ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D-13,036-95
DATE: 2013-05-31
BETWEEN:
Leslie Marie Fiorino (now Leslie Marie Steel)
Applicant
– and –
Giovanni John Fiorino
Respondent
Réjean Parisé, for the Applicant
Richard A. Pharand, for the Respondent
HEARD: April 18, 2013
DECISION ON MOTION
DEL FRATE j.:
[1] The applicant brings this motion to enforce the order of Justice Michael Meehan dated March 15, 1988 whereby it was ordered that the respondent pay child support for his daughter Victoria, born February 23, 1993. The applicant also seeks an order for payment of special expenses. The respondent seeks an order to terminate his child support obligation.
Background
[2] The parties were married in 1986 and separated in 1992. The applicant had custody of Victoria and the respondent exercised access. Access to Victoria was not an issue until approximately 2007. At that time, Victoria was becoming more involved with extracurricular events and her friends and consequently began spending less time with her father.
[3] In November 2009 an incident occurred whereby the respondent disciplined Victoria. Allegedly, Victoria lied to her mother and father about her whereabouts on a particular evening. Victoria reacted negatively to the punishment and she has refused to speak to her father since that time. Although the respondent has made numerous attempts to communicate with Victoria since, she has been steadfast in her refusal.
[4] The applicant submits that the estrangement was not precipitated by the disciplinary measures but by the lack of interest that the respondent displayed towards Victoria's life. She claims Victoria resented that he would not attend any of her functions and that following the November 2009 incident he did not call, he did not send any cards or gifts and basically he was out of her life.
[5] The respondent terminated payments in July of 2011 on the basis that Victoria had completed her secondary education and was over the age of 18. The respondent further submits that there is no obligation to support his daughter since she unilaterally terminated the relationship.
[6] This fact scenario raises the following issues:
i) did Victoria terminate her relationship with her father and if so does he have to pay support;
ii) what is the father's income for the purposes of calculating support;
iii) does the father have to contribute towards the special expenses; and
iv) how long should the support be paid.
[7] Although there are conflicting explanations as to why the relationship between Victoria and her father ended, it is clear that there has been no contact whatsoever between them since November of 2009. According to the respondent, Victoria has rebuffed his attempts to foster a continued relationship. According to the applicant, the respondent basically gave up on his daughter and took no steps to either continue or re-establish their relationship.
[8] The respondent has been dismissive of and unwilling to engage in counselling, and also admits telling his daughter that she was not welcome at family events because of her behaviour and that he would not be purchasing her any more gifts.
[9] At no time since November 2009 has Victoria made any attempts to reconcile with her father. The only information the respondent received about her since then has arrived in the form of demand letters from the applicant for part payment for some activity that Victoria had engaged in.
[10] When this dispute arose in November 2009, Victoria was sixteen years and nine months of age. She might be described as a typical teenager in that her friends and social life were more important to her than her relationship with her father. She was trying to assert her independence and one way of doing so was to completely ignore her father.
[11] The respondent reacted in a like fashion and completely became disinterested in what his daughter was doing. In response to questioning, he stated rather emphatically that he took no steps whatsoever after November 2009 to bridge the impasse that had been created between him and his daughter. However, he continued to make his monthly support payments until June 30, 2011.
[12] Both counsel have filed a brief of authorities substantiating their respective submissions. The principles enunciated are as follows:
Applicant’s principles:
i) A parent who unilaterally withdraws from a relationship with his children will still have an obligation to pay child support. Chartier v. Chartier, 1999 707 (SCC), [1998] S.C.J. No. 79;
ii) A child of the marriage is entitled to support even if the child refuses to communicate with the parent. Whitton v. Whitton, [1989] O.A.C. 31;
iii) The onus rests with the parent in establishing that the repudiation of the relationship has been established. Further, the parent must show that he or she has taken meaningful efforts to maintain a positive relationship with the adult child. Menegaldo v. Menegaldo, 2012 ONSC 2915.
Respondent’s principles:
i) Farden v. Farden, 1993 2570 (BC SC), 48 R.F.L. (3d) 60 at para. 5 details the factors that must be considered in determining whether child support should be paid to a child attending a post-secondary education as follows:
• Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
• Whether or not the child as applied for or is eligible for student loans or other financial assistance;
• The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or were simply going to college because there is nothing better to do;
• The ability of the child to contribute to his or her own support through part-time employment;
• The age of the child;
• The child's past academic performance, whether the child is demonstrating success in the chosen course of studies;
• What plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
• In the case of the mature child has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parents from whom support is sought.
ii) Other cases indicate that a child over the age of 18 who expects support should have discussions with his or her parents about his or her educational plans. See Law v. Law, 1986 6291 (ON SC), 2 R.F.L. (3d) 458 paras. 3-6. A parent should be more than a wallet: see Nitkin v. Nitkin, [2006] O.T.C. 631 (Ont. S.C.) at para. 108.
Discussion
Termination of the relationship
[13] In my view there was a mutual termination of the relationship. However, the respondent should have taken greater steps to rebuild the relationship between him and his daughter. Many parents face similar situations with their teenagers and to simply say "that's it, it's over" is not acceptable. We know that children mature as they age and the attitudes that they exhibit in their teenage years are often no longer present in their twenties. To the respondent's credit however he did continue to make payments until she completed grade twelve at eighteen years of age.
[14] Considering these principles, I also conclude that the respondent has not met the onus in convincing me that Victoria unilaterally terminated the relationship. As mentioned previously, it was a mutual termination, and in my view, he did not take sufficient steps to attempt to re-establish any type of communication or relationship. Regardless of how frustrating this situation might have been, I conclude that following the November 2009 disagreement, the respondent should have kept the door open by letting things calm down and then making efforts towards reconciliation. In fact, he readily admitted that he did nothing.
[15] I also conclude that the applicant has not been as helpful as she could have been in re-establishing the relationship between father and daughter since there is no evidence of what steps she took to pacify the situation.
Special expenses
[16] The applicant seeks reimbursement of a portion of Victoria’s university expenses and the private school enrolment.
[17] The Federal Child Support Guidelines state at s. 7:
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 separation.
[18] The expenses claimed by the applicant are covered in s. 7 (d) and (e) which deal with primary or secondary or postsecondary education.
[19] With respect to the postsecondary expenses, I conclude that the applicant failed to provide necessary information to the respondent about Victoria's progress and future plans. At no time did she contact the respondent to inform him that Victoria had plans to attend Carleton University. Her attitude has been to make decisions without any consultation and then send the respondent an invoice for his share of the expenses.
[20] The applicant should have been aware of her obligation to keep the respondent updated on Victoria's progress and plans and should have consulted him prior to incurring those expenses. The applicant has an obligation to provide the respondent with the progress reports and other vital information regarding Victoria's education.
[21] At some point, the applicant did provide Victoria's university records. Those records are not very helpful in determining whether Victoria is enrolled full time. The records disclosed that in the fall of 2011, Victoria was enrolled in the criminology and criminal justice program, supposedly taking five courses. The end of the year record indicates that grades were attained in only two of the five courses.
[22] In the winter 2012 semester, grades are reflected in four courses and a withdrawal in another course. The records revealed that commencing in September 2012, Victoria enrolled in the faculty of arts and social sciences with a major in history and a minor in anthropology. It also indicates that she has withdrawn from one of the three courses.
[23] I was presented with no evidence as to what constitutes full-time enrolment other than the applicant’s statement that Victoria is in a full-time program.
[24] Although both parties expressed a desire that Victoria should obtain a post-secondary education, there is no evidence of what plans had been made to finance this desire. Victoria's secondary school records indicate that she is bright enough for a post-secondary education; however, her commitment to her studies leaves a lot to be desired. This raises the question of whether Victoria should be in post-secondary education at this time.
[25] In summary, what mutual obligations existed and continue to exist have not been met by either of the parties. In other words, the respondent’s obligation to pay support will only be triggered if and when the applicant can prove that Victoria is still a dependent child for the purposes of support, as enunciated in Farden. The applicant should, among other things, be able to demonstrate that Victoria is serious about her studies, and that if registered and paying full-time tuition, she is actually attending on a full-time basis. She should have a plan as to what she is studying and why, and there should be a reasonable prospect that the course of studies will facilitate a transition to financial independence. The applicant should be able to demonstrate that Victoria is contributing to the costs of her education, by means such as student loans, bursaries, and/or part-time work (and if not, explain why). On the basis of the evidence presented to me, I cannot conclude that Victoria is a dependent child; however, in the event that the applicant is able to demonstrate that she is in fact dependent, the respondent will be obliged to contribute accordingly to the reasonable costs of her education.
[26] The other contentious issue is the expense of having sent Victoria to Rosseau Lake College, a private school, to complete her grade twelve at a cost in excess of $47,000.
[27] The applicant submits that this expense was necessary and reasonable since it enabled Victoria to obtain her credits for a mathematics course that she had failed in the public school system. The applicant submits that were it not for the structure that was offered by Rosseau Lake College, Victoria would not have gotten the mathematics credit and accordingly, she would not have been accepted by Carleton.
[28] The respondent submits that Rosseau was neither necessary nor reasonable since Victoria could have achieved the same result at a local school simply by applying herself and repeating the mathematics course as she did at Rosseau. Further, the respondent submits that even with Victoria’s attendance at Rosseau, her math grade went from a 46 to a 52. Such an improvement should not have been at a cost of some $47,000.
[29] The school records indicate that Victoria was facing challenges with math while attending public school, even though she was being assisted by a tutor and by her stepfather and grandfather. In July 2010, the applicant contacted the respondent and indicated that she planned to enrol her at Rosseau at a cost in excess of $47,000. The respondent’s response was that this expense was totally unnecessary since all that Victoria needed to do was apply herself and work harder and if necessary, to seek additional assistance. The respondent further indicated that the cost was exorbitant relative to their combined incomes. Accordingly, he was not in favour whatsoever and made it very clear that he would not be contributing to this expense.
[30] Regardless, the applicant enrolled Victoria at Rosseau and in November 2010 sent the respondent a letter demanding payment of $8,500.30, an amount representing his share of the cost for the first-term enrolment. There were also additional expenses and the total cost for the year amounted to over $47,000. The applicant is seeking reimbursement in the sum of $23,000.
[31] Victoria’s report cards indicate that commencing in grade 9, she was not meeting her teachers’ expectations. Recommendations were made to better apply herself and to focus on her studies.
[32] In grade 10, similar recommendations were made; however, it does not appear that she followed the recommendations, with the result that she failed the mathematics course. A recommendation was made that she repeat her grade 10 mathematics course. A similar result followed in grade 11 with the following recommendation that "she is strongly encouraged to improve her work ethic and to continue mathematics at the grade 10 applied level (MFM)".
[33] The mathematics program was repeated at Rosseau Lake College with the result that her grade improved from a 46 to 52.
[34] There is no evidence that anyone other than the applicant suggested that Victoria should enrol at Rosseau Lake College. The mathematics course that she was asked to repeat was available in the Sudbury school system. Even in the structured environment suggested by the applicant, Victoria continued to struggle in mathematics. Her school records indicate that she managed "to squeeze through the math program". Her supervisor at Rosseau also stated that "she does need to work steadily to stay on top of the work."
[35] I conclude that had Victoria repeated the program in the Sudbury school system, she likely would have achieved the same result without having to attend Rosseau Lake College. In my view the private school was not necessary, nor was it reasonable considering the incomes of each parent. Although the party's respective spouses enjoyed greater incomes, there is no obligation on them to contribute, especially if, as is the case here, the expense is not necessary.
[36] Accordingly, since the applicant acted unilaterally in enrolling Victoria at Rosseau Lake College, and since the expense was not reasonable, nor necessary, the respondent is not responsible for payment of this amount.
Salary
[37] The applicant accepts the income reflected in the respondent's income tax returns for the years 2008 and 2009 of $54,000 and $52,000 respectively. For 2010, the applicant is prepared to accept the sum of $60,000. For 2011, the respondent's reported income was $11,538. No tax return has been filed for the year 2012.
[38] The respondent's salary decreased substantially in 2011 and supposedly again in 2012. The decline is attributed to the economy in Sudbury.
[39] The applicant submits that an additional $5,000 ought to be attributed to the respondent for the personal use of the vehicle whose expenses were covered by the respondent's company. The company's financial statements for the years 2007 and 2008 reflect that there was a charge back of 50% of the vehicle expenses to the respondent for his personal use. For the years 2009, 2010 and 2011, the financial records do not disclose any chargeback for this particular item.
[40] Counsel for the respondent submits that his information would reflect a 10% contribution on the part of the respondent. The materials do not offer any explanation as to why the company use of the vehicle by the respondent would have increased from 50% to 90%.
[41] The onus is on the respondent to prove that in fact the company use of the vehicle increased by some 40% following the 2008. He has not done so. In my view, the sum of $5,000 being suggested by the applicant is reasonable. Accordingly, commencing in 2009, the respondent's income is to be increased by $5,000.
[42] I am asked to invoke s. 17 of the Federal Child Support Guidelines which permit me to review the respondent's income over the last three years and average it out. Since I do not have the respondent's 2012 income I will use, 2011, 2010 and 2009. I will also add an additional $5,000 attributed to the respondent:
2009 $54,000 plus $5,000 = $59,000
2010 $60,000 plus $5,000 = $65,000
2011 $11,538 plus $5,000 = $16,538
Total income $140,538 divided by 3 equals $46,846 annually.
[43] If the applicant is able to prove in the future that Victoria was properly a dependent child for the period since the respondent ceased paying support, his retroactive support obligations should be based on the amount of $46,846 for those years. If a finding of dependence were proven, the entitlement would continue through her studies, for as long as the test is satisfied. However, as I said, I have made no such finding here and the respondent is currently not liable for any new payments.
[44] Should it be necessary for the parties to address me on the issue of costs, arrangements can be made through the trial coordinators office within 30 days.
[45] Order to issue as per reasons.
Mr. Justice R.G. DelFrate
Released: May 31, 2013
COURT FILE NO.: D-13,036-95
DATE: 2013-05-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Leslie Marie Fiorino (now Leslie Marie Steel)
Applicant
– and –
Giovanni John Fiorino
Respondent
Decision on motion
DelFrate J.
Released: May 31, 2013