ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Matthew John Turmaine
Unrepresented
Applicant
- and -
Courtney Robin Markic
Michael Mauro, for the Respondent
Respondent
HEARD: May 23, 2013, at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision on Application Under the Interjurisdictional Support Order Act
Background
1Matthew John Turmaine brings a support variation application under the Interjurisdictional Support Orders Act.
2Mr. Turmaine resides in Kelowna, British Columbia. He applies to vary a final order made on consent by Justice Pierce of the Ontario Superior Court of Justice on August 21, 2009. Pursuant to that order, Courtney Robin Markic of Thunder Bay was granted custody of the parties’ child, Ariel Katherine Markic, born October 7, 2000.
3Mr. Turmaine was granted access to the child and was required to pay child support to Ms. Markic.
4Mr. Turmaine seeks to vary certain provisions of the order relating to child support.
The Application
5I heard the application to vary child support on May 23, 2013. Ms. Markic and her counsel attended on the hearing of the application. The evidence received on the hearing of the application was the affidavit evidence of each of Mr. Turmaine and Ms. Markic.
6Mr. Turmaine requests the following changes to the order of August 21, 2009:
Paragraph 6 – change the monthly child support which he is required to pay from $527.00 per month to $572.00 per month, based on the income shown in his 2011 Notice of Assessment;
Paragraph 7 – require each party to make an RESP contribution of $100.00 per month. The order presently requires Mr. Turmaine to pay $50.00 per month into an RESP for the child;
Paragraph 8 – reduce his contribution to extraordinary expenses under s. 7 of the Child Support Guidelines from $273.00 per month to zero.
Paragraph 9 – delete the requirement that he pay one-half of the of the Scholars tuition for the child, to a maximum of $150.00 per month. (This is part of the $273.00 for extraordinary expenses referred to in paragraph 8 of the order);
Paragraph 13 – change the date for annual review of the support payable under the order from January of each year to July
7Ms. Markic agrees with Mr. Turmaine’s requests to increase child support to $572.00 per month and to change the annual review date to July of each year. She opposes the request to eliminate Mr. Turmaine’s contribution to the Scholars tuition. She opposes the request that each party should be required to contribute $100.00 per month to the child’s RESP.
8Ms. Markic, herself, requests that the order be varied to expressly require Mr. Turmaine to contribute one-half of the cost of a trip for the child to Europe in 2014, through the Girl Guides, as an extraordinary expense under s. 7 of the Child Support Guidelines.
Submissions
9With respect to the issue of the Scholars tuition, Mr. Turmaine deposes that he would like to stop those payments because his daughter has been at Scholars for four years. He deposes that he would rather use those monies to increase his RESP contribution and to enable him to travel to see his daughter more frequently than once a year.
10Ms. Markic deposes that the child had been struggling in math and reading since grade one. She deposes that the child no longer attends for reading help, but that she continues to struggle in math and is about a year behind her peers. Ms. Markic deposes that the child’s teacher and doctor have strongly recommended that the child continue with Scholars. The child has been slowly catching up to her classmates in math. Ms. Markic points to the success the child has had in overcoming her reading difficulties as proof that the Scholars expense has been worth while.
11With respect to the issue of RESP contributions, Ms. Markic submits that Mr. Turmaine can make additional payments on a voluntary basis. She deposes that she contributes voluntarily to an RESP.
12With respect to the trip to Europe with the Girl Guides, Ms. Markic describes it as a “potential trip” that the child “may be able to take to Europe with her Girl Guides group.” Ms. Markic states that the trip is a “once in a lifetime education opportunity” which would include a tour of several countries, including Switzerland and Italy, where the child would meet with other Girl Guides.
Decision
13There will be an order, as agreed between the parties, that paragraphs 6 and 13 of the order of August 21, 2009 be deleted and the following substituted therefor:
“6 The respondent shall pay to the applicant, for the support of the child, $572.00 per month, commencing June 1, 2013, based on an income for the respondent of $61,522.00 for 2011 and the Child Support Guidelines (British Columbia)”
“13 Until the obligation to pay child support terminates, the amount payable shall be reviewed and adjusted annually on July 1 of each year, commencing on July 1, 2014, to take into account changes in the spouses incomes, the special expenses incurred for the child and any amendments to the Child Support Guidelines (including revised amounts to Tables in Schedule I)”
14With respect to paragraph 7 of the August 21, 2009 order, I see no need to change the amount which Mr. Turmaine is required, on consent, to pay into an RESP or to require Ms. Markic to now make a specified payment into an RESP. There has been no demonstrated material change in circumstances warranting variation. Other than on a consent basis, as was the case with the existing order, a court would not ordinarily require parents to contribute to an RESP in anticipation of their child attending a post-secondary educational institution five years hence. Paragraph 7 will be varied, however, to make it clear that Mr. Turmaine may voluntarily make additional payments. Accordingly, after the first sentence of paragraph 7, the following sentence shall be added:
“The Respondent shall be at liberty to make such further payments into an RESP for the benefit of the child, as he may wish.”
15With respect to the issue of the Scholars’ expenses, I am satisfied from the evidence of Ms. Markic that these expenses continue to be extraordinary expenses for an educational program that meets this child’s particular needs, within the meaning of s. 7 of the Child Support Guidelines, taking into account the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the spouses. Mr. Turmaine’s 2011 income was $61,522.00. Ms. Markic’s income is approximately $70,000.00. The tutoring at Scholars has helped the child’s reading. The tutoring in math, which is required because the child remains behind her classmates, is supported by the child’s teacher and doctor. Paragraphs 8 and 9 of the order of August 21, 2009 shall be deleted and the following shall be substituted therefor:
“8 Commencing June 1, 2013, the Respondent shall pay to the Applicant the sum of $150.00 per month as his share of the extraordinary expense under s. 7 of the Child Support Guidelines for the child’s Scholars’ program. The Respondent shall not be required to contribute more than this amount, notwithstanding the total cost of the Scholars’ program.”
16With respect to the request that Mr. Turmaine contribute to the costs of a trip in 2014 to Europe with the Girl Guides, there is insufficient evidence before me to establish that this is an expense meeting the criteria of s. 7 of the Child Support Guidelines which Mr. Turmaine should be required to pay. Further, there is some question as to whether the trip will actually be held. It is described by Ms. Markic as a “potential trip” that the child “may be able to take.” I will not order Mr. Turmaine to share these expenses at this time. However, this decision is without prejudice to Ms. Markic’s right to put further and better evidence before the court at a later date as to the details of the trip, how it meets the criteria of s. 7 of the Guidelines and whether it is more than a “potential” trip.
17Ms. Markic has paid $1,639.00 towards the trip. She has attributed one-half of that amount, namely, $819.00, towards arrears of support of $1379.50 which she says is owing by Mr. Turmaine for the trip and for Scholars.
18If the $819.00 is deducted from the arrears of $1,379.50, there are arrears for Scholars of $560.50. An order shall go fixing arrears of support as of May 31, 2013 at $560.50.
19Without deciding whether costs of the application are available under the Interjurisidictional Support Orders Act, I have determined this is not an appropriate case for awarding costs to either party. Certain of the issues have been resolved on consent. There has been divided success on the remaining issues.
20An order shall issue in accordance with these Reasons.
The Hon. Mr. Justice D. C. Shaw
Released: May 29, 2013
CITATION: Turmaine v. Markic, 2013 ONSC 3125
COURT FILE NO.: FS-01-0218-002
DATE: 2013-05-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Matthew John Turmaine
Applicant
- and –
Courtney Robin Markic
Respondent
DECISION ON APPLICATION UNDER THE INTERJURISDICTIONAL SUPPORT ORDER ACT
Shaw J.
Released: May 29, 2013
/mrm