CITATION: Webster v. Webster, 2015 ONSC 2254

COURT FILE NO.: FD482/01

DATE: 2015/06/19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Garth James Webster

Applicant

• and -

Frances Catharine Webster

Respondent

COUNSEL: Jonathan McKinnon, for the applicant B. Thomas Granger, for the respondent

HEARD: January 19, 20, 21, 22, 23 & 27, 2015

Introduction

[1] Garth Webster (“Garth”) and Frances Webster (“Fran”) were married on August 14, 1982.

[2] There are two children of the marriage, M.A.W. born […], 1991 (“M.A.W.”) and R.L.W., born […], 1994 (“R.L.W.”).

[3] The parties separated on September 17, 2000 and the marriage was dissolved on October 29, 2001.

[4] An order of Aston J., dated January 4, 2002, addressed issues regarding equalization of net family property, child support and section 7 Child Support Guideline (“CSG”) expenses.

[5] Since 2002, the parties have had great difficulty agreeing on their respective incomes, section 7 CSG obligations, the “reasonable” nature of such expenses and other activities incurred on behalf of the children and effectively communicating these concerns to one another.

[6] For the reasons that follow, I am satisfied that Garth owes money to Fran to satisfy outstanding child support and section 7 CSG obligations between 2002 and today, but not to the extent claimed by Fran.

Issues

[7] The following issues must be determined:

(i) eligibility of Fran for retroactive child support for M.A.W. and R.L.W. payable by Garth since 2002;

(ii) eligibility of Fran for retroactive section 7 CSG expenses incurred on behalf of M.A.W. and R.L.W. payable by Garth since 2002;

(iii) ongoing child support obligations of Garth for M.A.W. and R.L.W.; and

(iv) ongoing section 7 CSG post-secondary education and related expense obligations of Garth and Fran for M.A.W. and R.L.W..

Positions of the Parties

[8] Fran argues that Garth owes her substantial retroactive child support and section 7 CSG expenses dating back to 2002. In total, she seeks $21,081.58 in child support arrears and while acknowledging that M.A.W. is no longer eligible for child support, seeks continued limited child support for R.L.W. for two more years.

[9] Fran submits that since Garth established a personal services corporation in 2012, the court should look to the net after-tax profit of his corporation in determining net income for the purposes of calculating child support and section 7 CSG obligations.

[10] Garth argues that many of the section 7 CSG expenses claimed by Fran are not reasonable and therefore not eligible for inclusion. He submits that the budget outlined by him and agreed to by Fran and M.A.W. in 2011 is reasonable for both girls and that each child should have to make a reasonable contribution to their post-secondary expenses.

[11] Garth seeks to terminate his child support obligations for his children on the basis that child support is no longer presumptive after the children reach the age of majority and in consideration of the substantial sums he has paid out to his children to date.

Evidence

[12] I will provide a brief overview of the evidence and then refer to additional evidence as necessary in the latter part of my decision. The only witnesses to testify were Fran and Garth.

Fran Webster

[13] Fran is a highly educated woman with a Bachelor’s degree in Math from the University of Waterloo and specialized certification in project management and information technology (“IT”).

[14] She is the sole employee of F.C.A. Webster Computer Consulting Inc., a company she established more than twenty-five years ago to provide project management and IT consulting skills to various corporate clients.

[15] As the chart below depicts, her yearly income fluctuates wildly based on the availability of contracts and her willingness to travel to other locations for work. She attributes her minimal (and in many years, non-existent) income to difficulty in finding work in London, her early years child-care responsibilities, and the fact that her skills base is “too high” for many potential employers.

[16] Her Line 150 income from 2002-2014, as agreed to by the parties, for the purposes of calculating child support and contributions to section 7 expenses is as set out below:

2002 - $47,390.09 2003 - $0.00 2004 - $0.00 2005 - $0.00 2006 - $28,159.00 2007 - $2,839.00 2008 - $28,348.00 2009 - $41,044.56 2010 - $0.00 2011 - $18,294.00 2012 - $19,295.00 2013 - $73.00 2014 - (Estimate) $20,000.00[^1]

[17] Fran currently earns $55 per hour on a contract. All of the available cash in her personal services corporation is taken out by her at the end of each year. She relies heavily on her line of credit to cover expenses when her income is not sufficient to do so. She estimates that she currently owes approximately $135,000 on her line of credit.

[18] Fran is very supportive of her children attending post-secondary studies in British Columbia. She testified that she supports R.L.W. continuing in her studies through the Masters level up to a Doctorate and that she will financially attempt to support this.

[19] Fran allows her children extraordinary latitude in spending money while away at university. Each child has a credit card and Fran blindly pays all of those expenses without ever seeing the credit card statements. She trusts her girls and suggests “they are watching their pennies” as closely as she is watching hers.

[20] Fran purported to have all of the original receipts for many of the section 7 expenses she now claims, but never produced these at trial.

[21] Fran believed that she covered all of M.A.W.’s first year university costs, without any help from Garth.

[22] Fran was earning $57/hour working for Great West Life (“GWL”) in 2007 and had been promised full-time employment with GWL at that time. Sadly this never happened for a number of reasons, including an extended vacation she took to Australia with Peter, her then significant other.

[23] In cross-examination, Fran confirmed that she had asked Garth over the years to pay for many expenses that he refused to do, but conceded that he did pay some expenses including $5,000 towards M.A.W.’s braces.

[24] Fran acknowledged that her children received just over $22,000 from her father’s estate and that Peter gave her $31,000 before their relationship ended. There was no evidence regarding where these funds went or what they were used for.

[25] Fran confirmed a loan of $5,000 she took from Garth in 2002 and insists that she paid him back.

[26] Fran was unhappy with the level of income imputed to her earlier by Aston J., arguing that 2000 was a “one-off” year for her as a result of the work generated by Y2K.

Garth

[27] Garth testified that his practise throughout the years was to use his Line 150 income and the CSG table to calculate yearly child support he would pay to Fran for the children.

[28] Notwithstanding Fran’s payments to M.A.W. in 2010 – 2011, Garth was led to believe (by M.A.W.) that Fran was not contributing anything to M.A.W.’s post-secondary expenses because Fran had no money. Garth relied on M.A.W. to ask him for money when she needed it.

[29] Garth was unaware that R.L.W. was receiving money from Fran or that R.L.W. and M.A.W. received an inheritance from Fran’s father.

[30] Garth had a conversation with M.A.W. in 2012 where he told her not to take any more money from Fran and that M.A.W. was being dishonest by taking money from both parents at the same time and not advising the other.

[31] Garth acknowledged that reasonable university costs are covered by section 7 CSG and that he was prepared to cover his share of tuition, rent, food and other reasonable expenses. He also confirmed his responsibility for reasonable medical, dental, drug and vision expenses for his children.

[32] Garth was frustrated that M.A.W. appeared to be taking a reduced course load, getting below average grades, and skiing or snow-boarding three to four times a week during the 2011-2012 school year. This is what caused him to stop paying M.A.W.’s post-secondary expenses for the fall semester of 2012.

[33] Garth contributed the following amounts towards post-secondary education expenses and child support between 2011–2014:

Year	M.A.W. University	R.L.W. University	Fran Child Support	Total
2011	$10,435.38	$0.00	$19,488.00	$ 29,923.38
2012	$11,344.08	$15,112.25	$15,019.56	$41,475.89
2013	$13,779.74	$15,444.97	$12,636.00	$41,860.71
2014	$ 23,597.51	$17,897.08	$12,636.00	$54,130.59

[34] Garth is now 60 and is trying to retire in the next short while. He expressed a willingness to continue to help his daughters with their education.

Preliminary Assessment of Evidence

Fran

[35] This trial, coupled with earlier proceedings and the length of time required to bring this matter to trial, extracted a significant emotional toll on Fran.

[36] Many times during her evidence she broke down sobbing and appeared emotionally overwhelmed by the weight of the proceedings.

[37] Her extensive evidence about expenses incurred between 2002-2007 for which she originally sought contribution from Garth for items such as furnace repair, fitness equipment, toiletries and other sundry expenses was unreasonable, unnecessary and quite frankly, a waste of court time.

[38] Although I have little doubt that she truly loves her children and would do anything for them, I was somewhat troubled by her spending approach to her children in light of her limited financial means. By way of example, she shows Line 150 income of $28,348 in 2008 yet purchased a desk for M.A.W. around this time for $1,450.92. Her rational for the purchase is summed up by her as follows: “I saw one – we liked it – we bought it”.

[39] Notwithstanding that her Line 150 income in 2013 was $73.00 she spoke confidently about her willingness to help R.L.W. on her way to Europe where she will be undertaking studies in Germany. She also testified that R.L.W. may want to tour Europe while she studies in Germany and that she would support this.

[40] Although neither of the children testified, I was concerned at the elevated nature of their expenses, all of which were supported by Fran notwithstanding her somewhat finite and limited fiscal resources.

[41] Fran seemed unaware of how much each daughter made over the past few summers, how much each daughter contributed to university, what specific expenses they incurred on their credit cards and what the total cost of their attendance at university was each year.

[42] Sadly, it would appear that her trust in her children to “watch their pennies” may be a tad misplaced, or, put another way, R.L.W. and M.A.W. seem willing to spend money they simply don’t have and appear willing to rely on their mother to run-up her line of credit to support their expenses.

[43] Although Fran purports to justify all expenses as reasonable, she blindly pays credit card bills for the children without seeing the expense, the underlying receipt and the reasons for making the expense.

[44] Although Fran testified to conversations with M.A.W. in 2010 that she could not afford to support her at university in B.C., she nonetheless continued to spend substantial monies, and wrongly assumed at the time that Garth was contributing minimal amounts. I appreciate the need for Fran to have stepped in during the one semester that Garth stopped supporting her, but am somewhat baffled at the ongoing level of support thereafter.

[45] Overall I found much of her evidence confusing, meandering, contradictory and, at times, unhelpful. However, I did find her evidence (some of which I refer to later) regarding certain monies received from Garth and certain section 7 expenses incurred on behalf of the children to be credible and of assistance to me.

Garth

[46] Although somewhat more composed, I was equally struck by the impact, both emotionally and physically, these proceedings have taken on Garth.

[47] It was evident that since the late 1990’s there has been a litany of civil and family proceedings that have had a demonstrable effect on Garth. He appears eager to bring these many years of litigation and argument to an end.

[48] For the most part, I found him to be sincere, forthright and credible and to have kept accurate records of expenses he incurred on behalf of the children.

[49] I am sympathetic to his concerns regarding the runaway nature of the children’s post-secondary expenses and applaud his decision to take action and confront M.A.W. regarding her spending, her contribution, and her behaviour dealing with taking money from both parents. His idea of a budget was both appropriate and necessary on the evidence before me.

[50] I was impressed with the extent of his contributions to his children to date and with his willingness to continue with that support.

[51] I was unimpressed by his evidence that after his income went up dramatically in 2011, he didn’t adjust his child support accordingly at that time.

[52] His explanations with respect to:

(a) why he cut M.A.W. off for support for post-secondary education a short period of time,

(b) his settlement arising from his costs award with the Professional Engineers of Ontario, and

(c) his treatment of the RESP

are all accepted by me.

[53] Overall, I was impressed with his candor, record keeping, commitment to his children and demeanour, and found much of his evidence (but not all) to be credible and of assistance to me.

Discussion

Retroactive Child Support 2002 – 2011

[54] The chart below outlines the support paid by Garth between 2002–2011 and the discrepancies between what was paid and the CSG table amounts. The Line 150 income figures are agreed to by the parties.

Year	Line 150 Income for Garth	Support Paid	Table Support pursuant to CSG	Amount Owing [Overpaid]
2002	$89,126.00	$12,748.00	$13,515.77	$ 767.77
2003	$95,397.00	$12,636.00	$14,305.61	$1669.61
2004	$72,492.00	$13,122.00	$11.437.51	[$1684.49]
2005	$ 78,669.00	$12,636.00	$12,215.54	[$420.46]
2006	$120.065.00	$12,636.00	$19,728.00	$7092.00
2007	$114.909.00	$16,577.48	$19,020.00	$2442.52
2008	$ 87,645.00	$15,431.78	$15,024.00	[$407.78]
2009	$ 70,585.00	$15,431.78	$12,588.00	[$2843.78]
2010	$105,400.00	$20,614.06	$17,856.00	[$2758.06]
2011*	$201,674.00	$19,229.47	$23,567.48	$4338.01
Total Owing:				$8195.34

[55] Further to a January 4, 2002 Order of Aston J., Garth was ordered to pay child support in the amount of $948.00 per month based on an income of $72,000.

[56] As the above chart depicts, for the most part, Garth earned more income in every year after 2001 than he did in 2001. It is trite to state that the best interests of his children are served by an increase in the amount of child support paid by Garth to reflect an increase in his income.

[57] Simply put, the children should benefit from Garth’s success in his work and should continue, to the extent possible, to enjoy the same standard of living had their parents not separated.

[58] I am satisfied that in the circumstances before me, Garth shall pay a lump sum amount of retroactive child support for the period between 2002 and 2011 to Fran in the amount of $4290.34.

Section 7 special and extraordinary expenses

2002-2007

[59] In his January 4, 2002 ruling, Aston J. ordered that Garth pay additional child care expenses in the amount of $150.00 per month based on Fran’s child care expenses of $4472 per annum ($2680 after adjusting for income taxes) and based on an income for Garth of $72,000 and an income for Fran of $80,000.

[60] The parties disagree about whether financial disclosure occurred on a regular or yearly basis, or at all between 2002 and 2011. Garth says he provided copies of his tax returns and Fran says he did not. I am mindful that Fran attached copies of Garth’s tax returns from 2002-2007 to her Affidavit in commencing these proceedings. On the evidence before me, I find that Garth, albeit perhaps delayed and perhaps by piece-meal, provided Fran with his income tax returns between 2002-2007.

[61] The application was commenced by Fran in 2007. She seeks a 60 percent contribution towards the $6200 she says she incurred in child care expenses in 2002.

[62] I am not persuaded that she is entitled to this amount as these expenses were incurred in the same year that Aston J. ordered that Garth pay child care expenses at a rate of $150 per month. Moreover, I am not prepared to go back five years from the filing of the application in this matter to reconsider child care expenses.

[63] In my view, Fran had just emerged from the Order of Aston J. and by incurring these additional child care expenses, in that same year, should have been patently aware that she would not be fully reimbursed.

[64] Although extensive and often unnecessary evidence was adduced by Fran about endless expenses incurred between 2002–2007, she now only seeks contribution from Garth for her CAA membership for the years 2005–2007. She makes no formal claims for any reimbursement in 2003 and 2004.

[65] I am satisfied that the $122.05 per year for CAA membership is necessary in relation to the children’s best interests and is reasonable in relation to the means of the spouses.

[66] Accordingly, Garth shall reimburse Fran for the following section 7 amounts between 2002 – 2007:

2002 - $0.00 2003 - $0.00 2004 - $0.00 2005 - $98.04 2006 - $104.96 2007 - $112.31[^2]

2008

[67] Fran seeks contribution from Garth for the following extraordinary expenses:

CAA $ 122.19 M.A.W. - Cell (Telus) $ 876.16 M.A.W. - Lifeguarding $ 671.18 M.A.W. - Skiing $ 251.42 M.A.W. - Care from 4 families while Fran working away $ 800.00 M.A.W. - Drivers Ed, Tests, Insurance $1289.00 M.A.W. & R.L.W. - Desk, Shelving & Lamp $1450.92 M.A.W. & R.L.W. - Eye glasses $ 329.00 M.A.W. & R.L.W. - Dental $1827.88 $7617.75

[68] In my view, on the evidence before me, these expenses are necessary in relation to the best interests of the children and reasonable in relation to the means of the spouses.

[69] Garth shall contribute to these expenses in proportion to the respective incomes of the parties based on Line 150 incomes for 2008.

2009

[70] Fran seeks contribution from Garth for the following extraordinary expenses:

CAA $ 81.62 R.L.W. - Cell (Telus) $ 856.98 M.A.W. - Cell ( Rogers) $ 173.75 M.A.W. - Drivers Ed, Tests, Insurance $ 508.50 M.A.W. - Athletic Club Membership $ 434.05 M.A.W. - Grade 12 Graduation $ 351.14 M.A.W. - B[…] School of Arts - Supplies $ 739.03 M.A.W. - Medical $ 604.11 M.A.W. & R.L.W. - Dental $1097.42 M.A.W. & R.L.W. - Passports $ 169.18 M.A.W. - University Costs $ 580.00 $5595.78

[71] In my view, on the evidence before me, these expenses are necessary in relation to the best interests of the children and reasonable in relation to the means of the spouses.

[72] Garth shall contribute to these expenses in proportion to the respective incomes of the parties based on Line 150 incomes for 2009.

2010

[73] Fran seeks contribution from Garth for the following extraordinary expenses:

CAA $ 105.56 M.A.W. - Cash $8817.19 R.L.W. - Cash $ 518.94 M.A.W. & R.L.W. - Drivers Ed, Tests, Insurance $1394.50 M.A.W. - Athletic Club Membership $ 497.04 R.L.W. - Good Life Membership $ 336.71 R.L.W. - Cell (Telus & Virgin) $1173.55 M.A.W. - Cell (Rogers) $ 640.77 M.A.W. - Lifeguarding $ 144.59 M.A.W. & R.L.W. - Optometry $ 135.34 R.L.W. - Prescriptions $ 59.87 M.A.W. & R.L.W. - Dental $ 379.55 M.A.W. - University $8778.79 $22,982.40

M.A.W. University

[74] M.A.W. attended S[…] University (“SFU”) in 2010. She did so with the full support of her mother. Her father was not as supportive. However, he stood by her financially, contributing almost $19,000 to cover the bulk of her first year costs.

[75] Garth was not included in the process of selecting which university M.A.W. would attend. He was not given information to determine M.A.W.’s ability to contribute to these expenses.

[76] M.A.W. did not testify. I do not know how much she contributed. I am confused by the evidence of her mother (Fran) as to her earnings that year, her expenses and her contributions.

[77] There is some evidence that she worked and some evidence that she received an inheritance. She appears to have taken a partial course load.

[78] In my view, on the scant evidence before me, a reasonable first year budget for M.A.W. at SFU in 2010-2011 would be $25,000[^3].

[79] I would expect M.A.W. to contribute at least 10 percent or $2500 to that amount on the premise that children have an obligation to make a reasonable contribution to their own post-secondary education[^4]. That leaves $22,500 of which Garth has already contributed $19,000 or almost 85 percent.

[80] I conclude on the evidence before me that the expenses incurred by M.A.W. in attending SFU in her first year beyond $25,000 were excessive, unreasonable and not necessary in the pursuit of her post-secondary education.

[81] Accordingly, I disallow the $8778.79 claimed by Fran for M.A.W.’s university for first semester.

[82] I similarly disallow the $8817.19 claim for M.A.W. for cash expenses. I do not know what these outlays are for and cannot assess the reasonableness or necessity of same. I find on the evidence before me that Fran incurred expenses that were not reasonable, including in relation to the means of the parents.

[83] Fran testified that she did not see credit card statements which reflected expenses incurred by the children while at university. Rather, she simply trusted her children and paid the expenses. In my view, this is a practice that carries risks of runaway expenses with no ability to trace or account for such expenses.

[84] It appears to me that M.A.W. was playing one parent off against the other and receiving sums of money that went beyond that which was reasonable and necessary in the circumstances.

[85] I also disallow, for similar reasons, Fran’s claim for R.L.W. for $518.94 for cash.

[86] Section 7 specifically addresses health-related expenses that exceed reimbursement by at least $100 annually for glasses, prescription drugs and other health-related expenses.

[87] Section 7 expenses must be determined in the context of the combined incomes of the spouses, the nature and amount of the activities and expenses, and the necessary and reasonable nature of the expenses.

[88] In my view, on the evidence before me, the remaining section 7 expenses reflect a fair standard of support for the children and a fair contribution from both parties based on their financial means.

[89] Having regard to the remaining claims for 2010 expenses outlined above, I find these expenses are necessary in relation to the best interests of the children and reasonable in relation to the means of the parents.

[90] Garth shall contribute to these remaining expenses in proportion to the respective incomes of the parties based on Line 150 incomes for 2010.

2011

[91] Fran seeks contribution from Garth for the following expenses:

CAA $ 122.86 M.A.W. – University Cash $9571.94 M.A.W. – University Visa Bills $2614.33 R.L.W. - Cash $1090.57 M.A.W. & R.L.W. – Van Insurance $ 614.00 R.L.W. - Good Life Membership $ 587.60 R.L.W. - Cell (Virgin & Bell) $ 863.98 Piano – Sheet Music $ 112.94 M.A.W. & R.L.W. - Optometry $ 996.90 M.A.W. - Prescriptions $ 54.03 M.A.W. & R.L.W. - Dental $1047.00 M.A.W. - University Misc $2065.09 R.L.W. – University Misc $ 125.00 Trip to see M.A.W. in Vancouver with R.L.W. $2030.17 $21,896.41

[92] By June of 2011, Garth became very frustrated with what he believed was his almost 100 percent contribution to the university costs for M.A.W.. He caused a letter dated June 22, 2011 to be sent to Fran, proposing to limit his contributions for M.A.W.’s 2011-2012 school year to $10,000 and suggesting Fran and M.A.W. contribute the balance.

[93] Fran responded to this letter on July 15, 2011, indicating she sought input from M.A.W. and provided the following budget estimate for M.A.W. for the 2011-2012 school year:

Rent - $500 x 12 = $6000.00 Food - $75 x 52 = $3900.00 Tuition - $2107.04 x 2 = $4214.08 Books - $1000 x 2 = $2000.00 Phone - $75 x 12 = $ 900.00 Personal/Misc. - $400 x 12 = $4800.00 Flights - $350 + $1000 (Xmas) = $1350.00 Total $23,164.08

[94] The above budget provided that M.A.W. would contribute $4250.00.

[95] In my view, the above budget is not unreasonable. However, given that I established a 2010-2011 budget of $25,000, I am prepared to accept a 5 percent increase, year-to-year, in post-secondary expenses and allow for a budget of $26,250.

[96] Notwithstanding the proposal that M.A.W. contribute $4250, based on my earlier finding, I am prepared to allow M.A.W. to contribute 10 percent or $2625, leaving a balance of $23,625.

[97] In 2011, Garth paid $10,435.38 to M.A.W. for university expenses. Garth acknowledges that he paid no expenses for M.A.W. for the first semester of 2011-2012 year.

[98] In my view, he should be responsible for his proportionate share of the reasonable expenses of M.A.W. for post-secondary education.

[99] In light of the respective Line 150 incomes of the parties, Garth should pay 92 percent of the $23,625 or $21,735. After credit for his payment of $10,435.38, he owes Fran $11,299.62.

[100] I conclude on the evidence before me that the expenses incurred by M.A.W. in her second year beyond $26,250 were excessive, unreasonable and not necessary in the pursuit of her post-secondary education.

[101] Accordingly, beyond the $11,299.62 owing by Garth, I disallow the excess in the claims by Fran for:

M.A.W. University - $9571.94 M.A.W. University Visa- $2614.33 M.A.W. University misc. - $2065.09 $14,251.36

[102] Based on the limited evidence available to me, I also disallow Fran’s claim for R.L.W.’s cash expenses of $1090.

[103] Having regard to the remaining claims for 2011 expenses, on the evidence before me, I find these expenses are necessary in relation to the best interests of the children and reasonable in relation to the means of the parents.

[104] Garth shall contribute to these remaining expenses in proportion to the respective incomes of the parties based on Line 150 incomes for 2011.

Retro Child Support – 2012-2014

Garth’s Income

[105] In 2012, Garth incorporated Webster Engineering Services Inc., a personal services corporation he established for tax planning purposes.

[106] Garth controlled all of the voting shares and all of the funds received and disbursed by this corporation. He is the only employee of the corporation.

[107] Unlike Fran, Garth has chosen to leave a substantial amount of funds received by the corporation in the corporation by way of retained earnings. The following chart depicts the Line 150 income and the net after-tax profit of Garth between 2012 and 2014:

Year	Line 150	Net After Tax
2012	$60,298	$275,368.66
2013	$79,142.75	$175,966.75
2014 (anticipated)	$79,142.75	$175,966.75

[108] Fran relies on section 18 of the CSG[^5] to argue that net after-tax profit should be the figure relied upon to determine both child support and section 7 CSG extraordinary expense contributions. Fran has always taken all of net after-tax profit out of her corporation and has drawn extensively from her line of credit when these funds were insufficient to meet expenses.

[109] I agree with Fran that Garth’s Line 150 income does not fairly reflect all of the money available to Garth for payment of child support and section 7 expenses.

[110] Section 18 of the CSG allows the court to “lift the corporate veil” to ensure that money received as income by the paying parent fairly reflects all of the money available for the payment of child support[^6].

[111] I take into account that Garth is the sole employee and shareholder of the corporation and has the ability to control the income of the corporation.

[112] There is no evidence before me that the retained earnings of Garth’s company are required to maintain the value of the business as a viable going concern.

[113] Garth testified that he is leaving money in the corporation for retirement planning purposes and agrees that he could pay all of the retained earnings out to himself in the form of dividends if he wanted to do so.

[114] Valid corporate objectives do not necessarily align with the objectives of child support. Although the decision to incorporate in 2012 by Garth constituted prudent tax, retirement and corporate planning, I am not satisfied that Garth’s Line 150 income in 2012, and the years following, fairly or accurately reflects an accounting of the money available for the payment of child support and related section 7 expenses.

[115] Taking into account Garth’s age, net worth, retirement plans, and the fact that he is the sole and controlling employee and shareholder of the corporation, I am prepared to allow him to retain $50,000 in 2012, $25,000 in 2013 and $25,000 in 2014 that shall not be available in determining Garth’s annual income in those years for the purposes of child support and contribution to section 7 expenses.

[116] Accordingly, Garth’s annual income for the purposes of child support and contribution to section 7 CSG expenses shall be as follows:

2012 $275,368.66 - $50,000 = $225,368.66 2013 $175,966.75 - $25,000 = $150,966.75 2014 $175,966.75[^7] - $25,000 = $150,966.75

[117] The formula of conceded line 150 income of Garth Webster minus $25,000 in retained earnings for retirement purposes shall be used on a go forward basis for calculations for child support and section 7 expenses under the CSG.

Fran’s Income 2012-2014

[118] Garth asks the court to impute an income to Fran of $40,000 per year for the years 2008 - 2014.

[119] Fran argues that she had actively been seeking work and accepting contract work when available. Fran submits that Garth must adduce evidence of available work in her field that would allow her to earn $40,000 per year. I do not agree.

[120] Fran’s evidence is that she is currently working at the rate of $55 per hour on a full-time basis.

[121] In 2007, she earned $57 per hour working for Great-West Life and was promised full-time employment.

[122] Since 2012, her Line 150 earnings are:

2012 - $19,295 2013 - $73 2014 - $20,000

[123] At $55 per hour, she would earn roughly $2000 per week or $8000 per month and would need to work only five months to earn $40,000.

[124] Fran has maintained a willingness to travel outside of London to obtain employment.

[125] Section 19 of the CSG allows me to impute such amount of income to Fran as I consider appropriate in the circumstances.

[126] On the evidence before me, I find that Fran is not making the best use of her employment skills to earn sufficient income to meet the needs of her children.

[127] More particularly, when I consider her age, high level of education, broad experience, skills, health, the number of hours she would be available for work and the hourly rate she could reasonably be expected to obtain, I conclude that she should not be excused from child support obligations by reason of self-induced reduction of income.[^8]

[128] Given the sparse evidence presented to me on efforts to locate work during the relevant time periods, I look to Fran’s previous earning history alongside her duty to seek employment in light of her obligation to support her children.

[129] In 2001, Aston J. based his order for the sharing of section 7 and extraordinary expenses on Fran having an income of $80,000.

[130] It is not unreasonable, more than 13 years later, and many contracts later, to impute an income to Fran at one-half of that 2001 amount. Simply put, she may have expended some effort to seek out work, but in my view, in light of the factors outlined above, those efforts fall short of the requisite standard. Fran did not fulfill her obligation to reasonably realize her full, or even a substantial component of her full earning capacity.

[131] Although I am not prepared to impute income to her as far back as 2008, I am prepared to do so as of January 1, 2012, and going forward, at an annual minimum income of $40,000, or her Line 150 income, whichever is higher.

Child Support

[132] The following table sets out the incomes I rely upon for calculating child support and section 7 CSG expenses from 2012–2014:

Year	Garth	Fran
2012	$225,368.66	$40,000
2013	$150,966.75	$40,000
2014	$150,966.75	$40,000

2012 – M.A.W.

[133] During 2012, M.A.W. was at SFU all year and R.L.W. commenced her first year at the University of Guelph.

[134] There is scant evidence of M.A.W. being in London that summer, let alone all summer, save and except some evidence of a flight from Vancouver on August 13, 2012 for $700.

[135] There is also a suggestion that M.A.W. met with and lived with a man from Australia in her third and fourth year.

[136] Based on the evidence available to me, I am not satisfied that child support should be payable by Garth to Fran for M.A.W. from 2012 onward.

[137] Fran seeks three months of support from 2012-2014 and concedes that M.A.W. is no longer eligible for child support thereafter.

[138] In my view, Fran is entitled to recover some section 7 post-secondary expenses paid by her to M.A.W. but not to further child support for M.A.W. from 2012 onward.

[139] Although I appreciate the importance of a primary residence parent maintaining a home for children attending post-secondary education who may return home for the summer months, I am not satisfied on the evidence before me that M.A.W. did, in fact, return home to Fran for the summer months from 2012 onward.

[140] M.A.W. did not testify and I have difficulty concluding that M.A.W. was home for more than a period of days or a few weeks, at most, during the relevant summer periods.

2012 – R.L.W.

[141] In my view on the evidence before me, I am satisfied that R.L.W. lived at home until September 2012. Thereafter, the evidence is that her mother drove down every weekend, picked her up and brought her home. Fran testified that she thought it was important to maintain the family home for her children so that they could visit during summer vacation and Christmas. I am satisfied that Garth should pay CSG table child support for R.L.W. for 2012, based on his income of $225,368.66, at $1,263 plus $372 (0.74 x 50, 368.66) = $1,635 per month or $19,628.64 for the year.

[142] Garth shall be credited the $15,019.56 he has already paid in child support for 2012 for a net amount owing to Fran of $8,011.08.

2013-2014 – R.L.W.

[143] Fran argues that Garth should pay child support for R.L.W. for four months for each of 2013 and 2014.

[144] Garth has already paid $12,636 in child support to Fran for each of 2013 and 2014, for a total of $25,272.

[145] I must take into consideration all of the facts before me in deciding whether to apply guideline amounts[^9].

[146] Given that Garth paid out $29,224.71 in extraordinary expenses in 2013 and $41,476.59 in 2014 for the children, I am of the view that an appropriate amount he should pay Fran is $1,415 per month which I calculate as table support for four months for R.L.W. for 2013 and 2014 for a total of $11,320.

[147] Accordingly, Garth shall be credited for the $13,952 ($25,272 - $11,320) he has paid above the CSG table support.

Section 7 Expenses

2012

[148] Fran seeks contribution from Garth for the following 2012 expenses:

CAA $112.94 M.A.W. – University Cash $13,124.17 M.A.W. – University Visa Bills $338.99 R.L.W. – University Cash & Visa Bills $2139.91 R.L.W. - Good Life Membership $639.60 R.L.W. – Grad 12 Grad & Prom $609.06 R.L.W. & M.A.W. – Cell $1354.01 M.A.W. - Optometry $ 112.00 R.L.W. - Prescriptions $ 193.35 M.A.W. & R.L.W. - Dental $ 436.00 M.A.W. – Tuition & Flights $4577.17 R.L.W. – University Miscellaneous $5878.20 $29,515.40

M.A.W. - University

[149] As discussed earlier, I am prepared to allow for a 5 percent increase, year-to-year, for post-secondary expenses and to allow for a budget for 2012 of $27,562.50.

[150] Assuming that M.A.W. should contribute at least 10 percent, or $2756.25 that leaves $24,806.25.

[151] Garth paid $11,344.08 to M.A.W., in 2012 for post-secondary education expenses.

[152] The parties shall contribute to the $24,806.25 in proportion to their respective incomes as follows:

Garth - $225,368.66 – 85% Fran - $40,000.00 – 15%

[153] Accordingly, Garth owes Fran $21,085.31 ($24,806.25 x 0.85) minus his earlier contribution of $11,344.08, leaving a net amount owing to Fran of $9,642.47.

[154] Having regard to the expenses claimed by Fran for M.A.W. including:

University Cash - $13,124.17 Tuition and Flights - $4,577.17,

Fran shall be reimbursed to a total of $9,642.47 of such expenses.

R.L.W. - University

[155] After completing her first year at Guelph, R.L.W. transferred to the University of British Columbia to continue her studies.

[156] Absent evidence to treat R.L.W. differently from M.A.W., I allocate the same budget for the year, $27,562.50, and expect a similar 10 percent minimum contribution from R.L.W., or $2756.25, leaving a residual of $24,806.25.

[157] Garth has already paid $15,112.25 towards R.L.W.’s post-secondary education expenses. He will be credited for this amount.

[158] Relying on the earlier formula, Garth shall be responsible for 85% of the $24,806.25 or $21, 085.31. Allowing credit for the $15,112.25, Garth owes Fran $5,973.06.

[159] Having regard to the expenses claimed by Fran for R.L.W. including:

University Miscellaneous - $5,878.20 University Cash and Visa Bills - $2,139.91,

Fran shall be reimbursed to a total of $5,973.06 for these expenses.

Remaining Section 7 Extraordinary Expenses

[160] Having regard to the remaining claims for 2012 section 7 extraordinary expenses, the majority of which are health-related expenses, I find that these expenses are necessary in relation to the best interests of the children and reasonable in relation to the means of the parties.

[161] Garth shall contribute to these remaining expenses in proportion to the respective income of the parties based on the deemed incomes referred to above.

2013

[162] Fran seeks contribution from Garth for the following expenses.

CAA $119.83 M.A.W. – University Cash (Rent, Food, Visa, Cell Phone) $7207.63 R.L.W. – Cash & University Visa Bills $1432.69 R.L.W. - Good Life Membership $378.29 R.L.W. – Cell $809.98 R.L.W. & M.A.W. – Optometry, Prescriptions $623.84 M.A.W. – University Miscellaneous $1864.28 R.L.W. – University Miscellaneous $2873.54 While Fran working & living in the US; M& R come home $914.55 $16,224.63

M.A.W. and R.L.W. University

[163] On the basis of a yearly five percent increase in the earlier budget, I allocate $28,940.62 ($27,562.50 + $1,378.12) as a reasonable post-secondary education budget for 2013 for both M.A.W. and R.L.W..

[164] I am also applying a minimum 10 percent contribution from each of the children or $2,756.25 leaving a residual of $24,806.25 for each child.

[165] Gath has already paid $13,779.74 for M.A.W. and $15,444.97 for R.L.W. for post-secondary education expenses for 2013, and will be credited for this amount.

[166] The parties shall contribute to the $24,806.25 for each child based on the 2013 deemed incomes as follows:

Garth - $150,966.75 – 79% Fran - $ 40,000.00 – 21%

[167] Accordingly, Garth owes Fran $5,817.20 for M.A.W. ($19,596.94 minus $13,779.74) and $4,151.97 for R.L.W. ($19,596.94 minus $15,444.97).

[168] Having regard to the post-secondary expenses claimed by Fran for M.A.W. and R.L.W. including:

M.A.W. University Cash $7,207.63 R.L.W. Cash and University $1,432.69 M.A.W. University Miscellaneous $1,864.28 R.L.W. University Miscellaneous $2873.54,

Fran shall be reimbursed to a total of $9,969.17 for such expenses.

[169] Having regard to the remaining claims for 2013 section 7 extraordinary expenses, I find on the evidence before me (with the exception of the $914.55 claim while Fran is in the U.S.[^10]) that these expenses are necessary in relation to the best interests of the children and reasonable in relation to the means of the parents.

[170] Garth shall contribute to these expenses in proportion to the respective incomes of the parties based on the deemed incomes for 2013 referred to above.

2014 Extraordinary Expenses

[171] Fran seeks contribution from Garth for the following expenses:

CAA $126.54 M.A.W. - University Cash (Rent, Food, Visa, Cell Phone) $5871.53 R.L.W. - University Cash $1505.50 R.L.W. - Cell $1026.42 R.L.W. & M.A.W. - Optometry, Prescriptions $950.00 M.A.W. - University Miscellaneous $1183.11 R.L.W. - University Miscellaneous $2203.13 $12,866.23

M.A.W. and R.L.W. University

[172] On the basis of a yearly five percent increase from the 2013 budget, I allocate $30,387.65 as a reasonable post-secondary education budget for both M.A.W. and R.L.W..

[173] I again apply a 10 percent contribution from each of M.A.W. and R.L.W., or $3038.76 leaving a residual of $27,348.89 for each child.

[174] Garth has already paid $23,597.51 for M.A.W. and $17,879.08 for R.L.W. for post-secondary education expenses for 2014 and will be credited for this amount.

[175] The parties shall contribute to the $27,348.89 for each child based on the 2014 deemed incomes as follows:

Garth - $150,966.75 – 79% Fran - $ 40,000.00 – 21%

[176] Accordingly, Garth owes Fran $1,734.41 for both children ($43,211 minus $41,476.59.)

[177] Having regard to the post-secondary education expenses claimed by Fran for M.A.W. and R.L.W. including:

M.A.W. – University Cash $5874.53 R.L.W. – University Cash $1505.50 M.A.W. – University Miscellaneous $1183.11 R.L.W. – University Miscellaneous $2203.13,

Fran shall be reimbursed to a total of $1,734.41 for such expenses.

[178] Having regard to the remaining claims for 2014 section 7 extraordinary expenses, I find on the evidence before me, that these expenses are necessary in relation to the best interests of the children and reasonable in relation to the means of the parents.

[179] Garth shall contribute to these expenses in proportion to the respective incomes of the parties based on the deemed incomes for 2014 referred to above.

Going Forward

[180] I am not impressed with the level of information being given to Garth over the recent years, with respect to anticipated expenses for each of M.A.W. and R.L.W..

[181] Although (based on his income and payments to date) I have determined that Garth owes some additional monies to Fran, I applaud him for his willingness to contribute in excess of $41,000 last year to his daughters education.

[182] It is not for the court to tell Fran how to support her children in university. However, when Fran asks the court to order Garth to reimburse her for such expenses, the court is entitled to assess these expenses and determine the necessity and reasonableness of such claims. Simply put the children and Fran may choose to live well beyond their means but should not expect Garth to fund such expenditures.

[183] Moving forward, I urge the parties to communicate, set budgets, establish respective contribution expectations, and be transparent with all expenses.

[184] The parties shall continue to support R.L.W. in her post-secondary education for the next two years in accordance with the formula referred to herein. Any additional support for M.A.W. shall be at the discretion of the parties

[185] If R.L.W. resides with her mother in the summers of 2015 and 2016, proof of which must be provided to Garth by both Fran and R.L.W., child support shall remain payable by Garth to Fran at a rate of $1,415/month and shall cease no later than August 31, 2016.

[186] I have attempted on the evidence before me, to address the litany of issues raised by the parties. This judgment required a significant number of mathematical calculations by the court and also requires the parties to complete a number of calculations. In the rare event that I have inadvertently misstated, missed, or miscalculated any amounts, or the parties cannot make the necessary calculations based on my direction, I will remain seized of this matter and make myself available to the parties in an effort to ensure that the significant emotional toll this litigation has extracted from the parties does not needlessly continue. Enough is enough.

Conclusion

[187] For the reasons referred to above, the parties shall have divided success and Garth shall pay to Fran the amounts owing for child support and section 7 expenses in accordance with the determinations and formulas referred to herein.

Costs

[188] In the event that the parties cannot agree, I will receive cost submissions not to exceed three pages (exclusive of Bills of Costs and offers to settle) from Fran within 30 days of this judgment, and from Garth within 30 days thereafter.

“Justice M.A. Garson”

Justice M. A. Garson

Released: June 19, 2015

CITATION: Webster v. Webster, 2015 ONSC 2254

COURT FILE NO.: FD482/01

DATE: 2015/06/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Garth James Webster Applicant

• and -

Frances Catharine Webster Respondent

REASONS FOR JUDGMENT

Justice M. A. Garson

Released: June 19, 2015

[^1]: These figures differ from the Line 150 income tax return numbers filed by Fran but are accepted by the parties as the appropriate Line 150 incomes in light of Fran’s sources of income. [^2]: The amounts in 2005, 2006 and 2007 are based on a percentage contribution by Garth (based on comparative Line 150 incomes of the parties) of 80 percent in 2005, 86 percent in 2006, and 92 percent in 2007. [^3]: This figure is extrapolated from the 2011-2012 budget the parties put together for M.A.W. and the expenses submitted by Fran that she alleges she paid towards Margot’s first year at SFU. [^4]: See Lewi v. Lewi, 2006 CanLII 15446 (ON CA), [2006] O.J. No. 1847 (OCA) [^5]: 18.(1) Where a parent or spouse is a shareholder, director or officer of a corporation and the Court is of the opinion that the amount of the parents’ or spouses’ annual income as determined under Section 16 does not fairly reflect all the money available to the parent or spouse for the payment of child support, the Court may consider the situation described in Section 17 and determine the parent’s or spouse’s annual income to include: (a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b) an amount commensurate with the services that the parent or spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income. [^6]: See Wildnor v. Wildnor, 2006 CanLII 33540 (ON CA), [2006] O.J. No. 3966 (C.A.) [^7]: This figure was an estimate for 2014 income and shall be adjusted if necessary to reflect actual net after-tax profit for 2014. [^8]: See Drygala v. Paul, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.); and West v. West, 2001 CanLII 28216 (ON SC), [2001] O.J. No. 2149 (S.C.J.) [^9]: See s. 3(2)(b) which allows the court to examine the conditions, means and needs of the children and the ability of the spouses to support the children in determining the amount of child support for children over the age of majority. Also see s. 4 which grants the court discretion to either use the table amount ($1,263 plus 0.74 x 25,966.75), or if that amount is not appropriate, an appropriate amount in the circumstances. [^10]: There was insufficient evidence before me to support this claim