ONTARIO
SUPERIOR COURT OF JUSTICE
WELLAND COURT FILE NO.: D14,925/07
DATE: 2013/01/10
BETWEEN:
CINDY LOU GIROUX
Margaret A. Hoy, for the Applicant
Applicant
- and -
GUIDO HERBERT MUELLER
Luigi DeLisio, for the Respondent
Respondent
HEARD: November 13, 2012
The Honourable Madam Justice W.L. MacPherson
[1] This is a Motion to Change brought by the Applicant (Cindy Lou Giroux) which was heard on November 13, 2012. Written submissions were requested, the last of which was received on November 30, 2012.
INTRODUCTORY FACTS
[2] This is a variation of a court order made on June 25, 1998 under which the Respondent (Guido Herbert Mueller) was required to pay child support for two children Kiera (born September 22, 1989) and Carly (born January 22, 1993) in the amount of $520.00 per month. This was based on the Child Support Guidelines and the Respondent’s income of $36,171.20. At the time of the order, the Applicant’s income was $31,761.00.
[3] The parties had continued to follow the order and the child support payments were current.
[4] Kiera graduated from high school in June 2007 and continued onto an educational program at college, first at Niagara College (2007-2010) and then at Mohawk College in the Fall of 2010. The parties agreed that Kiera ceased to be a “child of the marriage” as of the end of December 2010.
[5] Carly graduated high school in June 2011. She has been attending Western University in the Health Sciences program since September 2011.
[6] The Motion to Change requested an adjustment to the table child support retroactive to January 2006 and for a contribution toward section 7 expenses for both children.
ISSUES
[7] The Motion raises the following issues:
- Should there be a retroactive adjustment to the child support? If so, to what date – January 2006 as requested by the Applicant or January 2009 as proposed by the Respondent?
- What table child support is payable by the Respondent under the Child Support Guidelines?
- What are appropriate section 7 expenses and what should each party and child contribute toward those expenses?
- How should the arrears of child support be paid?
DETERMINATION OF ISSUES
1. Should there be a retroactive adjustment to the child support? If so, to what date – January 2006 as requested by the Applicant or January 2009 as proposed by the Respondent?
Position of the Parties
[8] The Motion was commenced in January 2012. Although the Respondent’s counsel initially took the position that child support should only be adjusted as of that date, in his written submissions, it was conceded that if there was to be retroactivity, it should be limited to three years from the commencement of the court proceeding or to January 2009.
[9] The Applicant’s counsel submitted that the adjustment to child support should be retroactive to January 2006, and initially it was not clear upon what basis this particular date was chosen. It was submitted that the Respondent had an obligation to disclose any increases in his income and that his failure to do so was “blameworthy conduct”. It was only in Reply submissions that it became evident that in March 2011, the Applicant had for the first time requested disclosure of the Applicant’s income for the previous five years, namely from 2006 forward.
Applicable Law
[10] The Supreme Court of Canada dealt with the issue of retroactive claims for child support in S. (D.B.) v. G. (S.R.) 2006 SCC 37. Justice Bastarache confirmed that retroactive child support is not exceptional and every parent has the obligation to support their child. However, because of the application-based nature of the child support regime, a payor’s obligation is only enforceable once the recipient parent has made an application for child support. Both parents therefore have the responsibility of ensuring that the child receives appropriate support.
[11] The four factors to be considered by the court in determining whether to award retroactive support include the reason for delay in seeking an adjustment in the support; blameworthy conduct of the payor; circumstances of the children; and hardship for the payor. While the presence or absence of “blameworthy conduct” has attracted the most attention in subsequent cases which have considered the D.B.S. case, one must consider all four factors “holistically” with no one factor being paramount.
[12] The general rule is that child support extends three years back from the date of effective notice to the payor, in the absence of any blameworthy conduct. The rationale for this rule comes from the Child Support Guidelines, which limit a request for historical income information to the previous three years. Justice Bastarache defined “effective notice” as any indication by the recipient parent that child support needs to be renegotiated.
[13] Finally, Justice Bastarache noted a further limitation in that retroactive payments should only apply when the child in question is a “child of the marriage” at the time of the application. Accordingly, a child who is no longer a child of the marriage will not be eligible for retroactive support, regardless of whether that child should have received a greater amount of child support earlier in his or her life.
Analysis
[14] There was no explanation provided as to the reason that the Applicant did not pursue an adjustment in child support prior to 2011. This was not a situation where the whereabouts of the Respondent was unknown; or that there was a fear of retaliation by the Respondent; or that the Applicant lacked the emotional or financial means to have pursued the claim earlier. In fact, it was apparent that the parties had been able to communicate to some degree about changes in the support obligation as it related to Kiera and her post-secondary education expenses when she began to attend Niagara College in September 2007. The Respondent did contribute $3,000 toward the tuition expense and provided a laptop and other school supplies, although it was disputed whether he also contributed $3,000 toward the student loan.
[15] It is clear from the Motion documents and written submissions that the Applicant now disputes the manner in which these and other expenses for Kiera were shared, but prior to March 2011 no formal steps had been taken. In light of the requirement that a claim for retroactive child support can only be brought if done so while the child is still a “child of the marriage”, it is clear that Kiera was no longer a child as of March 2011 nor as of the commencement of the court action and as such no retroactive child support including any section 7 expenses can be granted for Kiera.
[16] While the Applicant stressed that the Respondent had engaged in blameworthy conduct by failing to disclose changes in his income, there was no such obligation set out in the original order. Blameworthy conduct could include a failure to pay child support (which was not the case here) or a refusal to disclose income, but the first request for such disclosure did not come until March 2011, almost 13 years after the support order had been made. While there had been increases in the Respondent’s income over the ensuing years, there had also been an increase in the Applicant’s income which was not unexpected over that span of time. Where a court order was in place and the payor was living up to their obligations under that order, the payor parent is presumed to be acting reasonably as it is assumed that the previous order was valid. While this may be rebutted where a change in the circumstances is sufficiently pronounced such that it was no longer reasonable for the payor to rely on the terms of the order, I do not find that to be the case in this situation.
[17] There was no evidence provided concerning the past or present circumstances of the children or that they did not enjoy all the advantages that they would have enjoyed had both parents been supporting them fully in accordance with the Child Support Guidelines. It should be noted that hardship alleged to have been suffered by other family members, such as sacrifices made by the recipient parent is irrelevant.
[18] I would note that while submissions were made by the Applicant’s counsel as to the financial burden that was borne by the Applicant and reference was made to the current debt (mortgage of $194,000 and line of credit of $94,000) there was no evidence presented to support the submission that the majority of this debt arose as a result of the Respondent not fully supporting the children.
[19] There is no doubt that any retroactive award will pose a financial hardship for the payor. However, that is only one of four factors to be considered and can be dealt with in the manner in which payment is to be made. This can only be done once I have also determined the appropriate contribution toward the section 7 expenses.
[20] It was evident that the first effective notice of an adjustment to child support came in March 2011. Absent blameworthy behaviour, there should be a retroactive adjustment in support to March 2008, being three years from the date that the payor had effective notice that the child support was to be renegotiated.
[21] As set out above, as Kiera was no longer a child of the marriage as of the date of this notice (March 2011) nor as of the date of the commencement of the motion before the court, the adjustment in child support shall only be with regard to Carly and the retroactive child support payable shall be for one child only.
2. What table child support is payable by the Respondent under the Child Support Guidelines?
[22] Based on the Respondent’s income for the applicable years, the child support payable for Carly should have been as follows:
Payor’s Income Child Support Payable Child Support Paid Annual Arrears
59,037 (2008) $548 per month $520 per month $280
59,632 (2009) $554 per month $520 per month $408
59,465 (2010) $552 per month $520 per month $384
61,400 (2011) $570 per month $520 per month $600
61,400 (2012) $559 per month $520 per month $468
To and Including December 31, 2012 Total $2,140
3. What are appropriate section 7 expenses and what should the child and each party contribute toward those expenses?
[23] When a child turns 18 years of age and decides to live away from home to pursue educational studies, the most appropriate approach is for a budget to be established that sets out the child’s education expenses (tuition, books) and living expenses (residence and meal plan/rent and grocery expenses) and any other reasonable expenses such as clothing, cell phone, transportation and entertainment expenses. The budget should be shared with the other parent, who should be involved in the process of determining what their contribution will be, whether by way of a monetary or non-monetary contribution. Finally, consideration should be given to what the child is expected to contribute toward these expenses, whether from employment, savings, student loans, scholarships and bursaries.
[24] It is apparent that this was not the approach adopted by the Applicant, as the first details of the cost of enrolment at Western University were only provided sometime after the commencement of these proceedings in January 2012. Even as of the date of the hearing of the Motion, full disclosure had not been provided.
[25] In addition to the ongoing table child support for Carly, the Applicant claims a pro rata sharing of various section 7 expenses. These include post-secondary education expenses of almost $41,000 for the first two years to and including April 2013. A claim for additional section 7 expenses totalling more than $6,000 was also advanced. Some of these expenses related to Kiera after she was no longer a child of the marriage (glasses and cell phone purchase). The majority of these costs did relate to Carly for such miscellaneous expenses as tutoring while she was in high school; cell phone charges retroactive to October 2010; as well as winter clothing and boots and the cost of setting up first year’s dorm room and furniture for an apartment in second year and moving same to London.
[26] The Respondent submits that if he was required to pay the full table child support while Carly was attending university and was not residing at the Applicant’s residence, that these payments should be credited toward his pro rata share of the post-secondary education expenses. He also submits that he should receive a credit for the cost of providing transportation (to and from school), providing a laptop computer (albeit as a graduation gift), and providing school supplies (that he receives at a reduced cost through his employment charged to his personal account).
[27] Clearly, to pay only the table amount of child support is not sufficient, as in addition to tuition, books, residence and living expenses, there are also expenses for clothing, transportation, and entertainment. However, there would undoubtedly be some duplication of expenses if full table support and a pro rata contribution was required to be paid by the Respondent. There is no justification for this, nor was there any evidence to support the position of the Applicant, that this is necessary so that she can maintain a room in her home for when Carly returns home on some weekends/holidays and during the summer months.
[28] In reality, the proper figure is somewhere in between the positions advanced by both parties, but as the Applicant has not prepared a school year budget, it is difficult to set an exact figure. While the Respondent did request an adjournment of the Motion so that further evidence could be obtained, given that this matter has been outstanding for a year and Carly is four months away from completing her second year at university, the adjournment was not granted, as to do so would have just delayed the inevitable, that the Respondent has underpaid on his child support obligation and he must begin to make an appropriate contribution toward the reasonable and necessary expenses of a child living away from home to continue her education.
[29] The calculation of the correct amount of support to be paid is further complicated by the fact that the Applicant submits that Carly should not be required to contribute toward her post-secondary education expenses. Carly apparently has savings of $5,000 from summer employment, although no documentation was provided to verify this amount, nor the source of the funds, other than a final paystub from the summer of 2012 confirming earnings of $2,500. The rationale is that Carly’s education program is very competitive and that it would be advantageous for her to take a humanitarian trip which will cost $5,000. Unfortunately no documentation was provided to confirm the necessity of this trip and any advantage from doing so, nor was there any documentation provided to verify the details and actual cost of the trip. I accept, as submitted by the Respondent, that if there is a need to demonstrate that Carly has participated in volunteer activities, there are many other ways to accomplish this without incurring a cost of $5,000.
[30] Another source of funds for Carly’s education expenses would have been a student loan. Kiera had qualified for and received a loan of more than $6,000. Although it was indicated by the Applicant that there were no student loan funds to be applied toward Carly’s expenses, it was not clear whether an application had been made for such a loan, and if not, the reason that this was not done.
[31] On the evidence before me, there is no reason that Carly should not contribute toward her educational expenses and it is appropriate that these expenses be reduced by $2,500 in each of the first two years.
[32] While the Respondent takes the position that Carly could also contribute funds by working part-time while at school, the Applicant disputes that she would be able to do so and keep up her grades. No report cards were provided and there is no way to verify the availability of jobs and the income that could be earned and I am not prepared to impute any further income to Carly.
[33] Dealing with the post-secondary education expenses, and based on the receipts provided in the material filed, Carly’s expenses were as follows:
2011/2012 Tuition $ 6,460
Residence/Meal Plan $10,840
[34] In the written submissions, an additional amount of tuition for Winter 2012 was claimed of $4,900, but no receipt to support same was provided.
2012/2013 Tuition $ 6,804
Rent (417 monthly) $ 5,004
Cable ($20 monthly) $ 240
[35] In the written submissions, an additional amount of tuition for Winter 2013 was claimed of $6,777, but no receipt to support same was provided.
[36] As such, the total expenses were $29,348 and after deducting the $5,000 contribution from Carly, the amount to be shared between the parents on a pro rata basis is $24,348.
[37] The Applicant did not provide any pro rata calculations. The Respondent submitted that the sharing should be 42% paid by the Applicant and 58% paid by the Respondent. The income information provided was as follows:
Applicant Respondent
2011 $40,400 $61,400
2012 $39,500 $61,400
[38] Based on these incomes, the pro rata sharing is more properly 40% paid by the Applicant and 60% paid by the Respondent. Accordingly, the amount owing by the Respondent toward these expenses would be $14,609.
[39] After considering the evidence, I find that there is no obligation on the Respondent to contribute toward the tutoring (as he was not aware of same and proper receipts were not provided); the winter coat and boots (as these are not section 7 expenses); the setting up of the dorm room and purchase of furniture and moving of same is limited to $800, with the Respondent’s contribution being $480 (given the lack of consultation with the Respondent who could have defrayed some, but not all of this cost). While I disagree with the Respondent’s submission that a cell phone is not a necessity, given that he purchased a computer, printer, a replacement cell phone and paid the cost of applying to Ontario universities, he is not required to contribute any amount toward this expense on a retroactive basis.
[40] On the basis of the above, the section 7 expenses for Carly that the Respondent should have paid to and including April 1, 2013 are $15,089.
[41] In the first year, when Carly was in residence and on a meal plan, there would be some duplication of expenses if the Respondent paid full table support and a pro rata share of those expenses. As such, there should be some credit given to the Respondent from the table child support amount paid. However, it would not be 100% of the payments, nor would the cost of transportation, school supplies and other expenses paid by the Respondent be deducted, as these would have been additional expenses for the child.
[42] On that basis, I find that the Respondent is entitled to a credit toward his pro rata share of the section 7 expenses as follows:
September – December 2011 $370 per month $1,480
January – April 2012 $359 per month $1,436
[43] In the second year, Carly was in an apartment and rather than a meal plan, presumably she was required to purchase her own groceries. Although no particulars were provided as to this and other expenses that were incurred, there was nonetheless some duplication of expenses if the Respondent paid full table support, but the credit toward the Respondent’s pro rata share of section 7 expenses would be less as follows:
September – December 2012 $250 per month $1,000
Total Credit $3,916
[44] As such, after applying this credit, the total arrears of section 7 expenses owed by the Respondent to and including April 1, 2013 would be $11,173.
4. How should the arrears of child support be paid?
[45] The Applicant seeks an order that the arrears of child support and contribution toward section 7 expenses be paid in a lump sum payment. The Respondent requests that he be able to make these payments over time, although no specific time frame was provided.
[46] I have no doubt that requiring the Respondent to pay the entire arrears in a lump sum payment would cause a financial hardship to him. However, he was aware that Carly was attending Western University and that the cost of supporting her would increase once post-secondary educational studies began and yet other than maintaining the child support payments of $520 per month and providing some transportation and school supplies, he has not paid any additional amounts toward the post-secondary expenses.
[47] As previously indicated the arrears of table child support to and including December 31, 2012 are fixed in the amount of $2,140 and shall be paid by the Respondent within 30 days.
[48] Commencing January 1, 2013, the Respondent shall pay child support in the amount of $559 per month based on an annual income of $61,400. For the months (January 2013 to April 2013) that the child is attending university and is not residing with the Applicant, $250 each month shall be credited toward the Respondent’s contribution toward the arrears of post-secondary education expenses.
[49] The arrears of section 7 expenses to and including April 1, 2013 are fixed in the amount of $11,173 as of December 31, 2012. The Respondent shall pay the amount owing in three instalments so that these shall be paid in full by December 31, 2013.
[50] For the months that the child is not attending university and is residing with the Applicant (presumably May 2013 to August 2013), the Respondent shall pay the full table amount of support of $559 per month, with no credit toward any section 7 expenses.
2013-2014 SCHOOL YEAR
[51] The parties may very well agree on different amounts to be paid for the 2013/2014 school year and subsequent years.
[52] Based on the evidence before me, I am not prepared to make an order dealing with subsequent school years, as the expenses are likely to change from year to year. In addition, the incomes of the parties may change, as well as the fact that the child’s contribution in subsequent years might be different.
[53] I am not doing this to encourage the parties to litigate each and every year, rather I would hope that with the exchange of full and proper documentation regarding the incomes of the parties and the child, as well as timely provision of documentation that verifies the expenses to be incurred by the child, that the parties will be able to agree on the amount to be paid by the Respondent on a monthly basis, as well as his pro rata contribution toward proper section 7 expenses while the child is living away from home to complete her post-secondary studies.
[54] I would note that the Applicant seems to be under the impression that if she incurs an expense on behalf of the child that the Respondent must immediately contribute toward this expense, without any consideration for whether the expense is necessary and reasonable. There must be consultation between the parties and documentation must be provided to verify what the expenses are going to be and how these are to be paid.
SUMMARY OF ORDER
- Commencing January 1, 2013, the Respondent shall pay child support for Carly in the amount of $559 per month, based on the Respondent’s annual income of $61,400 and the Child Support Guidelines.
- The arrears of table child support to and including December 31, 2012 are fixed in the amount of $2,140 and shall be paid within 30 days of this Order.
- The arrears of section 7 expenses to and including April 1, 2013 are fixed in the amount of $11,173 as of December 31, 2012.
- For the months that the child is attending university and is not residing full-time with the Applicant (January 2013 to and including April 2013) the Respondent shall receive a credit of $250 per month toward the section 7 arrears as set out in paragraph 3.
- The balance of the section 7 arrears shall be paid as follows:
a) $3,500 on or before April 30, 2013;
b) $3,500 on or before August 31, 2013; and
c) $3,173 on or before December 31, 2013.
- For the four months that the child is not attending university and is residing with the Applicant (May to and including August), the full table amount of child support in the amount of $559 per month shall be paid by the Respondent, with no credit toward any section 7 expenses.
- For subsequent school years, commencing with the September 2013 to April 2014 school year, the Applicant shall provide the Respondent with documentation to verify the costs to be incurred and copies of receipts for all section 7 expenses that she requests that the Respondent contribute toward. No section 7 expenses shall be incurred without the prior written consent of the Respondent, which consent shall not be unreasonably withheld.
- The Applicant shall provide to the Respondent a copy of Carly’s income tax return and notice of assessment for so long as child support is payable and shall also provide any documentation regarding student loans, scholarships and bursaries.
- Commencing in June 2013, each party shall provide a copy of their income tax return and notices of assessment by June 1 in each year for as long as child support is payable.
- Support Deduction Order to issue.
COSTS
[55] If the issue of costs cannot be resolved, I direct that the party seeking costs deliver written submissions to my office within 15 days of the release of these Reasons with responding submissions to be delivered to my office within 15 days thereafter. The written submissions are not to exceed three typewritten, double-spaced pages, excluding the Bill of Costs and Costs Outline.
MacPherson J.
Released: January 10, 2013
WELLAND COURT FILE NO.: D14,925/97
DATE: 2013/01/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CINDY LOU GIROUX
Applicant
- and -
GUIDO HERBERT MUELLER
Respondent
REASONS FOR JUDGMENT
MacPherson J.
Released: January 10, 2013