COURT FILE NO.: FD 2123/00
DATE: 2014-04-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Deborah-Ann Mary Sholhan
Applicant
– and –
Timothy Brian Sholhan
Respondent
Appearing in Person
Appearing in Person
HEARD: April 1 & 2, 2014
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] The parties were able to resolve the issue of ongoing child support by mediation. A trial was required with respect to claims for retroactive child support, contribution to extraordinary expenses and spousal support.
Background
[2] The parties married on October 24, 1981 and separated on May 15, 2009. Three children were born to their relationship: Kara, Melissa and Jennifer. The older two children are adults living independently. Jennifer, age 19, attends college and remains a dependant. Both parties are 55 years of age.
[3] At the time of separation, there was no property of any consequence. Both parties had made an assignment in bankruptcy in 2000. Ms. Sholhan made a second assignment in 2009 and was discharged in 2011. Mr. Sholhan decided not to make a further assignment and remains liable for debt owing to financial institutions and Canada Revenue Agency of approximately $30,000. The financial problems were the result of Mr. Sholhan’s gambling addiction.
[4] The parties discussed child support after their separation. Mr. Sholhan made a number of payments. There is a dispute as to the amount he paid and whether they had an oral agreement.
[5] Jennifer is enrolled at Humber College in the Community and Justice Services program. She is expecting to complete the program in December 2014. Jennifer is considering continuing her studies at university. The parties are aware of their financial obligation to assist their daughter if she enrolls in an undergraduate program. Resolution of the ongoing child support issue requires Mr. Sholhan to pay $570 monthly until December 1, 2014 to coincide with Jennifer’s graduation from college.
[6] Ms. Sholhan has been employed as a cashier at Metro for some time. This is a part-time position. The contract between Metro and the union provides for twenty-four hours per week. Ms. Sholhan usually works another six hour shift on Sundays. Her 2013 income was $21,223.
[7] Mr. Sholhan is a millwright, currently employed by Alcast Technologies. His 2013 income was $70,069, with similar amounts in 2011 and 2012. Mr. Sholhan had employment and health problems in 2009 and 2010 resulting in a significantly reduced income.
Litigation
[8] In her application, issued January 29, 2013, Ms. Sholhan claimed:
(a) guideline child support for Jennifer commencing May 15, 2009;
(b) pro rata contribution to Jennifer’s extraordinary expenses, including college; and
(c) spousal support, commencing May 15, 2009, in consultation with the spousal support guidelines.
[9] In his answer, dated May 1, 2013, Mr. Sholhan requested the application be dismissed. He also sought spousal support during the time he received Ontario Works benefits and a divorce.
[10] The parties attended on-site mediation on October 23, 2013. The subsequent mediation report resulted in a court order granted that day by McLaren J. The order requires Mr. Sholhan to pay guideline child support for Jennifer in the monthly amount of $570, commencing October 1, 2013 and ending December 1, 2014, on his income of $62,500. The order directed a trial on the remaining issues.
[11] At the commencement of trial, Ms. Sholhan clarified her position regarding the relief claimed as follows:
(a) retroactive child support from January 1, 2011 to September 30, 2013;
(b) extraordinary expenses for Jennifer are limited to the college program, unless Jennifer continues her studies; and
(c) spousal support commencing April 1, 2014.
[12] During the presentation of his evidence, Mr. Sholhan withdrew his claim for spousal support.
[13] At the completion of the trial on April 2, 2014, I granted a divorce and reserved my decision on the corollary issues.
(i) Retroactive Child Support
[14] Although framed as a retroactive claim, the relief sought is really to establish the commencement date for payment of child support and quantifying the amount that should be paid prior to the court order granted on October 23, 2013.
[15] As previously mentioned, the parties had a discussion regarding child support after their separation. Mr. Sholhan was of the view they had an oral agreement requiring him to pay $400 monthly. He went on to say he has paid that amount regularly, save for two months in 2009 when Ms. Sholhan agreed to suspend those payments as a result of his vehicle expense. Ms. Sholhan advised that no agreement was reached, that she had requested $500 monthly as Melissa was also in her care at the time. Further, she says the payments received from Mr. Sholhan were much less than he alleges.
[16] Mr. Sholhan paid the support in cash or by money order delivered to Ms. Sholhan or to Jennifer during visitation periods. Ms. Sholhan recorded the payments received on a calendar. She advised that Jennifer always gave her the money received from Ms. Sholhan.
[17] Ms. Sholhan reports Mr. Sholhan to have paid child support as follows:
(a) 2011 $2,710
(b) 2012 $1,600
[18] No payments were received in 2013, she said, prior to the court order. Mr. Sholhan reported paying $400 monthly throughout this time period. He did not maintain any record of his payments.
[19] In her submissions, Ms. Sholhan presented guideline calculations for child support as follows:
(a) 2011 on $70,562, $643 monthly for a total of $7,716;
(b) 2012 on $74,905, $681 monthly for a total of $8,172;
(c) 2013, to September, on $70,069, $681 monthly for a total of $6,129.
[20] Accordingly she claims Mr. Sholhan should have paid $22,017 for this time period. As he only paid $4,310, she requests child support arrears be fixed at $17,707.
[21] Having paid $400 monthly, or $13,200 from January 1, 2011 to September 30, 2013, Mr. Sholhan’s position is that he does not have any responsibility for further payment. He relies on their oral agreement.
[22] I am not persuaded the parties had an agreement regarding child support. In any event, support is the right of the child, not the parent. Child support should have been addressed by reference to the child support guidelines. A monthly payment of $400, given Mr. Sholhan’s income, was inadequate. Such amount, in effect, shifted the responsibility to Ms. Sholhan to pay the vast majority of child related expenses on a substantially lesser income.
[23] I reject Mr. Sholhan’s evidence as to the actual amount paid. He could have presented some documentary record to support his assertion, such as bank statements to identify cash withdrawals. I accept Ms. Sholhan’s evidence that only $4,310 was received. Her statement as to Jennifer delivering all funds received from Mr. Sholhan was not challenged.
[24] Hence, I conclude that Mr. Sholhan should have paid guideline child support throughout this time period and, perhaps, even from the date of separation. This would result in arrears of at least $18,000 (there appears to be an error in Ms. Sholhan’s guideline calculation above). The real issue requiring determination is whether that is the amount he should now be obliged to pay, or some lesser amount, given the delay in pursuing the claim.
[25] When the applicant seeks child support to commence on a date earlier than the date the application was issued, the court must consider the following factors:
(i) reasonable excuse for why support was not sought earlier;
(ii) conduct of the payor parent;
(iii) circumstances of the child; and
(iv) hardship occasioned by a retroactive award.
See: S. (D.B.) v. G. (S.R); W. (L.J.) v. R. (T.A.); Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37.
[26] Ms. Sholhan offered no explanation for the almost four year delay. She has restricted the commencement date to January 2011; however, she was well aware that Mr. Sholhan was not paying the appropriate amount from the outset. The practical difficulty is that granting her request immediately creates substantial support arrears.
[27] On the other hand. Mr. Sholhan is presumed to know his legal obligation to pay guideline support as provided in section 33, Family Law Act. While he made some support payments, he has not come near to meeting his obligation and, in so doing, has placed his interests ahead of the child. The impact on Ms. Sholhan was in having to financially support the child on her limited resources.
[28] The court has a discretion in making a retroactive award that fits the circumstances instead of the child support guidelines. Taking into account the aforementioned factors, the circumstances of this case and giving Mr. Sholhan some credit for child support payments made, I fix the child support payable by Mr. Sholhan for the time period of January 1, 2011 to September 30, 2013, in the amount of $12,000.
(ii) Extraordinary Expenses
[29] Jennifer commenced her post-secondary education program at Humber College in January 2013. She will graduate in December 2014. Jennifer has been working during the summer breaks as well as obtaining part-time positions while attending school. She has incurred debt by way of student loans. She also qualified to receive bursaries in 2013 and is hopeful of the same for 2014.
[30] Jennifer resided in residence for the first term and with her mother since. While reducing her housing and meal expense by moving home, Jennifer had additional travel expense. This also increased her mother’s expense and, therefore, it is appropriate the guideline support continue as the parties agreed and the court ordered on October 23, 2013.
[31] The evidence presented indicates Jennifer’s college expenses as follows (2013 being actual with 2014 shown as a budget as some expenses are yet to be incurred):
(a) January to April 2013 – 1st term
Tuition $1,717
Residence and meal plan $4,207
Deferral fee (OSAP) $ 175
TB needle $ 50
Books $ 400
Personal and Miscellaneous $ 640
Total: $7,190 (rounded)
(b) September to December 2013 – 2nd term
Tuition $1,775
Transportation – bus $1,600
Books $ 400
Personal and Miscellaneous $ 640
Total: $4,415
(The total 2013 expense is $11,605)
(c) January to April 2014 – 3rd term
Tuition $1,775
Transportation – bus $ 640
Books $ 400
Personal and Miscellaneous $ 640
Total: $3,455
(d) September to December 2014 – 4th term
Tuition $1,775
Transportation – bus $ 640
Books $ 400
Personal and Miscellaneous $ 640
Total: $3,455
(The total 2014 expense is $6,910)
[32] Jennifer’s employment income was $5,393 in 2012 and $5,551 in 2013. She received bursaries in 2013 of $1,024. Jennifer’s student loan in 2013 was $3,890. It will be $3,172 in 2014.
[33] Mr. Sholhan contributed $800 to Jennifer’s expense in 2013. The remaining expense in both years has been paid by Ms. Sholhan and Jennifer, in part by use of student loans.
[34] In determining the allocation of extraordinary expenses as between parents of an adult child, the first step in the analysis is to determine the child’s financial obligation. The traditional approach considers, as a starting point, an equal contribution by child, mother and father. Next, the financial circumstances of the family are examined to finalize the allocation.
[35] In my view, student loans are not a requirement in determining the allocation. Loans represent long term debt for the child and cannot be used to reduce a parent’s obligation. A student loan may not be necessary if parents are paying their fair share.
[36] Jennifer is meeting her obligation to contribute to her own education expense. She has employment earnings and bursaries. As some of her earnings would be required for other expenses, including clothing, I assess her ability to contribute to be $3,500 annually.
[37] The next step is to allocate the remaining expense between the parents. On their incomes, Mr. Sholhan’s proportionate share is 75 per cent while Ms. Sholhan is responsible for 25 per cent.
[38] The 2013 expense was $11,605. Deducting Jennifer’s share of $3,500 leaves a balance to apportion of $8,105. Mr. Sholhan’s share is $6,080 (rounded) less the $800 paid for a balance owing of $5,280.
[39] The 2014 expense will be $6,910. Deducting Jennifer’s share of $3,500 leaves a balance to apportion of $3,410. Mr. Sholhan’s share is $2,560 (rounded).
[40] Accordingly, I direct Mr. Sholhan to pay to Ms. Sholhan $7,840 as his proportionate share of Jennifer’s extraordinary expenses in 2013 and 2014.
(iii) Spousal Support
[41] Having limited the claim to future or ongoing spousal support, Ms. Sholhan need not address the aforementioned factors for a retroactive claim. In my view, this is a generous compromise on her part as some retroactivity to the award would otherwise have been granted.
[42] There is an obvious income disparity between the parties. Part of Mr. Sholhan’s complaint is with respect to Ms. Sholhan’s employment. He says she can obtain full-time employment and, further, that she should be able to generate an income in the same range as his.
[43] I reject the latter suggestion. Ms. Sholhan does not have the employment skills to obtain a high paying position. In my view, she has done everything possible to maximize her job skills and her hourly rate is set by contract.
[44] There is some evidence regarding full time employment; however, that would only increase Ms. Sholhan’s income to about $28,000. Ms. Sholhan enjoys her work and her hourly rate reflects her seniority. Changing employers may well result in a reduced hourly rate.
[45] Regardless, there is still a significant income disparity between the parties that invites consideration of the spousal support claim. As Ms. Sholhan is only requesting $300 monthly, whether she obtains full-time employment or not is of no consequence given the support set out in the spousal support advisory guidelines. The range, in the “with child support” formula is $885 to $1,306 and in the “without child support” formula, the range is $1,531 to $1,946.
[46] Ms. Sholhan is entitled to spousal support on both a compensatory and non-compensatory basis. See: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813; and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420.
[47] There is an obvious need for support. Ms. Sholhan’s income is modest. It barely covers her expenses, including geared to income housing. She has not accumulated assets. Mr. Sholhan has. Early in the relationship, Ms. Sholhan had greater child care responsibilities that limited her ability to improve employment qualifications. The bankruptcy caused financial difficulties and resulted from Mr. Sholhan’s gambling addiction. This event will continue to impact Ms. Sholhan’s financial circumstances.
[48] I have no hesitation in granting the spousal support claim in these circumstances. Accordingly, I direct Mr. Sholhan to pay spousal support to Ms. Sholhan in the monthly amount of $300, commencing April 1, 2014.
Summary
[49] For these reasons, a final order is granted on the following terms:
(a) a divorce;
(b) Mr. Sholhan shall continue to pay guideline child support to Ms. Sholhan for Jennifer Sholhan, born November 5, 1994, in the amount of $570 per month, ending on December 1, 2014 as directed by the order granted by McLaren J. on October 23, 2013;
(c) Mr. Sholhan shall pay to Ms. Sholhan, for child support for the said child from January 1, 2011 to September 30, 2013, the amount of $12,000;
(d) Mr. Sholhan shall pay to Ms. Sholhan his proportionate share of the said child’s extraordinary expenses for 2013 and 2014 the amount of $7,840;
(e) Mr. Sholhan shall pay spousal support to Ms. Sholhan in the amount of $300 per month, commencing April 1, 2014 and on the 1st day of each moth thereafter; and
(f) support deduction order to issue.
D.J. Gordon J.
Released: April 23, 2014
COURT FILE NO.: FD 2123/00
DATE: 2014-04-23
ONTARIO
SUPERIOR COURT OF JUSTICE
Deborah-Ann Mary Sholhan
Applicant
– and –
Timothy Brian Sholhan
Respondent
REASONS FOR DECISION
D.J. Gordon J.
Released: April 23, 2014
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