ONTARIO
SUPERIOR COURT OF JUSTICE
SIMCOE COURT FILE NO.: 3773/96
DATE: 2012/12/21
BETWEE N:
LESLEY JANE VANSICKLE (aka Jane Elms)
Walter Drescher , for the Applicant
Applicant
- and -
BRIAN AUSTIN VANSICKLE
Steven McCutcheon , for the Respondent
Respondent
HEARD: August 7, 8, 9 and 10, 2012
THE HONOURABLE MADAM JUSTICE L.M. WALTERS
OVERVIEW
[ 1 ] This is a family tragedy. The respondent’s relationship with his two children, Jillian and Jeffery, is now irreparably shattered. The parties have spent money they could ill afford on four days of trial wherein the respondent has done his utmost to convince the court that his daughter, a university student, is no longer a dependent and not entitled to any support from him. For her part, the applicant seeks a retroactive adjustment to child support from 2001 to and including 2008, along with s. 7 university expenses for their daughter, Jillian.
ISSUES TO BE DETERMINED
[ 2 ] The following issues are to be determined:
Was either child a child of the marriage when the applicant commenced her application for retroactive support and s. 7 expenses in March 2008?
If the answer is yes, what, if any, should be the retroactive adjustment of child support?
Is Jillian now a child of the marriage and entitled to contribution towards her university expenses?
If the answer is yes, what should the respondent’s contribution be, once his income has been determined?
BACKGROUND FACTS
[ 3 ] The parties were married on October 12, 1985 and separated in July 1996.
[ 4 ] There are two children of the marriage, namely, Jillian Elyse VanSickle, born […], 1988, and Jeffrey Robert Ernest VanSickle, born […], 1989.
[ 5 ] The parties divorced on December 16, 1996.
[ 6 ] A final order respecting custody, access and support was made by Marshall J. on November 8, 2000, which included:
...the Respondent’s access to Jillian Elyse VanSickle born […], 1998 and Jeffrey Robert Ernest VanSickle born […], 1989 is terminated.
b. commencing on Friday, October 6, 2000 (called the “variation date”) and payable on the 1st Friday of each month thereafter for so long as either Jillian Elyse VanSickle, born […], 1988 or Jeffrey Robert Ernest VanSickle, born […], 1989, remain a child of the marriage within the meaning of the Divorce Act , the Respondent shall pay to the Petitioner child support in the sum of $583.00 per month. Said amount is based on a current imputed income to the Respondent of $41,000.00 per year; and, is in accordance with the Federal Child Support Guideline for Ontario for 1997;
c. in the event that the Respondent misses or is late in making a child support payment to the Director of the Family Responsibility Office by 15 days or more after child support is due, he shall pay to the Petitioner the sum of $7,000.00, as liquidated damages.
d. the Respondent shall personally, and for and on behalf of any other undertaking, business or corporation in which he has a direct or indirect financial ownership interest, provide financial disclosure of his income, benefits and interests (and without limiting the generality thereof), same shall include his current income tax returns, enclosures, Notice of Assessment and current profit and loss statements and balance sheets of any and all of his undertakings, business or corporations (called “Disclosure Documentation”). He shall provide Disclosure Documentation, 30 days prior to the Variation Date, commencing 1 year after the Variation Date and annually thereafter for so long as he is obliged to pay child support to the Petitioner. Provided that the Respondent has made such full and complete disclosure as is required pursuant to the Divorce Act and the applicable child support guidelines, Rules of Practice and applicable case law, child support shall be varied annually based on the Respondent’s income as required by the Divorce Act and the Federal Child Support Guidelines.
[ 7 ] It is of note that this order was on consent. The respondent’s agreement to have no access to the children is an important factor going forward in terms of deciding whether or not the children severed ties with their father.
[ 8 ] From the date of the order, the father made no effort to contact the children, either in person, by telephone, email, letters or cards. In 2007, it was Jillian who made efforts to get in touch with her father.
[ 9 ] In accordance with paragraph 2 (d) of Marshall J.’s order, the applicant requested disclosure from the respondent. Letters were sent on November 19, 2001, December 4, 2001, May 7, 2002, August 16, 2002, October 22, 2002, November 8, 2002 and December 19, 2003.
[ 10 ] Although some information was provided, the respondent never made full disclosure as required by the order.
[ 11 ] After 2003, no further requests were made for disclosure until the beginning of 2008. From the date of the order, the respondent did not voluntarily comply with the disclosure requirements set out in paragraph 2 (d) and the support was never adjusted. The respondent continued to pay the court ordered support of $583.00 per month, to and including January 31, 2008.
[ 12 ] The evidence of the applicant is that between 2004 and 2007, she and the children were going through a very difficult period of time, which explains her failure to take any further legal action against the respondent. In 2004, Jillian made her first suicide attempt and, in 2005, she made a second attempt and was hospitalized both in Brantford and Whitby because of her mental health issues. The respondent, in closing submissions, challenged this evidence, as no medical information was filed to support Jillian’s mental health diagnosis. However, it is of note that the respondent had an order for questioning of the children, which he did not follow through with. He cross-examined both his former wife and Jillian at trial and did not challenge either one of them with respect to Jillian’s mental health. In these circumstances, I am satisfied and accept the evidence of both the applicant and Jillian that Jillian has and did suffer from significant mental health issues including a major depressive disorder, personality disorder and a general anxiety disorder. She continues on medication to this day. In explaining why she did not make further demands for financial disclosure, the applicant testified that she had a choice to make; she could either go to court and pay legal fees or help her daughter survive.
[ 13 ] The applicant did not lead any evidence of any efforts she made to obtain Legal Aid to assist her in enforcing the disclosure terms of the order.
[ 14 ] The applicant testified regarding the financial difficulties the family went through between 2004 and 2007. In 2004, they were living with her best friend, Fred. In 2005, she attempted to get a three bedroom home for herself and the children on Oak Street. She described the place as a dump and said that a lot of money was spent on utilities.
[ 15 ] In 2006, the family moved to 125 North Main Street. Jillian was involved in an incident at school which resulted in her being expelled. She went to stay with her step-brother, John, in Alberta and returned to Ontario in October 2006. During this period of time, the applicant paid money to John for Jillian’s care and, in addition, sent Jillian her prescriptions and contact lenses. Jillian was enrolled in high school in Alberta. She re-enrolled in school when she returned to Ontario in October 2006.
[ 16 ] By 2007, the applicant was forced to move back into Fred’s home. She was having a lot of issues with Jeff, who was using drugs and partying. She was working two and three jobs trying to make ends meet and the house was being destroyed by Jeff’s conduct. Jeff went to live with some friends. The applicant continued to support him and see him every day. She provided money to the family he lived with and continued to drive him back and forth to school.
[ 17 ] Jillian was to start at McMaster University in September, 2007. She contacted her father in May 2007 in the hopes that he would assist her with her university costs. Jillian and Jeffrey met with the respondent on two occasions and there was a short-lived exchange of emails. Both Jillian and Jeffrey testified that they felt their father was asking for information about their mother during these visits.
[ 18 ] The respondent did provide the $600.00 deposit that Jillian required for McMaster and he offered to help her apply for any scholarship or bursaries. He made no further monetary contributions to her 2007 academic year. Jillian completed her first semester doing very well and was registered for the second semester. She was in receipt of OSAP, however, the amount of the loan was not sufficient to cover her entire second term. She emailed her father once again for assistance however, he declined to help her. In his response to her, Mr. VanSickle expressed his disappointment that Jillian had not maintained more contact with him. In his words, she was told “you have to come half way to meet me in this relationship” and that he would only “take interest and help” people that “invested” an interest in him. Jillian did not respond to this email. She testified that she panicked because she did not have sufficient funds to pay for the second semester and decided to drop out. She moved back in with her mother and obtained part time employment intending to return to school at a later time.
[ 19 ] Jeffrey completed high school in January 2008 and applied and was accepted at Mohawk College for a start date in September 2008. He went out west to be with his step-brother. When there, he decided not to return to school. He continues to reside in Alberta and is working full time.
[ 20 ] Throughout this same period of time, the respondent’s financial circumstances improved. He continued to operate the company that he and the applicant originally started, although, there certainly were some major improvements to this business. With a few exceptions, the gross sales and income of the corporation steadily increased.
[ 21 ] The respondent’s own income has also generally increased, and has been greater than the $41,000 imputed to him by Marshall J.
[ 22 ] The respondent remarried in 2003, and, in 2004, his company began to employ his wife. Since that time, he and his wife have received approximately the same salary each year from the corporation.
[ 23 ] On December 7, 2007, the respondent instructed his solicitor to contact the applicant requesting that she consent to the termination of child support for both children effective December 1, 2007. At that time both children were in school full time. The respondent testified he was prompted to start this application by Jillian’s email to him on September 19, 2007. Jillian told him she was staying at her boyfriend’s on the weekends and that Jeffrey had to move out of his mother’s house.
[ 24 ] The applicant responded to the correspondence advising that both Jeffrey and Jillian were still in school and that she would not consent to any termination. She also suggested that the respondent’s support obligation would be higher and that she would claim a retroactive adjustment for s. 7 expenses and contribution to Jillian and Jeffery’s post-secondary school expenses.
[ 25 ] On January 14, 2008, the respondent commenced a notice of motion to terminate child support and for a repayment of one-half of the child support paid from the summer of 2005 to the summer of 2006. He also asked that the applicant be obliged to repay him any and all child support he paid from September 2007.
[ 26 ] On February 1, 2008, the applicant, through her solicitor, responded and made a formal written request for the respondent to provide full financial disclosure as ordered by Justice Marshall on November 8, 2000 and in accordance with ss. 21 and 25 of the Federal Child Support Guidelines .
[ 27 ] At a case conference on March 17, 2008, Justice Turnbull granted the respondent leave to question the children. The respondent was ordered to produce full financial disclosure as set out in the 2000 order for the years 2001 to and including 2007.
[ 28 ] On March 27, 2008, the applicant commenced a notice of contempt motion against the respondent for failure to comply with the order of Justice Marshall. In addition, the applicant sought other relief within this notice of contempt motion that included a claim for retroactive child support for both children between 2001 and 2008, ongoing child support for both Jillian and/or Jeffrey, and an order to fix Mr. VanSickle’s pro rata share of any special or extraordinary expenses incurred on behalf of either Jillian and/or Jeffrey.
[ 29 ] By order of Justice Ramsay on November 26, 2009, the parties consented that child support for Jillian and Jeffrey would terminate effective January 31, 2008.
[ 30 ] The court further ordered that the balance of the issues of the motion including retroactive variation of support and the issue of ongoing support for Jillian if she would regain the status of “child of the marriage” were to proceed to trial.
[ 31 ] At the outset of trial, the respondent suggested there was no proper motion before the court with respect to the applicant’s claims.
[ 32 ] In my view, paragraph 4 of Justice Ramsay’s order specifically deals with the balance of the motion brought by the applicant, including variation of support and the issue of ongoing support for the children.
[ 33 ] In the event it is necessary, I deem the notice of contempt motion and request for additional relief as a motion to change.
CIRCUMSTANCES OF THE PARTIES
The Applicant
[ 34 ] In 2008, the applicant moved in with her parents to assist them and then was diagnosed with breast cancer in November 2008 at which time she moved back to Fred’s home.
[ 35 ] Although Jillian was staying with a friend in May 2008, when the applicant was released from the hospital, Jillian returned to live with her mother at Fred’s home until she left for the University of British Columbia in September 2009. The applicant remained at Fred’s home until June 2011 when she got her own apartment. However, she became sick again and was forced to return to Fred’s home where she has remained to date. She is currently in receipt of Canada Pension Disability and cannot afford to obtain accommodation of her own. Her gross income for the years in question is as follows (including child support received):
2001
$34,588.00
2002
$35,944.00
2003
$37,847.00
2004
$27,141.00
2005
$31,891.00
2006
$39,634.00
2007
$45,727.00
2008
$36,938.00
2009
$15,137.00
2010
$16,854.00
2011
$26,813.00
[ 36 ] Her Canada Pension Disability payment is approximately $970.00 per month.
The Respondent
[ 37 ] The respondent continues to operate Iceco Advanced Arena Products. He is the sole officer, director and shareholder of the corporation. His wife, Deanne, continues to be employed by the corporation.
[ 38 ] The respondent’s declared T4 income for the years in question is as follows:
2001
$41,537.00
2002
$39,568.00
2003
$50,315.00
2004
$57,049.00
2005
$43,076.00
2006
$57,413.00
2007
$41,538.00
2008
$44,999.00
2009
$43,796.00
2010
$53,499.00
2011
$68,999.00
[ 39 ] The respondent has estimated that his 2012 income will be some $40,000.00.
[ 40 ] Deanne VanSickle began employment with her husband’s company in October 2004. That first year she was paid some $17,000.00. Her income tax returns were filed at trial and disclosed that in 2010, she had income of $45,079.00 and in 2011, her income was $49,999.00. She continues to draw the same salary as her husband.
[ 41 ] The respondent’s corporation has retained significant earnings instead of paying them out to Mr. VanSickle. The retained earnings in the corporation since 2004 are as follows:
2004
$ 99,420.00
2005
$ 51,750.00
2006
$114,311.00
2007
$109,940.00
2008
$136,853.00
2009
$209,427.00
2010
$326,342.00
2011
$236,976.00
[ 42 ] The corporation is also in a healthy cash position, as follows:
2004
$30,964.00
2005
$17,028.00
2006
$97,325.00
2007
$56,023.00
2008
$72,590.00
2009
$151,347.00
2010
$225,591.00
2011
$157,691.00
[ 43 ] The respondent has been in a position each year to contribute to a Registered Retirement Savings Plan. Since 2001, he has contributed $78,600.00.
[ 44 ] The respondent and his wife own a home, which Mr. VanSickle declares to have a value of $420,000.00. It is subject to a mortgage in the amount of approximately $161,000.00.
[ 45 ] Mr. VanSickle operates his corporation from his home and he and his wife receive rent from the corporation in the amount of $425.00 each month.
Jillian VanSickle
[ 46 ] In September 2009, Jillian commenced her first semester at the University of British Columbia. She completed her first year, worked during the summer months in British Columbia and re-attended university in September 2010. She finished her second year in April 2011. She testified that although she was supposed to return to university in September 2011, she was too stressed and did not go. This litigation with her father has been emotionally difficult. She did not have sufficient funds to pay her university expenses and decided to take the year off to work, with plans to re-attend and begin a nursing course in September 2012.
[ 47 ] Starting in 2005, Jillian’s income has been as follows:
2005
$1,152.00
2006
Return not available
2007
$2,895.00
2008
$15,871.00
2009
$10,451.00
2010
$13,541.00
2011
$23,386.00
[ 48 ] Exhibit 12 filed at trial sets out the particulars of Jillian’s financial circumstances since she started at McMaster University in September 2007.
[ 49 ] The approximate cost of Jillian’s education/living costs for the years she attended university are as follows:
2007-2008 - $14,015.00
2009-2010 - $25,549.00
2010-2011 - $26,406.00
[ 50 ] In each of the years that Jillian attended university, she applied for and qualified for student loans either from the Province of Ontario or the Province of British Columbia. In 2007, she received $7,262.00 ($1,347.81 was repaid by McMaster). In 2009, Jillian received $11,529.00 and in September 2010, Jillian received $2,936.00. With interest, as at December 31, 2011, Jillian has outstanding student loans in the amount of $19,301.72.
[ 51 ] Jillian received the sum of $600.00 as a contribution by her father in May 2007.
[ 52 ] The applicant contributed money to Jillian’s education and/or living expenses in each year. For the 2007-2008 year, the applicant provided Jillian with a computer, printer, fridge, school supplies and clothing. She estimated her contribution to be approximately $3,640.00 for that academic year.
[ 53 ] In the 2009-2010 academic year, the applicant obtained loans for Jillian totaling $6,000.00.
[ 54 ] For the 2010-2011 academic year, the applicant estimates that she contributed some $4,900.00 towards Jillian’s expenses.
[ 55 ] Starting in 2012, the applicant is hopeful that she will be able to contribute $200.00 per month towards Jillian’s expenses.
[ 56 ] Jillian anticipates that her current costs at the University of British Columbia will be approximately $9,600.00 for tuition, books and other fees associated with her course of studies. Her room and board and other living expenses, including spending money will be approximately $13,000.00 each year.
[ 57 ] While at school, Jillian anticipates that she will be able to continue to waitress one four-hour shift per week. She will work full time during the summer months.
[ 58 ] It is anticipated that Jillian will receive B.C. aid in the amount of $10,800.00 each year.
[ 59 ] Jillian testified that despite earning some $23,000.00 last year, she has been unable to save any money to put towards her university costs.
Jeffrey VanSickle
[ 60 ] Jeffrey is currently 23 years of age. He continues to reside in Alberta and is working full time. He is no longer in need of financial assistance.
THE LAW
Jurisdiction
[ 61 ] Section 15.1(1) of the Divorce Act is the statutory provision conferring jurisdiction on the court to order a parent to pay child support.
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
[ 62 ] “Child of the marriage” is defined in s. 2(1) as follows:
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
( a ) is under the age of majority and who has not withdrawn from their charge, or
( b ) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;
[ 63 ] The Manitoba Court of Queen’s Bench in Harrison v. Varget 2002 MBQB 97 , 28 R.F.L. (5 th ) 176, set out a succinct summary of the law regarding when a child is unable to withdraw from the charge of a parent or provide for him or herself and how support for an adult child is determined. This summary has been oft quoted since its release in 2002.
26 A child is unable to withdraw from the charge of a parent or to provide for him or herself if the child is in regular attendance at school pursuing an education in the ordinary course designed to prepare the child for years of life ahead: Tapson v. Tapson , above; Jackson v. Jackson , above; Farden v. Farden 1993 2570 (BC SC) , (1993), 48 R.F.L. (3d) 60 (B.C. Master) ; Martin v. Martin 1988 2837 (BC CA) , (1988), 26 B.C.L.R. (2d) 390 (B.C. C.A.) ; Grini v. Grini (1969), 1969 784 (MB QB) , 5 D.L.R. (3d) 640 (Man. Q.B.) .
27 It is established law that pursuit of an education which is necessary to equip the child for life in the future is a circumstance which may bring the child within the definition of child of the marriage: Ciardullo v. Ciardullo 1995 304 (BC SC) , (1995), 15 R.F.L. (4th) 121 (B.C. S.C.) .
28 The definition section of the Divorce Act has been interpreted to include "children over 16 who are still pursuing their education, which of course in our age is for many as much a necessary of life as anything could be": Martin v. Martin , above at 393.
29 This includes in some cases post secondary university or other education: Budyk v. Sol , (1998), 1998 28014 (MB CA) , 40 R.F.L. (4th) 348 (Man. C.A.) ; Oswald v. Oswald , 2001 MBQB 47 , [2001] M.J. No. 73 (Man. Q.B.) ; Janzen v. Janzen 1981 449 (BC CA) , (1981), 28 B.C.L.R. 63 (B.C. C.A.) ; Van de Pol v. Van de Pol , above.
30 A child who has withdrawn from educational pursuits may be reinstated as to support entitlement by bringing him or herself back within the definition of child of the marriage under the Divorce Act : Gray v. Gray , (1992), 1992 13067 (MB QB) , 39 R.F.L. (3d) 127 (Man. Q.B.) ; Bain v. Bain [1994 CarswellMan 46 (Man. Q.B.) ] (28 July 1994), FD 92-01-31883 [unreported]; Wahl v. Wahl , above.
31 It is a question of fact in each case whether a particular child remains a child of the marriage for support purposes: Jackson v. Jackson , above; Grini v. Grini , above.
32 As with minor children, those who have attained the age of majority have child support quantum set in accordance with the Child Support Guidelines . Section 3(2) of the Guidelines directs the Court in its assessment of the quantum of child support in connection with those who obtained the age of majority.
33 The presumptive rule is that basic child support is set in accordance with the Tables as with minor children: Holtby v. Holtby , (1997), 1997 24470 (ON CJ) , 30 R.F.L. (4th) 70 (Ont. Fam. Ct.) ; Oswald v. Oswald , above. Alternatively, if a court considers that approach to be inappropriate, it may quantify the support as it considers appropriate having regard to the child's condition, means, needs and other circumstances, as well as the financial ability of the spouses to contribute to the child's support. The onus of proving inappropriateness is on the payor: Glen v. Glen 1997 1026 (BC SC) , (1997), 34 R.F.L. (4th) 13 (B.C. S.C.) ; Oswald v. Oswald , above.
34 In addition to basic child support courts can order the sharing of post secondary education expenses for children ( s. 7(1) (e) of Child Support Guidelines ). Such claims are subject to the discretionary tests of necessity and reasonableness.
35 Children pursuing post secondary education are expected to contribute to the cost of their studies: Carnall v. Carnall 1998 13446 (SK QB) , (1998), 37 R.F.L. (4th) 392 (Sask. Q.B.) , supp. reasons 1998 CarswellSask 459 (Sask. Q.B.) . While the standard or level of contribution expected of a child is subject to debate, an adult child must bear some of the responsibility for his or her own support: Guillemette v. Horne , (1993), 1993 14921 (MB CA) , 48 R.F.L. (3d) 229 (Man. C.A.) ; Wesemann v. Wesemann 1999 5873 (BC SC) , (1999), 49 R.F.L. (4th) 435 (B.C. S.C.) .
Retroactive Awards
[ 64 ] In S. (D.B.) v. G. (S.R.) , 2006 SCC 37 , the Supreme Court of Canada dealt with the issue of retroactive child support. Bastarache J., on behalf of the court, reaffirmed that parents have an obligation to support their children in a way that is commensurate with their income. A payor parent who does not increase his child support payment to correspond with his income will not have fulfilled his obligation to his children. However, this obligation is only enforceable once an application to a court has been made.
[ 65 ] A retroactive child support award will only be available so long as the child in question is a “child of the marriage” when the application is made. Child support is for children of the marriage, not adults who used to have that status. (See S. (D.B.) v. G. (S.R.) , at paras. 88-89 )
[ 66 ] Justice Bastarache went on to set out factors for the court to consider in determining whether retroactive child support should be ordered. First, the court must consider if there is a reasonable excuse for why the support was not sought earlier. At para. 101, the court stated:
101 Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice: see Chrintz v. Chrintz (1998), 1998 14891 (ON SC) , 41 R.F.L. (4th) 219 (Ont. Gen. Div.) , at p. 245 . On the other hand, a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply.
[ 67 ] Secondly, the court must consider the conduct of the payor parent. At para. 106, Bastarache J. stated:
106 Courts should not hesitate to take into account a payor parent's blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support.
[ 68 ] Thirdly, the court must consider the circumstances of the child.
[ 69 ] A retroactive order cannot be used to remedy “old familial injustices.” At paras. 112 and 113, the court stated:
112 Consideration of the child's present circumstances remains consistent with the statutory scheme. While Parliament has moved away from a need-based perspective in child support, it has still generally retained need as a relevant consideration in circumstances where a court's discretion is being exercised .
113 Because the awards contemplated are retroactive, it is also worth considering the child's needs at the time the support should have been paid. A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive child support will be less convincing where the child already enjoyed all the advantages (s)he would have received had both parents been supporting him/her.
[ 70 ] Lastly, the court must consider any hardship occasioned to the payor parent by a retroactive award. Any award must be crafted in a way to minimize hardship to the payor spouse.
[ 71 ] Having determined that a retroactive award is appropriate, the court must then consider the amount of any retroactive child support award. First, the court must determine the date to which the award should be retroactive, and then secondly, the court must decide the amount of support.
[ 72 ] With respect to the date of retroactivity, the court accepted that the proper date is that of effective notice. As a general rule, however, the presence of blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstance changed materially. It will usually be inappropriate to make a support award retroactive to a date more than three years before any formal notice was given.
[ 73 ] The court emphasized that support is the right of the child and where one or both parents have failed to vigilantly monitor child support payment amounts, the child should not be left to suffer without a remedy.
Adult Children
[ 74 ] Section 3(2) of the Child Support Guidelines states:
3(2) Unless otherwise provided under these guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order 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 to contribute to the support of the child.
[ 75 ] Section 7 of the Guidelines states:
7(1) In a child support order, on the request of the parent who has or is granted sole custody or primary care and control of the child, or a person, other than a parent, who seeks a child support order on behalf of a child, the court may 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 and those of the child and, where the parents cohabited after the birth of the child, to the family's spending pattern prior to the separation:
(e) expenses for post-secondary education; ...
7(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
[ 76 ] In Menegaldo v. Menegaldo , 2012 ONSC 2915 , Chappel J. reviewed in detail the law with respect to the entitlement of an adult child to receive child support. At para. 157, she stated the following:
... The entitlement analysis is a fact-driven undertaking in each case. The case-law indicates that in order for the pursuit of post-secondary education to constitute “other cause” within the meaning of section 2(1)(b) of the Act, the court must be satisfied that the educational plan is reasonable in terms of the child’s abilities, the plans and expectations of the parents in regard to the child’s post-secondary education, and the needs and means of the child and the parents. As the Saskatchewan Court of Appeal stated in Geran v. Geran , [1] the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.” The courts have outlined a number of factors which should be considered in answering this question. The following is a collective list of some of the factors, as derived from the cases of Whitton, Farden, Geran, Rebenchuk, Haist v. Haist [2] and Caterini:
Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.
Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
The ability of the child to contribute to their own support through part time employment.
Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.
The age, qualifications and experience of the child.
The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
Whether the child is performing well in the chosen course of studies.
What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
The means, needs and other circumstances of the parents and the child.
The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.
It is not necessary to establish all of the factors set out above to show that the child remains a “child of the marriage.”
[ 77 ] A child may regain status as a “child of the marriage” and may re-qualify and be entitled to support. In Lawless v. Asaro 2003 2164 (ON SC) , 39 R.F.L. (5 th ) 129, Fragomeni J., at para. 12, stated:
12 In the event that a child has ceased to be a child of the marriage a question may arise whether the child can regain his or her lost status. Depending on the facts of a particular case and the circumstances of the situation, an adult child who has ceased to be a child of the marriage may regain that lost status by reason of the pursuit of further education. However, each fact situation must be analyzed carefully and the timelines between the time that the child has ceased to be a child of the marriage and the time when the request is being made to regain the lost status must be considered fully.
[ 78 ] Where children are attending university and are over the age of majority, the court must consider both s. 7 and s. 3 (2) of the Child Support Guidelines. Further, the court must consider whether the child is able to make a contribution to his or her post-secondary education expenses. That decision is a question of fact to be left to the discretion of the trial judge. (See Lewi v. Lewi 2006 15446 (ON CA) , [2006] O.J. No. 1847 (Ontario Court of Appeal))
Calculation of Income for Child Support Purposes
[ 79 ] Generally, a spouse’s annual income is determined using Line 150 on the T1 General Form Income Tax Return. However, where a spouse is a shareholder, director or officer of a corporation, and his Line 150 income does not fairly reflect all of the money available for the payment of child support, the court may include additional amounts.
- (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include:
o ( a ) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or
o ( b ) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.
(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.
- (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
o ( a ) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
o ( b ) the spouse is exempt from paying federal or provincial income tax;
o ( c ) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
o ( d ) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
o ( e ) the spouse’s property is not reasonably utilized to generate income;
o ( f ) the spouse has failed to provide income information when under a legal obligation to do so;
o ( g ) the spouse unreasonably deducts expenses from income;
o ( h ) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
o ( i ) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
(2) For the purpose of paragraph (1)( g ), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act .
ANALYSIS
Was either child a child of the marriage when the applicant commenced her application for retroactive support and s. 7 expenses in March 2008?
[ 80 ] The applicant filed her notice of motion on March 27, 2008. At that time, both Jillian and Jeffrey were no longer in school and were both over 18 years of age.
[ 81 ] At first blush, this would suggest that the court lacks jurisdiction to deal with the issue of retroactivity.
[ 82 ] However, on the particular facts of this case, I am satisfied that jurisdiction of the court to deal with this issue was, at minimum, invoked when the respondent filed his notice of motion to terminate child support on January 14, 2008, at which time both children were in school full time.
[ 83 ] The respondent’s prayer for relief necessitated that the court determine the children’s status, whether child support should continue or be terminated, and whether or not there should be any retroactive adjustment to support already paid.
[ 84 ] On December 10, 2007, in response to correspondence forwarded to her, the applicant put the respondent on notice that both children were still in school and that the respondent had not fulfilled his obligation to support the children and that she would seek a retroactive adjustment as well as contribution towards post-secondary school expenses.
[ 85 ] Moreover, on February 1, 2008, the respondent received a further written demand to comply with the disclosure requirements of the Federal Child Support Guidelines .
[ 86 ] At a case conference on March 17, 2008, the court ordered Mr. VanSickle to provide that financial disclosure.
[ 87 ] In my view, this situation is very similar to that in Henry v. Henry , one of the four cases dealt with by the Supreme Court of Canada in S. (D.B.) v. G. (S.R.) , 2006 SCC 37 . At para. 150, Bastarache J. stated:
150 I would add that the eldest child affected by Rowbotham J.’s order was no longer a child of the marriage when the Notice of Motion for retroactive support was filed. In the circumstances of this appeal, however, this fact has no effect on the jurisdiction of the court to make a retroactive child support order under the Divorce Act . Because Mr. Henry did not disclose his income increases to Ms. Henry earlier, she was compelled to serve him with a Notice to Disclose/Notice of Motion in order to ascertain his income for the years relevant to this appeal. This formal legal procedure, contemplated in the Guidelines and a necessary antecedent to the present appeal, sufficed to trigger the jurisdiction of the court under the Divorce Act . Because it was completed prior to the time the eldest child ceased being a child of the marriage, the court was able to make a retroactive order for this daughter.
[ 88 ] However, even without the respondent’s notice of motion and the earlier request for disclosure, I am still satisfied that based on the information known in March 2008, the children were still eligible for support.
[ 89 ] In making a determination of whether or not a child is “a child of the marriage” at any given point, the court must use the facts as they existed at the time. The court must be careful to not use hindsight to determine the issue.
[ 90 ] Here, although it is true that, on March 27, 2008, neither Jillian nor Jeffrey was in full time attendance at school that does not automatically terminate the inquiry. One cannot just look at a “snapshot” of that day.
[ 91 ] For example, courts have routinely determined that an adult child who finishes classes on April 30 each year and works for the summer months but anticipates returning to school in September, remains a child of the marriage. This despite the fact that on any day during that summer recess, the child would be 18, not in school, and working. However, the intention to return to school permits the court to continue the child support obligation.
[ 92 ] Here, by March 2008, although Jeffrey had finished high school, he had applied and been accepted into a college program. It was only after he went out west and obtained employment that he decided not to return to Ontario in September 2008 and continue with school.
[ 93 ] But for her lack of funding, Jillian had completed her first semester, was registered in her second semester and would have continued at McMaster. She intended to return to school. She was only working part time and living with her mother and, in fact, she did return to school, albeit some 18 months later.
[ 94 ] Accordingly, with respect to both children, it was much later than March 2008 that the applicant knew or ought to have known that the children were not returning to school in September 2008.
[ 95 ] In these circumstances, I am satisfied the court has jurisdiction to entertain the application before the court.
[ 96 ] I should also note that the respondent has argued that neither child was a child of the marriage in 2007 as they were not living with the applicant. Jillian was at McMaster and at her boyfriend’s on the weekend. Jeffrey, although in school, was staying with friends. I am satisfied on the evidence before me that throughout 2007, both children were still in school and under the charge of their mother. Ms. Elms continued to provide direction, support and financial assistance to both children. I reject the respondent’s contention that the children were on their own.
If the answer is yes, what, if any, should be the retroactive adjustment of child support?
[ 97 ] The respondent paid the $583.00 per month he was obliged to pay pursuant to the 2000 order. That support was based on an imputed income of $41,000.00. Mr. VanSickle’s declared T4 income each year between 2001 and 2007 was higher than $41,000.00, without inclusion of any possible additional income in accordance with s. 18 of the Federal Child Support Guidelines .
[ 98 ] In order to determine this issue, the court is required to complete the analysis laid out by the Supreme Court of Canada in S. (D.B.) v. G. (S.R.) .
[ 99 ] The court must determine if a retroactive award is appropriate considering:
(a) The reasonableness of the delay;
(b) The payor’s conduct;
(c) The child’s past and present circumstances;
(d) Whether a retroactive award would result in hardship.
[ 100 ] On the facts of this case, I am satisfied that the applicant has given some explanation for the delay in making the application. Although the applicant had a positive duty to seek a variation, that obligation must be balanced against the positive duty on Mr. VanSickle to disclose the increases in his income as specifically set out in the order of Justice Marshall.
[ 101 ] On consent, Mr. VanSickle had no access to the children. There was no contact between the parties. In these circumstances, how is it that the applicant was to know the financial circumstances of her former husband? At the same time, I accept the evidence of the applicant regarding her attempt to obtain the financial disclosure ordered by Justice Marshall between 2001 and 2003. Although some information may have been forwarded to Ms. Elms’ solicitor, clearly, the full disclosure as envisioned by the court order was not complied with. After three years of unsuccessful attempts to obtain disclosure, one can understand her reluctance to continually pursue a matter when she had more pressing issues to deal with.
[ 102 ] I also accept Ms. Elms’ evidence that in 2004, Jillian made her first suicide attempt. This was undoubtedly an incredibly difficult period of time for Ms. Elms, both with respect to Jillian’s mental health and the behavioural problems she was experiencing with Jeffrey.
[ 103 ] Although the applicant did not provide any evidence of efforts to obtain Legal Aid during this period of time to assist her, I am satisfied that her life with the two children during this period was difficult and it is some explanation for her failure to seek a retroactive adjustment at an earlier time.
[ 104 ] With respect to Mr. VanSickle’s conduct, I have no difficulty in finding that he has engaged in blameworthy conduct. He had a positive obligation by court order to disclose not only his income, but the income of his corporation and he did absolutely nothing. Even in the face of demands, he did not properly comply with the disclosure requirements. He knew that his income was higher and yet did nothing to ensure that his children shared in that increase in income.
[ 105 ] With respect to the children’s past and present circumstances, this is a situation where an increased amount of support would have had a positive impact on the lives of the children. I accept the evidence of the applicant and the children regarding their lifestyle, the difficulties they had with housing and the financial struggles of the family. If Mr. VanSickle had assisted Jillian with her university expenses in January 2008, she may very well have completed her degree at McMaster. One will never know.
[ 106 ] In terms of his current circumstances, Jeffrey is working full time and is no longer in need of any child support.
[ 107 ] Jillian continues to deal with mental health issues. The stress of this litigation has certainly not helped matters. She started a full time nursing course at the University of British Columbia. She obtained provincial government assistance in order to attend. She is also receiving a modest amount of assistance from her mother. She worked for the past 18 months and in 2011 earned income of some $23,000.00. Those funds were used for living and she has no savings to contribute to her own educational costs. Of course, Jillian will be responsible for the repayment of her student loan.
[ 108 ] The last factor the court must consider is whether or not a retroactive award would result in hardship to the payor parent. The financial circumstances of the respondent show no significant debt and significant cash surplus in his corporation which he controls. Mr. VanSickle made it very clear that the money in the corporation is available for his own personal use. When he was in need of legal assistance, he was able to take additional monies from the corporation as income, in order to pay his legal fees. In my view, he is in an equal position to withdraw certain monies from the corporation in order to supplement his income if necessary in order to satisfy a retroactive order for child support. The respondent’s lifestyle since the original date of the order has significantly improved and he has had the benefit of increases in income but has not had the responsibility of contributing any additional funds to the support of his children. I do not see any significant hardship occasioned by a retroactive order.
[ 109 ] Having determined that it is appropriate in these circumstances to consider a retroactive award, I must now determine the proper date to adjust support. In my view, the circumstances of this case are not such that I should depart from the guidelines as set out in S. (D.B.) v. G. (S.R.) and, accordingly, the retroactive award will be for a three year period of time from 2008, namely, the years 2005, 2006 and 2007.
[ 110 ] In order to determine the retroactive award, the court must calculate Mr. VanSickle’s income for child support purposes.
[ 111 ] As sole shareholder, director and officer of the corporation, I am of the opinion that Mr. VanSickle’s T4 income does not fairly reflect all of the money available to him for the payment of child support. His evidence with respect to his ability to access additional funds from the corporation when he needs the money is clear evidence that additional income should be imputed to him for child support purposes.
[ 112 ] At the outset, I agree with the submissions of the applicant that the onus was on the respondent to explain the reasonableness of certain corporate expenditures. He failed to do that. He was aware that this was a live issue at trial and he came completely unprepared to answer questions regarding these expenses. One would not expect him to understand or know about the picayune details of each expenditure, however, he was unable to answer many basic questions about certain expenses. Often, he indicated it was his bookkeeper or accountant who would be able to answer those questions. However, when the bookkeeper, Sandra Boehler, was called, she was unable to assist the court in any fashion and indicated that it was either Mr. VanSickle or his wife who inputted the various entries seen on the corporate financial statements. She herself did no general ledger entries.
[ 113 ] In my view, an inordinate amount of time and effort was made by the applicant to go through the general ledgers with a fine tooth comb pointing out each inconsistency and irregularity.
[ 114 ] I do not intend to go through the corporate income tax returns for each of those years and “add back” expenses of the corporation. Instead, my comments will be more general having regard to the corporation’s income in each of the three years in question.
[ 115 ] First, as set out in paragraphs 41 and 42 of this judgment, the corporation is in a healthy cash flow position. In 2011, the company had in excess of $157,000.00 in cash.
[ 116 ] It is interesting that the highest level of retained earnings and cash in the corporation has been in the years since 2008 when this litigation commenced.
[ 117 ] Although I certainly accept the respondent’s evidence that his business is seasonal and fluctuates and that it is a prudent business practice to retain some earnings in the corporation to make sure monies are available when needed, I am also satisfied that one of the reasons the money remained in the corporation was so that his income was not increased for child support purposes. As I stated earlier, he had no difficulty in taking out additional money from the corporation to pay his legal fees, to purchase a roof, to pay his personal income tax liability or provide a bonus to either he or his wife. As the sole officer, director and shareholder of the corporation, he had sole decision-making authority and is able to access funds as he sees fit. In 2005, the corporation did not hold significant retained earnings. Accordingly, for the 2005 year, I would not impute any additional income to the respondent from the retained earnings or cash in the corporation. However, both in 2006 and 2007, I am satisfied that at minimum, an additional $10,000.00 could have easily been paid out to the respondent as salary without in any way affecting the financial viability of the corporation and this money was easily available for child support purposes.
[ 118 ] Regarding the issue of income splitting, based on the evidence before the court, I am satisfied that Mr. VanSickle has been income splitting to some degree with his new wife. Although I do not doubt that the respondent’s spouse works hard and is entitled to compensation from the corporation, the amount of that compensation is excessive when considered in relation to the income the respondent receives. For example, despite being the president and sole shareholder of the corporation and working incredibly long hours, the corporation pays the respondent’s wife the same salary that he receives. In fact, in some years, she received more than he did. In addition she receives vacation pay. How her vacation pay was calculated is not entirely clear, but it would appear at times that it was more than the 4% prescribed for vacation pay. In 2004, it was not satisfactorily explained how, in less than three months she earned some $17,000, which was significantly more than what the respondent received in these same three months. It is also of note that prior to this marriage, the corporation did not employ anyone to do the job Mrs. VanSickle was hired to do. When Mr. VanSickle was married to the applicant, she worked in the business with him and did not at any time make near the amount of money that he did or that the current Mrs. VanSickle now makes.
[ 119 ] For income tax purposes, it is perfectly acceptable for married couples to income split and no one is suggesting that the respondent has done anything wrong in arranging things in this fashion. However, for the purposes of child support, the court is entitled to consider income which is paid to an individual who is not at arm’s length with the payor spouse.
[ 120 ] For the past several years, the respondent and his wife have each taken approximately the same base income from the corporation. It would not be unreasonable that given his position as owner and operator of the company that Mr. VanSickle receives a greater salary than Deanne VanSickle receives. I attribute $5,000.00 of Deanne VanSickle’s income as more appropriately belonging to Mr. VanSickle and accordingly, an additional $5,000.00 will be imputed to Mr. VanSickle for each year in question.
[ 121 ] I am also satisfied that the capital cost allowance claimed by the corporation each year is but a “paper write-off” and this was confirmed by the bookkeeper and, certainly, Mr. VanSickle was unable to offer any evidence to the contrary. There is no evidence that actual money is spent by the corporation and in these circumstances, the amount of the capital cost allowance claimed in each year shall be added back into the income of the corporation and available to Mr. VanSickle as income for child support purposes.
[ 122 ] The court heard much evidence regarding the monthly rent paid by the corporation to Mr. VanSickle and his wife as their home contains an office used for business purposes. It may very well be appropriate, for income tax purposes, to have this rent paid to Mr. and Mrs. VanSickle, however, this is additional income available to Mr. VanSickle for child support purposes. I understand that he has expenses in his home including taxes, mortgage payments and utilities, however, if he were not a self-employed individual, but rather a salaried individual, he would not be in a position where he would be able to deduct home expenses from his income. It is important to recognize that the entire framework of the Child Support Guidelines is based on hourly or salaried employees. Special provisions in ss. 16 to 19 assist the court in adjusting income in situations where a payor spouse is not a salaried employee.
[ 123 ] As the family home is jointly owned by Mr. and Mrs. VanSickle, the monies available for child support purposes are half of the rent received or, namely, $212.50 per month, or $2,550.00 per year.
[ 124 ] Lastly, I accept the submissions of the applicant that there are several expenditures claimed by the corporation for which Mr. VanSickle receives a personal benefit. These include things like meals, telephone, cell phone, internet, gas and insurance, and even some of the travel amounts. For example, the respondent testified that the meals included not only his workers, but himself, when he is away on job sites. Again, a salaried employee does not have the benefit of having his meals paid for him when he is at work, nor is he able to reduce his income for child support purposes by the amount of any meals consumed. Each year, the amounts claimed by the corporation for items like meals, entertainment, fuel and repairs, telephone and travel, are significant and amount to tens of thousands of dollars. Just attributing a small percentage of those expenditures to Mr. VanSickle’s personal use is reasonable in all of the circumstances. Accordingly, an additional $5,000.00 per year shall be attributed to Mr. VanSickle’s income representing expenditures I deem to be of a personal nature to Mr. VanSickle. It is of note that I have not considered any gross-up on these expenses.
[ 125 ] Accordingly, after imputing these additional amounts to Mr. VanSickle, his income for child support purposes in the years 2005, 2006 and 2007 is as follows:
Year
2005
2006
2007
Income Reported
$43,076.00
$57,413.00
$41,538.00
Retained Earnings
n/a
$10,000.00
$10,000.00
Capital Cost Allowance
$12,800.00
$11,500.00
$ 9,100.00
Income Splitting
$ 5,000.00
$ 5,000.00
$ 5,000.00
Rent
$ 2,550.00
$ 2,550.00
$ 2,550.00
Personal Benefits
$5,000.00
$5,000.00
$5,000.00
Imputed Income
$68,426.00
$91,463.00
$73,188.00
[ 126 ] Based on these adjusted income figures, the child support for two children, which otherwise should have been paid in these three years is as follows:
2005 - $911.00/mo $10,932.00
2006 (Jan to Apr) $1,051.00/mo $ 4,204.00
(May to Dec) $1,299.00/mo $10,392.00
2007 - $1,077.00/mo $12,924.00
[ 127 ] For these same years, Mr. VanSickle paid $583.00 each month and accordingly there is a shortfall:
Year
Mr. VanSickle Paid
Shortfall
2005
$6,996.00
$3,936.00
2006
$6,996.00
$7,600.00
2007
$6,996.00
$5,928.00
Total Shortfall
$17,464.00
[ 128 ] This is the amount that I order for retroactive child support. These monies shall be repaid at the rate of $1,500.00 per month until they are paid in full.
Is Jillian now a child of the marriage and entitled to contribution towards her university expenses?
[ 129 ] Once Jillian returned to school in September 2009, I am satisfied that she regained her status as a child of the marriage.
[ 130 ] In considering and applying those factors set out in Menegaldo v. Menegaldo , I make the following comments:
(a) Jillian is enrolled in a nursing program at the University of British Columbia and it is a full time program. It is a four year program.
(b) In 2009 and 2010, Jillian was also enrolled at the University of British Columbia in a full time university program.
(c) For each academic year, including the 2007 year at McMaster University, Jillian has applied for and received student loans.
(d) Although Jillian should have been in a position to save some money for tuition, the bulk of her earnings, were used for day-to-day living expenses. I find that Jillian was caught very much in a catch-22 situation. If she worked, she couldn’t go to school, but if she didn’t work, she couldn’t afford to go to school, and if she went to school, she couldn’t work. Jillian cannot be independent or self-sufficient while attending school.
(e) Jillian’s education and career plan are not unreasonable. Although Jillian has started and stopped her post-secondary education on more than one occasion, one must take into account her physical and mental well-being. Further, the stress of this litigation has also impacted her ability to pursue her studies on a full time basis. She first left school in 2008 because of financial difficulties and her father’s refusal to further assist her with university costs.
(f) Jillian has always applied herself at school and has done well academically. She strikes me as a very determined young lady who wishes to complete her education at all costs despite some rather significant hurdles she has had to deal with in the past. This is not a situation where Jillian is just killing time or enjoying academic life.
(g) It is for these same reasons that I am satisfied that her decision to embark on a nursing career at this juncture despite the fact that she already has two years of university under her belt is not unreasonable in all of the circumstances. I have no doubt that, given her abilities, with proper funding and this litigation behind her, Jillian will succeed in her program. Upon its conclusion, she will have a career for life, which will make her truly independent.
(h) As Mr. VanSickle had no contact with his children during their formative years, he really had no say or input with respect to whether or not they would pursue post-secondary education. However, Ms. Elms made it clear that she was prepared to do whatever, and is still prepared, to assist Jillian in any way so that she can complete her university degree.
(i) Despite her limited resources, Ms. Elms is still committed to providing Jillian with $200.00 per month to assist her while she is in school.
(j) As the terms of this order make it clear, I am more than satisfied that Mr. VanSickle is in a financial position to assist his daughter.
(k) By the time of trial, it was clear that neither Jillian nor Jeffrey is interested in a relationship with their father. At the same time, Mr. VanSickle’s conduct is such that it is not surprising to the court that this is the case. This is not a situation where Jillian has unilaterally and without justification terminated her relationship with her father. First, Mr. VanSickle chose not to see his children. He could have had supervised access to them when he and Ms. Elms first separated and he chose not to do so. He consented to an order in 2000 which terminated all access to his children. He did nothing to reach out to these children after the date of that order. It was Jillian who made the first overtures towards her father in 2007 when she was seeking financial assistance from him. While it is true that Mr. VanSickle responded to that request and attempted to reinstate his relationship with the children, his efforts, in my view, were minimal at best. His last email to Jillian in January 2008 is very telling. Mr. VanSickle has improperly put the responsibility of the relationship squarely on Jillian’s shoulders.
[ 131 ] Jillian regained her status as a child of the marriage each time she returned to school in September 2009 and September 2012.
If the answer is yes, what should the respondent’s contribution be, once his income has been determined?
[ 132 ] Once again, before determining the respondent’s contribution to Jillian’s university expenses, I must determine his income for child support purposes.
[ 133 ] In this regard, I do not need to repeat my comments with respect to my view that income must be imputed to Mr. VanSickle to reflect the retained earnings and cash in his corporation, the expenses deducted for personal use, and income splitting with his current wife.
[ 134 ] Applying those same principles and conclusions to his more recent income, I find the following amounts are available for child support:
Year
2009
2010
2011
Income Reported
$43,796.00
$53,499.00
$68,999.00
Retained Earnings
$10,000.00
$10,000.00
$10,000.00
Capital Cost Allowance
$16,641.00
$31,957.00
$33,663.00
Income Splitting
$ 5,000.00
$ 5,000.00
$ 5,000.00
Rent
$ 2,550.00
$ 2,550.00
$ 2,550.00
Personal Benefits
$5,000.00
$5,000.00
$5,000.00
Imputed Income
$82,987.00
$108,006.00
$125,212.00
Applicable Guideline Amount
$ 743.00
$ 939.00
$ 1,070.00
[ 135 ] On the facts of this case, as Jillian is residing in the Province of British Columbia and is not residing with her mother, I am of the opinion that it would be inappropriate to order that Mr. VanSickle pay the table amount. Instead, taking into account all of Jillian’s needs and circumstances and the financial resources of her parents, it is my view that it is more appropriate to make a support order which will cover a portion of Jillian’s living and educational costs while she completes her studies at the University of British Columbia.
[ 136 ] At the outset, I am satisfied that Jillian’s university expenses are reasonable and necessary. Jillian’s ongoing attendance at university is absolutely in her best interests. Further, the fact that Jillian has decided to attend the University of British Columbia, in my view, has not unreasonably increased the costs of her obtaining this education. This is particularly so in light of the applicant’s concession that Jillian’s expenses should be fixed at $18,000.00 per year irrespective of the actual higher cost that she will incur.
[ 137 ] In accordance with para. 7 (2) of the Guidelines , it is anticipated that Jillian’s university costs are to be shared by the spouses in proportion to their respective incomes after deducting contribution, if any, from Jillian.
[ 138 ] The applicant has suggested, and I accept, that in all of the circumstances of this case, it would be appropriate for Jillian to be responsible for one-third of her university expenses. Jillian may cover the cost of her contribution through her earnings or through student loans which she will be responsible for repaying. Accordingly, that leaves a balance of $12,000.00 to be shared by the applicant and the respondent.
[ 139 ] In order to determine each parent’s responsibility, the court must calculate the percentage of income each spouse has in relation to their combined incomes.
[ 140 ] During the three years in question, Ms. Elms’ income was:
2009 - $15,137.00
2010 - $16,854.00
2011 - $26,815.00
[ 141 ] Accordingly, Mr. VanSickle’s percentage of income in each of the applicable years is as follows:
2009 - $82,987.00 ÷ $98,124.00 = 84%
2010 - $108,006.00 ÷ $124,860.00 = 86%
2011 - $125,212.00 ÷ $152,027.00 = 82%
[ 142 ] This results in Mr. VanSickle contributing a low of $9,840.00 to a high of $10,320.00 to Jillian’s s. 7 expenses.
[ 143 ] For ease of reference and to avoid future difficulty in calculating Mr. VanSickle’s contribution, I fix his obligation at $10,000.00 each year.
[ 144 ] Mr. VanSickle shall continue to be responsible for contributing $10,000.00 to Jillian’s educational costs until the September 2015 academic year when Jillian will complete her fourth and final year of her nursing degree.
[ 145 ] Jillian shall be obliged to provide the respondent with proof of her full time attendance at school in September and January each year and will provide the respondent with copies of her grade reports, within 15 days of obtaining same.
[ 146 ] Starting on January 1, 2013, Mr. VanSickle shall be obliged to pay this support to Jillian in two equal installments of $5,000.00, one payable on or before January 1 st , and the other payable on or before August 1 st of each year that Jillian continues at university.
[ 147 ] With respect to the $25,000.00 arrears that will be owing as a result of this order, they are to be paid in full within six months of the date of this order.
[ 148 ] Order to go accordingly.
[ 149 ] SDO to issue.
[ 150 ] In the event that the parties are unable to agree on the issue of costs, they may provide me with written submissions within 20 days of the date of this order, including any offers to settle. Submissions shall not be greater than five pages in length.
Walters J.
Released: December 21, 2012
SIMCOE COURT FILE NO.: 3773/96
DATE: 2012/12/21
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: LESLEY JANE VANSICKLE (aka Jane Elms) Applicant - and - BRIAN AUSTIN VANSICKLE Respondent REASONS FOR JUDGMENT Walters J.
Released: December 21, 2012
[1] Geran v. Geran , 2011 SKCA 55 , 2011 CarswellSask 333 (Sask. C.A.) ( “Geran”) , para. 15 .
[2] Haist v. Haist, 2010 ONSC 1283 , 2010 83 R.F.L. (6 th ) 147 (Ont. S.C.J.).