COURT FILE NO.: FS-04-008995-0002
DATE: 20130726
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Alessandro Roberto D’Ovidio Applicant
– and –
Allison Rita Pinheiro Clement Respondent
Counsel: E. Mourao, for the Applicant Self-Represented
HEARD: July 24, 2013
BEFORE: MILLER, J.
[1] Allison Clement brings a Motion to Change the order of O’Connor, J. made November 10, 2010. Ms Clement seeks child support for Anthony D’Ovidio born June 30, 1991 from September 2011 through April 2012; child support for Andrea D’Ovidio born April 4, 1993 from September 2011 on an ongoing basis while she is a fulltime student and a contribution from Mr. D’Ovidio, proportionate to his income, for the post-secondary education expenses of Anthony for the 2011/2012 school year, and for Andrea for 2012/2013 and for the next three years of her post-secondary program.
[2] Ms Clement further takes the position for the purposes of calculating the quantum of child support and s.7 expenses that the income of both parties should be grossed up to reflect the fact that no provincial tax is paid, and as that is the basis upon which child support was calculated in past court orders.
[3] Alessandro D’Ovidio takes the position that no child support should be payable for Anthony as he lived away from home while attending school; he is prepared to pay half of Anthony’s rent for May through August 2011 but takes the position that he should not have to contribute to Anthony’s post-secondary expenses for the school year 2011/2012.
[4] Mr. D’Ovidio takes the position that he should not pay child support for Andrea from September 2011 through August 2012 as she was not a fulltime student. He is prepared to pay child support for Andrea from September 2012 on an ongoing basis until she completes her first degree.
[5] Mr. D’Ovidio takes the position that in calculating the quantum of child support and s.7 expenses payable his income should not be grossed up but Ms Clement’s income should.
[6] The decision of O`Connor, J. made November 8, 2010 ordered payment of educational costs for Alessandra DÒvidio born July 27, 1989 by both parents to the child on the first day of each month for December 2010, January, February, March and April 2011. Ms Clement was to pay $827 per month and Mr. DÒvidio $710 per month.
[7] The same order ordered payment of educational costs “ìn the first semester of the 2011 school years[SIC]” for Anthony DÒvidio born June 30 1991 by both parents to the child on the first day of each month for, January, February, March and April 2011. Ms Clement was to pay $600 per month and Mr. DÒvidio $825 per month.
Determination of the Parties’ Incomes
[8] The sole income for both parties is a disability pension.
[9] Line 150 income for Mr. D`Ovidio in 2011 was $50,592 and in 2012 $37,535.
[10] Line 150 income for Ms Clement in 2011 was $32,102 and in 2012 $42,797.
[11] Ms Clement takes the position that both parties incomes should be grossed up to reflect the fact there are no deductions made for provincial income tax. She relies on a March 3, 2010 decision of Corbett, J. in which he accepted the position taken by Mr. DÒvidio at that time that the parties incomes should be grossed up. At that time the children resided equally with both parents and the income calculation was relevant to determine child support payable on a set-off basis.
[12] Ms Clement also relies on a letter she received from Manulife Financial dated April 4, 2013 explaining the federal tax amount on monies she received in 2012. Ms Clement submits that as there is no reference to provincial tax the conclusion should be that provincial tax was not payable on the monies received.
[13] Ms Clement further relies on a Sunlife statement for Mr. D’Ovidio for the payment period October1-31, 2012 in which no provincial tax was deducted.
[14] In the alternative Ms Clement takes the position that income for both parties should be as reflected at Line 150 for each year.
[15] Mr. DÒvidio relies on a report authored by Steve Ranot June 27, 2013 indicating that his income is fully taxable and therefore should not be grossed up. He takes the position, however, that Ms Clement`s income should be grossed up. Mr. D’Ovidio also relies on evidence, as set out in Mr. Ranot’s report, that his income for 2011 should be $37,152 rather than what is reflected at Line 150 for that year.
[16] Mr. Ranot`s report indicates that Mr. D’Ovidio’s payments from SunLife were reduced in 2011 to reflect a lump sum payment he received from CPP thereby reducing his income for that year to $37, 152 rather than what is reflected at Line 150 for that year. Mr. Ranot’s report further indicates that all of Mr. D’Ovidio’s income was fully taxable and therefore there is no basis to gross it up.
[17] I accept the report of Mr. Ranot and find that Mr. D’Ovidio’s income for 2011 was $37, 152.
[18] I also accept Mr. Ranot’s view that all of Mr. D’Ovidio’s income was fully taxable and should not be grossed up. I find that Ms Clement’s income, as it is all disability income, is also fully taxable and should not be grossed up. The fact that provincial tax was not deducted does not mean it was not payable on that income. Indeed Ms Clement submitted that she has asked that the provincial tax be deducted from her monthly payments in 2013.
[19] For the purposes of calculating child support for 2011 and 2012 I find Mr. D`Ovidio’s income in 2011 was $37,152 and in 2012 $37,535 and income for Ms Clement in 2011 was $32,102 and in 2012 $42,797.
Child Support for Anthony
[20] Anthony lived away from home while attending school in the fall of 2011 and the Spring of 2012. He remains living with Ms Clement but is fully employed since his graduation in May 2012.
[21] Ms Clement takes the position that child support should be payable by Mr. D’Ovidio for Anthony from September 2011 through April 2012 although Anthony was living away from home. She relies on an order made by O’Connor, J. May 24, 2007 which made final an order made by Corbett, J. November 22, 2006 indicating amongst other things “the child shall be deemed to be residing with the parties if he or she is living away from home for school, summer employment or vacation”. That order contemplates that child support shall end when the child turns 23.
[22] Neither party took the position that that portion of that final order has ever been varied.
[23] Both parties agree that the payments toward Anthony’s educational costs as set out in the order made by O’Connor, J. November 8, 2010 included Anthony’s living expenses while at school. The order does not address payment of child support while Anthony was living away from home for school.
[24] I find that the order made by O’Connor, J. May 24, 2007 which made final an order made by Corbett, J. November 22, 2006 indicating amongst other things “the child shall be deemed to be residing with the parties if he or she is living away from home for school, summer employment or vacation” continues to govern, and that for the period September 2011 through April 2012 Mr. D’Ovidio is required to pay child support for Anthony.
[25] For September 2011 through April 2012 Mr. D’Ovidio shall pay child support for both Anthony and Andrea based on his Line 150 income for 2010 of $36,924 at $533 per month for a total of $5,330.
Contribution toward Anthony’s Post-Secondary Expenses
[26] Mr. D’Ovidio does not dispute that he should pay half of Anthony’s rent for May through August 2011 amounting to a total of $993.
[27] Ms Clement asks that Mr. DOvidio be required to pay $5,054 toward Anthonys post-secondary expenses from September 2011 through April 2012. This is 1/3 of the actual costs. Ms Clement’s position that Anthony should be responsible for 1/3 as should each of the parties. Ms Clements position is that the order made by OConnor, J. November 8, 2010 only addressed Anthonys first semester because it was unknown to the parties, at that time, what the costs would be for Anthonys second and third semesters.
[28] Mr. DÒvidios position is that no more should be paid by the parties toward Anthonys post-secondary education as it was contemplated by them and by OConnor, J. at the time of the order November 8, 2010 that the parties would divide the post-secondary educational costs of the children, proportionate to their incomes, over and above what the child received by way of an OSAP loan. Mr. DÒvidios position is that it was contemplated that the childs contribution to his or her post-secondary education would be the assumption of the loan which should be paid down by the child from earnings part-time employment while attending school. It is Mr. DÒvidios position that the order made by OConnor, J. was meant to address the total contributions of the parties toward Anthonys post-secondary education.
[29] Mr. DÒvidio relies on the order made by OConnor, J. November 8, 2010 in respect of the parties contributions toward Alessandras post-secondary education as he takes the position each child way to be treated in a similar way – the parties to share the cost of the childs post-secondary education over and above what the child would receive by way of OSAP loan.
[30] This argument fails on two bases: it could not have been known by the parties as at November 8, 2010 what if anything Anthony would receive by way of OSAP loan for the 2011-2012 school year; and the order made by O`Connor, J. May 24, 2007 which made final the order of Snowie, J. or March 26, 2007 that the parties shall share the post-secondary education expenses for the children as a s.7 expense.
[31] The position taken by Ms Clement that Anthony should be responsible for one third of the costs is a reasonable one. I accept that Mr. DÒvidios one third share of the costs of Anthonys 2011-2012 school year is $5,054.
[32] In arriving at this conclusion I have considered the argument ably made by counsel for Mr. DÒvidio, relying on the decision of Fernquist v. Garland 2005 SKQB 519 at paragraph 32, that appropriate factors to consider are:
(1) Would the payment of child support leave the parent with a reasonable standard of living having regard to the parent's age, health, and future needs? …
(2) What are the likely future financial positions of the parent and adult child upon the latter completing his or her studies? …
(3) Will the parent have to borrow funds in order to provide support for the adult child, and if so, what are the consequences to the parent in comparison to those of the adult child if he or she obtained a student loan? …
(4) What are the relative ages and work life expectancy of the parent and adult child?
(5) The time remaining until the adult child can be reasonably expected to gain material earnings from his education…
[33] While I recognize that neither party earns a significant income they both lead comfortable lifestyles and I find that while it is reasonable to expect a contribution of the child toward post-secondary studies, the parents should contribute in a significant way if they are able.
Child Support for Andrea
[34] Ms Clement seeks child support for Andrea from September 2011 when Andrea began residing on a fulltime basis with her.
[35] Mr. D’Ovidio is prepared to pay Guideline child support for Andrea from September 2012. It is not disputed that Mr. D’Ovidio has paid monthly child support for Andrea of $324 per month since September 2012. He takes the position that he should pay $331 per month from July 1, 2013.
[36] Mr. D’Ovidio submits that Andrea was “going back and forth” amongst his residence, Ms Clement’s residence and her boyfriend’s residence from September 2011 through August 2012. He acknowledges there is no evidence of this.
[37] I find that Andrea was residing principally with Ms Clement from September 2011 and continues to do so.
[38] Mr. D’Ovidio takes the position that he should not have to pay child support for Andrea from September 2011 through August 2012 as Andrea was not attending school on a fulltime basis.
[39] The evidence is that Andrea was taking three high school credits in the Fall of 2011 and one night course credit in the Spring of 2012. She also worked part-time at two jobs as well as through the summer of 2012.
[40] It is clear that it was always Andrea’s intention to attend post-secondary school in September 2012. She spent the Fall of 2011 at school to upgrade and took a night course in the Spring of 2012 – all of it in preparation for her attendance at post-secondary school in the Fall of 2012. There was no interruption to the plan. Throughout this period Andrea was residing with Ms Clement. I find that Ms Clement is entitled to child support for Andrea from September 2011 and on an ongoing basis.
[41] It makes practical sense that child support be based on Mr. D’Ovidio’s income from the previous year, to be adjusted annually as at July 1, on an ongoing basis.
[42] For September 2011 through June 2012 Mr. D’Ovidio shall pay Guideline child support for Andrea. For September 2011 through April 2012 Mr. D’Ovidio shall pay child support for both Anthony and Andrea based on his Line 150 income for 2010 of $36,924 at $533 per month for a total of $5,330.
[43] For May and June 2012 Mr. D’Ovidio shall pay child support for Andrea based on his Line 150 income for 2010 of $36,924 at $324 per month for a total of $648.
[44] For July 2012 through June 2013 Mr. D’Ovidio shall pay Guideline child support for Andrea based on his 2011 income of $37,152 at $327 per month for a total of $3,924.
[45] Mr. DÒvidio shall be given credit for the $324 per month he has paid from September 2012 through June 2013 for a total of $3,240.
[46] Mr. D’Ovidio shall pay Guideline child support for Andrea based on his 2012 income of $37,535 at $331 per month from July 1, 2013 and on the first day of each month thereafter until July 1, 2014 when the amount payable shall be adjusted in accordance with Mr. DÒvidio`s income for 2013. Payment of child support shall continue to be payable for Andrea as long as she resides with Ms Clement and until the completion of her first degree, anticipated to be in the Spring of 2016.
[47] The amount payable shall be adjusted each July in accordance with Mr. DÒvidio`s income for the previous calendar year.
[48] Mr. DÒvidio shall provide a copy of his income tax return and Notice of Assessment for the previous tax year to Ms Clement no later than June 1of 2014 and each year thereafter that Andrea is entitled to child support.
Contribution toward Andrea’s Post-Secondary Expenses
[49] Mr. D’Ovidio asks that he be provided with Andrea’s course lists, and transcripts and OSAP, grant, scholarship or bursary information as long as she is attending school. Ms Clement does not object to providing these.
[50] Both parties agree that Mr. D’Ovidio paid Andrea $2,000 toward her educational expenses for the 2012/2013 school year.
[51] Ms Clements position is that the parties should contribute on a proportionate basis to Andreas post-secondary costs.
[52] Mr. DÒvidios position is that an annual $2,000 contribution toward Andreas post-secondary costs takes into account what Andrea can expect to receive from OSAP and would treat her in a similar way to the other children. Mr. DÒvidio also argues that fixing the amount will prevent the parties from returning to Court to argue over what shall be paid in future years.
[53] I have addressed Mr. DÒvidios position in my reasons concerning Anthonys Post-secondary expenses. I agree that Andrea should be treated similarly to the other children and that it is not unreasonable that she pay one third of her own post-secondary expenses.
[54] I accept the evidence that Andreas post-secondary expenses for 2012-2013 totalled $9,146.23. Each partys one third share is $3,049. Mr. D`Ovidio will be credited for the $2,000 he has paid so he will owe Andrea another $1,049.
[55] It is anticipated that Andreas expenses will be similar in 2013-2014 and in the further two years of her degree. It is reasonable to expect some inflationary increase in tuition and in other costs but it is also desirable that the parties not have to return to court each year. I am fixing each parties contribution to Andrea`s post-secondary expenses at $3,333 per year, payable to Andrea no later than September 1, 203 and each year thereafter until she has completed her degree, subject only to further order of the Court and only in the event of a material change in circumstances.
Orders
[56] Mr. D’Ovidio is ordered to pay $993 to Ms Clement for half of Anthony’s rent for May through August 2011.
[57] Mr. DÒvidio is ordered to pay arrears of child support for Andrea and Anthony totalling $6,662.
[58] Mr. D’Ovidio is ordered to pay Guideline child support for Andrea based on his 2012 income of $37,535 at $331 per month from July 1, 2013 and on the first day of each month thereafter until July 1, 2014 when the amount payable shall be adjusted in accordance with Mr. DÒvidios income for 2013. Payment of child support shall continue to be payable for Andrea as long as she resides with Ms Clement and until the completion of her first degree, anticipated to be in the Spring of 2016. The amount payable shall be adjusted each July in accordance with Mr. DÒvidios income for the previous calendar year.
[59] Mr. DÒvidio is ordered to pay $5,054 to Anthony toward his 2011-2012 post-secondary expenses.
[60] Mr. DÒvidio is ordered to pay $1,049 to Andrea toward her 2012-2013 post-secondary expenses.
[61] Each party is ordered to pay $3,333 to Andrea toward her post-secondary expenses no later than September 1, 2013 and each September 1 thereafter until Andrea completes her degree.
[62] Ms Clement is ordered to provide copies of Andrea’s course lists, transcripts and receipt of any funds from OSAP, grants, scholarships or bursaries to Mr. DÒvidio while Andrea is attending school.
[63] The parties are ordered to provide copies of their income tax returns and Notices of Assessment for the previous calendar year to each other no later than June 1 of each year commencing June 1, 2014 and each year thereafter as long as Andrea is attending school.
MILLER, J.
Released: July 26, 2013
D’Ovidio v. Clement, 2013 ONSC 5002
COURT FILE NO.: FS-04-008995-0002
DATE: 20130726
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Alessandro Roberto D’Ovidio Applicant
– and –
Allison Rita Pinheiro Clement Respondent
REASONS FOR JUDGMENT
MILLER, J.
Released: July 26, 2013