simpliciter, even at the sole instance of the child, should not be relevant.”

63There is some judicial support for the position of Mr. Epstein and Ms. Zylberman. It stems from the well-known decision of Master Joyce in Farden v. Farden (1993), 1993 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. Master). See also Law v. Law (1986), 1986 6291 (ON SC), 2 R.F.L. (3d) 458 (Ont. H.C.J.), and Whitton v. Whitton (1989), 1989 8868 (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.). It is to be noted that Law was decided under the Divorce Act prior to its revision in 1985.

64I certainly appreciate and understand the view advanced by Mr. Epstein and Ms. Zylberman. Once a child has become an adult, and he or she chooses to have no relationship whatsoever with a parent, one can easily sympathize with the parent’s view that it is unfair to require any further financial contribution to the child’s welfare. As noted by Professor James McLeod in an annotation to Filice v. Lepore (1995), 1995 7347 (ON SC), 16 R.F.L. (4^th) 42 (Ont. Gen. Div.): “A parent has a right to be more than a wallet.”

65In this case, there can be no question that Mr. Veneman is nothing more than a wallet. While the allocation of fault or blame for situations of this sort is difficult, at best, it seems to me that in this case both parents must assume a share of the blame.

66While Ms. Veneman denied it in her evidence before me, I think it is clear that she allowed her view of Mr. Veneman’s new companion to rub off on her children. When she became apprised of the relationship, she knew nothing more about Ms. Gore than the fact that she had met Mr. Veneman over the internet and that she had children of her own. This was hardly enough reason to refer to her as an “Internet Whore”. Many people seeking companionship meet over the internet, and some solid relationships, including this one, develop. It is clear from Ms. Veneman’s email communications that she did not want Ms. Gore associating with her children. I have no doubt that the children understood this, and responded accordingly. They knew nothing more about Ms. Gore than their mother did.

67It is also clear, in my view, that Ms. Veneman made her children aware of the disputes she was having with Mr. Veneman about money. While she denied it in her evidence before me, the written communications from Maggie say otherwise.

68Mr. Veneman’s attempts to foster a meeting between his children and Ms. Gore were admittedly clumsy and insensitive. It is not unusual for young girls to undergo emotional turmoil when their father develops a new relationship. He should have handled the situation better. However, hundreds of new relationships are developed every year. Almost invariably, children adapt to the new circumstances, even if their parents’ attempts to introduce new partners are handled in less than ideal ways.

69In the final analysis, the rupture of the relationship here is entirely irrational, and could and should have been avoided.

70It is not enough to say, as Ms. Veneman does, that the responsibility is entirely that of Mr. Veneman, and that if the children do not wish to have a relationship with him, they are free to make that choice. With respect, I disagree.

71Under s. 16(10) of the Divorce Act, Parliament has enshrined the principle that “a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” That principle is not enshrined in order to benefit the parents; rather, it is for the benefit of the child. It is up to the custodial parent, in this case Ms. Veneman, to foster the children’s relationship with the non-custodial parent, not to undermine it.

72I have no doubt that in due course, perhaps later in their adulthood, the children will come to wonder why they hate their father so much. They will have no good answer. Their father did not beat them, or ignore them. Indeed, he made superhuman efforts to reach out to them.

73It is doubtful that the girls will blame their mother for the estrangement from their father, even though I have placed considerable responsibility on her. However, even if they continue to blame their father they will undoubtedly come to realize that his mistakes were the product of clumsiness and insensitivity, rather than any deliberate intent. It may then be simply too late to reignite a positive relationship. That would be a tragedy.

74However that may be, the legal issue confronting me in this case is whether there is any scope for varying the order of April 1, 2009. Regrettably, in my view, there is not.

75Of cardinal importance, in my view, is the fact that the order was made on consent. In April, 2009, the relationship between Mr. Veneman and his children had been ruptured for almost two years. It remains ruptured to this day. Notwithstanding the rupture, Mr. Veneman agreed to pay child support, and he agreed to contribute, proportionately, to his children’s post-secondary school expenses.

76I do not accept Mr. Wojtis’ argument based on s. 3(2) of the Child Support Guidelines.

77The relevant provisions of the Guidelines are as follows:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(e) expenses for post-secondary education;

78Mr. Wojtis’ argument is that the presumptive rule set out in s. 3(1) of the Guidelines, including the requirement to pay amounts under s. 7 of the Guidelines, can be varied for a child over the age of majority if the Court considers the approach under s. 3(1) to be inappropriate. In this case, so the argument goes, the approach under s. 3(1) is inappropriate because of the rupture of the relationship. Since the rupture was not the fault of Mr. Veneman, and was either caused by Ms. Veneman or is the fault of Maggie herself, Mr. Veneman ought not to be required to pay.

79With respect, that argument is without merit. When the parties consented to the order in April, 2009, they were well aware of the estrangement. Nevertheless, they agreed to a formula under which both parents would pay for the children’s post-secondary school educational expenses. They knew that those expenses would be required, almost entirely, once the children achieved the age of majority. It cannot be argued now that the formula under s. 3(1) of the Guidelines is inappropriate because of the estrangement when they knew about the estrangement at the time the order was made.

80In the final analysis, there is simply no material change in circumstances, and Mr. Veneman cannot now be relieved of his obligation to pay child support and/or contribute to post-secondary educational expenses.

81Having said that, there are some interpretive aspects of the 2009 order that require refinement, as opposed to variation.

82It is well established that in determining the quantum of post-secondary education expenses to be shared by the parents, the contribution of the child is to be taken into account. This is specifically recognized in s. 7(2) of the Guidelines themselves. See also Lewi v. Lewi (2006), 2006 15446 (ON CA), 80 O.R. (3d) 321 (C.A.).

83Maggie earned approximately $10,000 in 2011. Mr. Veneman was never supplied with any information about Maggie’s income. He was simply told that Maggie would contribute something.

84In my view, Maggie must contribute more than a nominal amount to her own education. It is not unreasonable that she contribute 75% of what she earns for that purpose.

85I order that Mr. Veneman be provided with a copy of Maggie’s income tax return within one week of filing, and with a copy of her notice of assessment within one week of receipt. I order that 75% of her line 150 income be considered to be her contribution to her post-secondary education for the next ensuing academic year. In other words, 75% of the income disclosed on her tax return filed in April, 2012, will be considered to be her contribution to her educational expenses for the academic year commencing in September, 2012.

86Ms. Veneman shall provide a budget, no later than June 30 in each year, for the next ensuing academic year commencing in September. This shall take into account Maggie’s contribution, and shall allocate the same 75/25% split for the balance, as set out in the 2009 order.

87I do not accept Ms. Veneman’s argument that the percentage split should be varied. The parties would have been aware, when they agreed to the order in 2009, that variations in the income of each party would be likely. It is only changes that could not have been foreseen that will give rise to a variation of an order: see Willick v. Willick, 1994 28 (SCC), [1994] S.C.J. No. 94.

88I also order that during the months that Maggie is living in Kingston and attending Queen’s University, Mr. Veneman shall not be obliged to pay child support for her. His contribution to her welfare, at that time, is encompassed within his proportionate share of her post-secondary school expenses. I order that he pay child support for Maggie only during the months of May through August in each year, assuming that Maggie is living with her mother during those months.

89I order that the same formula apply to Abbey once she attends a post-secondary institution.

90Finally, I order that child support be varied to now reflect Mr. Veneman’s income of $149,000 per year. I order that the variation be effective as of November 1, 2011. If there is any dispute regarding the calculation, I may be corresponded with.

Disposition

Disposition

91For the foregoing reasons, I order as follows:

(a) the motion to change the order of April 1 2009, brought by Mr. Veneman is dismissed;

(b) in each year, Mr. Veneman shall be provided with a copy of each child’s income tax return within one week of filing, and a copy of her notice of assessment within one week of receipt;

(c) 75% percent of the line 150 income of the child reflected on the income tax return filed in April of each year shall constitute the child’s contribution to the post-secondary educational expenses for the academic year commencing in September of that year;

(d) after taking into account the child’s contribution, Mr. Veneman shall pay 75% of the remaining expenses of post-secondary education for each academic year, and Ms. Veneman shall pay 25%;

(e) on or before June 30^th of each year, Ms. Veneman shall provide a budget to Mr. Veneman for the post-secondary educational expenses for the academic year commencing in September; this shall take into account the child’s contribution;

(f) Ms. Veneman’s motion to change the percentage split of the parties’ respective contributions to the post-secondary educational expenses for the children is dismissed;

(g) Mr. Veneman shall not pay child support for either child during the months of September to April in each year during which a child is attendance at a post-secondary institution; and

(h) effective November 1, 2011, Mr. Veneman shall pay child support in accordance with the Guidelines based on his annual income of $149,000.

92Mr. Veneman has been largely unsuccessful in his motion to vary the order dated April 1, 2009. However, there has been some divided success. Furthermore, since I have found that Ms. Veneman was partially responsible for the estrangement of her children from Mr. Veneman, I am not inclined to award any costs. In the result, there will be no order as to costs.

93While I am not in a position to order it, I strongly urge Ms. Veneman to furnish a copy of these Reasons to her children, if for no other reason than the Reasons are available on the internet. It is far better that the children get them from their mother than for them to come across them on the internet themselves, or have them sent to them by one of their friends.

GRAY J.

Released: November 15, 2012

COURT FILE NO.: 2215/07

DATE: 2012-11-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ERIK VENEMAN

Applicant

– and –

KATHLEEN VENEMAN

Respondent

REASONS FOR JUDGMENT

GRAY J.

Released: November 15, 2012