Rutledge v. Rutledge, 2013 ONSC 2129

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-7144M

DATE: 20130411

BETWEEN:

DIANE RUTLEDGE

Glenna G. McClelland, for the Applicant

Applicant

• and -

DEAN RUTLEDGE

Self-Represented

Respondent

HEARD: April 8, 9, 2013

REASONS FOR JUDGMENT

Conlan J.

Introduction

Introduction

1The Rutledge family has experienced more pain and suffering than one can imagine. The tragic loss of one child to leukemia and the estrangements between the mother and her son, T, and between the father and his daughter, J, have fractured the family.

2Fortunately, after lengthy litigation, the parties have to some degree come together for the sake of their children, T, J and C.

3At the commencement of this family trial in Owen Sound on April 8, 2013, I made a Final Order in accordance with Minutes of Settlement filed on several issues including custody and access. With the help of counsel for the Applicant mother and Mr. Vining for the Office of the Children’s Lawyer (“OCL”), the parties were able to significantly narrow the issues for trial. They are to be commended for that. I am satisfied that the matters agreed to are indeed in the best interests of the children.

4The trial then proceeded in the absence of the OCL and was held on April 8 and 9, 2013 (less than two full days with just two witnesses total – the parties). The father represented himself.

5The issues to be decided are:

(i) whether a motor vehicle for J is a section 7 Guidelines expense that the parties ought to contribute to;

(ii) what should happen with the RESP funds; and

(iii) what child support obligations, including section 7 expenses (most particularly for post-secondary education) do the parties owe for the benefit of the children. The latter issue encompasses the question of whether Mr. Rutledge owes money for child support that he ought to have paid above and beyond what he did pay between January 2012 and April 2013.

The Facts

The Facts

6Most of the facts in this case are not contentious.

The Children

The Children

7The children of the marriage are T (born August 9, 1991 – now 21 years old), J (born March 23, 1993 – now 20 years old) and C (born May 24, 2002 – now 10 years old).

The Daughter, J

The Daughter, J

8J is attending her first year of a five-year concurrent education program at Wilfrid Laurier University. Estranged from Mr. Rutledge, J will return to live with Ms. Rutledge at the end of this school term. She comes home regularly while attending university.

9At the end of the five-year program, J will obtain a Bachelor’s Degree in contemporary studies and a teaching certificate. She loves her program. She plans to teach in primary school. She is considering enrolling in a two-year social work program at Wilfrid Laurier University after graduation.

10Although she worked at a restaurant before university (earning $2,040.00 gross in 2011 and $5,832.00 gross in 2012), J does not work currently. She used her prior earnings to pay for university expenses.

11J is a full-time student who must maintain a certain grade point average in her program. She currently has six courses, and she teaches in a classroom in Brantford on Mondays (without pay) and volunteers in a tutoring program weekly. She will be looking for work this summer.

12J takes the bus to and from the school that she teaches at in Brantford. Ms. Rutledge wants J to have a motor vehicle. Next school term, J will be teaching for longer periods of time, and there is no guarantee that the placement will be in Brantford (it could be one hour away from where J lives). Ms. Rutledge estimates the cost of a vehicle for J to be about $5-8,000.00 plus $3,250.00 for insurance per year.

13Although J used her savings to pay for university expenses, and although she received $2,000.00 in bursaries, and although her grandmother helped out with another $1,000.00 or so, Ms. Rutledge has paid more than $2,600.00 towards J’s school expenses. Mr. Rutledge has not paid anything. And he refused to sign the necessary documentation to allow RESP funds (about $23,000.00) to be released for J’s benefit – both parties must sign the documentation.

The Son, T

The Son, T

14T lives near Haileybury, Ontario and is attending his second year at Northern College. He goes to school currently Monday through Friday. In September 2011, T started a two-year instrumentation (combined trades) program at the college. Estranged from Ms. Rutledge, T will return to live with Mr. Rutledge at the end of this school term. T may have a farming job near Formosa during the summer.

15During the current school term, T came home to his father’s house about four times including Christmas 2012 and March Break 2013.

16T pays $650.00 monthly for rent in Haileybury. He currently earns $13.00 or $14.00 per hour working in the north, although Mr. Rutledge does not know how often T works. T did not work during his first year at college.

17In October 2011, Ms. Rutledge agreed to release about $3,500.00 from the RESP for T’s college expenses. T also has a line of credit which he obtained during his first year at college.

18T is a very industrious young man. In 2010, he earned $26,214.00 gross. He earned $24,510.00 gross in 2011. Mr. Rutledge estimates T’s gross income for 2012 to be $10-12,000.00.

19T bought a vehicle for himself in 2010 and paid his father $300.00 per month in room and board between the spring of 2010 and the spring of 2011.

20Ms. Rutledge has not paid anything towards T’s college expenses. No money has been released from the RESP for T’s second year. Mr. Rutledge states that he has paid $5,000.00 or so towards T’s college expenses, in addition to the RESP funds that were released in October 2011.

21T struggled a little at college in that he has failed two courses. According to Mr. Rutledge, T is doing better now. He will have to return to school in September 2013 to finish the program.

22According to Mr. Rutledge, no money is currently owed to Northern College for T’s education.

The Son, C

The Son, C

23C’s primary residence is with Ms. Rutledge. He has ADHD and takes medication for that ($129.85 per month). You may see him some day wearing a medal or carrying as trophy as he loves sports including hockey, basketball, soccer and swimming.

24C’s hockey costs $461.00 for registration and about $250.00 for equipment, excluding tournament expenses; his soccer costs about $120.00 for registration and equipment, excluding tournament fees; and his swimming costs about $70.00.

25Telling C to emulate Baumann or Steele as opposed to Lafleur or Sittler may be cheaper, but C deserves to be on the ice.

The Children With One Another

The Children With One Another

26T and J have limited contact with each other. J and C have more frequent contact as they have resided together since the separation of the parties (except when J is away at university). T is much older than his brother C, however, they appear to have a decent relationship. T has lived with his father since the separation.

27It is a terribly sad situation. One child has died. One child does not speak with his mother. One child does not speak with her father. And the youngest child plays his sports and carries on. Remarkably, I have a feeling that each child will thrive and be the best that he or she can be; they will make their parents very proud.

Child Support

Child Support

28For the purposes of child support, it is agreed between the parties that each has a gross income of $50,000.00 for the year 2012. As per the Federal Child Support Guidelines, each parent would pay basic table amount child support of $450.00 monthly for one child and $743.00 per month for two children.

29Ms. Rutledge currently receives and Mr. Rutledge currently pays $505.00 per month in child support for the benefit of J and C. That has been the case since February 2012. According to the Guidelines, based on a gross annual income of $50,000.00, Mr. Rutledge ought to have been paying $743.00 per month in child support for the two children.

30Prior to that, Ms. Rutledge received and Mr. Rutledge paid $666.00 monthly in child support for T, J and C, based on Mr. Rutledge’s gross income of $33,900.00.

31According to the Guidelines, based on a gross annual income of $50,000.00, Mr. Rutledge ought to have been paying $959.00 per month in child support for three children in January 2012.

32In 2009, Ms. Rutledge paid child support for the benefit of T.

33The arrangement has been that Mr. Rutledge pays 43% of section 7 Guidelines expenses for the children, while the mother pays 57%.

The Mother

The Mother

34Forty-five years old, Ms. Rutledge has worked for about one year at a medical clinic in Hanover, Ontario. She has been a registered nurse for some 26 years. Her previous employment was with Hanover Hospital for 25 years, including 10 years in the emergency department. Tragically, leukemia claimed the life of the couple’s daughter at a tender age. Understandably, Ms. Rutledge could not bear to return to work at the same place where the child died.

35Ms. Rutledge’s gross income at the hospital was $73,522.00 in 2011. In 2012, she earned $17,625.49 gross at the hospital and $32,806.75 gross at the Clinic. She expects to gain a permanent full-time position at the clinic in the near future, earning about $36,000.00 to $39,000.00 gross annually. She has no employment benefits, while Mr. Rutledge does.

36Ms. Rutledge has significant debts totaling more than $240,000.00.

The Father

The Father

37Forty-six years old, Mr. Rutledge lives alone in Walkerton except when T is home from college. He has worked for four years with a company that locates utilities and investigates sewers. His employment is full-time in the summer and three or four days per week in the winter. He earns $20.55 per hour. He works about 45 hours per week and earns $800.00 per week gross, approximately.

38He also owns and operates his own business (Shade Solutions) installing window film on houses. This is his third season. He has no employees and loses money on the business. He hopes to make a profit this summer.

39Mr. Rutledge’s gross annual income for 2012 was $60,663.73. That figure was comprised of employment income, support payments, RRSP income and the net business loss.

40Like Ms. Rutledge, Mr. Rutledge has substantial debts.

A Brief Summary of the Positions of the Parties

Ms. Rutledge, the Applicant Mother

A Brief Summary of the Positions of the Parties

41Ms. Rutledge proposes that a motor vehicle for J and the related insurance costs be treated as section 7 Guidelines expenses to be contributed to by both parties.

42With regard to the RESP funds, Ms. Rutledge opposes the money being divided equally among the three children, and she opposes further the money being divided equally between T and J. She wants money released to pay for J’s tuition. She suggests that her signature alone be sufficient to release funds from the RESP. And she plans to establish her own RESP for C so that C’s share of the money currently in the RESP for the three children can be used by J. Presently, the RESP established by the parties jointly is for the benefit of T, J and C.

43Regarding T’s college expenses, Ms. Rutledge suggests that neither parent contribute to those costs because of what T earned in 2010 and 2011 and the funds already released to him from the RESP.

44Regarding J’s university expenses, Ms. Rutledge suggests that each parent contribute 50% to her 2012 costs less her contribution and the RESP money that she should have received.

45Regarding child support between January 2012 and April 2013, Ms. Rutledge submits that Mr. Rutledge owes a total of $3,192.00.

46Going forward, the mother submits that Mr. Rutledge owes $743.00 monthly for child support for J and C commencing May 2013, plus 50% of their section 7 expenses.

Mr. Rutledge, the Respondent Father

Mr. Rutledge, the Respondent Father

47Mr. Rutledge states that a motor vehicle for J is simply not affordable.

48Mr. Rutledge wants the RESP to be divided equally among the three children. Alternatively, he suggests that the money be split evenly between T and J while the parties work over the next several years to save for C’s school.

49Mr. Rutledge says that, otherwise, he should not pay child support for J and should not contribute towards her section 7 expenses, while Ms. Rutledge should not pay child support for T and should not contribute to his section 7 expenses. In other words, he is responsible for T, and she is responsible for J.

50In short, in the words of Mr. Rutledge, “you cannot get blood from a stone”. He cannot afford to pay child support for J. He cannot afford to contribute to J’s university expenses.

Analysis

General Principles

Analysis

51Mr. Rutledge appears to be under the impression that child support obligations cease when the child turns 18 years old and/or lives away from home while attending university or college. That is not the case. In Canada, children who are post-secondary students are often the beneficiaries of continued child support, even if they are working part-time. They may still be dependants.

52Further, Mr. Rutledge is under the erroneous belief that children must pay all or part of their post-secondary education expenses. The guiding principle is that parents are to share post-secondary expenses after deducting from the expense the child’s contribution, if any. There are instances where the child may contribute nothing, although the intent is that the child make a reasonable and meaningful contribution. Lewi v. Lewi, 2006 15446 (ON CA), [2006] O.J. No. 1847 (Court of Appeal for Ontario) at paragraphs 40 and 42.

A Motor Vehicle for J

A Motor Vehicle for J

53Mr. Rutledge is correct that “you cannot get blood from a stone”. And he is correct that, according to the financials filed as Exhibits at trial, neither he nor Ms. Rutledge has any net worth or extra money. Neither has any ability to pay for a motor vehicle for J, unless that money comes from RESP funds (which is not the position advanced by the mother).

54Using the threshold test specified for special and extraordinary expenses in the wording of section 7(1) of the Guidelines, even if I concluded that a motor vehicle for J is necessary in relation to her best interests (which I doubt), I am unable to find that the expense is reasonable in relation to the means of the spouses and those of the child.

55Thus, I make no Order that Mr. Rutledge contribute to the cost of a motor vehicle for J.

56Likewise, I make no Order that Ms. Rutledge contribute to the cost of a motor vehicle for T.

The RESP Funds

The RESP Funds

57I reject Mr. Rutledge’s position that the money should be split evenly among the three children. These parties simply cannot afford to leave C’s share untouched for eight years or so until he goes to college or university.

58I reject Mr. Rutledge’s alternative submission that the money ought to be divided equally between T and J. J’s program of education is no better than T’s, but it is undoubtedly longer and more expensive. Contrary to what Mr. Rutledge asserts, it is not fair to divide the money 50-50 between T and J; that would be unfair to J.

59I reject Ms. Rutledge’s request to have her be the unilateral authority for the release of RESP funds. It shall be done in cooperation by both parents, failing which the Court will become involved. I know that the parties will do whatever it takes to avoid that.

60This Court Orders that the parties arrange, forthwith, to have funds released from the RESP and advanced to J in an amount equal to her university tuition for the first two years of her program.

61This Court Orders that the parties arrange, forthwith, to have funds released from the RESP and advanced to T in an amount equal to his college tuition for the second year (remember that T has already received money from the RESP for his first year).

62This Court Orders that any further withdrawals of money from the RESP shall be by agreement between the parties or, failing that, by Court Order. Each party shall have the right to demand and receive from the other party the following documentation before any further withdrawals of money are made from the RESP: confirmation of enrolment at the place of education, the child’s marks or grades, pay stubs and/or Canada Revenue Agency documents regarding the child’s income, and the child’s expenses.

63That is the extent of what I can direct at this time regarding the RESP.

Child Support Generally

Child Support Generally

64It is clear that both J and T remain entitled to child support. In my view, Mr. Rutledge’s suggestion that he be responsible for T and Ms. Rutledge take care of J would only serve to further intensify the estrangements between those children and one of their parents. It would not be in their best interests. It is time for the wounds and resentments to heal. This family has been fractured enough already.

65I agree with Ms. Rutledge that the $50,000.00 gross, approximately, earned by T in the two years before he started college should result in neither party having to contribute to T’s post-secondary education expenses (subject to the RESP funds already dispersed for T’s benefit and any further agreement between the parties or Court Order with regard to future withdrawals of money from the RESP). So Ordered.

66I agree with Ms. Rutledge that each party should contribute 50% of the university expenses for J each year, after deducting what J contributes to her education costs and the amount of money released for her benefit from the RESP. So Ordered.

67It is up to the parties what they reasonably expect J to contribute to her university costs. In my view, she should not be working while attending university full-time and doing the teaching placement plus the tutoring work. But she should be working as hard and as often as she possibly can for as long as she possibly can while not in school so as to decrease the burden on her parents. I suspect that J can learn a lot from her brother T and from her father about a strong work ethic, just as she has from her mother.

68There is no real debate that Mr. Rutledge underpaid child support in 2012 and thus far in 2013. Mr. Rutledge provided nil evidence and no argument against that proposition. The calculations provided by counsel for the mother are correct and are based on a gross income for Mr. Rutledge of $50,000.00, as agreed by the parties.

69Whether Ms. Rutledge is intentionally underemployed is not relevant as the parties have agreed that their respective gross incomes for 2012 are $50,000.00. Besides, I reject any suggestion by Mr. Rutledge that Ms. Rutledge could or should have continued to work at the hospital where her daughter had just died.

70From January 2012 to April 2013, Mr. Rutledge owes $3,192.00 less $1,800.00 owed by Ms. Rutledge for child support for T while he lived with his father during the summer of 2012. This Court Orders that Mr. Rutledge shall pay forthwith the sum of $1,392.00 for child support arrears.

71Commencing May 1, 2013 and on the first day of each month thereafter, Mr. Rutledge shall pay child support for J and C in the amount of $743.00 per month. That is the Guidelines table amount based on a gross income for Mr. Rutledge of $50,000.00, as agreed by the parties.

72Commencing May 1, 2013 and ending on August 1, 2013, this Court Orders that Ms. Rutledge shall pay child support for T in the amount of $450.00 per month. That is on condition that T lives with Mr. Rutledge from before mid-May 2013 to after mid-August 2013.

73Going forward, this Court Orders that Ms. Rutledge shall not be liable to pay any child support for T except as otherwise ordered herein regarding this summer and except what may be her future contributions to his college expenses, through RESP withdrawals or otherwise, if by agreement between the parties or by further Court Order. T's age, his earnings and employment history and his stage of education justify such an Order.

74In the future, Ms. Rutledge may or may not be responsible for contributing on an equal 50% basis to T's college expenses. That is uncertain given the lack of concrete information about T's education costs for the balance of his college program and his earnings for 2012 and 2013. Whether Ms. Rutledge shall pay something or not towards T's future education costs must be left to an agreement between the parties or further Court Order. Again, I encourage the parties to work that out themselves.

75Similarly, going forward, this Court Orders that Mr. Rutledge shall not be liable to pay any child support for T except what may be his future contributions to his college expenses through RESP withdrawals if by agreement between the parties or by further Court Order.

76Going forward, this Court Orders that each party shall continue to pay 50% of the special and extraordinary expenses for J and C. But with regard to J, given the financial burdens already placed on the parents, J's age and her circumstances, this is an appropriate case to limit the section 7 expenses that each party shall contribute towards to her university expenses only. So Ordered. If either parent wishes to contribute towards other section 7 expenses for J, then so be it, but that is not mandatory.

77This Court Orders that, with regard to any expense for a child that is covered by Mr. Rutledge’s medical benefits through his employment, Mr. Rutledge shall forthwith request of the vendor and his insurer that the amounts payable and covered by the insurance be routinely forwarded directly by the vendor to the insurer for payment, leaving the parent to pay the balance that is not covered by the insurance. That parent shall provide proof of payment to the other parent. That other parent shall forthwith reimburse the former for 50% of what was paid by the former.

78I considered spelling out for the parties a procedure for having section 7 expenses contributed to by the other party, however, I expect these parents to behave like responsible adults and be reasonable with each other. Suffice it to say that, generally, it is a good idea to have the expense approved of in advance by the other party (preferably in writing), which approval should not be unreasonably withheld; provide documentary proof of the expense to the other party; and then request the other party's contribution to the expense, whether before or after it is paid by the requesting parent.

79This Court Orders that the section 7 Guidelines contributions payable by each party are enforceable through the Family Responsibility Office.

80Support Deduction Orders shall issue.

Conclusion

Conclusion

81Mr. Rutledge conducted himself professionally and responsibly throughout the trial. I thank him for that.

82The parties shall present the Court with a Final Order in accordance with these Reasons for Judgment. The operative portions of the Final Order are in bold print under the “Analysis” section of these Reasons, for the convenience of the parties.

83Ms. Rutledge is entitled to her costs. If the parties are unable to settle the issue of costs, they may contact the Trial Coordinator in Owen Sound to schedule a further Court attendance of thirty minutes in length, maximum, to hear submissions and consider filings in that regard. I shall consider the matter of costs resolved between the parties if the Trial Coordinator is not contacted by counsel within two weeks of the release of these Reasons.

84I wish the parties success in the future. Most important, my fervent hope is that the children, T, J and C, enjoy healthy relationships with one another and with both parents for many years to come. The memory of their late sister should be the impetus for that.

Conlan J.