COURT FILE NO.: F 1306/03

DATE: 2012/02/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Brenda Shelley

Applicant

– and –

Matthew Russell

Respondent

HEARD: December 14, 2011

The Honourable Madam Justice D.L. Chappel

JUDGMENT

I. INTRODUCTION

[1] The Applicant Brenda Shelley (“Ms. Shelley”) and Respondent Matthew Russell (“Mr. Russell”) are the parents of Bailey Russell, born December 30, 1991 (“Bailey”), and Cheyenne Russell, born October 8, 1993 (“Cheyenne”). These are my Reasons for Judgment in relation to a Motion to Change Final Order which Ms. Shelley commenced on December 16, 2010.

[2] Ms. Shelley has requested that the final order of McLaren, J. dated April 13, 2004 be changed to provide for an increase in the monthly amount of child support payable by Mr. Russell for the children, and to require that Mr. Russell contribute to the children’s section 7 expenses under the Federal Child Support Guidelines[^1] (the “Guidelines”). Although she requested in her Affidavit materials filed in support of the motion that this increase commence as of 2007, her Motion to Change Final Order did not in fact include a claim for increases on a retroactive basis. The Motion to Change was issued on December 14, 2010, and I have therefore determined Ms. Shelley’s claims from December 2010 onward.

[3] The issues to be decided in this case are:

1. Whether there has been a material change in circumstances justifying a change in the child support order dated April 13, 2004.

2. Whether Bailey and Cheyenne remain entitled to child support.

3. In the event that Bailey and Cheyenne remain entitled to child support, what is the appropriate approach to quantifying child support, and what amount of child support should Mr. Russell pay?

II. BACKGROUND OF PREVIOUS AND CURRENT COURT PROCEEDINGS

[4] The parties were married on September 27, 1986, separated on October 8, 1996 and were divorced on February 18, 2002. Following the parties’ separation, Ms. Shelley commenced divorce proceedings in the Superior Court of Justice in Cayuga, Ontario in which she included a claim for child support. This Application proceeded to trial on January 18, 2002. On that date, Crane, J. granted a divorce, and made an order granting custody of Bailey and Cheyenne to Ms. Shelley and access to Mr. Russell. The child support issues were not adjudicated in the context of that proceeding. Crane, J. adjourned the child support issues sine die, and directed Mr. Russell to keep Ms. Shelley apprised of his employment status and earnings.

[5] Ms. Shelley did not pursue the issue of child support in the context of the divorce proceeding which she originally commenced in Cayuga. She chose instead to initiate a new Application on July 10, 2003 in this court, in which she requested an order for child support. On April 13, 2004, McLaren, J. granted a final order in the context of this Application which included a term requiring Mr. Russell to pay Ms. Shelley child support for Bailey and Cheyenne in the amount of $416.00 per month based on an annual income of $28,000.00.

[6] Ms. Shelley commenced the Motion to Change Final Order that is the subject of these Reasons for Judgement on December 14, 2010. She is requesting that the monthly child support payable by Mr. Russell for Bailey and Cheyenne be increased to $680.00 per month, based on Mr. Russell’s estimated income of $45,000.00. In addition, in her Motion to Change Final Order, she requested that Mr. Russell contribute to a number of section 7 dental and orthodontic expenses relating to Bailey and Cheyenne.

[7] Mr. Russell served and filed a Response to Motion to Change, dated March 1, 2011, in which he requested that Ms. Shelley’s Motion to Change Final Order be dismissed. In addition, Mr. Russell requested an order terminating his obligation to pay child support for Bailey effective April, 2010, on the basis that Bailey had allegedly moved out of Ms. Shelley’s residence at that time.

[8] Mr. Russell was required, by virtue of Part 2 of his Response to Motion to Change, to attach the income documentation referred to in section 21(1)(c) of the Guidelines. He did not attach any of the required financial disclosure to his Response to Motion to Change. He filed a Financial Statement sworn March 1, 2011, in which he swore that he had no current sources of income. He did not attach the required financial disclosure to this Financial Statement either, but he did attach a 2010 T4 slip from O’Neil’s Farm Equipment Ltd., indicating that his employment income from that employer in 2010 was $27,150.07.

[9] On March 15, 2011, Lafrenière, J. conducted the initial case conference in this matter. She made an order on that date requiring Mr. Russell to produce to Ms. Shelley copies of his Income Tax Returns and Notices of Assessment for the years 2004 to present, his 2010 Income tax Return, his 2010 Notice of Assessment when available, confirmation of an inheritance which he had received in December 2010 in the amount of approximately $105,000.00, and details about what he had done with the inheritance monies. In addition, both parties were ordered to serve and file up to date Financial Statements. Ms. Shelley was ordered to produce to Mr. Russell proof of the section 7 expenses which she was claiming, including proof of post-secondary education expenses, and copies of Bailey’s 2009 and 2010 Income Tax Returns. The case conference was adjourned to June 21, 2011.

[10] On June 21, 211, Lafrenière, J. conducted a continuation of the case conference. Mr. Russell had not complied with the disclosure order dated March 15, 2011. An order was made requiring him to comply with this order within thirty days, failing which his pleadings would be struck and Ms. Shelley’s Motion to Change would proceed on an uncontested basis.

[11] Ms. Shelley filed a Form 14B Motion for the relief set out in her Motion to Change Final Order, which I reviewed in Chambers on September 28, 2011. She pursued this procedure on the basis that Mr. Russell had still not complied with the order for financial disclosure dated March 15, 2011. I made an order on that date requiring Ms. Shelley to serve a copy of my endorsement on Mr. Russell by regular service, and providing that Mr. Russell would have fourteen days from the date of effective service of the endorsement to file an affidavit setting out in detail his position as to whether he had complied with the order for disclosure made on March 15, 2011. I further ordered that in the event that Mr. Russell did not file this affidavit, the matter could be scheduled for an uncontested hearing before me.

[12] Mr. Russell was served with my endorsement dated September 28, 2011, and did not file the affidavit referred to in paragraph 11 above. The matter therefore proceeded to a hearing on an uncontested basis before me on December 14, 2011. I find that Mr. Russell has still not complied with the March 15, 2011 order. An order shall therefore issue striking his pleadings in this matter.

III. POSITION OF THE APPLICANT

[13] Ms. Shelley testified that she has not received any child support from Mr. Russell since August, 2010. She stated that to the best of her knowledge, Mr. Russell worked as a mechanic for O’Neil Farm Equipment Ltd., earning an annual income of somewhere in the range of $35,000.00 to $40,000.00, until approximately late August, 2010. It was her understanding, based on information which the children Bailey and Cheyenne had relayed to her, that Mr. Russell received an inheritance of approximately $105,000.00 in the fall of 2010, and that he quit his job prior to receiving these inheritance monies.

[14] At the hearing, Ms. Shelley requested an order commencing December 1, 2010 requiring Mr. Russell to pay monthly child support in the amount of $540.00, which is the Table amount of child support for two children pursuant to the Guidelines, based on an income to be imputed to Mr. Russell in the amount of $37,500.00. She also requested an order requiring Mr. Russell to contribute 50% towards Bailey’s and Cheyenne’s dental, orthodontic and post-secondary education expenses.

IV. ANALYSIS

A. Legislative Framework

[15] The applicable legislation in this case is the Divorce Act (“the Act”). Section 15.1 of the Act stipulates that a court 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.” Entitlement to child support is dependent on the child in question coming within the definition of “child of the marriage” as set out in section 2 of the Act as follows:

“child of the marriage”

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

1. is under the age of majority and who has not withdrawn from their charge, or

2. 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

[16] The issue of entitlement to child support must be addressed both on initial child support applications and in variation proceedings.[^2]

[17] Section 15.1(4) of the Act provides that in determining a child support application, the court may make an order for a definite or indefinite period, or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

[18] Section 17 of the Act outlines the principles that apply on an application to change an existing child support order. Section 17(1) directs that a court may make an order “varying, rescinding or suspending, prospectively or retroactively” a support order or any provision of the order. Before varying a child support order, the court must satisfy itself that there has been a change of circumstances as provided for in the Guidelines since the making of the existing order.[^3] Section 14 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any change in circumstances that would result in a different child support order or any provision thereof constitutes a change that gives rise to the making of a variation order.

[19] In making a variation order under the Act, the court is presumptively required to do so in accordance with the Guidelines.[^4] There are two exceptions to this rule set out in section 17. First, section 17(6.2) allows for a deviation from the Guidelines where special provisions in an order or written agreement are in place which directly or indirectly benefit the child, or special provisions have otherwise been made for the benefit of the child, and the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The second exception is outlined in section 17(6.4), in relation to consent orders, where the court is satisfied that the terms of the consent order set out reasonable arrangements for the support of the child.

[20] The starting point for the determination of the amount of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order 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 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 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 spouse to contribute to the support of the child.

[21] Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:

Special or extraordinary expenses

7. (1) In a child support order the court may, on either spouse’s request, 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 spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[22] The phrase “extraordinary expenses” is defined in section 7(1.1) of the Guidelines as follows;

7(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.

[23] The object of the child support provisions set out in the Act and the Guidelines is to ensure as reasonably as possible that children of divorced parents are not disadvantaged as a result of the separation and divorce of their parents.[^5]

B. Change in Circumstances

1. Income Determination: Legal Principles

[24] Ms. Shelley has brought this Motion to Change Final Order based in part on an alleged increase in Mr. Russell’s income since the existing order was made. Such a change would constitute a change in circumstances that would justify a variation of the order. A determination of Mr. Russell’s income is therefore necessary in order to decide the threshold issue of whether there has been a change in circumstances justifying a variation. This determination is also necessary to determine the amount of child support, if any, which Mr. Russell should pay. Furthermore, a determination of both parties’ incomes is required in order to decide their appropriate contributions to the children’s expenses.

[25] Section 16 of the Guidelines provides that the starting point for the determination of annual income is the sources of income set out under the heading “total income” in the T1 General form issued by the Canada Revenue Agency. The total of these sources of income is then adjusted in accordance with Schedule III under the Guidelines. Section 16 does not mandate using the previous year’s total income as set out in the T1 General Form for the previous year as a basis for determining ongoing child support. Rather, the goal is to ascertain current income based on the sources set out in the T1 form.[^6]

[26] Where a party’s prior year’s income is not predictive of what they are likely to earn in the upcoming year, the court should determine the party’s Guidelines income for the upcoming twelve months from when child support will be paid.[^7]

[27] Ms. Shelley testified that to her knowledge, Mr. Russell quit his job in the fall of 2010. However, she requested that the court impute an income to him for the purposes of calculating child support. Section 19(1) of the Guidelines provides that the court may impute income to a party in appropriate circumstances. The situations in which income can be imputed include where the court finds the payor to be intentionally under-employed or unemployed, where property is not reasonably utilized to generate income, and where there has been a failure to provide income information when under a legal obligation to do so.

[28] In determining a party’s capacity to earn income, the principles which the court should consider which are relevant to this case include the following:

1. In determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity.[^8]

2. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.[^9]

3. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.[^10]

4. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.[^11]

5. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.[^12]

6. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.[^13]

2. Evidence and Findings Respecting the Parties’ Incomes

[29] Ms. Shelley’s uncontroverted evidence is that she was employed in an accounting position with Orlick Industries on a contract basis in 2010. She testified that this contract ended at the beginning of September 2011, and that she was unemployed at the time of the hearing of this matter. I find that her 2010 income, as reflected in her 2010 Notice of Assessment, was $24,006.00. Further, based on her testimony and the documentary evidence adduced, I find that her 2011 income was approximately $33,000.00 as of the time of the hearing of this matter on December 14, 2011. Ms. Shelley testified that she expected to be able to secure reasonably comparable employment soon, and agreed to being imputed an income of $37,500.00 for the purposes of determining the issues in this proceeding.

[30] As indicated earlier in these reasons, Ms. Shelley requested that I impute an income of $37,500.00 to Mr. Russell for the purposes of these proceedings. The evidence before the court respecting Mr. Russell’s past and present income is sparse due to his failure to provide full and frank disclosure and to comply with the order of Lafrenière, J. dated March 15, 2011. The only income information which Mr. Russell filed was his 2010 T4 slip from O’Neil Farm Equipment Ltd. (“O’Neil”), which indicated that his total income from that company for 2010 was $27,150.07. Ms. Shelley’s uncontested evidence was that Mr. Russell only worked at this company until late August, 2010, when he quit his job. I find that on an annualized basis, the Respondent’s 2010 employment income at O’Neil would have been approximately $40,702.50.

[31] I conclude that it is appropriate in this case to impute an income of $37,500.00 to Mr. Russell from 2010 onward. I have reached this decision based in part on the unchallenged evidence of Ms. Shelley that Mr, Russell quit his job without any apparent justification just before receiving his inheritance monies in the fall of 2010. My decision is also founded on Mr. Russell’s flagrant disregard for his obligations to make full and frank financial disclosure in this proceeding. With respect to this issue, I find as follows:

1. Mr. Russell failed to complete Part 2 of his Response to Motion to Change sworn March 1, 2011, in which he was required to specify his income for the years 2011, 2010 and 2009.

2. He also failed to serve and file copies of his 2008, 2009 and 2010 Income Tax Returns, Notices of Assessment and Notices of Reassessment, and proof of his current income as he was required to do pursuant to section 21(2) of the Guidelines and Rule 13(6) of the Family Law Rules.

3. In his Financial Statement sworn March 1, 2011, he stated that he was unemployed, but failed to stipulate the effective date of his unemployment as required by the Financial Statement. Further, he failed to fill out the portion of the Financial Statement where he was required to attest to whether he expected any changes in his financial situation.

4. He failed to comply with the March 15, 2011 disclosure order of Lafrenière, J.

[32] I find that the amount of $37,500.00 which Ms. Shelley has requested that I impute to Mr. Russell is reasonable, based on the available evidence respecting his 2010 income. Further, Ms. Shelley testified that she had called O’Neil and inquired as to how much an employee in the position which Mr. Russell held would earn, and that she was advised that the income would be in the range of $35,000.00 to $40,000.00 per year.

3. Ruling Respecting Change in Circumstances

[33] I find that Ms. Shelley has satisfied the threshold criterion of showing that there has been a change in circumstances justifying a change in the child support order dated April 13, 2004. That order was made based on Mr. Russell’s income of $28,000.00 at the time, and Mr. Russell has been imputed an income of $37,500.00 effective as of 2010. Furthermore, both children are now eighteen years of age and attending post-secondary education. These are additional changes in circumstances which justify a variation of the existing order.

C. Entitlement to Child Support

1. General Legal Principles

[34] The fact that Bailey and Cheyenne have both turned eighteen years of age and begun their post-secondary studies raises the issue of their ongoing entitlement to child support. Parents are not automatically obliged to pay child support for children who are of the age of majority or over. Entitlement depends on a finding that the children remain under the charge of a parent, and are unable because of “illness, disability or other cause” to withdraw from their charge or to obtain the necessities of life. The analysis of whether a child is unable to withdraw from a parent’s “charge” focuses on whether the child remains financially dependent on the parent.[^14] The onus is on the party seeking support to establish that the child is still a “child of the marriage.”[^15]

[35] The fact that an adult child is undertaking post-secondary education studies may constitute “other cause” within the meaning of section 2(1)(b) of the Act, but it is not in and of itself determinative of the issue of entitlement to child support.[^16] 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 come within the scope of “other cause” within the meaning of section 2(1)(b), 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. The ultimate question that must be answered 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.”[^17] 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 set out in the cases of Whitton v. Whitton,[^18] Farden v. Farden,[^19] Geran v. Geran,^20 Rebenchuk v. Rebenchuk,^21 Haist v. Haist[^22] and Caterini v. Zaccaria:[^23]

1. 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.

2. 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.

3. The ability of the child to contribute to their own support through part time employment.

4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending post-secondary education because there is nothing better to do.

5. 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.

6. The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.

7. The age, qualifications and experience of the child.

8. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

9. Whether the child is performing well in the chosen course of studies.

10. 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.

11. The means, needs and other circumstances of the parents and the child.

12. 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.

2. Evidence and Findings Respecting Entitlement

[36] Ms. Shelley testified that as of December, 2010, the date from which she has requested an increase in child support in this Motion to Change Final Order, Bailey was attending Mohawk College, pursuing a Diploma in Architectural Technology. It is anticipated that Bailey will complete this program in June, 2013. According to Ms. Shelley, Bailey is doing well in this program. Bailey attends the Brantford campus for her courses. Her primary residence remains with Ms. Shelley throughout the year, but according to Ms. Shelley, Bailey does spend some evenings at the home of the maternal grandmother, who lives closer to the campus than Ms. Shelley. However, I find based on Ms. Shelley’s evidence that the maternal grandmother does not receive rent from Bailey or Ms. Shelly, and that Ms. Shelley has remained responsible for Bailey’s expenses.

[37] I find as well that Bailey has contributed to her post-secondary education costs both through her own earnings (totalling $11,453.00 in 2009 and $16,166.00 in 2010), a $5,000.00 inheritance which she received from her paternal grandmother, and student loans. Despite these funds, I find based on Ms. Shelley’s evidence that Bailey is unable to fully support herself and pay for her post-secondary education expenses. I also find based on Ms. Shelley’s evidence that Bailey’s program of study is a suitable one, and upon reviewing the evidence relating to the cost of the program, I find that the cost is reasonable in the circumstances.

[38] Ms. Shelley testified that Cheyenne began a four year Bachelor of Science program at the University of Guelph in September 2011. I find based on Ms. Shelley’s testimony and the documents submitted as Exhibits in this proceeding that the program is suitable for Cheyenne, that she is doing well, and that the cost of the program is reasonable. Cheyenne has contributed to her post-secondary expenses by way of a $10,000.00 student loan, a $5,000.00 inheritance which she received from her paternal grandmother, and her summer earnings from 2011 which totalled approximately $6,000.00. Cheyenne is living in residence at the University of Guelph, and intends to continue living in residence. I accept Ms. Shelley’s evidence that Cheyenne is unable to support herself and cover her post-secondary expenses without assistance from her parents.

[39] I discuss the means and financial situation of the parties in greater depth below at paragraphs 48 and 49. I conclude for the reasons described in those paragraphs that the parties are both able to make a reasonable contribution to the children’s ongoing support, including their post-secondary education expenses..

[40] For all of the above noted reasons, I find that Bailey and Cheyenne continue to be eligible for child support under the Act.

D. Calculation of Child Support: The Appropriate Approach and Quantum

1. General Legal Principles

[41] As indicated in Part IV(A) of these Reasons, the presumptive rules respecting the approach to the child support calculation, and the amount of child support payable, are set out in Sections 3(1) and (2) of the Guidelines. The Ontario Court of Appeal outlined the following principles regarding the manner in which the calculation and quantum of child support should be determined pursuant to these sections:

1. Where the child is under the age of majority, the analysis is undertaken pursuant to section 3(1). The presumption is that the amount of child support is the amount set out in the Tables and the amount, if any, determined under section 7 in relation to special and extraordinary expenses.

2. If a party seeks child support for a period after a child attains the age of majority, the amount of child support payable after the child becomes an adult must be determined under section 3(2) of the Guidelines.

3. Pursuant to section 3(2) of the Guidelines, there is a presumption set out in section 3(2)(a) that child support for a child over the age of majority should be calculated in the same manner as if the child were under the age of majority, that is, by calculating the applicable Table amount and adding any contribution to section 7 expenses which is determined to be appropriate. The court described this approach as “the standard Guidelines approach.”

4. The court determined that pursuant to section 3(1), contributions to section 7 expenses that the court determines are appropriate are not properly characterized as “add-ons” to the child support order, but are a part and parcel of the basic child support amount ordered under section 3(1).

5. The court is directed by section 3(2)(a) to start with the presumption that in cases involving children over the age of majority, child support should be calculated in the same manner as for a child under the age of majority. However, it is then necessary to determine whether this approach is “inappropriate” based on the particular facts of the case.

6. If the court determines that the standard Guidelines approach is inappropriate, the court must determine the amount of child support in accordance with section 3(2)(b) of the Guidelines, which provides that the amount of support is the amount which the court considers appropriate, “having regard for the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.” The use of the term “approach” in section 3(2)(b) makes it clear that the court cannot depart from the standard Guidelines approach simply on the basis that the amount determined using the standard Guidelines approach is inappropriate, and makes it clear that deviations from the presumptive approach under section 3(1)(a) should be the exception rather than the rule.

7. Where the child is over the age of majority, and the court determines that applying the standard Guidelines approach is inappropriate, the analysis should be carried out entirely pursuant to section 3(2)(b) of the Guidelines, and resort should not be made to section 7. However, in carrying out the section 3(2)(b) analysis, the court may draw upon the principles set out in section 7 and other provisions of the Guidelines and its experience in applying them. By way of example, it would be entirely appropriate for the court, pursuant to section 3(2)(b), to follow the guiding principle set out in section 7 that expenses referred to in that section should be shared between the parents in proportion to their respective incomes, after deducting the contribution if any of the child.

8. Section 3(2)(b) requires the court to consider the means of the child along with the means of the parents in determining an appropriate amount of child support. The court has the discretion to decide the amount that the child should be expected to contribute. As a general rule, there will be an expectation that a child with means will contribute something from those means towards their post secondary education expenses. There is no standard formula for determining the appropriate amount of the child’s contribution, and this determination will depend on the unique circumstances of every case.

9. The determination of the contribution that a child should make to post- secondary education expenses should take into consideration both the child’s income and capital assets. However, there is no requirement that the child contribute all of their income and/or capital assets towards these expenses. The extent of the child’s contribution from both their income and capital is largely a matter of discretion for the trial judge, and will depend on the facts of each case.

10. With respect to the contributions expected from the child, the court set out the following considerations that should be kept in mind in carrying out the analysis of this issue:

    i. The court emphasized the need to avoid creating disincentives for children to earn as much as possible to help pay their post- secondary education expenses. For instance, a general order that the child contribute a certain percentage of their earnings each year could create such a disincentive. It may be appropriate depending on the facts of the case to simply set an amount that the child is expected to contribute and to leave it to the child to earn as much as they can during the summers or throughout the school year, particularly where there the child has assets from which they can draw for their financial needs.

    ii. If a child chooses to enrol in an educational program away from home at much greater cost, they should be expected to contribute a commensurately greater amount to their post-secondary education costs.

11. The court referred to a number of factors that may be appropriate to consider in deciding cases involving adult children who are attending post- secondary education programs, drawing in part from the principles set out in section 7. These include:

    i. The means of the parents.

    ii. The means, needs and other circumstances of the child.

    iii. The spending pattern of the family prior to separation.

    iv. The necessity and reasonableness of the post-secondary expenses, in relation to the means of the parties and those of the child.

    v. The possibility of the court ordering contribution to only a portion of the child’s post-secondary expenses.

    vi. The possibility of apportioning expenses according to the approach set out in section 7.

    vii. The intention of the parents with respect to post-secondary education expenses prior to separation.

    viii. The effect that any order would have on the parents.

[42] The courts have taken various approaches to how child support should be determined in cases involving children who attend school away from home for all or a part of the year. A review of these cases reveals that typically, the closer the circumstances of the child are to those upon which the standard Guidelines approach is based for children under the age of majority, the more likely it is that the standard approach set out in section 3(1) of the Guidelines will be applied.[^24] In Radford v. Nunn,[^25] I outlined the various approaches which the courts have taken in these cases, as well as the factors which the courts have considered in determining the appropriate contribution of the child to post-secondary education expenses and the extent to which children should be expected to defray the costs by way of student loans. I have considered these various approaches and principles in reaching my decision in this case.

2. The Appropriate Approach to the Calculation of Child Support in this Case

[43] With respect to the child Bailey, I conclude that it is appropriate to apply the standard Guidelines approach in determining the amount of child support payable for her. Bailey has maintained her mother’s home as her primary residence since the date when this Motion to Change was commenced, and her circumstances are very similar to those upon which the standard Guidelines approach is based. I find that Ms. Shelley has been responsible for all of Bailey’s needs, even at times when Bailey has stayed at the home of the maternal grandmother. Accordingly, I have calculated the child support obligation for Bailey effective December 1, 2010 when this Motion to Change was brought using the monthly Table amount of child support, and by calculating and apportioning the section 7 expenses relating to Bailey which Ms. Shelley has proven.

[44] Cheyenne has been living in residence at the University of Guelph since September, 2011. Ms. Shelley is seeking contribution to Cheyenne’s residence and meal plan fees. The Table amount under the Guidelines is intended to cover a portion of housing and living expenses for the child, and therefore an overlap would result if the standard Guidelines approach were to be used in relation to Cheyenne. I conclude that the standard approach is therefore not appropriate for her.

[45] Ms. Shelley testified that Cheyenne’s intention is to reside with her during the school summer break every year, from approximately May 1st until early September. In addition, according to Ms. Shelley, Cheyenne plans to return to her home approximately once per month, for the school reading week and for all major holidays. Based on this evidence, I estimate that Cheyenne will be residing with Ms. Shelley for approximately five months of each year. My conclusion is that the appropriate approach respecting Cheyenne is to order the Table amount for her for five months, pro-rated over the twelve months of the year. This will assist Ms. Shelley in meeting Cheyenne’s needs while Cheyenne is with her, and will also provide consistency of funds over the year to assist Ms. Shelley in maintaining her residence as the children’s home base.

[46] With respect to Cheyenne’s expenses during the months when she is not residing with her mother, I conclude that the appropriate approach is to estimate the total of those expenses and to apportion them as between the parties and Cheyenne as discussed in further detail below.

[47] I have broken down my analysis of the child support payable into several periods, as a result of different considerations that apply to each time frame. With respect to each period, however, I have applied the same proportions with respect to the contributions to be made as between the parties and the children, as I have concluded that the considerations relevant to this issue have remained fairly consistent. With respect to Bailey, I am required by virtue of section 7(2) of the Guidelines to determine the appropriate proportionate share which the parties and Bailey should pay towards section 7 expenses. I am required to carry out a similar analysis in relation to Cheyenne by virtue of 3(2)(b) of the Guidelines.

[48] With respect to the contributions of the parties, section 7(1) of the Guidelines, which is applicable to Bailey’s section 7 expenses, provides that in determining whether to make an order requiring a parent to contribute to section 7 expenses, the court must take 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 spouse and those of the child, and to the family’s spending pattern prior to separation. This provision creates a broad discretion for the court in ordering section 7 expenses and fixing the amount of the parties’ respective contributions. Section 7(2) sets out the guiding principle that parents should pay in proportion to their respective incomes, after deducting from the expense the contribution, if any from the child. Section 3(2) of the Guidelines, which is applicable to Cheyenne’s expenses, directs the court to consider the condition, means, needs and other circumstances of the child, and the financial ability of each spouse, in determining how child support should be calculated and apportioned as between the parties and the child. An appreciation of the general financial situation of the parties and the child is therefore required in applying both provisions.

[49] Dealing with the parties’ incomes, I find that neither Ms. Shelley nor Mr. Russell earn large incomes. Ms. Shelley testified that she was unemployed at the time of the hearing of this matter. However, she does have a 50% interest in a home, and her net worth as shown on her Financial Statement sworn June 1, 2011 is $94,000.00. With respect to Mr. Russell, Ms. Shelley testified as to her belief that he had recently received an inheritance in the amount of approximately $105,000.00. There was no clear proof of this amount, and Mr. Russell indicated in his Financial Statement sworn March 1, 2011 that he had $47,000.00 in a bank account. Ms. Shelley stated in her evidence that Mr. Russell was expecting to receive a further advance on his inheritance. I find based on the evidence before me that Mr. Russell has at least $47,000.00 from which he can contribute to his children’s expenses. Based on my findings regarding the parties’ respective financial situations, and the fact that their current incomes are imputed to be at the same level, I have determined that they have the capacity to make a reasonable contribution to the children’s post-secondary education expenses, and that they should contribute to the children’s expenses on an equal basis as between the two of them.

[50] With respect to the children, Bailey has earned significantly more than Cheyenne since 2009. I find that her income in 2009 was $11,453, and that it was $16,166.00 in 2010. I also find that Cheyenne’s income for 2011 was approximately $6,000.00. However, it is important to note that Bailey started college in September, 2009. Ms. Shelley neglected to include a retroactive claim for contribution to section 7 expenses in her Motion to Change Final Order, and therefore this issue cannot be adjudicated in the context of this proceeding. Therefore, Bailey has borne a significant burden in relation to her college expenses for the 2009 school year. Taking this factor into account, and the merits of treating both children in an equal fashion, I conclude that they should both be required to contribute on an equal basis to their post-secondary expenses from December 2010 onward.

[51] In addition to their employment income, both children received an inheritance of $5,000.00 from their paternal grandmother which they applied towards their post-secondary education expenses. Taking into consideration the limited financial means of the parties, the inheritances which the children received, the incomes of the children and the fact that both children have been able to secure reasonable student loans to assist them, I conclude that the children’s post-secondary expenses should be apportioned between the parties and the children equally. In other words, the expenses should be apportioned 1/3 to Ms. Shelley, 1/3 to Mr. Russell and 1/3 to each child.

[52] With respect to the dental, orthodontic and prescription claims which Ms. Shelley has made, Ms. Shelley’s evidence was that Mr. Russell had dental coverage with his employment, and did not take the steps required to allow her to receive reimbursement for some of the claims. In addition, Ms. Shelley’s uncontested evidence is that Mr. Russell quit his job after learning about his inheritance monies. In the face of this uncontroverted evidence, I conclude that it is not appropriate to require the children to contribute to these expenses. Ms. Shelley requested an order requiring Mr. Russell to contribute 50% towards these expenses. This is a fair and reasonable position in the circumstances, and I have therefore apportioned these expenses on that basis.

3. December 1, 2010 until October 31, 2011- Table Amount of Child Support for Two Children

[53] Cheyenne did not turn eighteen years of age until October 8, 2011. As noted above, I have determined that the standard Guidelines approach is appropriate for Bailey. It is also the approach which presumptively applies respecting Cheyenne up until October, 2011. Accordingly, from December 1, 2010 until October 31, 2011, the Table amount of child support was payable for two children, pursuant to section 3(1) of the Guidelines.

[54] Ms. Shelley has claimed a contribution to Cheyenne’s residence and meal plan costs for the 2011-2012 school year. As indicated above, a contribution to these items for the months of September and October 2011, in addition to the Table amount for the months of September and October 2011, would result in an overlap of expenses to a certain extent. I have addressed this concern by reducing the amount of the residence and meal plan expense by 50% of the Guidelines amount payable for both children for the months of September and October 2011, representing Cheyenne’s 50% share of the Guidelines amount.

[55] The Table amount for two children for the period from December 1, 2010 until October 31, 2011, based on Mr. Russell’s imputed income of $37,500.00, was $560.00 per month. Therefore, the total amount owed by Mr. Russell to Ms. Shelley in accordance with the Tables for this period is $6,160.00 ($560.00 X 11 months= $6,160.00).

4. From November 1, 2011 Until December 31, 2011: Table Amount for One Child (Bailey Only)

[56] Cheyenne turned 18 years of age on October 8, 2011, and as indicated previously in these Reasons, I have concluded that the standard Guidelines approach should not be applied in relation to her from that point onward. For the months of November 1, 2011 and December, 2011, I find that the Guidelines amount for one child (Bailey) in the amount of $346.00 per month was payable, based on Mr. Russell’s imputed income of $37,500.00. The total amount payable for these months under this heading is therefore $692.00.

5. January 1, 2012 onward: Pro-rated Table Amounts

[57] As indicated earlier in these Reasons, I find that while Cheyenne is attending university, it is estimated that she will be residing at Ms. Shelley’s home for approximately five months in the year. This includes the four month period from May until early September each year when she will be on summer break, the three week Christmas break and the reading week. Based on this finding, I conclude that commencing January 1, 2012, it is appropriate for Mr. Russell to pay the Guidelines amount of child support for 2 children for five months of the year, and for one child for the remaining seven months of the year. The total Guidelines amount payable for two children for five months, based on Mr. Russell’s imputed income of $37,500.00, and relying on the new Tables amount that came into effect December 31, 2011, is $2,700.00 ($540.00 per month X 5 months). The total Table amount payable for one child for seven months is $2,310.00 ($330.00 per month X 7 months). The sum of the two amounts, $5,010.00, prorated over twelve months is $417.50 per month. This amount will be payable by Mr. Russell to Ms. Shelley on a monthly basis commencing January 1, 2012.

6. Bailey’s Section 7 Post-Secondary Education Expenses for the 2010-2011 and 2011-2012 School Years

[58] Ms. Shelley submitted receipts for all of the expenses set out below with the exception of Bailey’s book and supplies expenses. I am permitted by section 7(1) of the Guidelines to estimate this expense. I am satisfied based on the evidence that all of these expenses qualify as section 7 special expenses. The expenses are as follows:

Tuition and other school

fees up to and including

the 2011 fall term $9,447.19

Tuition and other school fees

for 2012 winter term (estimated

based on 2011 term 1 fees) $1,848.00

Laptop $ 846.52

Parking $ 225.01

Books and supplies (estimated) $ 1,000.00

TOTAL: $13,366.72

[59] Ms. Shelley, Mr. Russell and Bailey are each responsible for payment of 1/3 of these expenses. Mr. Russell’s contribution is therefore $4,455.58.

7. Cheyenne’s Post-Secondary Education Expenses for the 2011-2012 school year

[60] Ms. Shelley has provided a receipt for Cheyenne’s first term of university for the 2011-2012 school year which indicates that the total amount for tuition and school fees for one term is $3,416.63, and the total residence and meal plan fee for one term is $4,333.55. Ms. Shelley indicated in her affidavit evidence filed in support of the hearing that the amounts are the same for the second term. Accordingly, I find that Cheyenne’s total cost for tuition and school fees for the 2011-2012 school year is $6,833.26, and the total residence and meal plan fee is $8,667.10.

[61] As noted above, the total residence and meal plan expense must be adjusted to account for the fact that Ms. Shelley will be receiving the Table amount for both Bailey and Cheyenne for the months of September and October, 2011. The total Table amount payable for those two months is $1,120.00 ($560.00 X 2 months). The residence and meal plan expense to be apportioned will therefore be reduced by $560.00 (representing half of the Guideline amount for the two months, which is attributable to Cheyenne), to the sum of $8,107.10.

[62] Ms. Shelley did not have receipts for Cheyenne’s school books and supplies for the 2011-2012 school year. I conclude that a very conservative estimate for books and supplies is $1,000.00 per year.

[63] The total of Cheyenne’s post-secondary education expenses for the 2011-2012 school year, not including daily living expenses which I discuss further below, is as follows;

Tuition and School Fees: $6,833.26

Residence and Meal Plan $8,107.10.

Books and Supplies $1,000.00

TOTAL: $15,940.36

[64] These expenses shall be apportioned equally between the parties and Cheyenne. The amount owed by Mr. Russell to Ms. Shelley is therefore $5,313.45. Based on the evidence, I find that Cheyenne paid the full amount of her residence, meal plan and tuition, and that Ms. Shelley contributed towards books and supplies.

[65] In addition, Cheyenne will incur other daily expenses which are not covered by her meal and residence plan, such as clothing, transportation, toiletries, laundry expenses, extra food and personal grooming expenses. A reasonable estimate for these expenses is $50.00 per week, or $220.00 per month. The 1/3 monthly contribution of Mr. Russell for these expenses is $73.33 per month. The amount owed by Mr. Russell on account of these expenses for the period from November 1, 2011 to December 31, 2011 is fixed in the amount of $146.67. Commencing January 1st, 2012, the monthly amount payable by Mr. Russell to Ms. Shelley on account of these expenses will be $48.89, which is the monthly amount payable over the eight months of the school year, pro-rated over twelve months ($73.33 X 8=$586.64 ÷ 12 months = $48.89).

8. Ongoing Post-Secondary Education Expenses Commencing September 1, 2012

[66] The amounts set out above on account of the children’s post-secondary education expenses are based on evidence available for the last and current school years. They do not address the payment of post-secondary expenses for subsequent years, commencing September 1, 2012. I am satisfied based on the evidence before me that an order providing for the exchange of receipts and voluntary payment from Mr. Russell of his proportionate share of these expenses will not be workable, and would result in Ms. Shelley and the children bearing the cost of these expenses unless Ms. Shelley initiates further court proceedings. I accept the evidence that Mr. Russell has not paid child support since August 2010. Mr. Russell has deliberately avoided providing financial disclosure in the context of these proceedings, and has breached a court order for disclosure. To expect co-operation with him regarding the exchange of receipts and payment of expenses would therefore be misguided, to say the least.

[67] In order to avoid the necessity of Ms. Shelley returning to court each fall to obtain set amounts for Mr. Russell’s contribution to the cost of tuition, residence and meal plans, parking, and books and supplies, I conclude that it is appropriate to estimate these amounts on an ongoing basis, using the information available from the past two school years. The estimates for Bailey are as follows, commencing September 2012:

Tuition and other

School fees (based on 2011

term 1 fees of $1,848.00 X 2) $3,696.00

Parking $ 225.00

Books and Supplies $1,000.00

TOTAL: $4,921.00

[68] Mr. Russell’s 1/3 share of these expenses is $1,640.33.

[69] Cheyenne’s estimated ongoing post-secondary education expenses are as follows:

Tuition and School Fees

(estimate based on 2011-2012

fees) $6,833.26

Residence and Meal Plan

(estimate based on 2011-2012 fees) $8,107.10

Books and Supplies (estimated) $1,000.00

TOTAL: $15,940.36

[70] Mr. Russell’s 1/3 share of these expenses is $5,313.45.

[71] Commencing September 1, 2012, Mr. Russell will be required to pay Ms. Shelley the sum of $6,953.78 per year on account of Bailey’s and Cheyenne’s ongoing post-secondary education expenses, payable in four equal instalments of $1,738.45 each on September 1st , December 1st, March 1st and February 1st each year.

9. Dental, Orthodontic and Prescription Medication Expenses

[72] Ms. Shelly also requested an order requiring Mr. Russell to contribute to a number of dental, orthodontic and prescription medication expenses. She has provided documentary evidence in the form of invoices proving the following expenses:

Braces for Bailey $4,300.00

Braces for Cheyenne $3,000.00

Wisdom Teeth for Bailey $1,688.00

Wisdom Teeth For Cheyenne $1,688.00

Prescription Medications for

Cheyenne $ 272.77

TOTAL: $10,948.77

[73] As previously stated, I have determined that Mr. Russell should contribute 50% towards these expenses. This results in the sum of $5,474.39 being payable by Mr. Russell to Ms. Shelley on account of these items.

V. ORDER TO ISSUE

[74] The terms of this order are very much tailored to the next eighteen months, as Bailey is on track to complete her diploma at Mohawk College in the late spring of 2013. At that time, changes will need to be made to the child support terms either on a voluntary basis, or by means of a further Motion to Change Final Order. Alternatively, Ms. Shelley can address the issue by way of cooperation with the Family Responsibility Office in regard to enforcement of this order. In the meantime, based on the foregoing findings and determinations, a final order shall issue as follows:

1. The pleadings of the Respondent Matthew Russell (“the Respondent”) are struck.

2. The final order of the Honourable Madam Justice McLaren dated April 13, 2004 is changed by substituting paragraph 1 of that order with the terms of this order, effective December 1, 2010.

3. For the period commencing December 1, 2010 and ending October 31, 2011, the Respondent shall pay the Applicant Brenda Shelley (“the Applicant”) child support for the children Bailey Russell, born December 30, 1991 (“Bailey), and Cheyenne Russell, born October 8, 1993 (“Cheyenne) in the amount of $560.00 per month, in accordance with the Tables under the Federal Child Support Guidelines (“the Guidelines”), based on the Respondent’s imputed income of $37,500.00, commencing December 1, 2010 and continuing on the first day of each month that follows until October 31, 2011.

4. For the period commencing November 1, 2011 and ending December 31, 2011, the Respondent shall pay the Applicant child support for the child Bailey in the amount of $346.00 per month, in accordance with the Tables under the Guidelines, based on the Respondent’s imputed income of $37,500.00, payable on November 1, 2011 and December 1, 2011.

5. The Respondent shall pay to the Applicant the sum of $146.67, on account of his share of Cheyenne’s living expenses while at university for the period commencing November 1, 2011 and ending December 31, 2011, payable forthwith.

6. Commencing January 1, 2012 and continuing on the first day of each month that follows, the Respondent shall pay to the Applicant child support for the children Bailey and Cheyenne in the amount of $466.39 per month. This sum is on account of the following:

   a. The sum of $417.50 per month represents the total sum of the Guidelines amount payable by the Respondent for one child (Bailey) for seven months of the year and the Guidelines amount payable by the Respondent for the two children for five months of the year, prorated over a twelve month period, and based on the Respondent’s imputed income of $37,500.00.

   b. The sum of $48.89 per month represents the Respondent’s share of Cheyenne’s living expenses while attending university, for eight months each year, pro-rated over a twelve month period, and based on the Respondent’s imputed income of $37,500.00.

7. The Applicant’s share of Cheyenne’s living expenses while attending university, for eight months each year, pro-rated over a twelve month period and based on her imputed income of $37,500.00, is $48.89 per month. The Applicant shall ensure that Cheyenne receives the benefit of this amount on a monthly basis.

8. The Respondent shall pay to the Applicant the following amounts on account of his share of the post-secondary education expenses for the children Bailey and Cheyenne for the period up to and including August 31, 2012, payable forthwith:

   a. The sum of $4,455.58 on account of Bailey’s post-secondary education expenses for the 2010-2011 and 2011-2012 school years.

   b. The sum of $5,313.45 on account of Cheyenne’s post-secondary education expenses for the 2011-2012 school year.

9. The Applicant shall calculate the amounts which she has already paid on account of Cheyenne’s and Bailey’s expenses referred to in paragraph 8 herein. If she has not paid the full amount of her contribution of $4,455.58 for Bailey and $5,313.45 for Cheyenne, she shall pay her contribution by applying the balance of the contribution which she owes towards the children’s student loan balances, and shall also apply any amounts received from the Respondent referred to in paragraph 8 towards the student loan balances. If she has overpaid her share of these expenses, she may retain the amount of her overpayment from the amounts received pursuant to paragraph 8, and shall apply the remaining balance of the amounts referred to in paragraph 8 towards the children’s student loan balances.

10. Commencing September 1, 2012, the Respondent shall pay to the Applicant the sum of $6,953.78 each year on account of ongoing post-secondary education expenses for Bailey and Cheyenne, payable in four equal instalments of $1,738.45 each on September 1st, December 1st, February 1st and May 1st each year. The Applicant shall pay these amounts to the relevant payees, and shall also pay her share of these expenses in the amount of $6,953.78 each year to the relevant payees. This term is based on the parties’ imputed annual incomes of $37,500.00 and on the parties each contributing one third towards the children’s post-secondary education expenses.

11. The Respondent shall pay to the Applicant the sum of $5,474.39 on account of dental and orthodontic expenses for the children Bailey and Cheyenne, payable forthwith.

12. The Respondent shall pay the Applicant costs of this proceeding in the amount of $1,000.00, payable forthwith, which costs are on account of child support and enforceable by the Director, Family Responsibility Office.

13. A Support Deduction Order shall issue.

14. The parties shall by June 30th every year exchange the income information referred to in section 21(1) of the Guidelines for the preceding year and proof of current year to date income. They shall cooperate in making all necessary adjustments to the child support provisions of this order to correspond with any changes in their respective incomes, including filing Consent Motions to Change Child Support if necessary.

The Honourable Madam Justice Chappel

Released: February 7, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Brenda Shelley

Applicant

– and –

Matthew Russell

Respondent

REASONS FOR JUDGMENT

Chappel, J.

Released: February 7, 2012

[^1]: Federal Child Support Guidelines, SOR/97-175, section 7.

[^2]: Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 333 (Sask. C.A.).

[^3]: Divorce Act, section 17(4).

[^4]: Divorce Act, section 17(6.1).

[^5]: Ethier v. Skrudland, 2011 SKCA 17 (Sask. C.A.); Geran v. Geran, Supra.

[^6]: Coghill v. Coghill, 2006 CanLII 21778 (ON SC), [2006] O.J. No. 1489 (Ont. S.C.J.).

[^7]: Nelson v. Nelson, 2005 CarswellNS 18 (N.S.S.C.); Kimla v. Golds, 2005 CarswellOnt 1000 (S.C.J.); Bonthron v. Bonthron, 2004 CarswellOnt 96 (S.C.J.); Lemmon v. Lemmon, 2004 CarswellOnt 771 (S.C.J.), additional reasons at 2004 CarswellOnt 1541 (S.C.J.).

[^8]: Drygala v. Pauli, Supra.; Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 CarswellOnt 4789 (Ont. C.A.).

[^9]: Drygala v. Pauli, Ibid.; L.(N). V. P. (B.), 2000 CanLII 22516 (ON SC), 2000 CarswellOnt 2487 (Ont. C.J.).

[^10]: Hanson v. Hanson, Ibid.; L.(N). V. P. (B.) Supra.

[^11]: West v. West, 2001 CanLII 28216 (ON SC), [2001] O.J. No. 2149 (Ont. S.C.J.).

[^12]: Daulby v. Daulby, 2007 CarswellOnt 7842 (Ont. S.C.J.).

[^13]: Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.).

[^14]: Rebenchuk v. Rebenchuk, 2007 MBCA 22, 2007 CarswellMan 59 (Man. C.A.); Supra.; Thompson v. Ducharme, 2004 MBCA 42 (Man. C.A.);

[^15]: Rebenchuk v. Rebenchuk, Ibid.; Olson v. Olson, 2003 ABCA 56 (Alta. C.A.); MacLennan v. MacLennan, 2003 NSCA 9 (N.S.C.A.).

[^16]: Jackson v. Jackson, 1972 CanLII 141 (SCC), [1973] S.C.R. 205 (S.C.C.).

[^17]: Geran v. Geran, Supra., at para 15.

[^18]: Whitton v. Whitton, 1989 CanLII 8868 (ON CA), 1989 CarswellOnt 265 (Ont. C.A.).

[^19]: Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C.Master).

[^22]: Haist v. Haist, 2010 ONSC 1283, 2010 83 R.F.L. (6th) 147 (Ont. S.C.J.).

[^23]: Caterini v. Zaccaria, 2010 ONSC 6473, 2010 CarswellOnt 9344 (Ont. S.C.J.).

[^24]: Wesemann v. Wesemann, Ibid.

[^25]: Radford v. Nunn, [2011] ONSC 7276 (Ont. S.C.J.).