ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
COURT FILE NO.: F639/10
DATE: March 15, 2013
BETWEEN:
Cassandra Samantha Ratelle
Cassandra Samantha Ratelle in person
Applicant
- and -
Leo Joseph Ratelle and Deanna Irene Smith
Leo Joseph Ratelle in person
Deanna Irene Smith in person
Respondents
HEARD: August 31, 2012
KORPAN J.
[1] Cassandra Samantha Ratelle, age 22, seeks from her father, Leo Joseph Ratelle, the table amount of child support under the Child Support Guidelines for the period she was in full time attendance at Fanshawe College from September 2009 to August 2012 and payment of one-third of her post secondary educational expenses.
[2] Cassandra commenced the application on April 20, 2010. By the time of trial on August 31, 2012 she had completed all but the last of the credits required to obtain her diploma.
[3] Cassandra lived with her mother, Deanna Irene Smith, throughout her full time attendance at Fanshawe College.
[4] Ms. Smith was added as a respondent by consent order dated May 25, 2010. On August 18, 2010, Ms. Smith filed an answer seeking child support for Cassandra from Mr. Ratelle for the period from July 2005 to July 2008. She did not pursue the claim at trial.
[5] All of the parties are acting in person and they all testified at the trial. I accept they did the best but they could but both the evidence and submissions of the parties could certainly have been more informed and complete.
Background
[6] Mr. Ratelle, now age 51, and Ms. Smith, now age 46, separated in 1993 when Cassandra was age three. Cassandra lived with Ms. Smith following the separation.
[7] Mr. Ratelle paid some voluntary child support to Ms. Smith for Cassandra for some period of time in an amount less than the table amount under the Child Support Guidelines, O. Reg. 391/97 [as amended] until Cassandra turned 18 in July 2008. He stopped making the payments in July 2008 when Cassandra turned age 18.
[8] Cassandra completed high school in December 2008 and applied to Fanshawe College in January 2009. She began attending Fanshawe College at age 19 on a full time basis in September 2009 and completed her full time attendance at Fanshawe College in August 2012.
[9] In September 2009 Mr. Ratelle provided Cassandra with either $300 or $400 for books for her first term at Fanshawe College. Cassandra asked Mr. Ratelle for additional ongoing financial support in September 2009. Support payments were not forthcoming from Mr. Ratelle and Cassandra commenced this application in April 2010.
[10] Cassandra lives at home with her mother and stepfather. Ms. Smith supports Cassandra by providing a roof over her head and food on the table and giving her a few dollars here and there.
[11] Cassandra worked part time throughout her attendance at Fanshawe College. She applied for OSAP but was not eligible for any grants or bursaries. She obtained a student line of credit through TD Canada Trust in early 2011 in the amount of $6,000.
[12] By the end of August 2012, Cassandra had completed all but the last credit towards her office administration executive diploma. She did not have to repeat any of her courses, maintained a 4.0 GPA and hopes to graduate with honours.
[13] Cassandra will graduate once she completes her final credit depending on when that course is available at Fanshawe College, presumably in 2013.
[14] Cassandra is unemployed and looking for work.
Discussion
[15] Cassandra’s application for child support is under s. 31 and 33 of the Family Law Act, R.S.O. 1990, c. F.3 and the Child Support Guidelines.
[16] Section 29 of the Family Law Act defines “dependant” as a person to whom another has an obligation to provide support under the Family Law Act. Under s. 31 of the Family Law Act, a parent has an obligation to provide support for his or her unmarried child who is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
[17] There is no issue about Cassandra’s eligibility to be supported by her parents between September 2009 and August 2012 while she was in full time attendance at Fanshawe College.
[18] Sections 33(1), (2), (7) and (11) of the Family Law Act read:
33.(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.
(2) An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent.
(7) An order for the support of a child should,
(a) recognize that each parent has an obligation to provide support for the child;
(b) apportion the obligation according to the child support guidelines.
(11) A court making an order for the support of a child shall do so in accordance with the child support guidelines.
[19] One of the objectives set out in s. 1 of the Child Support Guidelines is to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation. Cassandra should benefit from the financial means of both Ms. Smith and Mr. Ratelle from September 2009 to August 2012 while she was in full time attendance at Fanshawe College.
[20] Section 34(1)(f) of the Family Law Act permits an order requiring that child support be paid in respect of any period before the date of the order.
[21] Cassandra issued the application for child support on April 20, 2010. Cassandra requested child support from Mr. Ratelle in September 2009. Although Mr. Ratelle provided $300 or $400 towards Cassandra’s books, no further child support was forthcoming. Her claim includes a claim for eight months of "retroactive" child support. Mr. Ratelle had the ability to pay child support for Cassandra beginning in September 2009 and ought to have done so. After reviewing and applying the factors in S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.), I find that it is appropriate for Mr. Ratelle to pay child support beginning September 1, 2009.
[22] For a child the age of majority or over s. 3(2) of the Guidelines reads:
(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,
(a) the amount determined by applying these guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.
[23] As Cassandra is over the age of majority I must determine whether child support is to be paid under s. 3(2)(a) or s. 3(2)(b) of the Guidelines. If I consider the table approach under s. 3(2)(a) of the Guidelines to be inappropriate, I must determine the amount of child support having regard to the condition, means, needs and other circumstances of Cassandra and the financial ability of her parents to contribute to her support.
[24] Although Cassandra lives at home, she earned income throughout her full time attendance at Fanshawe College between September 2009 and August 2012. She is seeking the child support from Mr. Ratelle payable directly to her. In these circumstances the table approach under s. 3(2)(a) of the Guidelines seems to be inappropriate. Any amount of child support to be paid by Mr. Ratelle to Cassandra will be determined under s. 3(2)(b) of the Guidelines having regard to the condition, means, needs and other circumstances of Cassandra and the financial ability of Ms. Smith and Mr. Ratelle to contribute to her support.
Mr. Ratelle
[25] Mr. Ratelle has remarried and lives with his wife who works outside the home. His only dependent child is Cassandra. He is employed as a drywall deliverer at Patene Building Supplies. Mr. Ratelle’s 2009, 2010 and 2011 tax summaries show total income of $43,205.72, $45,534.62 and $42,596.19. This is his income for the payment of child support for those years.
[26] Mr. Ratelle is laid off seasonally and received employment insurance in the amount of $5,082 for the 11 weeks from January to March 15, 2012. He returned to work at Patene Building Supplies on March 15, 2012 and received a pay increase of 35 cents per hour in June 2012. His pay statement for the period ending August 18, 2012 shows year to date income from March 15, 2012 of $22,992.99. Mr. Ratelle is on track to earn approximately the same amount of employment income in 2012 that he earned in 2011 of $37,232.19. Including employment insurance, his 2012 total income should be similar to his 2011 total income of $42,596.19. I find that $42,596.19 is his income for the payment of child support for 2012.
[27] Mr. Ratelle did not file an updated financial statement for trial as required under the Family Law Rules, O. Reg. 114/99. His most recent financial statement sworn December 14, 2011 shows income of $0 and monthly expenses of $3,046.77 plus monthly debt payments of $50. He shows that he owns a home in London, which he values at $148,750 subject to a mortgage of $136,879. Mr. Ratelle was not cross examined on his financial statement.
Ms. Smith
[28] Ms. Smith lives with her common law husband who works outside the home. Her only dependent child is Cassandra. She is employed as a grade labourer at Smithsite Services. Ms. Smith’s 2009 and 2010 income tax returns and 2011 notice of assessment show total income of $42,037.64, $42,472.47 and $22,090.
[29] Ms. Smith’s financial statement sworn August 15, 2012 shows monthly income of $2,957.76 which is $35,493.12 annually and monthly expenses of $2,996.80 plus monthly debt payments of $471.98. Ms. Smith testified that she and her common law husband have never pooled their money together and that they each pay one-half of the household expenses.
[30] Ms. Smith’s financial statement sworn August 15, 2012 shows that she owns a home in London which she values at $156,000 and that she has debt of $84,378. Ms. Smith was not cross examined on her financial statement.
[31] Cassandra is not seeking child support from Ms. Smith. Cassandra has throughout her full time attendance at Fanshawe College between September 2009 and August 2012 lived at home with Ms. Smith without charge. Ms. Smith provides Cassandra with a roof over her head and food on the table and a few dollars here and there.
Cassandra
[32] Cassandra held part time jobs throughout her full time attendance at Fanshawe College. Cassandra’s 2009 and 2010 income tax returns and her 2011 notice of assessment show total income of $7,176.75, $10,355.40 and $8,859. She testified that her 2012 year to date earnings to July 2012 when her part time employment ended were $5,422.88.
[33] Cassandra owns a 2011 Chevrolet Malibu, which she values at $2,000. Mr. Ratelle gave Cassandra $1,000 towards the purchase of the Malibu as a high school graduation gift in 2008. She owns locked in guaranteed investment certificates worth $5,000 that mature on July 5, 2014, and owes $6,200 on her TD Canada Trust student line of credit and $705 on her credit card.
[34] Cassandra’s financial statement sworn August 23, 2012 shows income of $0 as her part time employment ended in July 2012. Her financial statement, not including her post secondary educational expenses, shows monthly expenses of $1,135 which is $13,620 annually.
[35] There was no specific evidence at trial of Cassandra’s expenses from September 2009 to July 2012 on a year by year basis. Her financial statement sworn November 3, 2011 is part of the trial record. It shows, not including her post secondary educational expenses, monthly expenses of $888 which is $10,656 annually. Cassandra was not cross examined on her financial statements.
[36] Cassandra lived at home throughout the period from September 2009 to July 2012. Cassandra’s expenses are less than they would have been had she lived away from home because she is not paying room and board to Ms. Smith. Cassandra purchased her car in 2008 and had car expenses throughout the period from September 2009 to July 2012. The balance of the expenses shown on her financial statement sworn August 23, 2012 are ordinary expenses.
[37] I find that it is reasonable to assume that from September 2009 to August 2012 Cassandra’s expenses were similar to those shown on her financial statements sworn November 3, 2011 and August 23, 2012. The average of the monthly expenses of $888 and $1,135 shown on her financial statements is $1,011.35 which is $12,136.12 annually. I find that it is reasonable to use that monthly average of $1,011.36 rounded down to $1,000 which is $12,000 annually for Cassandra’s expenses from September 2009 to August 2012 for the payment of child support.
[38] Cassandra’s tuition and book expenses from September 2009 through to September 2012 which were documented at trial, including her laptop that cost $859.32, total $15,820.10 as follows:
2009
2010
2011
2012
Total:
$2,921.70
$4,673.62
$7,033.26
$1,191.52
$15,820.10
[39] Using annual expenses of $12,000 I have added in Cassandra’s post secondary educational expenses and prorated the expenses and Cassandra’s income for the part years she was in full time attendance at Fanshawe College to calculate Cassandra’s shortfall from September 2009 to August 2012. The shortfall between Cassandra’s income and her expenses from September 2009 to August 2012 amounts to $24,790.57 as follows:
• In 2009 Cassandra was in full time attendance at Fanshawe College from September to December 2009 which is one third of the calendar year. One third of Cassandra’s annual expenses of $12,000 was $4,000 and her post secondary educational expenses were $2,921.70, a total of $6,921.70. One third of her 2009 income was $2,392.25. This leaves a shortfall of $4,529.45 over those four months.
• In 2010 Cassandra’s annual expenses were $12,000 and her postsecondary educational expenses were $4,673.62, a total of $16,673.62. Her income was $10,355.40. This leaves a shortfall of $6,318.22.
• In 2011 Cassandra’s annual expenses were $12,000 and her postsecondary educational expenses were $7,033.26, a total of $19,033.26. Her income was $8,859.00. This leaves a shortfall of $10,174.26.
• In 2012 Cassandra was in full time attendance at Fanshawe College from January to August 2012 which is two thirds of the calendar year. Two thirds of Cassandra’s annual expenses of $12,000 were $8,000 and her postsecondary educational expenses were $1,191.52, a total of $9,191.52. Her income to July 2012 when she became unemployed was $5,422.88. This leaves a shortfall of $3,768.64 over eight months.
[40] I find that it was reasonable for Cassandra to have applied $3,000 of the $5,000 she has in GIC’s, $1,000 per year over the three years from September 2009 to August 2012 towards her expenses. This reduces the shortfall to $21,790.57.
[41] Cassandra has benefitted from the financial means of her mother from September 2009 to August 2012. Throughout her full time attendance at Fanshawe College she lived at home with Ms. Smith without charge. Ms. Smith supports Cassandra by providing a roof over her head and food on the table and giving her a few dollars here and there. Ms. Smith is contributing to Cassandra’s support by providing directly for her care through the provision of free housing and food and a few dollars here and there. There was no evidence or attempt at trial to quantify the amount of this support. I assume that the provision of free room and board over the period spanning three years from September 2009 to August 2012 is a meaningful amount.
[42] There was some suggestion by Mr. Ratelle that Cassandra’s stepfather should be paying child support to her. I do not accept that submission. There was no evidence at trial about the role of Cassandra’s stepfather or his involvement in her life or that his income was used to support Cassandra. I am unable to determine that Cassandra’s stepfather demonstrated a settled intention to treat her as a child of his family.
[43] Cassandra has an obligation to make a reasonable contribution towards her expenses. She has done an admirable job of working part time to contribute substantially to her expenses while attending school full time and achieving good grades.
[44] In all of the circumstances I find that Cassandra has a need for and that Mr. Ratelle has the ability to pay child support. I consider $11,000 to be the appropriate amount of child support to be paid by Mr. Ratelle to Cassandra from September 2009 to August 2012.
[45] Mr. Ratelle is entitled to a credit for the interim child support he paid to Cassandra through the Family Responsibility Office between January 26, 2011 and August 31, 2012 under the interim orders dated January 26, 2011 and January 17, 2012 in the amount of $3,000.
[46] Mr. Ratelle has contributed $400 according to him and $300 according to Cassandra towards her book expense in September 2009. No proof of the amount paid was produced by either party. I allow Mr. Ratelle a credit of $350.
[47] This leaves $7,650 as the outstanding amount of child support owing to Cassandra.
Disposition
[48] For these reasons, a final order shall issue:
[49] The respondent, Leo Joseph Ratelle, shall pay child support to Cassandra under s. 3(2)(b) of the Child Support Guidelines for the period commencing September 1, 2009 and ending August 31, 2012 in the amount of $7,650.
[50] The respondent’s, Deanna Irene Smith’s, claim is dismissed.
“Justice Denise M. Korpan”
Justice Denise M. Korpan
Released: March 15, 2013
COURT FILE NO.: F639/10
DATE: March 15, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Cassandra Samantha Ratelle
Applicant
- and -
Leo Joseph Ratelle and Deanna Irene Smith
Respondent
REASONS FOR JUDGMENT
KORPAN J.
Released: March 15, 2013