COURT FILE NO.: F-490-13

DATE: 2013-11-13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DELMAR MILLER

Self-Represented

Applicant

• and -

ROSEMARIE MESSAM MITCHELL and

MILTON MILLER

Self-Represented

Respondents

HEARD: November 6, 2013 at Hamilton Family Court

RULING

PARAYESKI, J.

1The applicant is the son of the respondents. He claims support from them to help cover the cost of his attendance at McMaster University. They, I believe, are divorced from one another.

2The parties are all self-represented. All three have either refused or neglected to avail themselves of the assistance of duty counsel. Their materials are significantly deficient. Their evidence is incomplete, and consisted more of argument than the presentation of facts. Nonetheless, I believe that I have sufficient evidence before me to make this ruling.

3The respondent mother is more or less supportive of the applicant’s case. The respondent father resists paying support on several, largely irrelevant grounds.

Prior Orders

4A complicating, or at least confusing, factor here is the existence of two prior orders issued out of the Ontario Court of Justice at Kitchener having to do with support for the applicant.

5On September 23rd, 2010, Justice Epstein of that court granted an order “on consent on a final basis” that the respondent father pay support directly to the applicant at the rate of $290 per month commencing September 1st, 2010 for so long as he remained in full-time attendance at a post secondary school. Despite the orders “final” status, the “matter” was adjourned to October 6th, 2010. On October 22nd, 2010 Justice O’Dea granted another “final” order which terminated the respondent father’s obligation to pay support in respect of the applicant, effective July 1st, 2008. There is no reference to Justice Epstein’s order of a month earlier. Rather, there is reference to a May, 2004 order.

6The applicant did not participate in the process at the Ontario Court of Justice. Neither respondent could or would provide a fulsome explanation for the anomaly described. Neither could say whether Justice O’Dea was told about the order of Justice Epstein. The respondent mother thought that perhaps Justice O’Dea was simply terminating the child support that had been being paid to her in respect of the applicant, perhaps leaving in place the payment order to be made to the applicant directly. The respondent father disagrees, saying that his support obligation in relation to the applicant ended with Justice O’Dea’s order.

7On May 5th, 2011, the mother brought a motion without notice returnable at the Ontario Court of Justice at Kitchener asking that the terms of Justice Epstein’s order be enforced. Some judge at that court, whose signature is illegible, gave her an endorsement which acknowledged the “mistake” between the two orders (that endorsement is attached to trial exhibit 5), but required the mother to bring her motion on notice. She did not pursue that option.

Basic Facts

8The evidence before me establishes that the applicant commenced his studies at McMaster University in September of 2009. He was on the university’s football team. For unexplained reasons, he left the university, quitting his program in early 2010.

9The applicant then returned to McMaster in September of 2010. He testified that he has been in full-time attendance there since then. He is in his fourth and final year of his combined undergraduate program of communications and political science. He hopes to continue his studies at the post-graduate level, perhaps in law.

10The respondent father indicated that he did not believe that the applicant was enrolled on a full-time basis. He refers to a “program and course summary” said to have been generated in the summer of 2010. It shows the applicant’s “academic level status” to be “part-time” (see trial exhibit 3). The applicant’s explanation, which I accept, is that when he was playing football for the university he was given a reduced academic load during the playing season (and hence the designation of “part-time”), that he made up for the missed classes during the balance of the academic year when his football obligations were over. At the end of each academic year, he completed a full-time course load. I find as a fact that the applicant has been in full-time studies at McMaster University since September of 2010.

11The applicant testified with regard to his expenses while at university. Including tuition and rent, et cetera, this totaled $17,412 in the 2010-11 year, $17,279.21 in the 2011-12 year, and $19,320.43 in 2012-13. The 2013-14 year expenses appear to be such that they will be more or less in the range of the figures from earlier years. I accept the accuracy of the expense figures. In my view, they are reasonable inasmuch as they appear to reflect a very modest lifestyle.

12The applicant works during the summer months and, at least in 2012, part-time during the academic year. His income tax materials show an income of $4,333.00 in 2010, $3,463.00 in 2011, and earnings of $3,752.00 in 2012. His year-to-date income evidence suggests earnings in 2013 of $3,924.34. He denies being paid by the university when he was playing football. He did get a bursary of $800.00 in 2012. He denies his father’s evidence that he had indicated that he was receiving grants and bursaries or scholarships. He acknowledged some sporadic help with rent from his mother, but says that he has received nothing from his father since September of 2010.

13The applicant finances the shortfall between his earnings and expenses with OSAP loans.

14The applicant says that he has been asking his father for financial help since 2010. This he said, took place during what appeared to have been annual telephone calls at the start of each academic year. The father denies any such requests, or indeed, such telephone calls. The father denies any communication with the applicant from 2010 until the present litigation began. The applicant does acknowledge that there is minimal direct contact with his father, but says that he maintains some contact with his father’s new family through siblings and a paternal uncle.

15The respondent father’s income evidence is that he made $79,796.00 in 2010, $80,028.00 in 2011, and $88,797.00 in 2012. His year-to-date evidence consists of a pay stub which does not permit an accurate prediction, but there is no reason to anticipate a material drop in income.

16The respondent mother’s income evidence is that she made $39,559 in 2010, $50,901.00 in 2011, and $47,203.00 in 2012. Her year-to-date income evidence shows $38,875.91 in 2013. She anticipates a drop in income once the contract under which she is presently working ends.

Analysis

17I am satisfied that the applicant remains a child of the marriage as defined in the Divorce Act and that he is entitled to support by virtue of his being a full-time university student. The Guideline amount of support is inappropriate given the proven, modest expenses described above. While there is plainly some estrangement between the applicant and his father, the precise cause of that is not in evidence. In any event, child support is not payment for being a dutiful, communicative son or daughter.

18The annual expenses for university attendance proven average approximately $18,000. There is no evidence before me which suggests that the son is incapable of paying for one-third of that. He could easily do so by working full-time at minimum wage for the summer months. The remaining two-thirds, or $12,000 should be paid by the respondent parents in proportion to their relative incomes. The available evidence has the father earning an average of $82,864.67 over the years 2010 to 2012. The mother’s average income, including 2013 is proven at $38,875.91. The ratio between these figures is that the father should be paying $7,723.20 per year, or $643.60 per month and the mother should be paying $4,276.80 per year or $356.40 per month.

Retroactivity and Ongoing Payment

19The applicant son asks that his parents be ordered to pay support retroactive to commencement of the 2010-11 academic year. In my view, this would be unfair. In respect of the father, he has been resisting payment, at least in part, upon the basis of Justice O’Dea’s order. That order, while unclear and largely unexplained, is in good standing and has not been appealed or meaningfully challenged. For the mother’s part, she has been helping out the applicant to some degree over the years, albeit sporadically. Based upon his own evidence, the applicant’s requests for assistance, at least until the time he commenced this application, were themselves sporadic and unspecific. I am of the view that the fairest order would be for the parents to each pay one year’s worth of arrears as set out above followed by monthly payments, also as specified above, commencing September, 2013. Such payments are owed directly to the applicant Delmar Miller, who was born on November 22nd, 1990. It is unclear to me whether the Family Responsibility Office will enforce such payments, but in the event that it will, a standard deduction order is granted.

20The support payments shall continue for so long as the applicant is attending university on a full-time basis. The old rule of thumb that only a first degree should be contributed to by the parents has been eclipsed by the present reality, in respect of which I take judicial notice, that such a degree no longer provides an automatic entrée to remunerative employment.

21The parents shall provide each other and the applicant with their annual notices of assessment within 30 days of receipt. The applicant, for his part, shall provide each of the respondents with proof of his full-time attendance at the beginning and end of each academic year.

22Of course, the terms of my order are subject to variation in the usual manner.

23If the parties cannot agree with respect to costs, they may make brief written submissions to me in that regard. Each set of submissions should be no more than two typewritten pages in length. The applicant’s costs submissions, if any, are to be provided to me on or before December 15th, 2013. The respondents each have until January 15th, 2014 to make their responses, if any. The cost submissions should be forwarded to my attention at the John Sopinka Court House at Hamilton.