SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-99-1416-3
DATE: 2014/09/18
RE: JEAN SHARP, Applicant
AND
PIERRE JOSEPH GILLES POTVIN, Respondent
BEFORE: Kane J.
COUNSEL:
Ron Paritzky, counsel for the Applicant
Pascale J. Turcotte, counsel for the Respondent
HEARD: August 11, 2014 (at Ottawa)
ENDORSEMENT
[1] The Applicant commenced this motion in August of 2012 to change the order of Justice Métivier dated January 6, 2000 and the agreement for support between the parties dated May 6, 2010.
[2] Specifically, the Applicant mother seeks an order that the Respondent father pay his share of the special and extraordinary expenses for their daughter to attend University for each of the 8-month academic year in the amount of $937.50. The Applicant states that the total amount of the s. 7 expenses is $15,000 and that the Respondent’s share thereof should be 50% namely, $7,500, which is the equivalent of $937.50 per month for the 8 months commencing September 1 through to April 30th so long as the child is in full-time attendance at University.
[3] The Respondent father submits that he is prepared to pay $300 per month but will only pay it to the daughter. He does not contest the jurisdiction of this Court on this motion.
[4] The daughter of the parties, Hélène, was born on March 15, 1993, and is currently 21 years of age.
[5] The parties began cohabiting in 1992 and separated in 1995, when Hélène would have been just over 2 years of age.
[6] At some point following separation, one of the parties obtained an order of the Quebec Superior Court pursuant to which it was ordered that the Applicant would have custody and the Respondent would have access.
[7] On January 6, 2000, Métivier J. ordered that the Applicant mother would have custody of the child and that the Respondent father would have access pursuant to the judgment of the Quebec Superior Court, namely every second weekend from Friday until Monday morning and every Wednesday overnight.
[8] The 2000 order of Métivier J. is silent as to child support.
[9] The Applicant states that the Respondent father was not paying any child support and that she instructed her counsel to request financial disclosure from him in 2008. She states the Respondent refused to provide financial disclosure and then commenced proceedings in Quebec, which did not proceed.
[10] The Applicant therefore started proceedings in Ontario in 2009. She states the Respondent refused to attend the appointment for questioning. As a result, a Certificate of Non-Attendance was obtained for his non-attendance.
[11] Ultimately, the parties met and signed an Agreement dated May 6, 2010 pursuant to which the Respondent agreed to pay child support at the rate of $350 per month until June of 2011, retroactive to July, 2008 (the “Agreement”).
[12] The Agreement provides that the parties after June, 2011, will meet and agree to contribute financially if Hélène chooses to pursue post-secondary education and to contribute towards the costs thereof until she becomes financially independent.
[13] The Respondent in 2011 advised the Applicant that he was not prepared to pay anything further towards his daughter’s expenses. The Respondent has paid nothing towards such expenses. The Applicant assumed responsibility for the same. Their daughter also contributed in the form of part-time employment.
[14] The Applicant in May of 2012 renewed her request to the Respondent that he assume financial responsibility and contribute towards their daughter’s expenses to attend University. The Respondent refused to do so.
[15] Pursuant to the Agreement, the Respondent refused to meet with the mother to settle his contribution level. He refused the mother’s suggestion that the parties address the issue through mediation.
[16] Hélène moved to Montreal to pursue her education. She has a learning disability. She was enrolled at Concordia University as a part-time student in September of 2011.
[17] Hélène intended to pursue her University education on a full-time basis commencing in September of 2012, but was injured when struck by a motor vehicle and was unable to resume her University education on a full-time basis until September of 2013. Hélène has been and continues to be a full-time student at Concordia University since September of 2013.
[18] The Applicant provided the Respondent with a budget of their daughter’s expenses at Concordia University for the academic year September, 2013 to April, 2014, totaling $13,000. A similar budget has been presented for the present academic year commencing September of 2014. It totals $13,200.
[19] The responsibility of this daughter to contribute is reflected by the fact that the present claim is limited to the 8-month academic year. Their daughter alone is responsible for her 4-month non-academic period between May 1st and August 30th of each academic year. The Court considers this daughter’s assumption of financial responsibility from May 1st to August 30th to be appropriate.
[20] To be clear, the Respondent has paid no support or s. 7 expenses since his daughter’s graduation from high school in June, 2011.
[21] The Respondent, while acknowledging that he is willing to pay $300 per month during the academic year, goes into great detail as to the level of estrangement between himself and his daughter.
[22] The Applicant states he has not seen his daughter since 2008, other than a brief unexpected encounter in October of 2013, which was unsuccessful in reconciling their differences.
[23] The Respondent has presented case law and argues that the absence of a relationship between he and his daughter is the result of the mother’s successful efforts over the years to alienate his daughter from him. As stated in Montemurro v. Shavalier (2003), 42 R.F.L. (5th) 430, 2003 1976 (ONSC), the breakdown of this relationship is not determinative of support but rather is a factor in the mix of considerations in the process of drawing a line as to whether or not the obligation of support should cease.
[24] Independent of this above alienation argument, the respondent now agrees to financially support his daughter. It is much too simplistic in 2014 to argue that the absence of communication between this daughter and father is solely the responsibility of the daughter.
[25] The Respondent submits this alienation was caused by the Applicant.
[26] This daughter, or any child in her position with disputing parents, is not responsible for and cannot be forced to pay the price of this parental conflict and resulting alienation without clear and conclusive evidence which is not present here.
[27] The father’s lack of financial support likely communicated a negative message to the daughter. I reject this argument as the basis to reduce or eliminate the amount of the Respondent’s obligation to contribute towards special expenses as sought in this motion.
[28] On the materials filed, the current income levels of the parties are as follows:
(a) The Applicant - $80,000 per year
(b) The Respondent - $41,250 per year
[29] The Applicant alleges in her affidavit that the Respondent has been understating his income for years.
[30] The Respondent operates a business in Chelsea, Quebec. His gross sales in 2006 and 2007 were $415,000 and $534,000 respectively. His gross profit after the costs of products in those years was $124,000 in 2006 and $105,000 in 2007.
[31] The Applicant alleges that some of the expenses listed the Respondent’s financial statements are personal in nature in that they reflect items of both personal and business expenses.
[32] The Applicant points to the elaborate and expensive nature of the father’s personal and or business accommodation, which calls into question declared income of some $40,000 over the last several years.
[33] The Applicant points to the fact that the Respondent over the years of their litigation has continuously refused to make full and complete disclosure.
[34] On the basis of the evidence as filed, I conclude that the Respondent is understating his income. I hereby impute income to him at the level of $60,000 per year which is a conservative amount.
[35] I am further comforted in this conclusion given the lengthy period of time when this Respondent has paid no financial support towards for his daughter. That historical non-payment of child support is not a legal basis to impute income today. It is however protection against any error this Court may make in imputing income at the higher level of $60,000 per year.
[36] In addition, this Court is aware that it is only being asked to order extraordinary expenses. It is the Applicant who assumed the vast majority of past child support and expenses related to this child since graduation from high school.
[37] The schedule of expenses in relation to the academic year for Hélène being September 1, 2013 and September 1, 2014 of $13,000 and $13,200 respectively, are reasonable.
[38] Using the above income levels of $80,000 and $60,000, the parties’ respective obligations towards s. 7 expenses are 57% by the Applicant and 43% by the Respondent.
[39] Accordingly, the Respondent is obligated to pay to the Applicant for the 8-month academic year, September 1, 2013 until April 30, 2014, $5,590, by November 1, 2014.
[40] For the academic year September 1, 2014 to April 30, 2015, and for each academic year thereafter in which Hélène continues attending University as a full-time student, the Respondent shall pay to the Applicant his proportionate share of the budgeted amount of $13,200 namely, $709.25 per month for each such academic year. That amount shall be paid on the 1st day of each month commencing September 1, 2014, and on each and every month during the academic year until April 30th, being the end of the academic term.
[41] The Applicant is required to provide the Respondent with:
(a) Written confirmation of Hélène’s enrolment as of September 1st and January 1st of each year as a full-time student in a University program; and
(b) A copy of Hélène’s academic record in July of each of her academic years from this point forward.
[42] Subject to any offers of settlement, the Applicant normally would be entitled to her costs of this motion. Any party seeking costs shall provide brief written submissions by December 5, 2014. Any reply thereto shall be served and filed within 15 days thereafter.
[43] The Agreement and the order of Métivier J. are amended accordingly.
Kane J.
Released: September 18, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: JEAN SHARP, Applicant
AND
PIERRE JOSEPH GILLES POTVIN, Respondent,
BEFORE: Kane J.
COUNSEL: Ron Paritzky, counsel, for the Applicant
Pascale G. Turcotte, counsel for the Respondent
ENDORSEMENT
Kane J.
Released: September 18, 2014