COURT FILE NO.: F-1401/06

DATE: 2013/10/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Lucia Angela Maria Durso

Applicant

– and –

Ermis Anthony Mascherin

Respondent

Yolanta Lewis, for the Respondent

HEARD: April 22 and July 18, 2013

The Honourable Madam Justice Deborah L. Chappel

JUDGMENT

PART I: INTRODUCTION

[1] The Applicant and the Respondent are the parents of Aleandra Vanessa Mascherin, born May 30, 1989 (“Aleandra”). This was the hearing of a Motion to Change Final Order brought by the Applicant in which she requested relief respecting section 7 expenses which she states she incurred on behalf of Aleandra since 2009. She seeks to change the final order of Pazaratz, J. dated June 18, 2008 so as to fix the amount which the Respondent allegedly owes her on account of medical, dental and post-secondary education expenses totalling $27,121.13. The Respondent requests that the Motion to Change be dismissed outright on various grounds.

[2] The issues to be determined in this case are as follows:

a. Is the applicable legislation in this Motion to Change the Family Law Act[^1] or the Divorce Act?[^2] I have concluded that the Divorce Act applies in this case.

b. Has the Applicant met the threshold test of establishing a change in circumstances since the order was made? I have concluded that she has not met this threshold test.

c. Is the Applicant barred from pursuing the relief in question based on non-compliance with terms in the June 28, 2008 order outlining her obligations with respect to claims for contribution to section 7 expenses? I have concluded that the Applicant has not met the evidentiary onus on her of proving that she complied with these terms, and that her claim should be dismissed on this basis.

d. Should the Applicant’s claim be dismissed on the basis of insufficient evidence respecting ongoing entitlement to child support as of December 27, 2011, when the Applicant commenced this Motion to Change Final Order? For the reasons set out below, I conclude that she has not proven an ongoing entitlement to child support as of December 27, 2011, and that her claim should be dismissed on this basis as well.

e. Does the Applicant’s claim fail on the basis that the Applicant has not established the necessary evidentiary foundation to carry out the analysis required pursuant to section 3(2) of the Federal Child Support Guidelines?[^3] As discussed below, I conclude that the claim should also be dismissed on this basis.

PART II: BACKGROUND AND HISTORY OF COURT PROCEEDINGS

[3] The Applicant and Respondent were married on September 23, 1978 and separated on January 1, 1999. They entered into a Separation Agreement on December 29, 2000. The Separation Agreement provided that the parties would share joint custody of Aleandra, but did not deal with the issue of the child’s primary residence. The Applicant was granted liberal access to Aleandra pursuant to the terms of the Agreement.

[4] The Applicant moved to Georgia, United States of America, in 2003. Aleandra lived with the Respondent from that time until late June 2005, when she went to live with the Applicant in Georgia. She has remained in Georgia since that time.

[5] The parties were divorced on May 18, 2001. The Divorce Application did not include any claims for corollary relief. The Applicant commenced a separate Application on July 31, 2006 in which she requested custody of Aleandra and child support. The Applicant pled and relied upon both the Divorce Act and the Family Law Act in support of her child support claim. The June 28, 2008 order was made in the context of this Application. The order was the product of negotiations between the parties and was based on Minutes of Settlement which both parties executed. The relevant terms of the order for the purposes of this proceeding are as follows:

a. Paragraph 1.1 provided that the Respondent would pay the Applicant monthly child support in the amount of $742.00 per month for the period spanning from September 1, 2007 until May 31, 2008, based on his 2006 income of $82,926.00.

b. Paragraph 1.3 stipulated that the Respondent’s monthly child support payment to the Applicant would increase to $766.00 per month commencing July 1, 2008 based on his 2007 income of $85,873.00, and that the Respondent would also contribute his share of the special and extraordinary expenses relating to the child as provided for in paragraph 1.4.

c. Paragraph 1.5 provided that future special or extraordinary expenses may include “college or university fees, after taking into consideration Aleandra’s contribution to her post-secondary educational costs, and medical expenses not otherwise covered by a benefit plan.”

d. Paragraph 1.4 set out preconditions to the Applicant pursuing contributions from the Respondent towards Aleandra’s special and extraordinary expenses. It stated that the Respondent shall contribute to the child’s special and extraordinary expenses provided that the Applicant did the following:

i. Consults with him in advance regarding the proposed expense;

ii. Provides him with details and proof of the expense; and

iii. Obtains his consent to the expense in advance, in writing.

The wording of this paragraph makes it clear that the Applicant was required to consult with the Respondent about proposed expenses and provide details and proof of same in advance of actually incurring the expenses. The paragraph also stipulated that neither party would unreasonably withhold consent to the expenses being incurred.

e. The order did not specify how the parties’ respective contributions to special and extraordinary expenses would be determined. The terms of paragraph 1.5 as described above reflect that the parties clearly contemplated that Aleandra would be contributing to her post-secondary education costs. Furthermore, with respect to post-secondary education expenses, paragraph 1.4 provided that the parties’ contributions would be determined pursuant to paragraph 1.6 of the order. Paragraph 1.6 provided that claims for contribution to post-secondary expenses were conditional on the Applicant providing the following information and supporting records to the Respondent by July 31st each year so that the appropriate amount of the parties’ contributions could be determined:

i. Proof of Aleandra’s enrollment in college or university and a tuition statement;

ii. Proof of Aleandra’s income and the amount she is contributing to her educational costs;

iii. Details and proof of any other education related expenses (e.g. books and supplies); and

iv. Proof of the Applicant’s income (year to date pay statement and copy of her most recent income tax return including all supporting schedules and statements).

f. Paragraph 1.7 directed the Applicant to forward to the Respondent copies of Aleandra’s transcripts each semester if she attended college or university, and the child’s residence or cell phone number.

[6] Aleandra completed secondary school in June 2007, and began her post-secondary studies at the University of Georgia in the fall of 2007. Her Student Academic Record from the University of Georgia indicates that she was a full time student for four school years, from the fall of 2007 until the spring of 2011, completing a Bachelor of Science Degree in Education. During that period, her course load included class time ranging from twelve to eighteen hours per week The Student Academic Record indicates that in the fall of 2011, she was enrolled in a course identified as “EDEC 5460”, which involved student teaching in early childhood education. The Applicant’s evidence was that Aleandra was completing her internship requirement for the Bachelor of Science in Education program during the fall of 2011. This course involved fifteen hours per week. She achieved mostly A’s and B’s in her coursework while she attended the University of Georgia, but did get three D’s and one C+. The Applicant indicated in her submissions on April 22, 2013 that Aleandra graduated from university on December 16, 2011.

[7] Aleandra turned eighteen years of age on May 30, 2007, but the Respondent continued to pay the Applicant the monthly Table amount of child support of $766.00 until December, 2011.

PART III: CURRENT PROCEEDINGS AND POSITIONS OF THE PARTIES

[8] On December 27, 2011, the Applicant commenced these proceedings as a Support Variation Application pursuant to the Interjurisdictional Support Orders Act, 2002.[^4] (the “ISOA”). She claimed contribution from the Respondent for expenses which she states she incurred on behalf of Aleandra from 2009 until 2011 relating to vision, medical co-payments, medical/dental premiums, and post-secondary education expenses including tuition, parking costs, school fees, housing expenses, text books and a laptop.

[9] When this matter first came before me on April 22, 2013, I raised the question of whether the June 28, 2008 order was made under the Divorce Act or the Family Law Act, as it was brought to my attention on that date that the parties had been married and divorced. This issue had to be addressed on a preliminary basis, since an order made under the Divorce Act cannot be varied pursuant to the variation provisions of the ISOA. [^5] Counsel for the Respondent also raised another unanticipated procedural issue regarding the appropriate steps to vary an order under the ISOA. The hearing was adjourned to allow the parties to consider these issues and make submissions. When the hearing resumed on July 18, 2013, the parties had resolved the preliminary issues by agreeing to convert the ISOA application into a Motion to Change Final Order.

[10] The details of the expenses respecting which the Applicant is seeking contribution from the Respondent are as follows:

Vision Related Claims

December 5, 2009:

The Applicant has produced a receipt indicating that on this date, she incurred $619.00 on vision-related expenses for Aleandra. In addition, on this date, Aleandra underwent vision examinations, the cost of which was billed directly to Insurance United Healthcare.

May 24, 2010:

The Applicant has produced a receipt indicating that she incurred $364.90 for eye examinations and other vision-related expenses for Aleandra. None of these expenses were noted on the receipt as having been billed to any insurance company.

May 17, 2011:

The Applicant has produced a receipt indicating that she incurred $245.00 on vision related expenses for Aleandra. On that date, Aleandra also underwent eye examinations, the cost of which was billed directly to United Healthcare insurance.

Health Claims:

The Applicant claims contribution towards health-related expenses which she states she has incurred on behalf of Aleandra since 2009. She has produced a document from United Healthcare Insurance which indicates that the insurance provider pays a certain percentage of eligible health care claims and the plan beneficiary pays a smaller percentage until a fixed “out of pocket” maximum for the plan beneficiary is reached. After the maximum out of pocket amount is reached, the insurance company begins paying 100% for eligible health care services. The documentation which the Applicant has produced from United Healthcare for the years 2009 to 2011 indicates as follows:

2009:

The Applicant incurred out of pocket medical/prescription expenses for Aleandra totalling $639.57. She has not provided any details regarding the nature of these expenses or any receipts relating to the expenses.

2010:

The Applicant incurred out of pocket medical/prescription expenses for Aleandra totalling $1,102.18. She has not provided any details regarding the nature of these expenses or any receipts relating to the expenses.

2011:

The Applicant incurred out of pocket medical/prescription expenses of $1,102.18. Again, she has not provided any details respecting the nature of these expenses or any receipts respecting same.

Health and Dental Premiums

The Applicant has produced documentation from her benefits provider indicating that as of December 22, 2011, she paid health and dental premiums for her family in the amount of $3,251.04 annually. The evidence indicates that these premiums cover her, her spouse Joseph Durso and Aleandra. The Applicant states that one third of this amount, $1,083.68, is attributable to Aleandra, and she seeks contribution from the Respondent towards this amount for the years 2009 to 2011. The total amount which she states she has paid on behalf of Aleandra for those years was $3,251.04. However, she has not submitted any documentary evidence confirming the amount of the premiums for the years 2009 and 2010, and has not produced any confirmation from the benefits provider regarding the portion of these premiums that is attributable to Aleandra.

Housing/Fees for 2009

The Applicant claims contribution for housing expenses and school fees which she states she incurred for Aleandra for the year 2009, totalling $4,032.93.

Fees/Parking for 2010

The Applicant has claimed contribution towards school fees and parking for 2010 totalling $936.00.

Housing for 2010

The Applicant has also claimed contribution towards Aleandra’s 2010 housing expenses totalling $5,355.90. She has submitted a printout from some type of account listing several amounts, with a handwritten notation “Housing 2010.” The total of the amounts listed for 2010 is $5,355.90.

Tuition/Fees for 2011

The Applicant also claims contribution towards tuition and fees totalling $3,789.80 for 2011.

Housing for 2011

The Applicant states that she incurred $3,771.00 for Aleandra’s housing expenses in 2011, and seeks contribution from the Respondent towards these expenses. The printout referred to above respecting the housing expense claim for 2010 also includes a notation for expenses relating to 2011. The total of the 2011 items is $3,771.00.

Textbooks

The Applicant has provided receipts for books which she states Aleandra required for her post-secondary studies totalling $837.67 for the years 2009 to 2011.

Laptop

Finally, the Applicant seeks contribution from the Respondent towards the cost of a laptop which she states she purchased for Aleandra for school in December 2009. She has produced a receipt relating to this purchase which shows that she incurred $993.96 for the laptop.

[11] The Applicant’s position is that the Family Law Act applies to this proceeding. She alleges that the order required the Respondent to contribute to Aleandra’s special and extraordinary expenses, and that the Respondent has continually disregarded her attempts to consult with him on matters pertaining to Aleandra’s medical and educational needs and expenses. She alleges that the Respondent has unreasonably withheld his consent to contribute to the expenses outlined above. She further states that Aleandra continued to be entitled to support as of December, 2011 as she continued to pursue her studies up until that time.

[12] The Respondent’s position is that the Divorce Act applies in this case, since in his view the June 28, 2008 order was made under that Act. He requests an order dismissing the Motion to Change Final Order. Counsel for the Respondent submitted that the Applicant’s claim should be dismissed on the following grounds:

a. The Applicant failed to comply with the preconditions set out in the order for seeking contribution from the Respondent for special and extraordinary expenses.

b. There was no ongoing entitlement to child support as of the date when the Applicant commenced this Motion to Change Final Order, and this is an absolute bar to the Applicant advancing her retroactive child support claim.

c. The Applicant has not adduced the evidence required to carry out the analysis respecting her claim pursuant to section 3(2) of the Guidelines.

PART IV: ANALYSIS

ISSUE # 1: WHAT IS THE APPLICABLE LEGISLATION IN THIS CASE, AND OVERVIEW OF RELEVANT LEGISLATIVE PROVISIONS

A. Applicable Legislation

[13] The preliminary issue that must be determined in this case is whether the analysis of the Applicant’s claim should be undertaken pursuant to the Family Law Act and the Child Support Guidelines (Ontario) or the Divorce Act and the Federal Child Support Guidelines (the “Guidelines”). This issue is an important one, since entitlement to child support differs under the two Acts. As previously stated, the Applicant relied on both the Divorce Act and the Family Law Act in her Application that culminated in the June 28, 2008 order. The order did not stipulate whether the child support terms were made pursuant to the Divorce Act or the Family Law Act.

[14] As indicated above, the parties were divorced on May 18 2001, in the context of a Divorce Application that did not include any child support claims. The court dealing with the divorce did not in any way adjudicate on the matter of child support. In such circumstances, either party had the right at a later time commence a new proceeding to advance child support claims under either the Divorce Act as a separate corollary relief proceeding, or pursuant to the Family Law Act.[^6] If the original child support order of June 28, 2008 was made pursuant to the Divorce Act, these variation proceedings are governed by the Divorce Act, and it is necessary for the Applicant to satisfy the preliminary test set out in section 17(4) of that Act of demonstrating that a material change in circumstances has occurred since the previous order was made. By contrast, if the original child support order was made pursuant to the Family Law Act, this Motion to Change the order is governed by the variation provisions of the Family Law Act. In that case, the Applicant would have also had the option of bringing an originating application under the Divorce Act, since the earlier exercise of jurisdiction under the provincial legislation cannot oust the court’s jurisdiction to grant corollary relief pursuant to the federal divorce legislation.[^7] The advantage of the latter option is that the moving party does not have the onus of satisfying the initial hurdle of demonstrating a material change in circumstances. The question of whether an original child support order was made under the provincial or federal legislation is therefore an important one in terms of delineating a party’s strategic options if the order needs to be changed at a future date.

[15] I am treating the June 28, 2008 order as having been made pursuant to the Divorce Act, rather than the Family Law Act, and conclude that these variation proceedings are therefore governed by the Divorce Act. In reaching this decision, I have been guided by the general doctrine of federal paramountcy, which provides that federal legislation prevails if there is apparent conflict with provincial legislation.[^8] The doctrine of federal paramountcy is applicable to two types of conflict. First, it applies where there is an operational conflict between federal and provincial legislation. Second, it comes into play where dual compliance with both federal and provincial legislation is possible, but the provincial law is incompatible with the purpose of federal legislation.[^9]

[16] There is an operational conflict between the Divorce Act and the Family Law Act that is relevant to this case, in that the test for entitlement to child support differs under the two Acts. Entitlement to child support under the Family Law Act is addressed in section 31, which provides that every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education. This obligation does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. As discussed in further depth below, the scope of entitlement under the Divorce Act is broader. The obligation to pay child support extends to a child who is under the age of majority and has not withdrawn from parental control, or who is the age of majority or older and under a parent’s charge, but “unable by reason of illness, disability or other cause to withdraw from their charge or to obtain the necessaries of life.”[^10] In the face of this conflict, and given that the Applicant pled and relied on both the Divorce Act and the Family Law Act in her original Application, the appropriate course of action is to consider the June 28, 2008 order as having been made under the Divorce Act.

B. Statutory Framework

[17] Section 15.1 of the Divorce Act stipulates that a court may on application by either or both spouses make an order requiring a spouse to pay for the support of any or all “children of the marriage.” Entitlement to child support is dependent on the child in question coming within the definition of “child of the marriage,” which is set out in section 2 of the Act as follows:

“child of the marriage”

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

a. is under the age of majority and who has not withdrawn from their charge, or

b. is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life

[18] Section 17 of the Divorce Act outlines the principles that apply on an application to change an existing child support order. Section 17(1) directs that a court may make an order “varying, rescinding or suspending, prospectively or retroactively” a support order or any provision of the order. Section 17(3) stipulates that the court may include in a child support variation order any provision that could have been included in the order in respect of which the variation order is sought. This section must be read in conjunction with section 15.1(4) of the Act, which provides that in deciding a child support application, the court may make an order for a definite or indefinite period, or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

[19] Section 17(4) establishes that before varying a child support order, the court must satisfy itself that there has been a change of circumstances as provided for in the Guidelines since the making of the existing order.[^11] Section 14 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any change in circumstances that would result in a different child support order or any provision thereof constitutes a change that gives rise to the making of a variation order. Accordingly, a change in the payor spouse’s income, or evidence that the child is no longer a “child of the marriage” as set out in section 2 of the Act would satisfy the threshold test of whether there has been a change in circumstances since the previous order was made.

[20] The powers of the court on an application to change a child support order or adjust outstanding arrears of child support under section 17(1) of the Divorce Act are broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis.

[21] In making a child support order under the Act, the court is presumptively required to do so in accordance with the Guidelines.[^12] This presumption is subject to the court’s discretion to award a different amount pursuant to sections 15.1(5) and (7) of the Act in cases where special provisions have been made for the direct or indirect benefit of the child, or the parties have consented to an order that includes reasonable terms respecting the support of the child.

C. Presumptive Rules Relating to Child Support Determinations Under the Guidelines

[22] The starting point for the determination of the amount of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order 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 spouse to contribute to the support of the child.

[23] Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:

Special or extraordinary expenses

(1) 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 the separation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[24] The phrase “extraordinary expenses” is defined in section 7(1.1) of the Guidelines as follows:

7(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

[25] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) of the Guidelines take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.

[26] In Titova v. Titov,[^13] the Ontario Court of Appeal set out the following steps for determining whether to make an award for section 7 special or extraordinary expenses:

a. Calculate each party’s income for child support purposes.

b. Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines.

c. Determine whether the expense is necessary in relation to the child’s best interests and is reasonable in relation to the means of the spouses and to those of the child and to the spending pattern prior to separation.

d. If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of “extraordinary.”

e. Consider what amount, if any, the child should reasonably contribute to the payment of the expense, and then apply any tax deductions or credits.

ISSUE # 2: HAS THE APPLICANT ESTABLISHED THAT THERE HAS BEEN A CHANGE IN CIRCUMSTANCES SINCE JUNE 28, 2008?

[27] The first question that must be addressed in dealing with the merits of the Applicant’s claim is whether the Applicant has established that a material change in circumstances has occurred since the June 28, 2008 order was made. The Applicant did not specifically address this issue in her submissions or in her Factum. However, it is clear from the materials which she filed that the change which she is relying upon in seeking to retroactively fix an amount owing to her on account of section 7 expenses is an alleged refusal on the part of the Respondent to consult with her about these expenses as they arose, and his alleged unreasonable withholding of consent to contribute to the expenses. In essence, the Applicant alleges that the Respondent failed to work cooperatively with her pursuant to the terms of the existing order with respect to section 7 expenses. For the reasons that follow, I am not satisfied that the Applicant has established a change in circumstances that would warrant a variation of the June 28, 2008 order.

[28] A review of the relevant case-law respecting the concept of “change in circumstances” for the purpose of support variation proceedings is necessary. In Brown v. Brown[^14], the New Brunswick Court of Appeal emphasized that the concept must be viewed flexibly, so as to accommodate a host of factual developments that may have evolved since the existing order was made. In determining the type of change that is sufficient to ground a child support variation claim, it is useful to draw upon the case-law respecting both child and spousal support variation, since the latter also requires a preliminary determination as to whether a change in circumstances has occurred. In Brown v. Brown, the New Brunswick Court of Appeal held that the change in circumstances required to justify a child support variation under both provincial and federal jurisdiction must be “material,” otherwise “any change in circumstances, no matter how trivial or inconsequential, would be sufficient to trigger the right to variation.”[^15] In the context of spousal support variations, the term “material” has been interpreted as having both a quantitative and qualitative connotation. On a quantitative level, the Supreme Court of Canada has stated that trivial, insignificant or short-lived changes will not justify a variation.[^16] Similarly, in Brown v. Brown, the New Brunswick Court of Appeal held that in determining whether a relevant change has occurred, the court must consider whether the alleged change was “significant and long lasting; whether it was real and not one of choice.”[^17] However, the sufficiency of the change must always be evaluated in light of the particular facts of each case.[^18] The Ontario Court of Appeal has emphasized that a change in circumstances for the purposes of support variation proceedings must be something that has a measure of continuity.[^19]

[29] On a qualitative level, in order to be material, the change must be one that was not foreseen at the time, and must be such that if it had been known at the time, it would likely have resulted in different terms. If the matter which is relied upon as constituting a change was known or contemplated by the parties at the relevant time, it cannot form the basis for a variation of the existing order.[^20] The fact that a change was objectively foreseeable does not necessarily mean that it was contemplated by the parties. The material change can be based on an unexpected change in either or both of the parties’ circumstances, or on evidence that an anticipated set of specified circumstances failed to materialize.[^21] The onus is on the party seeking to vary the order to establish that such a change has occurred.[^22] The analysis of whether there has been a change in circumstances involves a careful review of the basis upon which the existing order was made.

[30] Turning to the facts of this case, it is clear that the parties anticipated at the time that the order was made that the Applicant would be incurring special and extraordinary expenses on behalf of Aleandra, including university costs. In fact, Aleandra was already enrolled in and actively pursuing her post-secondary education studies at the University of Georgia at that time. The June 28, 2008 order set out clear steps and guidelines as to how section 7 expenses would be dealt with, which included a number of obligations on the part of the Applicant. The parties both agreed to these steps, guidelines and obligations by executing Minutes of Settlement that formed the basis of the order. It is clear from reviewing the relevant child support terms of the order that the intention was that any disputes regarding section 7 expenses were only to be addressed through further court proceedings if they could not be resolved through the procedures and guidelines set out in the order.

[31] If the evidence established that the Applicant had complied with her obligations under the June 28, 2008 order with respect to claims for section 7 expenses, and that the Respondent had refused to cooperate with her efforts to obtain contribution from him, this would have constituted a change in circumstances justifying the Applicant’s Motion to Change the order. However, the evidence before me does not support such findings. Rather, I find that the Applicant did not comply with her obligations under the order with respect to contribution to section 7 expenses. Furthermore, the evidence does not satisfy me that the Respondent was uncooperative in working through issues respecting section 7 expenses within the framework that the parties agreed to in the order. I conclude that what the Applicant is essentially attempting to accomplish in this proceeding is to change the June 28, 2008 order so as to eliminate altogether the obligations which that order imposed upon her with respect section 7 claims, and to seek contribution to various expenses on a retroactive basis despite her non-compliance with those obligations.

[32] The specifics of the Applicant’s failure to comply with the terms of the order respecting section 7 expenses are as follows:

a. As previously noted, paragraph 1.4 required the Applicant to consult with the Respondent in advance of incurring section 7 expenses, and to provide details and proof of the proposed expenses. It also required the Applicant to obtain the Respondent’s written consent to the expenses, in advance of the expenses being incurred. The only evidence from the Applicant respecting her compliance with this paragraph was her bald assertion set out in her affidavit sworn February 10, 2013 that the Respondent continually disregarded her attempts to consult with him on matters pertaining to Aleandra’s educational and medical needs and expenses, and withheld his consent to contributing to these expenses on the basis that he felt he was not responsible. The Respondent denies that the Applicant ever consulted with him in advance respecting of any of the expenses for which she is now claiming contribution from him. I accept the Respondent’s evidence on this issue over the Applicant’s. There is no documentary evidence in the form of either letters, emails or other types of electronic communication of the Applicant attempting to consult with the Respondent regarding the expenses in question in advance of incurring them, or even around the time when she incurred them. The Applicant has not provided any details of any efforts on her part to call the Respondent to consult with him on these matters. The Applicant has not provided specific documentary or other evidence of requests on her part to obtain contribution from the Respondent prior to incurring the expenses or around the time that the expenses were incurred. With respect specifically to post-secondary expenses which the Applicant has claimed, the evidence which the Respondent adduced satisfies me that he was in the dark about Aleandra’s educational program and status. In a letter from the Respondent to the Applicant dated December 30, 2010, the Respondent notes that he had not received any information as to whether Aleandra continued to engage in post-secondary studies, the nature of those studies or her progress in same. He voiced his objection to being “methodically omitted from any and all decisions” affecting Aleandra’s education and future endeavours. In a subsequent letter from the Respondent to the Applicant dated July 14, 2011, the Respondent notes that he had still not received information regarding Aleandra’s educational status and progress. The evidence indicates that the Applicant only responded to the Respondent’s requests for information after she received correspondence from the Respondent’s counsel dated September 22, 2011 which reiterated the requests for information.

b. Paragraph 1.6 of the order sets out preconditions to the Applicant claiming contribution from the Respondent for post-secondary educational expenses. Subparagraph 1.6(a) required the Applicant to provide the Respondent with proof of Aleandra’s enrollment in college or university, and a tuition statement, by July 31st each year. I find that the Applicant did not comply with this requirement, and that she did not in fact provide the Respondent with proof of Aleandra’s ongoing enrollment at the University of Georgia until October 5, 2011, after receiving the above-referenced two written requests from the Respondent and the additional written request from counsel for the Respondent for the information.

c. Paragraph 1.6(b) required the Applicant to provide the Respondent with proof of Aleandra’s income and the amount which she is contributing to her educational costs by July 31, 2013 each year. I find that the Applicant had not complied with this requirement right up to the date of the hearing of this matter.

d. Paragraph 1.6(c) required the Applicant to provide the Respondent with proof of any other educational expenses, including supplies and books, by July 31st each year. The Applicant did not comply with this provision. I find that she did not provide proof of these expenses until she served the Respondent with the documents relating to these proceedings, on May 29, 2012.

e. Paragraph 1.6(d) required the Applicant to provide the Respondent with proof of her income, including a year to date pay statement and copy of her most recent income tax return including all supporting schedules and statements, by July 31st each year. I find that the Applicant also failed to comply with this requirement, and only provided this documentation when she served the Respondent with the documents relating to this proceeding on May 29, 2012.

f. Paragraph 1.7 provided that the Applicant’s right to claim contribution to post-secondary expenses was also conditional on the Applicant providing the Respondent with copies of the child’s transcripts at the end of each semester. I find that the Applicant did not comply with this requirement either. She did not send the Respondent a copy of Aleandra’s transcripts until October 5, 2011, when she finally responded to the three written requests referred to above for information about Aleandra’s academic status and progress.

[33] In short, based on my findings set out above, I conclude that the inability on the part of the parties to resolve the issue of contribution to section 7 expenses was attributable primarily, if not solely, to the Applicant’s failure to comply with the procedures and expectations set out in the June 28, 2008 order. The Applicant cannot meet the threshold change in circumstances requirement by relying on the parties’ inability to resolve section 7 expense issues when the breakdown of the framework set out in the order for dealing with those issues was of her own doing. The Applicant’s failure to meet this threshold test is sufficient to dismiss this Motion to Change Final Order.

ISSUE # 3: IS THE APPLICANT’S FAILURE TO COMPLY WITH THE TERMS OF THE JUNE 28, 2008 ORDER RESPECTING SECTION 7 EXPENSES SUFFICIENT IN ITSELF TO DISMISS THE MOTION TO CHANGE FINAL ORDER?

[34] Quite apart from the analysis of whether a change in circumstances has occurred, I conclude that the Applicant’s failure to comply with her obligations as set out in the June 28, 2008 order with respect to section 7 expenses is in and of itself sufficient to dismiss the her Motion to Change Final Order. Section 7(1) of the Guidelines is permissive rather than directive. The decision as to whether or not a party should be ordered to contribute to section 7 expenses is a matter of discretion. Where parties have agreed after extensive negotiations to attach preconditions to seeking contribution to section 7 expenses, and that agreement is incorporated into a court order, they should be required to comply with those preconditions absent exceptional circumstances. The court should not reward a party who has blatantly ignored their court ordered obligations by later granting them an award for retroactive contribution to expenses. Allowing parties to dodge such obligations would create undesirable uncertainty in child support litigation by sending a message that carefully crafted agreements regarding section 7 expenses will not matter in subsequent proceedings.

[35] In reaching my decision on this point, I have also relied upon Rule 1(8) of the Family Law Rules. That Rule provides that the court may deal with a failure by a party to obey a court order in the case or a related case by making any order that it considers necessary for a just determination of the matter, including an order dismissing a claim made by the party. The Applicant’s failure to comply in all respects with her obligations set out in the June 28, 2008 order in relation to section 7 expenses in my view provides a sufficient basis upon which to dismiss her claim under this Rule.

ISSUE # 4: SHOULD THE MOTION TO CHANGE BE DISMISSED ON THE BASIS OF INSUFFICIENT EVIDENCE OF ENTITLEMENT TO CHILD SUPPORT AS OF THE COMMENCEMENT OF THESE PROCEEDINGS?

[36] The Respondent argues that the Applicant’s claim should be dismissed on the basis that the Applicant has failed to adduce sufficient evidence to establish an ongoing entitlement to child support as of the date when she commenced these proceedings. For the reasons that follow, I agree with this position.

[37] The issue of entitlement to child support must be addressed as a preliminary matter in both originating proceedings and in any subsequent variation proceedings. As indicated above, entitlement to child support under the Divorce Act for a child who is eighteen years of age or older depends on a finding that the child remains under the charge of a parent, and is unable because of “illness, disability or other cause” to withdraw from the parent’s charge or to obtain the necessities of life. The analysis of whether a child is unable to withdraw from a parent’s “charge” focuses on whether the child remains financially dependent on the parent.[^23] The onus is on the party claiming ongoing entitlement to support to establish that the child is still a “child of the marriage.”[^24]

[38] The fact that an adult child is still undertaking educational studies may constitute “other cause” within the meaning of section 2(1) of the Divorce Act, but it is not in and of itself determinative of the issue of entitlement to child support.[^25] The entitlement analysis is a fact-driven undertaking in each case. The case-law indicates that in order for the pursuit of post-secondary education to constitute “other cause” within the meaning of section 2(1)(b) of the Act, the court must be satisfied that the educational plan is reasonable in terms of the child’s abilities, the plans and expectations of the parents in regard to the child’s post-secondary education, and the needs and means of the child and the parents. As the Saskatchewan Court of Appeal stated in Geran v. Geran,[^26] the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.” The courts have outlined a number of factors which should be considered in answering this question. The following is a collective list of some of the factors, as derived from the cases of Whitton v. Whitton, Farden v. Farden,[^27] Geran v. Geran, Rebenchuk v. Rebenchuk, Haist v. Haist[^28] and Caterini v. Zaccaria:[^29]

a. 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.

b. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.

c. The ability of the child to contribute to their own support through part time employment.

d. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.

e. In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.

f. The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.

g. The age, qualifications and experience of the child.

h. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

i. Whether the child is performing well in the chosen course of studies.

j. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.

k. The means, needs and other circumstances of the parents and the child.

l. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

[39] It is not necessary to establish all of the factors set out above to show that the child remains a “child of the marriage.”[^30]

[40] With respect to variation proceedings or claims for retroactive child support, the relevant time for the purposes of determining entitlement to child support is the date when the proceeding is commenced.[^31] The Supreme Court of Canada clarified this point in the case of D.B.S. v. S.R.G.[^32] in the context of claims for retroactive relief, stating as follows:

An adult, i.e., one who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made. This is true, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children of the marriage, not adults who used to have that status.

[41] The Applicant has the onus in this case of proving that Aleandra remained entitled to child support as of December 27, 2011, when she commenced these proceedings. She has not satisfied this onus. The Applicant acknowledged on April 22, 2013 that Aleandra graduated from the Bachelor of Science in Education program on December 16, 2011, prior to the commencement of these proceedings. The only evidence in the materials before me regarding Aleandra’s status after that date is a vague reference in the Applicant’s affidavit sworn February 10, 2013 to Aleandra pursuing her Master’s degree. The Applicant has not lead evidence respecting any of the following issues which must be considered in determining the issue of entitlement to child support as of December 27, 2011:

a. Whether Aleandra was living with her at that time.

b. Whether Aleandra was in fact enrolled in a Master’s Degree program at that time. The Applicant did not provide any documentary proof of enrolment in any such program.

c. The specifics of any educational program that Aleandra may have been enrolled in as of December 27, 2013, including whether she was enrolled on a full time or part time basis, the nature of the program, and the merits of Aleandra’s participation in the program having regard for her interests, aptitudes and long- term goals.

d. Aleandra’s progress in any educational program she may have been enrolled in.

e. Aleandra’s overall condition, means needs and other circumstances, including details regarding her financial situation and her ability to support herself.

f. Details regarding any scholarships, bursaries, loans or other sources of funding available to Aleandra to allow her to pursue further studies.

g. Information regarding Aleandra’s willingness to remain accountable to the Respondent for her ongoing educational studies and any funding support which she would receive from him.

[42] The materials before me suggest that the Applicant was intent on providing the Respondent with the bare minimum in terms of information about Aleandra’s circumstances following her graduation on December 16, 2011. She specifically addressed the issue of Aleandra’s ongoing studies in her affidavit sworn February 10, 2013, but only made a vague reference to Aleandra pursuing a Master’s Degree. This affidavit would have been a perfect opportunity for the Applicant to be open, forthcoming and informative about Aleandra’s situation, including the status of her educational studies. She chose not to seize that opportunity. Instead, she lay the blame for the Respondent’s lack of information respecting Aleandra’s situation on his alleged failure to contact her or Aleandra directly to obtain this information.

ISSUE #5: SHOULD THE MOTION TO CHANGE BE DISMISSED ON THE BASIS OF INSUFFICIENT EVIDENCE TO SUPPORT A CLAIM FOR RETROACTIVE RELIEF?

[43] The Respondent argues that the Motion to Change should also be dismissed on the basis that the Applicant has not established the evidentiary foundation required to support a claim for retroactive child support. I agree.

[44] The Supreme Court of Canada settled the principles that apply with respect to both initial claims for retroactive child support and claims for a retroactive increase of child support in D.B.S. v. S.R.G.[^33] The Court concluded in D.B.S. that retroactive child support claims can be advanced pursuant to the Act despite the absence of a reference to retroactive relief in section 15.1 of the Act, provided that the child support obligation existed during the period encompassed by the retroactive claim. It canvassed in detail the various considerations that come into play in these cases, including the child’s and custodial parent’s need for financial support, the need for flexibility in order to ensure a just result, and the competing needs of ensuring certainty and predictability when obligations appear to be settled. The court ultimately adopted a highly discretionary approach to retroactive child support claims, and outlined the following general factors which the court should consider in such cases:

a. Whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier.

b. The conduct of the payor parent. The court characterized “blameworthy conduct” as “anything that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support”. It emphasized that a payor cannot simply hide their income increases from the recipient parent in the hopes of avoiding larger child support payments.

c. Consideration of the present circumstances of the child.

d. Any hardship that may be occasioned by a retroactive order.

[45] The court in D.B.S. also outlined general principles regarding the appropriate effective date for retroactive relief. It established that generally, a retroactive child support order should commence as of the date of effective notice that a request is being made for child support or an adjustment to child support. It further held that in most cases, it will be inappropriate to make a support award retroactive to a date more than three years before the date when formal legal notice was given to the payor parent.

[46] The Applicant has the onus of proving that retroactive relief is warranted in this case. She has not adduced any credible evidence to address any of the above noted considerations. With respect to the issue of delay in advancing her claims, the only evidence which she adduced that is relevant to this question was her assertion that the Respondent was uncooperative with her in addressing section 7 expenses. As discussed above, I do not accept the Applicant’s perspective on this issue. There is no credible evidence before me to suggest that the Respondent’s conduct with respect to the payment of child support or contribution to section 7 expenses has been blameworthy in any way. In fact, the Respondent willingly continued to pay the Applicant the full Table amount of child support until December 2011, despite the fact that he lacked details regarding Aleandra’s circumstances, including whether or not she continued to reside with the Applicant. As it turns out, Aleandra was actually living away from her mother’s residence during her university school years. Finally, as discussed above, the Applicant has not led any evidence respecting Aleandra’s current circumstances, which would be relevant to the analysis of the hardship issue.

ISSUE # 6: SHOULD THE MOTION TO CHANGE BE DISMISSED ON THE BASIS OF INSUFFICIENT EVIDENCE TO PROPERLY CARRY OUT THE ANALYSIS REQUIRED UNDER SECTION 3 OF THE GUIDELINES?

[47] The Respondent’s final argument is that the Motion to Change Final Order should be dismissed on the basis that the Applicant has failed to adduce the evidence needed to properly carry out the analysis required under section 3 of the Guidelines. Again, for the reasons that follow, I agree with the Respondent.

A. The Law Respecting Appropriate Approaches to the Calculation of Child Support

1. General Principles

[48] As indicated previously, the presumptive rules respecting the child support calculation, and the amount of child support payable, are set out in sections 3(1) and (2) of the Guidelines. The Ontario Court of Appeal outlined the following principles regarding the manner in which the calculation and quantum of child support should be determined pursuant to these sections in Lewi v. Lewi:[^34]

a. Where the child is under the age of majority, the analysis is undertaken pursuant to section 3(1). The presumption is that the amount of child support is the amount set out in the Tables and the amount, if any, determined under section 7 in relation to special and extraordinary expenses. The court determined that pursuant to section 3(1), contributions to section 7 expenses that the court determines are appropriate are not properly characterized as “add-ons” to the child support order, but are a part and parcel of the basic child support amount ordered under section 3(1).

b. If a party seeks child support for a period after a child attains the age of majority, the amount of child support payable after the child becomes an adult must be determined under section 3(2) of the Guidelines.

c. The court is directed by section 3(2)(a) to start with the presumption that in cases involving children over the age of majority, child support should be calculated in the same manner as for a child under the age of majority, that is, by calculating the applicable Table amount and adding any contribution to section 7 expenses which is determined to be appropriate. The court described this approach as “the standard Guidelines approach.” However, the court must then determine whether this approach is “inappropriate” based on the particular facts of the case.

d. If the court determines that the standard Guidelines approach is inappropriate, the court must determine the amount of child support in accordance with section 3(2)(b) of the Guidelines, which provides that the amount of support is the amount which the court considers appropriate, “having regard for the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.” The use of the term “approach” in section 3(2)(b) makes it clear that the court cannot depart from the standard Guidelines approach simply on the basis that the amount determined using the standard Guidelines approach is inappropriate, and makes it clear that deviations from the presumptive approach under section 3(1)(a) should be the exception rather than the rule.

e. Where the child is over the age of majority, and the court determines that applying the standard Guidelines approach is inappropriate, the analysis should be carried out entirely pursuant to section 3(2)(b) of the Guidelines, and resort should not be made to section 7. However, in carrying out the section 3(2)(b) analysis, the court may draw upon the principles set out in section 7 and other provisions of the Guidelines and its experience in applying them. By way of example, it would be entirely appropriate for the court, pursuant to section 3(2)(b), to follow the guiding principle set out in section 7 that expenses referred to in that section should be shared between the parents in proportion to their respective incomes, after deducting the contribution if any of the child.

f. Section 3(2)(b) requires the court to consider the means of the child along with the means of the parents in determining an appropriate amount of child support. The court has the discretion to decide the amount that the child should be expected to contribute. As a general rule, there will be an expectation that a child with means will contribute something from those means towards their post-secondary education expenses. There is no standard formula for determining the appropriate amount of the child’s contribution, and this determination will depend on the unique circumstances of every case.

g. The determination of the contribution that a child should make to post- secondary education expenses should take into consideration both the child’s income and capital assets. However, there is no requirement that the child contribute all of their income and/or capital assets towards these expenses. The extent of the child’s contribution from both their income and capital is largely a matter of discretion for the trial judge, and will depend on the facts of each case.

h. With respect to the contributions expected from the child, the court set out the following considerations that should be kept in mind in carrying out the analysis of this issue:

i. The court emphasized the need to avoid creating disincentives for children to earn as much as possible to help pay their post- secondary education expenses. For instance, a general order that the child contribute a certain percentage of their earnings each year could create such a disincentive. It may be appropriate depending on the facts of the case to simply set an amount that the child is expected to contribute and to leave it to the child to earn as much as they can during the summers or throughout the school year, particularly where there the child has assets from which they can draw for their financial needs.

ii. If a child chooses to enrol in an educational program away from home at much greater cost, they should be expected to contribute a commensurately greater amount to their post-secondary education costs.

i. The court referred to a number of factors that may be appropriate to consider in deciding cases involving adult children who are attending post- secondary education programs, drawing in part from the principles set out in section 7. These include:

i. The means of the parents.

ii. The means, needs and other circumstances of the child.

iii. The spending pattern of the family prior to separation.

iv. The necessity and reasonableness of the post-secondary expenses, in relation to the means of the parties and those of the child.

v. The possibility of the court ordering contribution to only a portion of the child’s post-secondary expenses.

vi. The possibility of apportioning expenses according to the approach set out in section 7.

vii. The intention of the parents with respect to post-secondary education expenses prior to separation.

viii. The effect that any order would have on the parents.

2. Approaches Taken by the Courts

[49] The term “inappropriate” in the context of section 3(1) of the Guidelines means “unsuitable” rather than “inadequate.” There is therefore a broad discretion with the trial judge to determine whether or not the standard Guidelines approach should be resorted to.[^35] Both before and since the Ontario Court of Appeal released its decision in Lewi, courts have often considered the standard Guidelines approach to be inappropriate in cases where children are attending post-secondary education programs away from home,[^36] or where the child has the ability through their own means to pay not only for post- secondary education expenses but also a portion of their living costs.[^37]

[50] The courts have taken various approaches as to how child support should be determined in cases involving children who attend school away from home for all or a part of the year. A review of these cases reveals that typically, the closer the circumstances of the child are to those upon which the standard Guidelines approach is based, the more likely it is that the standard approach set out in section 3(1) of the Guidelines will be applied.[^38] The various approaches adopted by the courts include the following:

a. In some cases, the courts have determined that the appropriate approach is to calculate the actual costs of providing for the needs of the child during the entire year, factoring in a contribution towards the costs to the recipient of maintaining a residence for the child to return home to on weekends and during the summer, and apportioning the amount between the parents after taking into account the appropriate amount that the child should contribute.[^39] Other courts have adopted the same approach, without adding in an amount for the cost to the recipient of maintaining a home base for the children.[^40]

b. Some courts have made what can be described as “bifurcated orders,” ordering the Table amount for the period of time when the child is residing with the recipient, and directing the parents to each pay a share of the child’s total expenses for the remaining months of the school year, including both living expenses and education expenses, reduced by the appropriate amount of the child’s contribution,.[^41]

c. Other courts have adopted the approach set out in subsection 2 above, with the exception that they have also factored in the recipient parent’s costs of maintaining a residence for the child to return home to during the summer and for holidays.[^42]

d. The trial judge in Lewi adopted the approach outlined in subsection 2 above, with the exception that she pro-rated the total Table amount payable for the period of time the child would be residing with the recipient during the year over the course of twelve months. The Ontario Court of Appeal in Lewi determined that this approach would have been appropriate if it had been taken globally pursuant to section 3(2)(b) rather than as a two-step analysis involving the determination of an appropriate Table amount and then a section 7 analysis, as the trial judge had done. It is significant, however, that the court commented that this approach may not be the most appropriate from the perspective of the recipient, in that it fails to recognize the ongoing costs to the recipient of maintaining a home for the child to return to during the summers and other holiday periods. Thus, the court endorsed the possibility that where the full Table amount of child support is ordered for the time that a child is at home while attending post-secondary education, it may be appropriate for the recipient to also receive not only a contribution towards the child’s expenses during the school year but also a contribution towards the cost of maintaining their own residence as a home base for the child.

e. In other cases, the courts have ordered the Table amount for the months when the child is home during the summer, a specified percentage of the Table amount each month for the months when the child is away at school for the recipient to cover the child’s living needs, and a proportion of the child’s education expenses (i.e. tuition, residence, books and supplies).[^43]

3. Contributions of the Child and the Parents

[51] The extent to which a child will be expected to contribute to their post-secondary education costs depends on the particular facts and dynamics of each case. This duty to contribute does not necessarily require that the child devote their entire earnings to their educational expenses. If possible, children should be allowed to enjoy some of the fruits of their labour.[^44] However, where the means of the parents and the children are limited, the contribution expected from the child may very well increase.

[52] Similarly, while there is tendency by the courts to support children with respect to their choice of a post-secondary education program, the child may be called upon to make a greater contribution to their education costs if various options are available and their choice comes with a higher price tag than other possibilities. As Martinson, J. of the British Columbia Supreme Court aptly stated in the often quoted case of Wesemann v. Wesemann, post-secondary education is a privilege, not a right.[^45] The law should create incentives for decision-making regarding appropriate educational programming that remains grounded in the reality of the family’s financial means.

[53] The question of whether the availability of student loans should be taken into account in determining the child’s ability to contribute is a discretionary matter for the trial judge, and must be determined on a case by case basis taking into consideration the particular facts and dynamics of each case.[^46] Typically, the courts will only require a child to contribute by means of student loans as a last resort, where the means of the child and those of the parents are insufficient to cover the child’s education and living expenses.[^47] However, this is not a hard and fast rule, and the trial judge’s exercise of discretion on this issue will be deferred to provided that the conclusion reached by the trial judge was reasonable.[^48]

[54] With respect to the apportionment of a child’s post-secondary education expenses as between the parents, the courts often adopt the proportionate-to-income principle that applies with respect to section 7 expenses. However, the choice of approach on this issue also falls to the discretion of the trial judge, who may determine after balancing all of the evidence and considerations that imposing a higher burden on one of the parties is appropriate.[^49]

4. The Implications of Tax Credits in the Apportionment Process

[55] As in the case of section 7 expenses, a payor’s contribution to post-secondary education expenses ordered pursuant to section 3(2)(b) of the Guidelines should take into account any subsidies, benefits or income tax deductions or credits relating to the expense, so that the contribution is calculated based on the net cost of the claimed expense.[^50]

B. ANALYSIS

[56] The Applicant’s claim for contribution to Aleandra’s health-related and post-secondary education expenses involves expenses which she incurred after Aleandra reached the age of majority. Accordingly, the child support analysis must be undertaken pursuant to section 3(2) of the Guidelines. As is evident from the foregoing discussion regarding the applicable legal principles, the calculation of child support for an adult child who is engaged in post-secondary studies is a complicated matter which requires detailed evidence regarding numerous important matters. The onus is on the Applicant to establish the evidentiary foundation upon which the court can carry out the analysis pursuant to section 3(2). The Applicant has not met this onus. There are many deficiencies and gaps in the evidence which render it impossible to determine whether the monthly Table amount of child support of $766.00 which the Respondent paid up until December 2011 was inadequate. The problems and shortcomings with respect to the Applicant’s evidence include the following:

a. The first step in carrying out the analysis pursuant to section 3(2) of the Guidelines is to determine whether the standard Guidelines approach as described in section 3(1) is inappropriate on the facts of the case. There is insufficient evidence upon which to decide this issue. The Applicant did not provide details about where exactly Aleandra lived from 2009 to 2011, how much time she spent at the Applicant’s home during the school year, or whether Aleandra returned home during the summer months. She did not adduce any evidence respecting Aleandra’s own financial situation, which is another factor which the courts consider in determining whether the standard Guidelines approach is appropriate.

b. The Applicant has not provided sufficient details regarding the child’s expenses from 2009 until 2011. For example:

i. As discussed earlier in these Reasons, she did not provide details or receipts regarding the out of pocket medical expenses which she states she incurred on behalf of Aleandra from 2009 to 2011.

ii. With respect to her claim for contribution to health and dental benefits premiums, as previously noted in these Reasons, she has not submitted any documentary evidence confirming the amount of the premiums for the years 2009 and 2010, and has not produced any confirmation from the benefits provider regarding the portion of these premiums that were actually attributable to Aleandra.

iii. With respect to her claim for Housing/Fees for 2009, totalling $4,032.00, she produced a document entitled “Payment History” from the University of Georgia student account website (the “Payment History”) indicating that this amount was incurred on behalf of Aleandra in 2009. Under the “Memo” heading of this document, there are notations explaining only $3,433.00 of this amount (Spring fees $20.00, bulldog bucks $20.00, early move-in fee $20.00, housing and parking fees $3,173.00). There is no explanation provided for the remaining balance of $599.93, other than a general handwritten notation “housing/fees.” There is no evidence elsewhere in the materials which the Applicant has filed explaining the details respecting this remaining amount. In addition, the document indicates that the payer was Aleandra, and not the Applicant.

iv. In regard to her claim relating to Fees/Parking for 2010, totalling $936.00, the Payment History from the University of Georgia student account website indicates that this amount was spent for Aleandra in 2009. However, there is only a notation in the “Memo” section of this document explaining $360.00 of this amount (for parking). There is a general handwritten notation “Fees/parking” on this document, but the Applicant has not provided any details explaining the remaining amount of $576.00. Furthermore, the payer is documented as Aleandra, not the Applicant.

v. The Applicant has not provided any specifics at all regarding the housing expenses which she has claimed for 2009 to 2011. In particular, she has not explained why Aleandra’s housing expenses in 2009 and 2010 were so much higher than in 2011.

vi. Regarding her claim for Tuition/Fees for 2011 totalling $3,789.80, the Payment History indicates that this amount was incurred for Aleandra in 2011, but there is no explanation for this amount in the Memo portion of the document. There is only a handwritten notation “tuition/fees for 2011.” Again, Aleandra rather than the Applicant is noted as the payer.

c. The Applicant has not adduced any evidence whatsoever regarding Aleandra’s ability to contribute to her expenses since 2009, including evidence respecting her income since that time, whether she has sought out employment opportunities, whether she was paid for the internship which she completed during the fall of 2011, whether she received any student loans, bursaries or scholarships and if so particulars of same, whether she has received assistance from other family members or other sources for her education expenses and whether she has had capital assets which she could have realized upon to cover part of her educational expenses.

d. The Applicant has not provided a budget setting out details as to what portion of her annual housing expenses, if any, should be apportioned to Aleandra. Part of the difficulty in determining this issue is that the Applicant has not provided details regarding the amount of time that Aleandra spent at her home from 2009 to 2011.

e. The Applicant has not provided any information as to whether she was able to claim any subsidies, benefits or income tax credits or deductions in relation to the expenses for which she is seeking contribution.

[57] In summary, there are simply too many missing pieces to the puzzle to allow for a determination of whether the child support which the Respondent already paid the Applicant up until December 2011 was inadequate. The onus was on the Applicant to satisfy the court on this issue. She has not met this burden.

II. ORDER TO ISSUE

[58] Based on the foregoing, an order shall issue as follows:

1. The Applicant’s Motion to Change Final Order is dismissed.

2. If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by November 15, 2013. Any reply submissions shall be served and filed by December 1, 2013.

The Honourable Madam Justice Deborah L. Chappel

Released: October 21, 2013

COURT FILE NO.: F-1401/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Lucia Angela Maria Durso

And

Ermis Anthony Mascherin

REASONS FOR JUDGMENT

The Honourable Madam Justice Deborah L. Chappel

Released: October 21, 2013

[^1]: Family Law Act, R.S.O. 1990, c. F-3, as amended.

[^2]: Divorce Act, R.S.C. 1985, c. 3 (2nd. Supp.), as amended.

[^3]: Federal Child Support Guidelines, SOR/97-175, as amended.

[^4]: Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 1.

[^5]: Interjurisdictional Support Orders Act, 2002, s. 26(1)(b).

[^6]: Seary v. Seary, 1994 CanLII 3828 (ON SC), [1995] W.D.F.L. 201 (Ont. Gen. Div.); Ward v. Spear, 1999 CanLII 13988 (ON CJ), [1999] O.J. No. 1795 (Prov. Div.); French v. Mackenzie, 2003 CarswellOnt 1748 (S.C.J.).

[^7]: Strickland v. Strickland, 1991 CarswellNS 53 (N.S.C.A.).

[^8]: Fancy v. Shephard, 1997 CarswellNS 503 (N.S.S.C.).

[^9]: Laferrière c. Québec (Juge de la Cour du Québec), 2010 SCC 39, [2010] SCC 39, [2010] 2 S.C.R. 536 (S.C.C.); Bruyère c. Québec (Commission de la santé et de la sécurité du travail), 2011 SCC 60, [2011] 3 S.C.R. 635 (S.C.C.).

[^10]: Divorce Act, sections 15.1 and 2(1).

[^11]: Divorce Act, section 17(4).

[^12]: Divorce Act, section 15.1(3).

[^13]: Titova v. Titov, 2012 CarswellOnt 15666 (C.A.).

[^14]: Brown v. Brown, 2010 NBCA 5, 2010 CarswellNB 30 (N.B.C.A.), at para.19.

[^15]: Ibid., at para. 18.

[^16]: Hickey v. Hickey (1999), 1999 CanLII 691 (SCC), 46 R.F.L. (4th 1 (S.C.C.).

[^17]: Brown v. Brown, Supra, at para. 21; See also Haisman v. Haisman, 1994 ABCA 249, 1994 CarswellAlta 179 (C.A.); leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.).

[^18]: Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.).

[^19]: Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.).

[^20]: L.M.P. v. L.S., 2011 CarswellQue 13698, 2011 SCC 64 (S.C.C.); Willick v. Willick, Supra., at p. 688; B. (G.) v. G. (L.), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370 (S.C.C.).

[^21]: Fisher v. Fisher, 2008 ONCA 11, 2008 CarswellOnt 43 (Ont. C.A).

[^22]: L.M.P v. L.S., Supra.

[^23]: Rebenchuk v. Rebenchuk, 2007 MBCA 22, 2007 CarswellMan 59 (C.A); Thompson v. Ducharme, 2004 MBCA 42 (C.A.).

[^24]: Rebenchuk v. Rebenchuk, Ibid.; Olson v. Olson, 2003 ABCA 56 (Alta. C.A.); MacLennan v. MacLennan, 2003 NSCA 9 (N.S.C.A.); Whitton v. Whitton (1989), 1989 CanLII 8868 (ON CA), 21 R.F.L. (3d) 261 (C.A.).

[^25]: Jackson v. Jackson, 1972 CanLII 141 (SCC), [1973] S.C.R. 205 (S.C.C.).

[^26]: Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 333 (Sask. C.A.), at para. 15.

[^27]: Farden v. Farden, (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C.Master).

[^28]: Haist v. Haist, 2010 ONSC 1283, 2010 83 R.F.L. (6th) 147 (S.C.J.).

[^29]: Caterini v. Zaccaria, 2010 ONSC 6473, 2010 CarswellOnt 9344 (S.C.J.)

[^30]: Darlington v. Darlington (1997), 1997 CanLII 3893 (BC CA), 32 R.F.L. (4th) 406 (B.C.C.A); Wesemann v. Wesemann (1999), 1999 CanLII 5873 (BC SC), 49 R.F.L. (4th) 435 (B.C. S.C.) at para. 11.

[^31]: In regard to retroactive claims, see D.B.S. v. S.R.G., 2006 SCC 37 (S.C.C.), at para. 89; with respect to the application of this principle in Motions to Change, see also Krivanek v. Krivanek, 2008 CarswellOnt 5179 (S.C.J.).

[^32]: D.B.S. v. S.R.G., Ibid., at para. 89.

[^33]: D.B.S. v. S.R.G., Supra.

[^34]: Lewi v. Lewi, 2006 CanLII 15446 (ON CA), 2006 CarswellOnt 2892 (C.A.).

[^35]: Rebenchuk, Supra.

[^36]: See for example Park v. Thompson, 2005 CanLII 14132 (ON CA), 2005 CarswellOnt 1632 (C.A.).

[^37]: Rebenchuk, Supra.

[^38]: Wesemann v. Wesemann, Supra.

[^39]: See for example Merritt v. Merritt, 1999 CarswellOnt 1471 (S.C.J.).

[^40]: See for example Johnson v. Johnson, [1998] B.C.J. No. 1030 (B.C.S.C.).

[^41]: See for example Bertram v. Murdock, 2006 CarswellOnt 1394 (O.C.J.); Calder v. Purdy, 2005 CarswellNS 521 (N.S.S.C.).

[^42]: Albert v. Albert, 2007 CanLII 29972 (ON SC), 2007 CarswellOnt 4863 (S.C.J.); approved in Marsh v. Jashewski, 2011 CarswellOnt 6196 (S.C.J.).

[^43]: See for example Lu v. Sun, 2005 NSCA 112, 2005 CarswellNS 338 (C.A.); leave to appeal refused 2005 CarswellNS 580 (S.C.C.); Brown v. Brown, 2007 CarswellOnt 2111 (S.C.J.) (base amount of monthly child support was calculated at 33% of the Table amount to reflect the fact that the child was away at school for about 66% of the school year).

[^44]: Mickle v. Mickle, 2008 CarswellOnt 193 (C.A.); Wesemann v. Wesemann, Supra.; Darlington v. Darlington, Supra.; Roth v. Roth, 2010 CarswellOnt 2918 (S.C.J.).

[^45]: Wesemann v. Wesemann, Supra.

[^46]: Roth v. Roth, Supra.; Smith v. Selig, 2008 NSCA 54, 2008 CarswellNS 307 (C.A.).

[^47]: Rebenchuk v. Rebenchuk, Supra.

[^48]: Smith v. Selig, Supra., at para. 20; Caterini v. Zaccaria, Supra.

[^49]: Perfanick v. Panciera, 2001 CarswellMan587 (C.A.).

[^50]: Rebenchuk v. Rebenchuk, Supra.