Carl Friday v. Janice Friday, 2013 ONSC 1931

COURT FILE NO.: FS-10-513-00

DATE: 2013-04-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CARL FRIDAY

Orlando S. Santos, for the Applicant

Applicant

• and -

JANICE FRIDAY

Wendela M. Napier, for the Respondent

Respondent

HEARD: July 24, 2012,

at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

[1] When Carl and Janice Friday began living together in 1994, Bretlyne, Ms. Friday’s three year old daughter from a previous relationship, became part of their household. Bretlyne had never known her biological father. After the Fridays married, they changed Bretlyne’s last name to Friday, and Mr. Friday treated her as his own daughter, along with the Friday’s biological daughters, Bryleigh and Brionna.

[2] In 2008, when Bretlyne was seventeen, she opened Mr. Friday’s computer, which he had left connected after using it, and discovered that he was communicating romantically with women to whom he had presented himself as a single person without children. When Bretlyne disclosed this to her mother, the Fridays separated, and Mr. Friday became estranged from Bretlyne.

[3] By the time Mr. Friday applied for a divorce in 2009, Bretlyne was attending university in North Bay.

[4] In her Answer to his application, Ms. Friday claimed child support for all three children, and a proportionate contribution from Mr. Friday to the cost of Bretlyne’s university studies and orthodontic treatment. Mr. Friday resists this claim on the ground, among others, that Bretlyne, now an adult, has repudiated their relationship.

[5] The court must determine whether Ms. Friday is entitled to:

a) interim child support for Bretlyne;

b) a proportionate contribution to the payment of Bretlyne’s education expenses; and

c) the uninsured costs of Bryleigh’s orthodontic treatment.

[6] The court also must fix the amount of the payments Mr. Friday must make for all three children.

BACKGROUND FACTS

[7] Mr. and Ms. Friday began living together in March 1994 and married on August 17, 1996. They separated, after 14 years together, on June 30, 2008.

[8] When the Fridays began living together, Ms. Friday had one child, Bretlyne Vanessa Friday, born November 7, 1990, who was then three years old. It is not disputed that Mr. Friday treated Bretlyne as his own child and supported Ms. Friday’s application to change Bretlyne’s last name to his.

[9] Mr. and Ms. Friday have two children of their own, Bryleigh Renee Friday, who is now 16 (born February 4, 1997), and Brionna Carly Friday, who is 14 (born June 12, 1998).

[10] When Mr. and Ms. Friday separated, their three children continued living with Ms. Friday. Mr. Friday exercises access to Bryleigh and Brionna, and there is no dispute between Mr. and Ms. Friday regarding the parenting arrangements for these children.

[11] Mr. Friday began the present proceeding in the Ontario Court of Justice in January 2009. He sought joint custody of Bryleigh and Brionna, with specified access to them. Ms. Friday responded with claims for spousal support, equalization of net family property, custody of the children, and child support for them, including retroactive support and a proportionate contribution to Bretlyne’s education expenses and Bryleigh’s orthodontic expenses.

[12] Bretlyne began attending Nipissing University in North Bay in September 2009. She lives in North Bay during the school year, and returns to her mother’s home at Thanksgiving, Christmas, reading week, and for four months during the summer.

[13] Ms. Friday calculates Bretlyne’s post-secondary expenses as follows:

2009-2010 2010-2011 2011-2012

Tuition $5,766.75 $6,287.00 $6,274.75

Accommodation $4,918.54 $3,200.00 $6,000.00

(residence) (rent @$400 x 8) (rent @$500 x 12)

Meals & groceries $5,600.00 $5,600.00 $5,600.00

($700 x 8)

Books $1,000.00 $1,000.00 $1,000.00

Travel $468.00 $468.00 $468.00

(4 trips @$117)

Cell phone: $960.00 $960.00 $960.00

($80 x 12) _______ _______

Totals: $18,713.29 $17,515.00 $20,302.75

[14] On January 26, 2010, Maresca J., in the Ontario Court of Justice, transferred the proceeding to the Superior Court. In doing so, she ordered Mr. Friday to pay temporary child support to Ms. Friday in the amount of $944.00 per month for the support of Bryleigh and Brionna. She noted that the amount of child support for Bretlyne remained at issue. Additionally, she made the first of several orders requiring Mr. Friday to disclose financial information and documents to Ms. Friday.

[15] A dispute has persisted between Mr. and Ms. Friday regarding the amount of income that Mr. Friday earns from volunteering as a schedule coordinator and referee at minor league hockey games, over and above his regular employment income.

[16] On May 3, 2012, the parties attended a Case Conference before Baltman J. In her endorsement on that date, Justice Baltman wrote:

The major dispute in this case is – and always has been – quantification of the father’s income. No further court time should be spent trying to mediate this issue. It needs a motion. The focus of the motion is twofold: (1) nailing down father’s income for child support purposes; (2) determining what child support and s. 7 expenses should be paid with respect to the eldest, Bretlyne (age 21) who is at university. The mother is free to bring a motion on a regular motion day. If there is not sufficient time to deal with both issues that day, the second can be hived off to another day. This is preferable in my view to waiting for the next long motion date (September 26!) which in this case would be prejudicial to the mother.

[17] Justice Baltman ordered Mr. Friday to produce the following documents within 7 days:

(a) His Notices of Assessment for 2010 and 2011;

(b) All life insurance policies, including proof that he had named Bretlyne, Bryleigh, and Brionna as beneficiaries of his life insurance, and proof of the cash surrender value of each policy on the date of separation; and,

(c) His bank statements for 2011 and 2012.

[18] On May 14, 2012, Mr. Friday produced:

(a) His 2010 Notice of Assessment;

(b) Three G-mail messages from Sun Life, which confirmed that he had life insurance coverage in the amount of $53,151.21, and confirming the cash surrender value of one policy on the date of separation; and

(c) His bank statements.

[19] Two months later, when the present motion was heard, Mr. Friday still had not produced his 2011 Notice of Assessment or, according to Ms. Friday, confirmation as to whom he has designated as the beneficiary of his life insurance policies.

ISSUES

[20] The following issues must be determined in this motion:

(a) Is Bretlyne entitled to child support from Mr. Friday?

(b) If so, is the “table amount” approach to child support provided for in the Federal Child Support Guidelines (“the Guidelines”) for children who are minors “inappropriate” for Bretlyne, and, if so, what level of support is appropriate for her?

(c) What contribution, if any, should Mr. Friday be required to make to the cost of Bretlyne’s university studies and Bryleigh’s orthodontic treatment?

PARTIES’ POSITIONS

[21] Ms. Friday argues that Bretlyne is a child of the marriage as defined by the Divorce Act, being dependent on her parents by reason of her continued full-time attendance, first at high school, and then, after a six-month hiatus, at university. She notes that Bretlyne’s earnings from part-time and summer employment are modest, and she argues that Bretlyne has not disentitled herself to child support by having responded negatively to Mr. Friday’s marital infidelity.

[22] Ms. Friday asks the court to impute income to Mr. Friday in the amount of $80,131.00, consisting of $75,131.00, which he reported to the Canada Revenue Agency as his income for 2011, and $5,000.00, earned as a volunteer soccer referee. She submits that, from July 1, 2012, onward, he should be required to pay child support in the amount of $869.00 per month, being the mid-point between the amount payable for two and three children, respectively, by a parent earning $80,131.00.

[23] Ms. Friday asks the court to order Mr. Friday to pay the following amounts:

a) retroactive child support in the amount of $17,796.00 from August 2008 to June 2012, calculated as follows:

a. $17,011.00 for August 2008 to April 2012, consisting of $1,513.00 per month, being table child support for all three children from May to August each year from 2009 to 2011, and table support at the mid-point between the amount payable for two and three children from September to April in each of those years;

b. $785.00 for May and June 2012 ($1,336.50 less two months at $944.00 per month);

b) $1,336.50 as ongoing child support from June 2012 onward;

c) $17,407.80, consisting of $27,213.00 as his contribution to the costs of Bretlyne’s post-secondary studies, less the $9,805.20 he was ordered to pay previously;

d) 50% of the uninsured cost of Bryleigh’s orthodontic treatment.

[24] Ms. Friday also seeks an Order requiring Mr. Friday to designate her, as trustee for the children, as irrevocable beneficiary of his life insurance policies with Sun Life Insurance, to secure his child support obligations.

[25] Mr. Friday argues that he should not be required to pay child support for Bretlyne because, among other reasons:

a) She is an adult child who has repudiated her relationship with him.

b) She is independent, having withdrawn from parental control and made her decisions regarding employment and schooling without consulting or advising him, or engaging him in her plans or needs.

c) She chose to attend university in North Bay, which is more expensive than attending the University of Toronto at Mississauga, where she could reside at her mother’s home in Brampton.

d) She has not provided adequate records to prove that she is in full-time attendance at university.

[26] Mr. Friday also argues that he has reported all of his earnings for purposes of income tax, and that his child support obligations should be based on his income as it appears in his Notice of Assessment for 2011.

[27] Mr. Friday maintains that he has produced proof of his life insurance coverage and of the designation of Ms. Friday as trustee for the children, as beneficiary of his policies.

ANALYSIS AND EVIDENCE

[28] I will first consider whether Bretlyne is a “child of the marriage,” within the meaning of s. 2(1) of the Divorce Act,[^1] and, if so, whether using the table amount prescribed by the Guidelines is the appropriate approach to determining Mr. Friday’s child support obligation, and if not, what amount of child support is appropriate.[^2]

(a) Is Bretlyne entitled to child support from Mr. Friday?

[29] The Family Law Act[^3] contains the following provisions regarding a parent’s obligation to support a child of the marriage:

31.(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

Stepchild’s entitlement to support

[30] The Family Law Act defines “child” and “parent,” setting out the circumstances in which an application for child support may be made:

1. In this Act:

“child” includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family...

“parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family...

33(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

(2) An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent.

[31] The material time for purposes of determining whether Mr. Friday stood in the place of a parent to Bretlyne[^4] is when the Friday family operated as a functional unit.[^5] The material time, for purposes of determining Bretlyne’s need for support, is the time of the hearing.

[32] In Spring v. Spring, (1987), Judge Derek Mendes da Costa considered a wife’s application for support of her children from her second husband pursuant to section 34 of the Family Law Act, 1986.[^6] He traced the evolution of the statutory definition of “child” and “parent” in that Act and in its predecessor, the Family Law Reform Act,[^7] and in the Divorce Act. He observed that the Legislature, in enacting the Family Law Act, 1986, had defined parent, for purposes of child support, as one who had demonstrated a settled intention to treat the child as a child of his or her family:

Once a settled intention has been demonstrated, a subsequent change in that intention does not remove the obligation of support: Barlow v. Barlow; Dokuchie v. Dokuchie, and Riopelle v. Daniel. There is, indeed, no reason to suggest that the statutory intention is an ambulatory concept, the legal effects of which a respondent can cast aside at will to the detriment of the child. It seems unlikely that the legislature intended to place the financial well-being of a child in so vulnerable a position.[^8] [Emphasis added]

[33] In Bradbury v. Mundell (1993), Chadwick J. adopted Judge Mendes da Costa’s interpretation of “parent”. He continued:

The expanded definition of “parent” and “child” in the Act, which focuses on the social as well as biological ties that make a family, recognizes the modern social context in which today’s families are formed. The Family Law Act[^9] is remedial legislation in that it helps various parties deal with marriage or rather family breakdown. It would appear antithetical to the stated purpose of the Act to allow parents to cast aside at will the responsibilities owed to children. The right of a child to support is the right of the child, and is distinct from any other financial obligations of the spouses. If the legal duties of a parent were without a continuing character, there would be no need for the child support provisions of the Family Law Act. In short, there would be nothing to distinguish the role of a parent from that of any “well-disposed stranger.”

Although adults may move in and out of relationships without expectations of permanence, the expectations and needs of a child are not as elastic. If an individual voluntarily assumes a parental role towards a child, a dependency situation with emotional and financial dimensions is usually also created. After the breakdown of the spousal relationship, the partners may choose to go their own ways, but it remains the continuing obligation of the parents to support a child. A parent may opt to terminate close contact with a child and withdraw the emotional commitment that encompasses a settled intention to treat a child as one’s own. However, once settled intention has been established, regardless of a parent’s withdrawal of emotional commitment to their child, support obligations may continue. It would be contrary to the stated intention of the Act to create a situation whereby a parent could dismiss support obligations towards a child by simply displaying a lack of settled intention.[^10] [Emphasis added]

[34] The Supreme Court of Canada, in Chartier v. Chartier, (1999), in a proceeding begun pursuant to the Divorce Act, confirmed a step-father’s continuing obligation to pay child support where, after he and the child’s mother had separated, he had stopped treating the child as his own. Speaking for a unanimous court, Bastarache J. stated:

Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult.[^11]… Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.

It is clear that the court must address the needs of the child as of the date of the hearing or order. The existence of the parental relationship under s. 2(2)(b) of the Divorce Act must however be determined as of the time the family functioned as a unit. See Julien D. Payne, Payne on Divorce (4th ed. 1996), at p. 148. If the “material time” was to be interpreted as in Hock, supra, it would be difficult to find a parental relationship in situations where the step-parent has little contact with the child between the separation and the divorce proceedings. This is inconsistent with the purpose of the Divorce Act.[^12] [Emphasis added]

[35] As Seppi J. stated in Toth v. Toth, (2003): “Existence of a parental relationship is to be determined as of the time the family functioned as a unit. After-the-fact denials and withdrawals from the relationship are not determinative of the issue.”[^13]

Bretlyne’s estrangement from Mr. Friday

[36] Bretlyne’s estrangement from Mr. Friday does not automatically disentitle her to child support from him. Whether she has unilaterally terminated her relationship with Mr. Friday is one relevant circumstance among many that the court must consider when deciding whether Mr. Friday should be required to continue paying child support for her.[^14] Other factors are Bretlyne’s age, whether she is involved in a full-time or part-time course of studies, whether she has applied for or is eligible for student loans or other financial assistance, whether she has reasonable and appropriate career plans, and whether she has the ability to contribute to her own support through part-time employment.

[37] The court possesses discretion to terminate child support based on a child’s abusive behaviour toward the payor parent. In Law v. Law (1986), Fleury L.J.S.C. terminated child support for a 22 year old daughter who had failed to contact her father to keep him apprised of her progress in university. Her father had not received any evidence of her attendance until he unilaterally stopped paying support. The court stated:

Kimberley has certainly withdrawn from the applicant's charge as a result of her failure to maintain any contact with him. Although it is sufficient that she be in the custodial parent's charge, I am of the view that where, as here, a mature child unilaterally terminates a relationship with one of the parents without any apparent reason, that is a factor to be considered by the trial judge in determining whether it would be "fit and just" to provide maintenance for that child. A father-child relationship is more than a simple economic dependency. The father is burdened with heavy financial responsibilities and the child has very few duties in return. It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with his or her father in the absence of any conduct by the father which might justify the child's neglect of his or her filial duties."[^15] [Emphasis added]

[38] Courts have not, however, generally terminated a parent’s obligation to pay child support for a dependent adult child based solely on the absence of a relationship between them. The payor parent must adduce substantial evidence indicating that the child is responsible for the breakdown of the relationship.[^16] The courts’ reluctance to put the full blame on the child is evident in Re Haskel and Letourneau,[^17] (1979). There, the court stated:

...the concept of the “withdrawal from parental control” at age 16 means a “voluntary” withdrawal; the free choice, indeed, of the child to cut the family bonds and strike out on a life of his own. On taking on this personal freedom the child assumes the responsibility of maintaining or supporting himself. It is his choice, freely made, to cut himself away from the family unit. Once this choice is freely made and the responsibility accepted by the child, the family unit has, in effect, been severed and the responsibility of the parents to support the child thus ceases.[^18] [Emphasis added]

[39] The parent who seeks to avoid paying child support to an adult child pursuant to s. 31(2) of the Family Law Act, based on the child’s repudiation of the relationship, bears the onus of proving that fact.[^19] In Fitzpatrick v. Karlein, (1994), Nasmith J. stated:

...once withdrawal from parental control is established, as it is in this case, the onus, I think, shifts back to the child, as applicant, who has, ostensibly, withdrawn from parental control, to show on the balance of probabilities that she did so without any other choice in the matter.[^20] [Emphasis added]

[40] Nasmith J. noted that courts have interpreted this exception narrowly, but he proposed that it might be time to reassess this approach:

I am persuaded that it is time to ask whether there is a valid basis for the “narrow” approach to the legislation now that the wording of section 31 of the Family Law Act, leaves open-ended the parental obligation to support a child after age sixteen so long as the child remains a full-time student.

The correct approach to the new legislation, in my opinion, once the defence under subsection 31(2) has been raised and it has been established that the child is past sixteen years and outside the control of the former custodial parent, is to assign to the child, as the applicant, the onus of demonstrating that the withdrawal was involuntary whether by reason of eviction or a living situation with the parent that is viewed as unbearable or impossible. If the child wants to do that and can do that, the parental support obligation can be legally sustained. It is not just a matter of showing that the choice to become independent was reasonable or understandable. Under section 31 of the Family Law Act, for a youth past the age of sixteen, who has, ostensibly, withdrawn from parental control to succeed in obtaining court-ordered support, it must be demonstrated by her that the withdrawal was involuntary.[^21] [Emphasis added]

[41] In Jamieson v. Bolton, (1994), Kent, Prov. J., disagreed with Nasmith J.’s approach, which he regarded as “obiter dictum”. He cited many authorities supporting the view that s. 31(2) should be narrowly construed, as an exception to the “no fault” principle reflected in the Family Law Act.[^22]

[42] In Belanger v. Belanger, (2005), Cavarzan J. noted the conflict between Nasmith J.’s narrow construction of the repudiation defence, which focused on the “sanctity of the family unit” principle underlying the Family Law Act, and Kent J.’s broader construction, which focused on the “no fault” thrust of the Act. He concluded that it was not necessary for him to resolve this “clash of competing goods,” because the dependent children in the case before him were not the applicants, and had not been called to testify as to the circumstances leading to their decision to live with their grandparents. He concluded, based on the totality of the evidence before him, that the father had met his onus of demonstrating that the children had voluntarily withdrawn from parental control.[^23]

[43] In order to justify termination of child support, an adult child’s decision to withdraw from parental control must not only be voluntary, but free. As noted above, it will not be regarded as free where the child has been driven to the decision by emotional or physical abuse. In C.M. v. C.S.I., (2012), Clark J. found that the child was justified in terminating her communication with her mother due to sexual assaults by her mother’s boyfriend.[^24] Justice Clark regarded the withdrawal as, in effect, a “constructive eviction”, which required the child to leave to ensure her physical and mental well-being.

[44] Before terminating child support based on a child’s repudiation of his or her relationship with the parent, the courts generally require evidence, additionally, that the parent has persevered in his efforts to preserve or rehabilitate his relationship with the child, and that the child has unequivocally rejected those efforts. In Green v. Green,[^25] (2007), a father sought to terminate support for his adult, university student, son, on the basis that the son had repudiated their relationship. The Court refused to terminate support, noting that the breakdown of a marriage usually has a serious emotional impact on the children. However, the Court ordered that ongoing child support be terminated after a certain passage of time, based on the son’s rejection of the father’s later attempts at reconciliation.

[45] In Colford v. Colford,[^26] (2005), Goodman J. cited Fleury J. in Law v. Law,[^27] (1986), approved by the Court of Appeal in Whitton v. Whitton,[^28] (1989), for the principle that, under the Divorce Act, the onus rests on the person seeking support for a child “sixteen years of age and over and under their charge” to establish the child’s “inability to provide” for him or herself. Justice Goodman reviewed the factors that Fleury J. had said that a court might consider, including “the age of the child, his or her ability, his or her past performance in previous courses, his or her determination to assist with study costs through summer employment, the means of the paying spouse, and any obligation to provide for the education of other children, the plans of the parents generally with respect of [sic] further education of their children, especially where these plans were formulated jointly by the spouses during cohabitation, the appropriateness of the course selected to generate future employment, and the conduct of the parties and the condition, means, and circumstances of either of them.”

[46] Goodman J. noted that a minor child has the right to be supported by both parents to the extent that the parents are able, and that the Guidelines set the parameters for such support. However, subsection 3(2) of the Guidelines, he noted, provides that when a “child of the marriage” is over 18, a court may find payment according to the Guidelines to be inappropriate. Where it does, then it determines the appropriate amount, having regard to the condition, means, needs, and other circumstances of the child, and the financial ability of each spouse to contribute to the child’s support. He further noted that there is nothing in the Divorce Act that prevents the court from considering the conduct of the parties when determining whether or not it would be inappropriate to order child support for an adult “child of the marriage” pursuant to subsection 3(2) of the Guidelines.

[47] Fleury J. continued:

[93] Mr. Colford’s position is more or less that because Tyler absolutely and utterly rejected him, without any reason, he is no longer a “child of the marriage”, as defined by the Divorce Act. [citations omitted] Thus, he should not be required to pay any further child support after his 18th birthday. Alternatively, if support is payable, it should be payable at a reduced rate….

[48] Fleury J. noted that in Whitton, a father had sought a declaration that his 22 year old daughter was no longer a “child of the marriage” under the Divorce Act. The Court of Appeal approved the principles set out in Law, and expressed concern over the poor relationship between the father and his dependent child. The Court stated that, although the child was a “child of the marriage”, the most troublesome issue was the child’s attitude toward her father. The Court stated that at “age 22 she should have the maturity to deal with her father directly, to help him in discharging his legal and parental duties to assist in her education”.

[49] The court noted that the parents’ separation agreement expressly provided for joint involvement of both parents in the education of both children of the marriage and, yet, the father had not been consulted by his former wife or the child on the child’s education which was at the heat of the wife’s claim that the child was unable to withdraw herself from their charge. The court found the explanation given for the daughter’s refusal to communicate with her father to be vague and although it held that the child was a child of the marriage under the Divorce Act, it stated that if the child continued to refuse to engage in any sensible discussion with her father on the matter of her future education, the father could seek to have the quantum of her support that he was paying reviewed by the court.

[50] Fleury J. noted that in each of the decisions relied on before him, where one parent had contributed to the other’s lack of a relationship with the child, the court either (1) ordered no child support at all, or (2) required the payor parent to contribute toward the child’s post-secondary education in some respect, but did not order that ongoing monthly support be paid toward the interfering parent’s household. He cited Bitterman v. Weaver,[^29] (2002), where the New Brunswick Court of Queen’s Bench had held that if the adult children in that case were “children of the marriage”, the circumstances, where the children were attending university in British Columbia instead of New Brunswick, where they could have lived at home, as the parents had initially discussed, without any clear explanation for the change in plans, and without consultation with the respondent mother, were such that it would be inappropriate for the Table amount to be ordered under the Guidelines. Applying clause 3(2)(b) of the Guidelines, the Court found that no order should be made.

[51] Fleury J. also cited Simmons v. Wilcox,[^30] (2001), where MacLeod, J. held that the court is under no compulsion to order child support for adult children. He noted that in Rosenberg v. Rosenberg,[^31] (2003), the court was tempted to find that the father’s 20 year old daughter was not a “child of the marriage”, but considered that the father had moved away when the daughter was 11 years old, and that his attempts to contact her were sporadic, albeit consistent. The court found the daughter to be a “child of the marriage”, at least until she earned her first undergraduate degree. The relationship between the father and daughter was almost non-existent in that case, and the court established the conditions under which ongoing child support would be required. It denied the mother’s claim for ongoing child support to be paid during the summer months, when the child returned home from university. Considering the parties’ and the daughter’s respective abilities to contribute to her university expenses, it ordered a 50/50 sharing of the educational costs, as reduced by the child’s yearly income. For the future, the amounts were to be paid directly to the child or her educational institution, and “on the condition that she provide the father with pertinent information about her courses of study, her marks, any applications for bursaries or student loans and her plans for the future, at regular intervals. The payments were to cease if she did not provide the required information or withdrew from full-time attendance at an educational institution.”

[52] Fleury J. noted that Tyler, the child in the case before him, had “told Mr. Colford in no uncertain terms that he had rejected him as a parent and that (his stepfather) had replaced him in that role.” While he did not condone Tyler’s rejection of his father, he was not prepared to lay the blame for it entirely at Tyler’s feet. He was not satisfied that his rejection of his father was either unilateral or unjustified. He noted that Tyler believed that his father had abandoned him years before, moving from to another city for business’s sake, and that he was hurt by his father’s coming to have a second family. On the other hand, he did not find that Mr. Colford had simply withdrawn from his son’s life. While unable to say whether Mr. Colford’s decision to work abroad was necessary or reasonable, he found that he had fought to ensure that he maintained a relationship with Tyler, including retaining counsel to help him, while his wife had rejected her husband as a parental figure in their son’s life.

[53] Fleury J. concluded that Tyler continued to be a “child of the marriage” after he turned 18, but that Mrs. Colford had not established that Mr. Colford’s failure to pay support for Tyler in the two years that followed was unreasonable, having regard to the fact that Tyler was living with his mother and stepfather at the time, and that Mr. Colford was ill and facing financial difficulties of his own after a move to England. Fleury J. continued:

[115] Tyler will be 21 soon. It is time that he appreciate that there is a need for him to deal with his father directly and in a more mature manner when it now comes to requests for financial assistance with his future education…

[54] Fleury J. Ordered Mr. Colford to pay either to the university or to Tyler (at Tyler’s discretion) half of Tyler’s tuition, accommodation, and food costs for the forthcoming year, upon Tyler’s production to him of proof of the expenses, on the basis that Tyler and his mother would each be contributing about the same amount. He held any decision to apply for student loans would be a matter between Tyler and his mother, and that Mr. Colford would make his own contribution without reference to this. He continued:

Once the school term starts, these payments are also conditional on Tyler’s providing his father, twice a term, with pertinent information about his courses of study, his marks, any awards received or applications made for bursaries or student loans. If he does not provide the required information or withdraws from full-time attendance at Queen’s University, the contributions shall cease. These are not uncommon stipulations: See Rosenberg, supra, and Nadeau v. Mitchell, [1997] O.J. No. 2833. While Tyler is not a party to this case, I have no doubt that Mrs. Colford will, and I hereby direct her to provide Tyler with the details of my decision regarding Mr. Colford’s obligations in respect of Tyler’s university education. Mr. Colford shall immediately provide to Mrs. Colford e-mail and home address at which Tyler may contact Mr. Colford for the purpose of providing information to him. At this point, then, Tyler will also have obligations regarding his continued receipt of financial assistance from his father while he is completing at least his undergraduate degree. [Emphasis added]

[55] In the present case, Bretlyne regarded Mr. Friday’s presentation of himself to other women as a single person without children as a repudiation of both his marriage and his relationship with her. This, taken with his deception, explains Bretlyne’s anger toward him. It does not justify an indefinite rejection of him by her, but the onus is on Mr. Friday to demonstrate that he has made reasonable efforts, as Bretlyne’s step-father, to communicate with her with a view to repairing their relationship, and I am not satisfied that he has discharged this onus.

[56] In her affidavit sworn July 12, 2012, Ms. Friday states:

These events were devastating to Bretlyne. Despite this, Bretlyne did not terminate all contact with Carl, although their relationship became more cool. Bretlyne has told me that she does not feel Carl has made a heartfelt effort to reconcile with her and does not feel he has shown remorse for his conduct. I am sure that if Carl did make a serious effort, there remains a prospect of reconciliation.

Bretlyne became upset with Carl once again when she saw that he was referring to her as my biological child rather than as his own child. Bretlyne felt rejected by Carl as he shows a greater level of interest in her younger sisters, Bryleigh and Brionna.

Carl sent me a text message shortly after our separation saying that he had to “resolve his own issues (apparently seeking therapy) before he would be able to resolve his issues with Bretlyne”, so clearly it was he too who backed away from the relationship with Bretlyne (I imagine he was embarrassed at the harm he had caused).

I was aware of the problem and wanted to improve the situation and asked if Carl would invite Bretlyne to go along on a visit he had planned with Bryleigh and Brionna to Darien Lake in August 2009. The email Carl sent to Bretlyne, appended as Exhibit B, was so cool in tone that it is not surprising that Bretlyne took further offence and declined to go. I have tried to encourage an improved relationship between them with some limited success. Bretlyne is polite to Carl and thanked him for his gift to her. However, she has never been able to recover the same sense of trust in Carl.

[57] The reasons why a child resists post-separation contact with a parent are complex, as Fidler, Bala, and Saini have noted in their book, “Children who Resist Post-separation Parental Contact: A Differential Approach for Legal and Mental Health Professionals”, (Oxford University Press 2013). I am not prepared, at this point, in the absence of cross-examination of Ms. Friday on her assertions, to attribute the breakdown of Bretlyne’s relationship with her stepfather entirely to Bretlyne, or to find that she has unequivocally repudiated her relationship with Mr. Friday, to an extent that would disqualify her from continuing to receive child support from him.

Did Bretlyne’s decision to attend university in North Bay amount to a withdrawal from parental control and disqualify her from continued child support from Mr. Friday?

[58] Bretlyne began attending Nipissing University in September 2009, and she has lived in North Bay since then while attending classes. The Manitoba Court of Queen’s Bench, in Harrison v. Vargek,[^32] in a decision which this court cited with approval in Haley v. Haley,[^33] summarized the principles to be applied when determining whether an adult child attending university is to be considered a child of the marriage for purposes of child support:

• A child who is in regular attendance at school is generally unable to withdraw from his parent’s charge or provide for himself.[^34]

• A child may therefore bring himself within the definition of a “Child of the Marriage” by pursuing the education he needs to equip himself for the future.[^35]

• “Child of the Marriage,” as defined by the Divorce Act, includes children over 16 who are still pursuing their education, now considered a necessary of life.[^36] This includes, in some cases, post- secondary education.[^37]

• A child who has withdrawn from his studies may be reinstated to his support entitlement by bringing himself back within the definition of Child of the Marriage under the Divorce Act:[^38]

• It is a question of fact, in each case, whether a particular child remains a Child of the Marriage for support purposes.[^39]

• The Child Support Guidelines direct the court, when assessing the amount of support for a Child of the Marriage, whether the child is above or below the age of majority, to use the Tables.

• The presumptive rule is that basic child support for a child over the age of majority, as for minor children, is set in accordance with the Tables.[^40] If the court considers that approach inappropriate, it may quantify support by another means, 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[^41].

• In addition to basic child support, the court can order the sharing of a child’s post-secondary education expenses (s. 7(1)(e) of Child Support Guidelines). Such claims are subject to the discretionary tests of necessity and reasonableness.

• Children pursuing post-secondary education are expected to contribute to the cost of their own studies[^42]. While the level of contribution is subject to debate, an adult child must bear some of the responsibility for his or her own support[^43].

[59] As Ingram J. stated in Smith v. Ramsey, (2008):

It is rare that there is one moment in time that a child withdraws from parental control; rather it is an evolving process as the child matures. It is the norm that in child support cases brought before the courts that parental financial obligations for the children continue into adulthood when the children are pursuing post-secondary education. This is specified in the child support guidelines (s.7(1)(e)).[^44] [Emphasis added]

[60] Applying these considerations to the present case, I find that Bretlyne continues to be a child of the marriage, and is entitled to continue receiving child support while she pursues her studies, at least until she earns her first undergraduate degree. She has been enrolled in an appropriate course of study suited to her talents. Her earnings are not sufficient to meet her expenses. She continues to be financially dependent on her parents, notwithstanding her efforts to help support herself and contribute to the payment of her education expenses.

(b) Is the amount of support resulting from applying the table in the Federal Child Support Guidelines “inappropriate” and, if so, what support is appropriate?

(i) Bretlyne’s post-secondary studies

Applicable Legislation

[61] The purpose of the Federal Child Support Guidelines (“the Guidelines”), as stated in section 1 of the Guidelines, is:

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

d) to ensure consistent treatment of spouses and children who are in similar circumstances.

[62] The Guidelines require me to award child support, including interim child support, in 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. As noted above, s. 31(1) of the Family Law Act provides that “Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.” [Emphasis added]

[63] In determining what amount of child support is appropriate in the present case, I have considered s. 3 of the Guidelines, which states:

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.

(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. [Emphasis added]

Jurisprudence

[64] Having determined that Bretlyne is a “child of the marriage”, the court must determine, pursuant to s. 3(2), whether the approach of setting child support at the table amount pursuant to the Guidelines is “inappropriate”. If it is not, then table amount should be ordered. The Manitoba Court of Appeal provided a helpful analysis of this issue in Rebenchuk v. Rebenchuk,[^45] where it stated:

28. …As Bastarache J., for the court, held in Francis v. Baker, 1999 659, [1999] 3 S.C.R. 250, "inappropriate" in the context of the Guidelines means "unsuitable" rather than inadequate. This interpretation gives the court a broad discretion to accept or reject the prescribed amount of child support. In the result, while the courts' very broad discretion prior to the introduction of the Guidelines has been reduced, it has not been eliminated. There is still ample room for the "judicial fiat" under the Guidelines.

29. Some courts, such as those in Ontario, have held that there is a presumption that the table amount for minor children will apply with the onus of proving otherwise on the parent so asserting. See, for example, Arnold v. Washburn, 2000 22732 (ON SC), [2000] O.J. No. 3653 (Ont. S.C.J.), and MacLennan. The British Columbia Court of Appeal on the other hand (see N. (W.P.) v. N. (B.J.)) has taken the position that the table amounts plus add-ons will normally be inappropriate where an adult child is attending a post-secondary institution. This is because the table amount does not contemplate a child's contribution (which is implicit in sec. 3(2)(b) of the Guidelines and explicit in sec. 7(2)). It would appear that the Family Division in this province generally follows the Ontario approach, at least where the child lives with one of the parents and is attending the first level of post-secondary education. [Citations omitted; emphasis added]

[65] Pursuant to s. 3(2)(b) of the Guidelines, if the Court considers the table support approach to be inappropriate, it must fix 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.

[66] The Court of Appeal in Lewi v. Lewi[^46] held that the table amount of child support must to be ordered unless the “approach” of ordering support based on the table amount is inappropriate. Juriansz J., speaking for the majority of the Court, made it clear that it is the “approach” that must be found to be inappropriate, not simply the “amount.” He stated:

Before resorting to its discretion under s. 3(2)(b), the court must conclude that it is inappropriate to apply the Guidelines as if the child who is actually of majority age were a minor.

The word “approach” makes it clear that the court cannot depart from the application of the Guidelines simply because it considers the “amount” determined under s. 3(2)(a), i.e., the table amount or additional expenses under s. 7, to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate; clearly an exceptional situation rather than the rule. This further promotes predictability, consistency and efficiency in family law litigation. [Emphasis added]

[67] In Lewi, the Court of Appeal approved the decision of the motion judge in respect of s. 3(2)(b). She had concluded that treating two adult children who were attending university as if they were minors, and ordering full table support for them, was inappropriate, because one of them was living at the university for eight months of the year. The motion judge stated:

[I]f one boy attends university away from home Table support is reduced from support for 2 children to support for 1 plus 1/3 the difference between one and two. This amount is to be paid monthly throughout the year but reflects that one child is only home for 1/3 the year.

[68] I find that it would be inappropriate to order table child support for all three of the Friday’s children as if they were minors, because Bretlyne spends eight months of the year, as well as part of the summer in the past year, living in North Bay. I must therefore determine what order for child support is appropriate in these circumstances.

[69] As the Court of Appeal made clear in Lewi, there is no formulaic approach to the determination of the appropriate monthly support when deviating from the Table amount approach. Section 3(1)(b) directs the court to consider “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”.

[70] Although Bretlyne is living in North Bay while attending classes, she returns home during breaks in the academic calendar. It is in her interests that Ms. Friday maintain a residence for her in her home for when she returns for Christmas, March break, and during the summer. The Court of Appeal in Lewi noted that it may be appropriate for a parent with whom the children are primarily resident to receive a portion of table child support for a child who is attending university, even for the portion of the year that the child spends at the university. Juriansz J. said, in this regard:

It may also be observed that having taken this view, she could have used a different analysis to arrive at the reduced table support for Brandon. For example, she could have regarded the portion of table support for Brandon as one half of the table support for two children, rather than the increment in table support for one child to two children. It may also be said that one-third table support for Brandon, while reflecting that he would be living at home only one-third of the year, fails to recognize the ongoing costs of maintaining a home for him to return to during the summers and other holidays.[^47] [Emphasis added]

[71] Wright J. took this approach in Coghill v. Coghill, (2006),[^48] when he ordered the father to pay $300 per month to the mother, being one third of the table support amount, for the adult child for the eight months when she was attending university, “toward her expenses of keeping a home for the child to come back to on weekends and holidays.”

[72] Applying this analysis, Mr. Friday could be ordered to pay one third of the difference between the table amounts of support for two children and for three children, respectively, for the years when Bretlyne has attended university, to reflect the fact that she is at home for four months, or one third of the year. It could order him to pay a further one third of the difference between those amounts to help defray Ms. Friday’s expenses of keeping a home for Bretlyne to return to on weekends and holidays. On this basis, I find Ms. Friday’s request for half the difference between the table support amounts for two and three children to be reasonable and, indeed, modest.

(ii) Mr. Friday’s income

[73] Section 2 of the Guidelines defines a payor spouse’s income to mean his annual income by applying sections 15 to 20. Those sections provide that a spouse’s annual income can be determined in one of three ways:

1. Where both spouses agree in writing on the amount, the court may consider that amount to be the spouse’s income, if it thinks it reasonable, having regard to the tax information provided under section 21.[^49]

2. If the spouses do not agree, the court must determine the amount using the sources of income set out under “Total income” (line 150) in the spouse’s Income Tax Return, as adjusted in accordance with Schedule III. The court must use the spouse’s most current information.[^50] If that would not be the fairest way of determining his income, the court may determine a fair and reasonable amount, having regard to his average income over the last three years.[^51]

3. In appropriate circumstances, the court may impute an amount of income to the payor spouse. Appropriate circumstances, under s. 19 of the Guidelines, include where the spouse:

(a) is intentionally under-employed or unemployed (other than where it is required by the needs of a child);

(b) is exempt from paying federal or provincial income tax;

(c) lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) has diverted income that would affect the level of child support payable under the Guidelines;

(e) is not reasonably using his property to generate income;

(f) has failed to provide income information;

(g) has unreasonably deducted expenses from his income (and here, the reasonableness is not governed solely by whether the expenses can be deducted under the Income Tax Act);

(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;

(i) is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. [Emphasis added]

[74] In the present case, the parties have not agreed on the amount of Mr. Friday’s income, so s. 15(2) of the Guidelines does not apply. Mr. Friday’s income must therefore be determined pursuant to s. 17 of the Guidelines.

[75] Mr. Friday, who has a High School education and continuing education in purchasing, had worked as a systems analyst and software monitoring specialist with ADP Security for 18 months as of July 2, 2012. In his affidavit of that date, he stated that he had earned $71,050.00, and a bonus of $1,000.00, the previous year. His 2011 income tax return discloses that he earned $75,131.00 in 2011. The average of his line 150 income for 2009, 2010, and 2011 is $73,031.66, [($77,964.00 + $66,000.00 + $75,131.00) ÷ 3].

Evidence of unreported income

[76] Ms. Friday argues that additional income should be imputed to Mr. Friday, pursuant to s. 19(f) of the Guidelines, based on his unreported earnings as a schedule coordinator and referee at minor league hockey games.

[77] It is not disputed that Mr. Friday has spent extensive time as a schedule coordinator at Toronto Marlies hockey games, and as referee and instructor for the Greater Toronto Hockey League (GTHL) and Ontario Minor Hockey Association (OMHA). On December 15, 2009, he was appointed Canadian National Referee in Chief for the National Inline Hockey Association (NIHA). He was named referee for the NIHA world championships held in Sweden in 2010, in the Czech Republic in 2011, and in Germany in 2012. He maintains that he is not paid to officiate at these international tournaments, but uses his vacation time to attend and receives only a reimbursement of his expenses for doing so.

[78] When Mr. Friday was asked to produce proof of his refereeing income, he initially stated that he no longer worked for the GTHL. This was later proven to be untrue. Next, he stated that he was not able to produce proof of his refereeing income, because the leagues did not keep records. Although it is Ms. Friday’s un-contradicted evidence that Mr. Friday told her, during the marriage, that he was earning $1,000.00 per month, mostly in cash, from refereeing, he has estimated in this proceeding that his income from that source is only $1,000.00 per year. This also has been proven to be untrue.

[79] After the leagues produced their records pursuant to the order made by Sproat J. on March 24, 2010, Mr. Friday stated that he had not actually worked or been paid for many of the shifts that had been assigned to him. He then produced a summary of his acknowledged earnings from refereeing, which he said amounted to $2,360.00 in 2011 and $673.00 to March 25, 2012. I find that Mr. Friday’s evidence concerning his earnings from his work with the hockey leagues has been inconsistent and unreliable.

[80] After Maresca J. made her initial disclosure order in the Ontario Court on January 26, 2010, further disclosure orders were made in the Superior Court by Bielby J. on September 21, 2010; by Sproat J. on March 24, 2011; and by Goodman J. on May 13, 2011. Following Justice Sproat’s disclosure order, the leagues produced records of Mr. Friday’s refereeing assignments. They were largely unable to confirm the payments made to him, as these were made by the individual teams, and were often made in cash.

[81] The task of drawing inferences from the league’s records is complicated by the fact that they deal with different time periods, depending on when they were produced. I have taken 2010 as a representative year, since the records provided for that year appear to be most complete. The GTHL memo and attached records show payments of $1,565.00 to Mr. Friday for supervisions and instructor’s fees in 2010, as follows:

a. March 3, 2010 Supervisions $50.00

b. April 26, 2010 Instructor $315.00

c. April 29, 2010 Supervisions $460.00

d. May 27, 2010 Instructor $500.00

e. Nov. 12, 2010 Supervisions $165.00

f. Dec. 16, 2010 Instructor $75.00

[82] The GTHL notes that Mr. Friday also served as an on-ice official with the League. Although he receives assignments from the League, each team or tournament is directly responsible for compensating him. The League provided its record of the assignments it gave to Mr. Friday for the relevant period, and included a listing of the “Game Fees” that correspond to the respective categories and divisions. It notes that the records may not reflect the assignments that Mr. Friday actually performed, as each official is able to give away or pick up assignments from other officials.

[83] The league records for 2010, being the last complete year for which records were provided, disclose that Mr. Friday’s earnings from the League that year were $3,012.70. The records disclose that Mr. Friday received 95 assignments from January 3 to December 13, 2010, although 69 of these have the notation “Injury Book Off” or “Book Off”. The fees paid for the remaining assignments range from $25.00 to $40.00, suggesting that Mr. Friday completed approximately 26 assignments, for which he received approximately $910.00 in fees, assuming an average fee of $35.00. The memo from Maple Leaf Sports and Entertainment discloses that for 2010, Mr. Friday was paid $1,092.00 for officiating at Toronto Marlies hockey games in 2010. The Memo from the Ontario Ball Hockey Association discloses a fee of $300.00 paid to him on September 3, 2010, for instructing at a clinic. The memo from the Ontario Minor Roller Hockey Association indicates that he provided his services as Referee-In-Chief to them as a volunteer and that he received only reimbursement of his expenses.

[84] Based on the above-mentioned records, Mr. Friday earned undeclared income of approximately $5,879.70 in 2010 from his work as a scheduler, instructor, supervisor, and referee. I find that his earnings that year are likely representative of his hockey earnings on an ongoing basis.

[85] The bank statements that Mr. Friday has produced disclose that from June 2011 to April 2012, a total of $4,157.00 was deposited to his accounts from sources other than his employment income. Mr. Friday has stated that these deposits were amounts received from fellow officials for whom he was purchasing jackets to be worn to the league’s games. He describes this as a non-profit program which he had managed “in previous years.” He would collect an order and money from individuals wanting jackets, deposit the money given to him to his account, place an order with the supplier, and pay the supplier from his account. Mr. Friday offers e-mails as evidence of the fact that the GTHL granted him permission to offer this service, which he says he performed at the beginning of the season, “but if there were enough straggling orders after the initial order, a secondary order would be placed with the manufacturer.”

[86] Mr. Friday states that he has now accounted for all money paid to him for his hockey related services, and that he does not have any other sources of income. While I do not doubt that Mr. Friday bought jackets for his fellow officials in the GTHL, it was incumbent on him, having regard to his failure, at the outset, to account fully for the income he had received for officiating, to provide a detailed accounting for all monies received and spent, and to reconcile these amounts with his bank statements. His failure to do so, combined with his initial equivocation and his failure to deny or explain Ms. Friday’s assertion that he told her during their marriage that he earned $1,000.00 per month in undeclared income from this source, causes me to infer that a significant portion of the $4,157.00 which Mr. Friday deposited to his account from sources other than his employment were from his hockey earnings, and that he received additional cash payments for his services which he did not deposit into the account.

[87] If $4,157.00 represents the amount that Mr. Friday receives from officiating in the hockey minor leagues, this amount could be increased by 24%, as a “gross-up,” to produce the amount of taxable income that would leave him $4,157.00 in after-tax income, to reflect the fact that he does not declare these earnings to the Canada Revenue Agency or pay income tax on them. This would result in income of $7,350.00 per year from his hockey earnings.

[88] Based on the foregoing analysis, I find that the $5,000.00 that Ms. Friday has asked the court to impute to Mr. Friday is conservative, and amply supported by the evidence. I therefore add this amount to the employment earnings he has declared as his taxable income.

[89] I find that Mr. Friday’s Line 150 income in 2011 is a fair basis for determining his employment income. Accordingly, I impute $75,131.00 plus $5,000.00, for a total amount of $80,131.00 to him as his total income for purposes of calculating his support obligation.

Calculation of basic child support

[90] Based on Mr. Friday’s income as I have found it, and the parties’ three children residing with Ms. Friday (including Bretlyne, when she is not attending university in North Bay), Mr. Friday should pay interim child support at $1,336.50, being the mid-point between the table child support to be paid for two children and the table child support for three children, for the period from June 2012 onward.

[91] Mr. Friday will be ordered to pay interim child support beginning February 1, 2010. Ms. Friday does not dispute that he has paid some support to her for the support of his two younger children pursuant to Maresca J.’s Order dated January 26, 2010, and he will be given a credit for such support as the Family Responsibility Office has collected to date pursuant to that Order.

(c) Section 7 expenses for Bretlyne’s university studies

Applicable legislation

[92] The contribution that parents are required to make to their children’s education costs is governed by s. 7 of the Guidelines:

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:

(e) expenses for post-secondary education;

Sharing of expense

(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.

(1.1) DEFINITION OF “EXTRAORDINARY EXPENSES” – 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 …

Are Bretlyne’s university expenses “extraordinary”?

[93] In the absence of objections from the other parent to an activity, a parent may always incur an expense for the parties’ child at his or her own cost. However, to obtain a court order requiring the other parent to contribute to the expense, it is insufficient to prove that the expense was incurred. There must be evidence that either the parties agreed to the expense, or that the expense was an “extraordinary expense” within the meaning of s. 7 of the Guidelines.

[94] The definition of an “extraordinary expense” has had a lengthy history and treatment in law. The current well-established test for whether an expense is extraordinary is whether it is “reasonable and necessary,” having regard to the parents’ individual and collective means. The court must assess whether the expense is objectively sensible for this particular separated family. It considers a number of factors, including the parties’ historic spending patterns.

[95] In Watt v. Watt, (2011),[^52] Mackinnon J., considered what constitutes "reasonable and necessary" for parties who have a middle-class income but limited means and significant debt. Justice Mackinnon found that competitive dance and hockey expenses, over and above the essential expenses that the parties had originally agreed upon, were not reasonable or necessary for parents who were incurring debt and who had no savings for their children's post-secondary education. She stated:

I accept that participation in these activities enhances the children's self-confidence and organizational skills. I cannot find that this exceeds or could not be accomplished by their participation in the same activities at a recreational or community level. Necessity as used in s. 7 sets quite a high standard to be applied where parents do not agree on the issue.

[96] The court considers post-secondary education expenses more “reasonable and necessary” than the expense of extracurricular activities. However, even education expenses must be assessed as to their reasonableness.

[97] Mr. Friday argues that the expense of Bretlyne’s attendance at university in North Bay is not reasonable or necessary because she could have attended the University of Toronto, Mississauga campus, and lived at her mother’s home in Brampton, a short drive away. He states:

I was never consulted with respect to [Bretlyne’s] decision to continue her education outside of the Greater Toronto Area. At the time that she made this decision (without seeking any input from me) to at great expense pursue her education in North Bay, (with the added transportation and accommodation expenses) both her mother and I were in personal Bankruptcy, still paying our consumer proposals. Had I been consulted, I most certainly would have said that North Bay was not affordable, and that pursuing education in the GTA would allow her to live at home, at reduced cost, and be consistent with her parents’ need to rebuild their lives financially.

I understand that not only am I being asked to pay the greater part of [Bretlyne’s] decision to live in North Bay, without consulting me, without consideration of my means, I am also being asked to pay my wife “child support” for [Bretlyne], an adult, who does not live with my wife. All at a time when I was under a Consumer Proposal, and had no ability to borrow to pay for the extravagance of a “out of town” education. It seems that Bretlyne…’s approach is: “you are going to pay whether you can afford it or not, and I don’t care what you think”. My wife and I lost our home – I am renting, and will need some time to rehabilitate my credit. Not once did Bretlyne … consult me about her budget, or my ability to help her with her living expenses.

[98] In Krueger v. Tunison, (1999),[^53] the Saskatchewan Court of Queen’s Bench ordered a father who lived in Saskatchewan to contribute to the costs of his 20 year old daughter attending Carleton University in Ottawa, where she was enrolled in studies leading to a degree in Art History and Museology. In rejecting the father’s argument that the university costs were unreasonable because his daughter could have attended school in Saskatchewan, Dawson J. stated:

The father takes the position that he should not be required to pay for Julia’s expenses in Ottawa because Julia has equivalent educational opportunities available in Regina… He argues the expenses incurred to have Julia attend university in Ottawa are not in themselves necessary to Julia’s best interests. Wilkinson J. in Woods v. Woods 1998 SK QB 14068, (1998), 1998 14068 (SK QB), 171 Sask. R. 170; (1998) 42 R.F.L. (4th) 123 (Q.B.) stated that it is a reasonable expectation on the part of a parent that a child will attend university in his or her home town, provided the desired course of study is offered there. Wilkinson, J. stated further that if the child unilaterally elects to take the course elsewhere, then some reasonable evidence should be offered that justifies that decision. In this case, I am satisfied that Julia wishes to pursue a particular curriculum and career path for which Carleton offers the best program. I am satisfied that her attendance at Carleton is in her best interests. [^54] [Emphasis added]

[99] Ms. Friday has given the following explanation for Bretlyne’s decision to attend university in North Bay:

Carl also questions the reasonableness of Bretlyne’s education plan. This is also a new allegation. Carl was told that Bretlyne was applying to Nipissing University in North Bay as the program (Environmental Geography) she wished to enter was not available at a local university. She also applied to four other out of town schools but North Bay had the cheapest tuition fees and living expenses as well as the safest environment and that is why Bretlyne chose to go to Nipissing. [Emphasis added]

[100] I find that Ms. Friday’s explanation is “some reasonable evidence” that justifies Bretlyne’s decision to attend university in North Bay. Additionally, the expenses that Ms. Friday has claimed, as set out above, for Bretlyne’s attendance at Nipissing University, satisfy me that Bretlyne’s decision to attend university in North Bay did not unreasonably increase her education costs. This is particularly so, having regard to Ms. Friday’s proposal that Bretlyne contribute a significant proportion (27.8%) of her total costs ($15,723 of the total of $56,530.00).

[101] Mr. Friday seeks an exact accounting of Bretlyne’s university costs and argues that the evidence that Ms. Friday has tendered in this regard is insufficient to meet her onus. I disagree. There is no need for Ms. Friday to prove that the individual expenses she incurred were extraordinary or special. They could include such mundane costs as utilities, food, household supplies, laundry and clothing, which Ms. Friday has not claimed.[^55] The court may dispense with detailed accounts and accept estimates where the amounts claimed are reasonable. Section 7 of the Guidelines provides, in this regard:

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:

(e) expenses for post-secondary education.

Bretlyne’s contribution to the payment of her own university expenses

[102] Both section 7 and section 3(2) require the Court to consider whether Bretlyne should be required to contribute to the cost of her own post-secondary school education[^56]. As J. Wright, J. rightly observed in Coghill v. Coghill, “It is not appropriate to require a child to pursue part-time employment during the academic year where that would interfere with the child’s academic progress.”[^57] As Justice Wright further observed:

9. Children have an obligation to make a reasonable contribution to their own post-secondary education or training. This does not signify that all of a child’s income should be applied to the costs of the child’s further education. A child should be entitled to some personal benefit from the fruits of his or her labours. (Julien D. Payne: Child Support in Canada)

[103] Ms. Friday’s proposal that Bretlyne contribute 50% of her earnings to the payment of her education expenses is reasonable in the circumstances. As she accurately notes, Bretlyne needs the balance of her earnings to pay her miscellaneous expenses such as entertainment, recreation, clothing, and personal items.

[104] Ms. Friday has stated that Bretlyne’s income from part-time or summer income has been as follows:

2008: $6,758.00

2009: $8,296.00

2010: $14,488.00

2011: $8,662.00

[105] As Bretlyne’s income has fluctuated significantly over the relevant period, it is reasonable to average her earnings at $9,551.00, which I round down to $9,550.00.

[106] If Bretlyne’s contribution to her education expenses is fixed at 50% of her earnings, her contribution would be $4,148.00 for 2009-2010, $7,244.00 for 2010-2011, and $4,331.00 for 2011-2012. If the average of Bretlyne’s earnings, amounting to $9,550.00 per year, is added to Mr. Friday’s earnings of $80,131.00 and Ms. Friday’s earnings of $42,500.00, they would amount to 7.2% of their collective income. If she were to contribute this percentage to the payment of her education expenses for 2011-2012 (which amount to $20,302.00), her contribution would be only $1,461.74. By comparison, the contribution of $4,331.00 that Ms. Friday proposes is substantial.

[107] I find Bretlyne’s education expenses, as Ms. Friday has summarized them, to be extraordinary, in objective terms, in the sense that they exceed what Ms. Friday could be expected to pay from the basic child support that Mr. Friday is to pay. I also find them, on their face, to be reasonable and necessary, having regard to the Fridays’ particular means and circumstances, individually and collectively.

[108] Besides applying her own earnings to her education costs, Bretlyne borrowed $22,406.00 in student loans through to the end of the 2011 to 2012 academic year. Mr. Friday argues that this amount should be deducted from Bretlyne’s education costs in arriving at the amount of expenses for which Mr. and Ms. Friday must assume responsibility. However, this amount must be repaid and, accordingly, it should not be deducted from her education expenses for the purpose of calculating her parents’ contributions.

Mr. Friday’s defence of financial hardship

[109] I have considered Mr. Friday’s argument that an order for child support will result in financial hardship for him and that he will be unable to sustain similar contributions toward the cost of Bryleigh’s and Brionna’s education. I reject this argument for the following reasons:

a. I find that Mr. Friday has understated his income. I have imputed an income of $80,130.00 to him and an income of $42,500.00 to Ms. Friday, with the result that their collective income is 122,630.00. A collective family income in this amount is adequate to enable the parents to contribute to university costs in the range of $17,515.00 to $20,302.75 per year, especially having regard to the fact that Bretlyne will be contributing 27.8% to the payment of these costs.

b. Mr. Friday’s debts on the date of separation were $6,500.00, an amount that was unchanged as of May 1, 2012, when he prepared his most recent Financial Statement. Ms. Friday owed $28,595.00 on the date of separation, which she has since reduced to $6,021.00. These amounts of debt are not so substantial that they should prevent the Fridays from contributing to the payment of 72.2% of Bretlyne’s university expenses.

c. Mr. Friday states that he and Ms. Friday were both “involved in Bankruptcy through consumer proposals.” Both proposals were made in August 2006 and were completed in August 2011. As Ms. Friday points out, she and Mr. Friday did not declare bankruptcy. Their consumer proposals allowed them to pay off their debt more gradually.

d. Mr. Friday states that he and Ms. Friday “lost” their home. As Ms. Friday points out, they sold their house at the time of separation and divided the net proceeds.

e. Ms. Friday states that Mr. Friday and his new partner are in the process of purchasing a home in Milton. Mr. Friday has acknowledged that he was moving to Milton in August 2012 and “moving in” with his girlfriend. He has not disclosed his girlfriend’s income or what she will be contributing to the payment of his household expenses.

f. Mr. Friday had not produced his 2011 Notice of Assessment or provided a satisfactory explanation for his failure to do so. I draw an adverse inference from his failure to make this disclosure, which was ordered by Baltman J. in March 2012.

[110] Mr. Friday’s ability to pay is relevant to the determination of whether Bretlyne’s education costs are reasonable and necessary. Having found those costs to be reasonable and necessary, I decline to reduce the contribution Mr. Friday should be making in relation to Ms. Friday’s contribution. Their contributions should, in my view, be proportionate to their respective incomes.

[111] The Guidelines limit the court’s discretion in granting relief based on undue hardship to specific sections. Section 10 of the Guidelines provides:

10. UNDUE HARDSHIP –

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship including the following:

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

(b) the spouse has unusually high expenses in relation to exercising access to a child;

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

(3) STANDARDS OF LIVING MUST BE CONSIDERED – Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 50, 8 or 9, have a higher standard of living than the household of the other spouse.

(4) STANDARDS OF LIVING TEST – In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

(5) REASONABLE TIME – Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

(6) REASONS – Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.

[112] In S. (D.B.) v. G. (S.R.), (2006), Justice Bastarache, writing for the majority of the Supreme Court, stated:

… But while they seek to instill efficiency and consistency in child support matters, the Guidelines are also attentive to concerns of fairness and flexibility, adopting a “children first” perspective: see Francis v. Baker, [1993] 3 S.C.R. 250 (S.C.C.), at para. 39; Guidelines, s. 1.

In order to accomplish its goals, the Guidelines generally make only two numbers relevant in computing the amount of child support owed: the number of children being supported, and the income of the payor parent. Thus, under the Guidelines, not only is the amount of child support divided according to parents’ incomes, but it is determined on that basis as well:

The guidelines will establish without the need for trial the levels of child support to be paid according to the income of the person paying. The amounts are calculated by a formula that takes into account average expenditures on children at various income levels. As income levels increase or decrease so will the parents’ contributions to the needs of the children, just as they would if the family had remained together. [^58]

[113] In Bertram v. Murdock (2006), Wolder J. in the Ontario Court of Justice, held that there is an absolute requirement for a non-custodial parent to contribute his or her proportionate share toward reasonable post-secondary education expenses after deducting the child’s contribution, if any. In his view, the court possesses no discretion to vary, adjust, or avoid the parent’s obligation to contribute his/her proportionate share of such expenses on the basis that it would cause undue hardship, even if the undue hardship threshold has been met.[^59]

[114] The Nova Scotia Court of Appeal, in Raftus v. Raftus (1998), considered how the court should properly approach the determination of whether an expense is extraordinary, and “reasonable and necessary” for purposes of s. 7 of the Guidelines. In that case, the trial court rejected the mother’s application for an Order requiring the father to contribute to the cost of certain extra-curricular activities, finding that they were not “extraordinary expenses” within the meaning of s. 7(1)(f) of the Guidelines. The Court of Appeal dismissed the mother’s appeal. Flinn J.A. wrote for the majority; Bateman J.A. wrote separate concurring reasons.

[115] Bateman J. took into consideration the expense of the activities in relation to the parents’ combined incomes in determining whether they were extraordinary:

The relevance of financial means to the payment of add-ons is expressly stated in the opening words of s. 7. Indeed s. 26.1(2) of the Divorce Act, which underlies the Guidelines, provides:

26.1 (2) The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation. [Emphasis added.]

It is thus, in my view, appropriate and necessary when determining whether the expense fits within the “extraordinary” requirement of s. 7(1)(f) to assess it, subjectively, in accordance with the parents’ incomes, using “income” as defined in the Guidelines. The definition of “extraordinary” invites a comparison to what is usual. A relatively modest expense for a child’s extracurricular activity may be “extraordinary” for parents who are living at a very low income level, but trivial for those with generous incomes. In this regard, there is no “usual” that cuts across income levels. There must be some attempt by the court to measure “extraordinary” in accordance with a norm. An income based, presumptive, capacity to pay is the foundation of the Guidelines. The Table amounts are to this extent, subjective not objective. But all payors with equivalent nominal incomes do not necessarily have the same ability to pay support. [Emphasis added] [^60]

[116] After discussing whether the expenses were extraordinary within the meaning of s. 7(1)(f), Justice Bateman went on to discuss whether they were “reasonable and necessary”, based on the “means” of the parties, taking into account the reality of their separate status and such other factors as their:

… capital, income distribution, debt load, third party resources which impact upon a parent’s ability to pay, access costs, obligations to pay spousal or other child support orders, spousal support received and any other relevant factors. [p. 275]

[117] Justice Bateman’s analysis was adopted by Prowse J.A., in the B.C. Court of Appeal, in McLaughlin v. McLaughlin,[^61] which, in turn, was approved of, in part, by Laskin J., speaking for the majority of the Court of Appeal for Ontario in Andrews v. Andrews, (1999).[^62] Justice Prowse stated:

I agree with Madam Justice Bateman that it is appropriate to have recourse to the combined incomes of the parties as an aid in determining whether an expense is extraordinary under s. 7(1)(f)…. In situations in which there are no "add-ons", under s. 7, or hardship factors under s. 10, it is only the payor's income which is relevant. But where both parties are expected to share additional expenses, as under s. 7, it is reasonable to utilize their joint incomes in determining whether an expense is extraordinary. The potential hardship to the low income-earning payee of a significant discrepancy between the income of the payor and the payee will be offset by the proportionate sharing of the expense in the event that it is found to be both necessary and reasonable.

[118] In Andrews v. Andrews, Laskin J.A. stated:

Mr. Andrews concedes that the private school fees for Adam and Mark and the expenses for Melina’s home schooling are extraordinary expenses. Because of Mr. Andrews’ concession, I need not address the debate over the proper approach to determining “extraordinary expenses” reflected in the thorough and thoughtful judgment of Prowse J.A. in McLaughlin v. McLaughlin. I do, however, agree with Prowse J.A. that in adopting an “add on” approach under s.7, the drafters of the Guidelines recognized the importance of addressing the needs of a particular family with particular expenses”. The Andrews family has particular educational needs and expenses associated with those needs. These expenses are not covered by the basic table amount. Mr. Andrews must pay for child support under the Guidelines. [Emphasis added]

[119] Once having determined that an expense is extraordinary, having regard to the parties’ joint income, and that it is reasonable and necessary, having regard to the means and circumstances of the parents and child, s. 7 directs the court to apportion responsibility for the expense in proportion to the parties’ incomes.

Ms. Friday’s means and circumstances

[120] Ms. Friday works in customer service for a wholesale plastic bag distribution company, earning approximately $42,515.00. Mr. Friday’s earnings are almost twice those of Ms. Friday. Mr. Friday states that Ms. Friday lives with a man who earns approximately $100,000.00 from his employment at the Ford Motor Company, and who is able to arrange coverage for Ms. Friday’s legal fees by Canadian Auto Workers (CAW) Legal Services.

[121] Ms. Friday states that her partner does not earn $100,000.00 but she does not disclose how much he does earn. She also states that she does not receive free legal services and has already spent thousands of dollars trying to bring this proceeding to completion.

[122] Ms. Friday states that her partner has no obligation to support her children. While this is true, her partner’s contribution to her household expenses is relevant, as it forms part of her “means and circumstances,” which the court must consider when determining the contribution she and Mr. Friday must make to the payment of Bretlyne’s education and orthodontic expenses. This information should have been disclosed.

[123] Hambly J., in Williamson v. Versluis, (2009), interpreted s. 7 of the Guidelines as leaving no discretion to the court to depart from an apportionment of responsibility for extraordinary expenses between the parents in proportion to their incomes. He stated: “The court has no discretion to reduce a non-custodial parent’s obligation to pay his proportionate share of add-on expenses based on his income.”[^63]

[124] The Court of Appeal in Lewi reiterated the principle that s. 7 expenses are added to basic child support, and that responsibility for the payment of them is to be apportioned after deducting an appropriate contribution from the child, according to her means and circumstances. In coming to this conclusion, Juriansz J.A., speaking for the majority, recognized a discretion in the court to apportion basic child support between the parents, pursuant to s. 3(2)(b), and he found a similar discretion to determine both the child’s contribution to extraordinary expenses and the appropriate apportionment of the balance between the parents, pursuant to s. 7:

Neither s. 3(2)(b) nor s. 7 contain any indication whatsoever of the level of contribution a child of majority age with funds should be expected to make to his or her own post-secondary education expenses. Under both provisions, the question is largely a matter of discretion for the trial judge.

Section 7 also specifies some general criteria and leaves it to the court’s discretion to decide:

1. whether the court should provide an amount to cover all or a part of an expense;

2. the reasonableness of the expense;

3. the means of the spouses;

4. the means of the child;

5. the family’s spending pattern prior to separation;

6. the amount of the contribution of the child, if any; and

7. whether the court should depart from the guiding principle that the spouses should share the expense in proportion to their incomes.

It seems to me that the court, in order to exercise its discretion properly under either section 3(2)(b) or section 7, when parties dispute the amount of contribution expected of a child, requires the same kind of information regarding the needs of the child and the means of the child and parents. Nor would the contribution the child is expected to make and the support the parent is obliged to provide necessarily be different under the two provisions. In my view, in fashioning an order applying the broad criteria in 3(2)(b), the court may well draw upon the principles of the Guidelines and its experience in applying them. For example, it would be entirely appropriate for the court, under s. 3(2)(b), to consider that the parents should share post-secondary expenses in proportion to their incomes after deducting the contribution, if any, of the child. The evidence upon which the court might conclude it was just and appropriate that the parents should share the expenses in some other proportion would, I think, be the same under both provisions.

The court has the discretion under both provisions to decide the amount the child should be expected to contribute. In my view, the amount of child support that a parent is ordered to pay should be determined, as a general rule, on the expectation that a child with means, in this case independent assets, will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. There is no standard formula under either s. 7 or s. 3(2)(b).[^64] [Emphasis added]

[125] McLeod J., in Simmons v. Wilcox, (2001), similarly found there to be a judicial discretion in relation to both child support and contribution to section 7 expenses, based on financial hardship. She declined to order a divorced mother, who had sold her home and was living a significantly reduced lifestyle on a modest investment income and a modest spousal support order, in order to return to university, to pay either child support for their adult child or a contribution to the child’s education expenses. She stated:

13. Section 3(2)(b) and s.7(1) confer a discretion on the court in relation to children’s regular and post-secondary education expenses...I find given the facts and circumstances of this case that the applicant has no financial ability in her circumstances to contribute to the support of the children, nor to contribute to their post-secondary educational costs. I find it would be unreasonable for the mother to make any such child support payments and in the exercise of the court’s broad discretionary jurisdiction under s.3(2) of the guidelines, I will not order her to do so.

14. …The judicial flexibility conferred by s.3(2)(b) and s.7(1) of the guidelines allow the court to consider different situations of adult children.

15. There are no hard and fast rules in this aspect of the law. I find the applicant’s limited income is fully utilized in supporting herself. The court is under no compulsion to make an order for child support for adult children and I conclude that any contribution by the applicant would be inappropriate, having regard to the applicant’s inability to pay. In addition, I find pursuant to s.10(1) of the Guidelines, that this is an exceptional case where an order for child support would cause the applicant to suffer excessive hardship.[^65] [Emphasis added]

[126] In the present case, I have considered the Friday’s means and circumstances, and those of Bretlyne. I find that Ms. Friday has incurred the expenses she has claimed. I find, for the reasons stated above, that the expenses are necessary in Bretlyne’s interests, and reasonable, having regard to the means and circumstances of Mr. and Ms. Friday and of Bretlyne. I find that it is reasonable that Bretlyne contribute half of her earnings to the payment of her education expenses, which will enable her to pay approximately 27.2% of these expenses. The remaining 72.8% will be apportioned between Mr. and Ms. Friday in proportion to their respective incomes.

The impact of the Fridays’ failure to communicate

[127] Ideally, parties discuss extraordinary expenses before committing to them to ensure that they are reasonable and necessary, considering the parties’ financial means and the pattern of spending prior to the separation. It is clear from the evidence before me that the Fridays failed to have this discussion.

[128] Ms. Friday states:

I append as Exhibit A copies of an e-mail exchange between Carl and myself in which I advise him that “plans for January are still pending based on university responses”. Carl responds to say that he will only pay support until December 30, 2008, and “at that time I will require documentation to indicate that Bretlyne is in school full time”. It is clear that Carl was always aware of Bretlyne’s plans to go to university and accepted his responsibility to continue to pay support for her so long as she was a full time student. However, Carl failed to acknowledge Bretlyne’s dependency from March, 2009 or pay anything for her support from that time.

[129] Mr. Friday replies:

If I am the only father Bretlyne has known, a greater level of respect would be expected and not the current attitude, which appears to be one of entitlement…Bretlyne shows independence in the fact that no discussion or consultation with me related to her educational expenses, educational options, or the ability for me to help or pay any portion of these educational expenses. If my salary had been included on any OSAP applications the amount of combined income would have been too great in order for Bretlyne to receive any funds through this program. Consultation at that time would have brought to the forefront that the Respondent Janice Friday and myself were not in a position to support school studies in North Bay without assistance such as a loan, to which neither the Respondent or myself were in a position to secure.

I indicated that I would pay until December 2008, which would have coincided with Bretlyne turning 18, and without proof that she was attending full time school that I would not be paying support for her. The support continued until February 2009. On advice from counsel, through a letter to Janice’s counsel,…, due to Janice not supplying any information indicating that Bretlyne was in school full time, support was scaled back to the amount for 2 children. The email (from the respondent) indicates that the plans are “pending”. This could then had me paying support for a child which was able to gain full time employment and not in full time education. The information was requested by my counsel at the time, to which Janice had not responded. This is backed up by the order dated January 26, 2010, by Justice Maresca ordering Janice to supply all such educational information. This was ordered a full year after the original request was made.

In an email dated November 4, 2008,…Janice intimated to me in an email that “plans are still pending for January based on university responses”. In an email dated November 5, 2008,… I asked Janice “I was re-reading some of the messages from yesterday and something has struck me as being weird or different for which I need an explanation. You indicated that Bretlyne is in school full time and that you were awaiting University responses. Can you tell me when applications were sent? The reason that ask is that anyone that is looking to start University in January would have already had a response in regards to acceptance or rejection.” The response received indicates that no formal application for University had been made and infers that based on the responses from the university that university might not even be an avenue. Response from Jancie was “I actually said. ‘Plans for January are still pending based on University responses’. She is looking into this. They just had the University Fair and she is deciding where to apply and looking into all options.”

[130] It is evident from the foregoing exchange that Ms. Friday informed her husband that Bretlyne had attended the University Fair, and had either made inquiries or applied to universities for admission, and was awaiting their responses. Mr. Friday then sought information from her as to when Bretlyne had applied and, later, proof of her full-time attendance. He appeared to be more intent on disproving Ms. Friday’s assertion that Bretlyne had applied than expressing a genuine interest in Bretlyne’s future. It appears that Ms. Friday failed to respond to Mr. Friday’s inquiries, even after Justice Maresca ordered her to do so.

[131] I find that Ms. Friday and/or Bretlyne failed to treat Mr. Friday as respectfully as they could and should have, particularly having regard to their intention to request his contribution to Bretlyne’s education expenses. They should have provided him with sufficient information and documentation to enable him to assess Bretlyne’s plans, and Bretlyne should have had the maturity, notwithstanding her disappointment at the events leading to her parents’ separation, to discuss her plans with him. On the other hand, I find that Mr. Friday’s reactive, defensive, and argumentative manner likely contributed to Ms. Friday’s and Bretlyne’s failure to be more forthcoming. As Ms. Friday notes:

Bretlyne has also had to apply for student loans because Carl did not pay sufficient support and (until May 2012) has failed entirely to pay the contribution required of him by the court ($9,805.20) towards her first two years of university (2009-2010 and 2010-2011), even though this was ordered by the court more than a year ago. Carl only commenced making small instalments of $300.00 monthly on this amount when forced to by the Family Responsibility Office. Bretlyne has borrowed $22,406.00 from student loans through to the end of the 2011-2012 academic year.

[132] Ms. Friday has provided the bare minimum of information required to support her claim for a contribution from Mr. Friday toward Bretlyne’s university expense. She has failed to provide the supporting documentation that Mr. Friday and the court are entitled to expect in support of her claim. Her failure is not, however, as complete as that of the mother in Mangialardi v. Mangialardi, (2012),[^66] who failed to provide any budget or information concerning the child’s earnings, leading McGee J. to refuse her claim for a contribution to the payment of the child’s university expenses. Ms. Friday has provided this information, although not in the detail that Mr. Friday has requested.

[133] The information that Ms. Friday has deposed to, in the absence of cross-examination of her, or of evidence to the contrary, satisfies me that the expenses were incurred and were necessary and reasonable. I do not propose to delay making the order requested until such documentation is provided. Doing so could well further jeopardize Bretlyne’s education. Ms. Friday will, however, be ordered to produce the documentation before Mr. Friday makes his contribution toward the university expenses.

[134] Mr. Friday has not yet been cross-examined on his calculations. Additionally, he has not, as of the date when this motion was heard, filed his 2011 income tax return or Notice of Assessment. Under these circumstances, and having regard to the conflicting evidence on the issue, it would be premature to calculate the precise set-off of payments he says he has made against the child support that he is obligated to pay.

CONCLUSION AND ORDER

[135] For the foregoing reasons, it is ordered that:

1. Mr. Friday shall pay the following amounts:

a. Retroactive child support in the amount of $17,796.00 for the children, from August 2008 to June 2012, calculated as follows:

i. $17,011.00 for August 2008 to April 2012, consisting of $1,513.00 per month, being table child support for all three children from May to August each year from 2009 to 2011, and table support at the mid-point between the amount payable for two and three children from September to April in each of those years;

ii. $785.00 for May and June 2012 ($1,336.50 less two months at $944.00 per month);

b. $1,336.50 as ongoing child support for the children from June 1, 2012, onward;

c. $17,407.80, consisting of $27,213.00 as his contribution to the costs of Bretlyne’s post-secondary studies, less a credit for any portion of the $9,805.20 he was ordered to pay previously;

d. 50% of the uninsured cost of Bryleigh’s orthodontic treatment.

2. Mr. Friday shall designate Ms. Friday, as trustee for the children, as irrevocable beneficiary of his life insurance policies with Sun Life Insurance, for so long as he is required to pay child support for the children, as security for his child support obligations.

3. The amounts owing by Mr. Friday as his contribution to Bretlyne’s education costs, pursuant to paragraph 1(c) of this Order, shall be paid by him within 90 days of receipt by him of Bretlyne’s transcript from Nipissing University, and documentary confirmation of her continued full-time enrolment at that university, together with her Notices of Assessment or Income Tax Summaries for the tax years 2009 to 2011 from the Canada Revenue Agency.

4. Mr. Friday shall pay his contribution to the cost of Bryleigh’s orthodontic treatments within 90 days of his receipt of documentation from the treatment provider as to the uninsured cost of such treatments.

5. Ms. Friday shall provide to Mr. Friday, on an ongoing basis until Bretlyne has completed her university studies, twice per term, documentation as to her courses of study, her marks, any awards received, and any applications made for grants or bursaries. If Bretlyne does not provide the required information or withdraws from full-time attendance at university, Mr. Friday has leave to return the matter to this Court for a review of his obligation to continue contributing to the costs of her education.

6. This order shall be enforced by the Director of the Family Responsibility Office, unless withdrawn from that Office. An affidavit from Ms. Friday confirming her compliance with this Order shall be accepted by the Family Responsibility Office as proof of her continued entitlement to the contribution from Mr. Friday to the payment of Bretlyne’s education costs and the cost of Bryleigh’s orthodontic treatments.

7. If the parties are unable to agree on costs, they may submit written arguments, not to exceed four pages plus a Costs Outline. Ms. Friday shall submit her argument by April 15, 2013. Mr. Friday shall submit his response by April 25, 2013. Ms. Friday shall submit her reply, if any, by April 30, 2013.

Price J.

Released: April 2, 2013

COURT FILE NO.: FS-10-513-00

DATE: 2013-04-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CARL FRIDAY

Applicant

• and –

JANICE FRIDAY

Respondent

REASONS FOR ORDER

Price J.

Released: April 2, 2013

[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.

[^2]: Albert v. Albert, 2007 29972, (2007) 40 R.F.L. (6th) 203 (ON S.C.), applying Rebenchuk v. Rebenchuk, 2007, 35 R.F.L. (6th) 239 (Man. C.A.).

[^3]: Family Law Act, 1990, c. F. 3

[^4]: Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, as amended

[^5]: Chartier v. Chartier, 1999 707 (SCC), [1999] 1 SCR 242

[^6]: Family Law Act, 1986, c. 4

[^7]: Family Law Reform Act, R.S.O. 1980, c. 152

[^8]: Spring v. Spring, (1987), 1987 4379 (ON SC), 61 O.R. (2d) 743, [1987] O.J. No. 1569 (Ont. U.F.C.), per Judge Derek Mendes da Costa, at p. 749 [O.R.]

[^9]: Family Law Act, 1990, c. F. 3

[^10]: Bradbury v. Mundell (1993), 1993 5300 (ON SC), 13 OR (3d) 269, per Chadwick J., at paras. 20 and 21

[^11]: Interpretation Act, R.S.C. 1985, c. I-21, s. 12.

[^12]: Chartier v. Chartier, 1999 707 (SCC), [1999] 1 SCR 242, per Bastarache J., for the Court, at paras. 32 and 36

[^13]: Toth v. Toth, 2003 ON SC 2259, per Seppi J., at para. 5

[^14]: Farden v. Farden, [1993] BC SC 2570, (1993), 1993 2570 (BC SC), 48 R.F.L. (3d) 60

[^15]: Law v. Law, (1986), 1986 6291 (ON SC), 2 R.F.L. (3d) 458 at 462 (Ont. S.C.), per Fleury L.J.S.C., at p.462.

[^16]: Surrette v. Johnson, [2002] O.J. No. 4779; Grierson v. Brunton, 2004 7571 (ON CA), [2004] O.J. No. 3483

[^17]: Re Haskel and Letourneau (1979), 1979 1963 (ON SC), 25 O.R. (2d) 139, per at p.151

[^18]: Re Haskel and Letourneau (1979), 1979 1963 (ON SC), 25 O.R. (2d) 139, per at p.151

[^19]: Fitzpatrick v. Karlein, 1994 9710 (ON CJ), [1994] O.J. No. 1573, per Nasmith, Prov. Div.J., at para. 13

[^20]: Fitzpatrick, at para. 14

[^21]: Fitzpatrick, at paras. 18 and 19

[^22]: Jamieson v. Bolton 1994 9711 (ON CJ), [1994] O.J. No. 3228 (Ont. C.J., per Kent, Prov. J., at para. 31

[^23]: Belanger v. Belanger, 2005 ONSC 25110, per Cavarzan J., at para. 28

[^24]: C.M. v. C.S.1, 2012 ONCJ 331, per Clark J.

[^25]: Green v. Green, 2007 2939 (ON SC), [2007] O.J. No. 454

[^26]: Colford v. Colford, 2005 ONSC 13032, per Goodman J.

[^27]: Law v. Law, (1986), 1986 6291 (ON SC), 2 R.F.L. (3d) 458 (Ont. H.C.)

[^28]: Whitton v. Whitton, (1989), 1989 8868 (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.)

[^29]: Bitterman v. Weaver, 2002 CarswellOnt 206 (N.B.Q.B.)

[^30]: Simmons v. Wilcox, [2001] O. J. No. 2923 (S.C.J.), per MacLeod, J.

[^31]: Rosenberg v. Rosenberg, 2003 2227 (ON SC), [2003] O.J. No. 2962 (Sup.C.J.)

[^32]: Harrison v. Vargek (2002), 2002 MBQB 97, 28 R.F.L. (5th) 176 (Man. Q.B.).

[^33]: Haley v. Haley, 2008 2607 (ON S.C.).

[^34]: Tapson v. Tapson, 1969 541 (ON CA), [1969] O.J. No. 1490 (C.A.); Jackson v. Jackson, [1986] O.J. No. 1761 (Prov. Ct.); Farden v. Farden, 1993 2570, 48 R.F.L. (3d) 60 (B.C.S.C.), Martin v. Martin, 1988 2837, 26 B.C.L.R. (2d) 390 (C.A.), Grini v. Grini (1969), 1969 784 (MB QB), 5 D.L.R. (3d) 640 (Man.Q.B.).

[^35]: Ciardullo v. Ciardullo, 1995 304, 15 R.F.L. (4th) 121 (B.C. S.C.).

[^36]: Martin v. Martin, above at 393.

[^37]: 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 C.A.), 28 B.C.L.R. 63 (B.C. C.A.); Van de Pol v. Van de Pol, above.

[^38]: 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 2000 10 (AB.Q.B.).

[^39]: Jackson v. Jackson, above; Grini v. Grini, above.

[^40]: Holtby v. Holtby (1997), 1997 24470 (ON CJ), 30 R.F.L. (4th) 70 (Ont. Fam. Ct.); Oswald v. Oswald, above.

[^41]: Glen v. Glen, 1997 1026, 34 R.F.L. (4th) 13 (B.C. S.C.); Oswald v. Oswald, above.

[^42]: Carnall v. Carnall, 1998 13446 (SK Q.B.), 37 R.F.L. (4th) 392 (Sask. Q.B.), supp. reasons 1998 CarswellSask 459 (Sask. Q.B.).

[^43]: Guillemette v. Horne (1993), 1993 14921 (MB CA), 48 R.F.L. (3d) 229 (Man. C.A.); Wesemann v. Wesemann, 1999 5873, 49 R.F.L. (4th) 435 (B.C. S.C.).

[^44]: Smith v. Ramsey, 2008 ON SC 54980, per Ingram J., at para. 9

[^45]: Rebenchuk v. Rebenchuk, 2007 MBCA 22, 2007, 35 R.F.L. (6th) 239 (Man. C.A.)

[^46]: Lewi v. Lewi, 2006 15446 (ON.C.A.), para. 162.

[^47]: Lewi v. Lewi, above, per Juriansz J., at para. 164

[^48]: Coghill v. Coghill, 2006 ON SC 28734, per J. Wright J., at para. 53

[^49]: FCSG, above, s. 15 (2)

[^50]: FCSG, above, s. 16, s. 2 (3)

[^51]: FCSG, above, s. 17

[^52]: Watt v. Watt, 2011 CarswellOnt 1500 (Ont. S.C.J.)

[^53]: Krueger v. Tunison, 1999 SK QB 12758

[^54]: Krueger v. Tunison, 1999 SK QB 12758, per Dawson J., at para. 13

[^55]: LaRue v. LaRue, 2008 ONCA 213, [2008] O.J. No. 1146.

[^56]: Lewi v. Lewi, 2006 15446 (ON.C.A.), para. 171.

[^57]: Coghill v. Coghill, 2006 28734 (ON S.C.), para. 11, citing Julien D. Payne: Child Support in Canada).

[^58]: S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2007] 31 R.F.L. (6th) 1 (S.C.C.), per Bastarache J., at pars. 43-44, citing Mr. Gordon Kirkby (Parliamentary Secretary to Minister of Justice and Attorney General of Canada), House of Commons Debates, vol. 134, 2nd Sess., 35th Parl., October 1, 1996, at p. 4901.

[^59]: Bertram v. Murdock, 2006 ONCJ 69, at para. 15. See also J.C. v. S.A.W, 2008 YKSC 95, at para. 16

[^60]: Raftus v. Raftus 1998 NS CA 6139, (1998), 1998 NSCA 75, 159 D.L.R. (4th) 264, at pp. 273-74

[^61]: McLaughlin v. McLaughlin, 1998 5558 (BC CA), per Prouse J.A., at para. 69

[^62]: Andrews v. Andrews, 1999 3781 (ON CA), [1999] O.J. No. 3578, per Laskin J., at para. 25

[^63]: Williamson v. Versluis, 2009 ON SC 9397, per Hambly J., at para. 25

[^64]: Lewi v. Lewi, 2006 15446 (ON CA), per Juriansz J.A. at paras. 154 to 159

[^65]: Simmons v. Wilcox, 2001 ON SC 28145. See also Cowan v. Cowan, 2010 ONSC 7021, per Mossip J., at para. 5

[^66]: Mangialardi v. Mangialardi, 2012 ONSC 5219, per McGee, at paras. 45 to 50