ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Stephen Wayne Corby
Robert A. Haas for the applicant
Applicant
- and -
Catherine Denise Corby
Kate Waters for the respondent
Respondent
HEARD: January 14 and 15, 2015
MITROW J.
Introduction
[1] The central issue in this case is the amount of child support that the applicant should have paid for three of the children of the marriage. The respondent asserts that since the final order made in 2008, that the applicant’s income has increased annually; that the applicant has failed to increase the table amount of child support to reflect increases in his income; and that the applicant has failed to contribute to the s. 7 expenses of the three children, almost all of which relate to post-secondary education expenses.
[2] The applicant submits that he has in fact overpaid the table amount of child support and that, in relation to post-secondary expenses, the applicant’s submission is that all three children have been, or should have been, able to fund their post-secondary expenses through their own resources, consisting of employment income, OSAP loans, bursaries and government grants. The applicant alleges there has been an overpayment of child support in the amount of $18,147.
[3] For her part, the respondent submits, via draft a proposed order submitted during argument, that the applicant owes child support in an amount that slightly exceeds $50,000.
Brief Background
[4] The parties were married in 1984 and they separated in 2005. They were divorced pursuant to a divorce order dated April 17, 2008. There are four children of the marriage: Taryn Victoria Corby, born February 12, 1987 (“Taryn”); Daryl William Corby, also born February 12, 1987 (“Daryl”); Jennifer Judith Corby, born January 21, 1991 (“Jennifer”); and Lynsay Catherine Corby, born November 15, 1993 (“Lynsay”).
[5] The respondent is gainfully employed in a sales position. The respondent’s income, as disclosed in her most recent financial statement, is a little over $30,000 annually. Her last Notice of Assessment produced at trial, for 2013, disclosed line 150 income of $32,258, of which just under $31,000 was employment income, with the balance of the income being primarily dividend income.
[6] Since the final 2008 order that dealt with child support (and which is referred to in more detail below) the respondent’s employment income has increased from approximately $25,400 in 2008, incrementally each year, to the current level.
[7] The applicant, throughout his employment career has worked for over 30 years for the City of London as a traffic-sign maintenance officer. He started employment there at age 19.
[8] The applicant’s employment income in 2008 was $54,835 and his income increased each year, rising to $62,918 in 2012, and then falling to a little over $56,000 in 2013.
[9] The applicant retired in October 2014, explaining that his pension had “maxed out” by that time. The applicant is re-married and his monthly pension income is $3,246.38 according to a pension statement filed as part of exhibit 1 at trial.
[10] The final order of G.A. Campbell J. dated January 15, 2008 (“final order”) dealt with all issues relating to property, spousal support and child support. The property provisions included a $150,000 payment to the respondent for her interest in the matrimonial home and equalization payment. Custody and access issues had been dealt with pursuant to an earlier final order.
[11] The parties agree that the child support issues in the present case do not involve the child Daryl. He has been independent for a number of years.
[12] The final order contained the following relevant provisions regarding child support:
a) Effective September 1, 2007 the applicant was to pay child support to the respondent for Jennifer and Lynsay in the amount of $695 per month based on the applicant’s 2007 estimated income of $46,040;
b) The applicant was ordered to contribute to the children’s “…Special and Extraordinary Expenses, including the post-secondary education costs of [Taryn]…” pursuant to s. 7 of the Guidelines; the parties were to provide each other with the necessary information regarding s. 7 expenses; and the respondent’s 2007 income was stated to be $22,356;
c) The parties were ordered to inform each other, forthwith, as to any significant change in income, or employment, or children residing in their care; also each year, starting May 2008, each party had to provide the other with a copy of his/her income tax return for the previous year, evidence of year-to-date income, current information about a child’s s. 7 expenses; and any adjustment to child support due to income changes was to be calculated annually and to take effect June 1st of that year;
d) The applicant was required to retain for the benefit of the children all medical plans through his employment; and
e) There was no provision made in the final order for child support for the child Daryl.
[13] Taryn, Jennifer and Lynsay (hereinafter collectively referred to as “the children”) all attended either college or university or both in London, Ontario.
[14] The parties agree that from the date of the final order that the applicant kept paying the table amount of child support in the amount of $695 per month, as set out in the order, up to and including May 1, 2013. The parties also agree that the applicant made no other child support payments including no payments for s. 7 expenses.
[15] The facts relevant to the individual child support claims for each child are discussed in more detail below.
Procedural Matters
[16] This proceeding was started as a motion to change brought by the respondent seeking, in essence, a retroactive variation of the final order. A procedural order had been made at the settlement conference that required all evidence-in-chief to be by affidavit with set time limits, at trial, for additional evidence-in-chief and for cross-examination. All documents to be introduced at trial were ordered to be appended as exhibits or contained in joint document briefs.
[17] At trial, the respondent and the parties’ three daughters, Taryn, Jennifer and Lynsay, testified in support of the respondent’s case. The applicant was the only witness for his case. Numerous document briefs were filed, and both parties prepared various schedules, filed as exhibits, summarizing their respective calculations in relation to child support arrears.
[18] Shortly after the conclusion of the trial, the respondent served a signed and sworn version of her current financial statement; and the applicant forwarded, as had been discussed at trial, an amended version of Ex. 9 which was his updated schedule of his calculation of the children’s post-secondary education expenses and the income sources available to the children to meet those expenses. These two additional documents have been marked as Exs. 10 and 11, respectively; no issue is taken by either party with these additional documents being made exhibits.
[19] During the trial, both parties consented to the present case being treated as a corollary relief application for child support pursuant to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1]; there is jurisdiction to do that, given that after the final order was made, the court granted a divorce (with the divorce order being a divorce simpliciter containing the granting of a divorce only and no corollary relief). The final order for child support in this case was made prior to the granting of a divorce and, accordingly, the final child support order could only have been made under the Family Law Act, R.S.O. 1990, c.F.3 as the court has no jurisdiction to make a final order for any corollary relief under the Divorce Act unless the court has first granted a divorce under that Act: see Okmyanski v. Okmyanski, 2007 ONCA 427 (Ont. C.A.) and Rothgiesser v. Rothgiesser (2000), 2000 1153 (ON CA), 46 O.R. (3rd) 577 (Ont. C.A.).
[20] I accede to the request of both parties to deal with the case at bar as a corollary relief application pursuant to the Divorce Act; however, given the facts, little if anything, turns on whether this case is decided as a motion to vary under the Family Law Act or a corollary relief proceeding pursuant to the Divorce Act.
[21] There was evidence at trial from the respondent that the applicant had failed to provide ongoing financial disclosure as required and contemplated by the final order, and that the applicant had engaged in blameworthy conduct. The applicant, in turn, levied his own accusations alleging that the respondent had failed to provide various relevant documents as required. Importantly, however, the whole issue of blameworthy conduct becomes moot as the applicant has filed an undertaking signed by his counsel, dated November 24, 2014, agreeing “… to raise no delay defence to the respondent’s motion to change …” (see Ex. 1, tab 6-J, joint document brief).
[22] Given that the motion to change was issued April 8, 2014, well after each of Taryn, Jennifer and Lynsay was no longer a “child of the marriage” within the meaning of the Divorce Act, I treat the applicant’s undertaking also as a waiver of any defence that may have been available to the applicant in light of what the Supreme Court of Canada said about the timing of a claim for child support: see S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.) at para. 89. In any event, at trial, no issue was raised by the applicant as to the timing of the commencement of the motion to change, and the applicant at all material times addressed the claims advanced by the respondent on the merits.
The Relevant Provisions of the Child Support Guidelines
[23] The relevant provisions of Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) are ss. 3(1) and 3(2) and they are as follows:
- (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.
- (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.
[24] In the present case none of the children resided at home with the respondent while attending Fanshawe College or Western University in London.
[25] Applying the decision of the majority in Lewi v. Lewi, 2006 15446 (ON CA), 2006 CarswellOnt 2892 (Ont. C.A.), I must decide whether to apply s. 3(2)(a) or (b) of the Guidelines as all the children had attained the age of majority when attending college or university.
[26] As was pointed out in Lewi, s. 3(2)(a) contains the presumptive approach for child support for a child who is over the age of majority, and this section requires the child support to be determined in accordance with s. 3(1), the same as for a child who is under the age of majority. The approach in s. 3(1), referred to as the “standard approach” in Lewi, means that the child support order must include the table amount, unless ss. 4, 9 or 10 apply, (Lewi, para. 138), together with any applicable s. 7 expenses. As noted in Lewi, the s. 7 expenses, although at times referred to as “add-ons”, are not added to the amount of child support but are part of the child support (Lewi, para. 126).
[27] When a child attends a post-secondary educational institution, is over the age of majority and is not living at home during the academic school year, then it is not appropriate to use the approach in s. 3(2)(a) because the table amount is premised on the assumption that the recipient parent is providing for the expenses of a child who resides with that parent; and accordingly the means and needs analysis set out in s. 3(2)(b) should be used instead: see the decision of Heeney J. in Merritt v. Merritt, 1999 CarswellOnt 1471 (S.C.J.) at para. 73, cited with approval in Park v. Thompson, 2005 14132 (ON CA), 2005 CarswellOnt 1632 (Ont. C.A.) at para. 28.
[28] In the present case there was evidence that Taryn and Jennifer lived with the respondent during the summer months between academic semesters, except for Taryn during the summer of 2009 discussed in more detail below.
[29] During the time that each child was attending college or university, I find that the calculation of child support pursuant to the “standard approach” in s. 3(2)(a) is not appropriate, and that the child support should be determined pursuant to s. 3(2)(b). During the summer months, however, the “standard approach” to child support, while the child was residing with the respondent, is appropriate, and the applicant should pay the table amount of child support for the four months between academic semesters. This approach was used, for example, in Liscio v. Avram, 2009 CarswellOnt 4882 (S.C.J.) at para. 36.
[30] Regarding the academic school year, I must consider the factors in s. 3(2)(b) in arriving at the proper amount of child support. Although the factors in s. 3(2)(b) are not identical to the factors in s. 7, there is considerable similarity and overlap between those sections, as noted in the majority judgment in Lewi, at paras. 141, 142, 143, 154, 155, 156 and 159. It was also noted in Lewi that whether under s. 7 or s. 3(2)(b), the court has a discretion to decide the amount that a child is to contribute towards post-secondary education expenses.
[31] When considering the factors in s. 3(2)(b), in the case at bar, I find that this is a family of modest means. The children are to be expected to make a significant contribution to their post-secondary education costs. I accept and agree with the evidence of Taryn, when she agreed during cross-examination, that her parents were of modest means and limited in what they could contribute to education costs and that this put more responsibility on her to fund her education. This reasonable admission made by Taryn applies, I find, equally to Jennifer and Lynsay. Further, the respondent, during cross-examination, agreed that the family was of modest means.
[32] The evidence supports the conclusion, which I make, that all the children recognized their parents’ limited ability to contribute to post-secondary education expenses as evidenced by the fact that all the children applied for and received OSAP loans, they each received government grants, some received a bursary, and they all earned reasonable incomes from summer employment. In relation to government grants, both Taryn and Jennifer, who attended college or university for four years and three years, respectively, each received grants that included grants for students from low-income families.
[33] The proper approach in calculating child support for each child while attending college or university, pursuant to s. 3(2)(b), is to quantify the tuition and book expenses together with rent and other living expenses; then it is necessary to consider each child’s resources and to allocate to each child, as her contribution, an appropriate portion of summer employment income, and adding to that all grants and/or bursaries received by the child; and then allocating to the child as her further contribution to post-secondary education expenses an appropriate percentage of all OSAP loans received by the child. Although there was evidence that the children returned home some weekends and holidays during academic semesters, I have not included as part of s. 3(2)(b), the respondent’s costs in keeping her home available for these visits, as there was insufficient evidence from the respondent for the court to be able to quantify that cost, if any.
[34] The applicant and respondent each had a different methodology of calculating each child’s contribution to post-secondary education expenses.
[35] The respondent’s approach was to add up all of the expenses, then arbitrarily reduce the expenses by 50 per cent and then apportion the remaining 50 per cent to the parents, in proportion to their respective incomes. I reject this approach because it fails to take into account the actual known income of the child and the actual known amount of any OSAP loan received, and fails to take into account the actual known amount of any grant or bursary received. In short this method takes an arbitrary approach while ignoring the actual, known information. This approach specifically fails to take into account, properly, the individual “means” of each child, which is one of the factors in s. 3(2)(b) that a court is required to consider. The consequence of this flawed approach contributed to the respondent calculating the applicant’s share of post-secondary education expenses to be over $41,000, as shown on page 8 of her calculations, filed as Ex. 7, an amount that is most excessive as becomes apparent later in these reasons.
[36] I find that the applicant’s approach in quantifying each child’s contribution to post-secondary education expenses is more in line with the proper procedure, although I disagree with some of the actual numbers used.
Post-Secondary and Section 7 Expenses for Lynsay
[37] Lynsay finished her fourth year of high school in June 2011. She then continued on in high school, for one semester, from September 2011 to January 2012 – the so-called “victory lap”.
[38] I am satisfied that Lynsay took this extra semester for genuine academic reasons; this included wanting to improve her English mark, which she did. As Lynsay explained in cross-examination, she did not know what she wanted to do, so she stayed in school – a most responsible decision, I find.
[39] From January 2012 to the start of attending Fanshawe College in the fall of that year, Lynsay worked part-time while living with her mother. During this time Lynsay was preparing to attend Fanshawe College and she was working and trying to save some money. During the summer of 2011, Lynsay was working, but planning to return to high school, and she lived with her mother. I find that Lynsay’s status as a “child of the marriage” for whom table amount of child support was payable pursuant to s. 3(1)(a) and then pursuant to s. 3(2)(a), included the time period from June 2011, when she finished her fourth year of high school, to the end of August 2012, just prior to entering Fanshawe College.
[40] Lynsay then attended at Fanshawe College, namely the one-year personal support worker program, from September 2012 to the end of April 2013.
[41] In May 2013 Lynsay secured employment as a personal support worker. Lynsay testified at trial that she currently works full-time. She earns over $20 per hour.
[42] It is clear that no child support is payable for Lynsay subsequent to the end of April 2013.
[43] I am satisfied that the rent expense for a one-year lease for a residence in London, starting May 1, 2012 for twelve months, (a residence that Lynsay shared with her sister, Jennifer) was a reasonable post-secondary housing expense even though for Lynsay the cost started four months prior to starting Fanshawe College.
[44] I accept Jennifer’s evidence, during cross-examination, as to the fact that an eight-month lease for a student is not cost effective and can be very expensive. Accordingly, I find it was reasonable for Lynsay to enter into a twelve-month lease, along with Jennifer, starting May 1, 2012. I find that it is reasonable to allocate this cost to the eight-month academic year.
[45] In relation to tuition for Lynsay’s one-year at Fanshawe College, the parties agreed during the trial that Lyndsay’s tuition was $3,804.59 which I round to $3,805.
[46] The evidence in relation to Lynsay as to the cost for books and supplies is rather vague. In para. 10 of her affidavit Lynsay summarizes all of her Fanshawe College costs and indicates that these costs are for “tuition, books and related expenses”. However, there are no receipts or amounts indicated for any book expenses contained in the exhibits. Nevertheless, the applicant, in Ex. 11, allocates $500 for book expenses for Lynsay. I regard this as an admission by the applicant and given that the amount is reasonable, I assess Lynsay’s book expenses at $500.
[47] Lynsay’s 50 per cent share of the rent expense is $475 per month (50 per cent x $950). However, there is minimal evidence as to Lynsay’s other living expenses. There was no financial statement or budget or other evidence from Lynsay or the respondent as to the amount of Lynsay’s living expenses. Lynsay’s affidavit noted that her expenses as summarized do not include “… living costs such as groceries or transportation …” It was only during cross-examination, that Lynsay gave some evidence about such costs, for example: groceries ($100 every two weeks), phone ($75 per month), and entertainment ($50-$100 per month). The respondent used $500 per month in her calculation for living expenses as shown in Ex. 7. However, there is no evidence to support where this figure came from. Doing the best I can, on the limited evidence, I assess other living expenses at $340 per month. It should be noted that utilities are included in the rent.
[48] There is evidence from Lynsay and Jennifer in their affidavits that since approximately February 2010, that the respondent had provided her car, a 2005 Pontiac Sunfire for them to use, including while attending college or university. The respondent paid the insurance, gas and vehicle repairs and maintenance. The respondent’s evidence is that her insurance costs were $180 to $200 per month. I allow the insurance expense at $180 per month, with $90 per month being allocated to Lynsay, and a similar amount for Jennifer, as an expense during the academic school year. This cost is reasonable because Jennifer and Lynsay would need to drive from time-to-time. However, I am not satisfied that it was necessary for Jennifer and Lynsay to have the car all the time, given that they lived in London while attending school and could have used public transit. Accordingly, I do not allow any maintenance and repair costs for the vehicle.
[49] Lynsay had part-time employment income of $12,746 in 2012 and $8,882 for 2011 with no tax payable for either year. The applicant argues that Lynsay should have saved all the money that she earned, in 2011 and 2012, towards her post-secondary education costs, except for $2,000 in each year.
[50] I do not accept the applicant’s position as to the amount of money that Lynsay should have saved. It must be remembered that Lynsay was living with her mother, whose financial means were quite modest, even including the table amount of child support. In 2011, Lynsay was in high school the whole year. She testified that she used her income earned in 2011 not only for social activities, but for example she bought her school lunches and paid for her phone. In the circumstances, none of that income should be allocated towards post-secondary expenses.
[51] For 2012, however, Lynsay was aware that she was going to college; she also had a rent expense starting in May 2012, while at the same time living at home with her mother, without paying any room or board. Lynsay testified that she only had about $3,500 in savings at the time that she entered Fanshawe College. I find that Lynsay should have been more careful about saving, and I attribute $7,000 (approximately 55 per cent of 2012 income) to Lynsay as a reasonable contribution to her college expenses (being income that was earned during the almost eight months or so that Lynsay worked after finishing her high school semester in January 2012). I find that this income allocation is reasonable given the respondent’s modest income and the need for Lynsay to use her earnings to fund some of her personal expenses including reasonable social activities.
[52] The applicant submits that 75 per cent of the OSAP loan should be Lynsay’s responsibility. Given my finding earlier that this was a family of modest means, I agree with this submission. In Cavanaugh v. Glass, 2001 28120 (Ont. S.C.J.), a case relied on by the respondent, the court, at para. 38, in a case described as involving a family of modest means, allocated 80 per cent of OSAP and employment earnings as the child’s contribution to post-secondary education expenses. It is noted in that case that the incomes of the parents were somewhat lower than the case at bar.
[53] It was Lynsay’s evidence that her current monthly OSAP loan payments are only $84 per month.
[54] In relation to the government loans and grants received by Lynsay, I am satisfied on the evidence that Lynsay received $7,300 in loans and a grant of $1,468 for her year at Fanshawe College. This is corroborated by the printout from the National Student Loan Service Centre dated January 13, 2014 (see Ex. 3, tab H-3).
[55] I deny the respondent’s claim of $595 for the cost of Lynsay’s driver’s education course in 2010 while Lynsay was still in high school. I have some doubt as to whether this is a section 7 expense; even if it was, it would have to fall within section 7(d) of the Guidelines and if so, this expense would not be “extraordinary”, as in my view, it would be subsumed in the table amounts.
[56] The respondent claimed section 7 hockey expenses for Lynsay while she was in high school. The respondent relies on a minor hockey registration form for both Jennifer and Lynsay for 2008/2009 (see Ex. 3, tab G-14). It appears that the total cost for both Jennifer and Lynsay was $1,150 or $575 per child. I would not regard these registration costs as being “extraordinary” within the meaning of s. 7(f). Similarly there are registrations filed (Ex. 3, tabs H-8 and H-9) for the 2009/2010 year and for the 2010/2011 year. There is no indication as to what amounts were actually paid, or what cheques were written. However, even if all the amounts shown were paid, they would not constitute an “extraordinary” expense. All of the above hockey expenses would be subsumed in the table amount.
[57] The result of the foregoing claim for Lynsay’s post-secondary education expenses is summarized as follows:
Expenses
Tuition
Rent
Books
Living Expenses
Car Insurance
Total Expenses
Funding Sources
Employment Income (2012)
OSAP Loans
Government Grant
Total Funding Sources
$3,805
(12 x $475) $5,700
$500
(8 x $340) $2,720
$720
$13,445
$7,000
($7,300 x 75%) $5,475
$1,468
$13,943
[58] The above analysis indicates that the funding available to Lynsay for attending Fanshawe College for one academic year exceeds her proven expenses.
[59] Based on the following, the respondent’s claim for post-secondary education expenses and s. 7 expenses for Lynsay is dismissed.
Post-Secondary and Section 7 Expenses for Jennifer
[60] Jennifer finished four years of high school in June 2009; however, similar to Lynsay, she too attended one further semester to take additional courses and to improve her marks. Jennifer attended this additional semester from September 2009 to January 2010. Jennifer then worked until she started at Western University in September 2010.
[61] Jennifer lived with her mother until starting university. I find that from June 2009 to the end of August 2010, that the child support for Jennifer would be the table amount pursuant to s. 3(2)(a). Also the table amount is payable for Jennifer during the summers of 2011 and 2012 as I accept her evidence that she lived with her mother during those times.
[62] Jennifer completed a total of three years of post-secondary education; her first year was at Western University and her last two years were at Fanshawe College where she completed the two-year law clerk program.
A. Jennifer’s First Year of Post-Secondary Education – Western University – September 2010 to April 2011
[63] The tuition inclusive of activity fees and other administrative costs was $6,383, rounded (Ex. 3, tab G-1). The tuition was reduced by a $2,000 bursary.
[64] Jennifer’s lease started in May 2010 and was for twelve months. For the same reasons as discussed in relation to Lynsay, I accept that a twelve-month lease was a necessary expense for the academic year and also for the two subsequent academic years.
[65] Regarding monthly living expenses, there was little, if any, documentary evidence verifying those expenses. During her evidence-in-chief, Jennifer testified as to expenses that included groceries ($250 per month), cell phone ($50 per month) and personal supplies ($50 per month). I assess Jennifer’s proven monthly living expenses, as best I can given the evidence, at $350 per month and I use that amount for all years of post-secondary education. The evidence did not support the claimed living expense of $500 per month shown by the respondent in exhibit 7. Based on Jennifer’s evidence I fix book expenses at $500 per year. I also include $90 per month for car insurance for reasons discussed in relation to Lynsay.
[66] The applicant in exhibit 11 seeks to include in the funds available for Jennifer her Ontario tax credits in the amount of $310 received in 2010. The applicant also seeks to include similar amounts, for all years, for Taryn. The tax credits consist of a property tax component and in some years the tax credit included an “energy component”. I decline to include these amounts as a separate source of funds. In my view the allocation of employment income available for post-secondary education expenses is sufficient to take into account any tax credits and/or tax refunds.
[67] In 2010 Jennifer was able to work after finishing high school in January 2010 until she started university in the fall. She earned $10,334 in 2010. I allocate $5,700 (approximately 55 per cent) of that amount towards school expenses. For reasons similar to those stated in relation to Lynsay, I reject the applicant’s submission, for both Jennifer and Taryn, that all their incomes earned, less $2,000 for each year, should be applied towards school expenses.
[68] In relation to OSAP loans, I allocate 75 per cent as Jennifer’s contribution towards school expenses.
[69] The following is the summary for Jennifer’s first year:
Expenses
Tuition
Rent
Books
Living Expenses
Car Insurance
Total Expenses
Funding Sources
Employment Income (2010)
Bursary – King’s College
OSAP Loans
Government Grant
Total Funding Sources
$6,383
(12 x $375) $4,500
$500
(8 x $350) $2,800
(8 x $90) $720
$14,903
$5,700
$2,000
($4,100 x 75%) $3,075
$4,510
$15,285
[70] The above shows that Jennifer’s first year was fully funded.
B. Jennifer’s Second Year – Fanshawe College – September 2011 to April 2012
[71] For allocation of employment income for both the second and third years, I have used 50 per cent, rather than 55 per cent, to reflect a shorter time to work being only four months during the summer, rather than starting work soon after January.
[72] The following is a summary of Jennifer’s second year with the amounts shown for tuition and all the funding sources being taken from the exhibits:
Expenses
Tuition
Rent
Books
Living Expenses
Car Insurance
Total Expenses
Funding Sources
Employment Income (2011)
OSAP Loans
Government Grant
Total Funding Sources
(2 x $1706) $3,412
(12 x $475) $5,700
$500
(8 x $350) $2,800
(8 x $90) $720
$13,132
($8,440 x 50%) $4,220
($6,100 x 75%) $4,575
$2,284
$11,079
[73] The unfunded difference is $2,053. For the purpose of s. 3(2)(b), I find that allocating the difference between the parties in proportion to their incomes (similar to s. 7(2) of the Guidelines) is reasonable, and this also applies to Taryn.
[74] I use the parties’ 2012 incomes on the basis that the unfunded portion would have been for the second semester. The applicant’s 2012 income was $62,353 (line 150 $62,971 less $618 union dues). The deduction of union dues is a Schedule III Guideline adjustment. The respondent’s line 150 income is $32,230. This includes dividends. As required by schedule III, replacing the taxable grossed-up dividend with the actual dividend results in a reduction of $501 rounded ($1,818.65 taxable dividend minus $1,317.86 actual dividend equals $500.79). The respondent’s income is $31,729 ($32,230 - $501). Accordingly, the applicant’s share of the expense is 66 per cent.
[75] The amount payable by the applicant is 66 per cent x $2,053 equals $1,355.
C. Jennifer’s Third Year – Fanshawe College – September 2012 to April 2013
[76] The following is the summary for Jennifer’s third year with the amounts shown for tuition and all funding sources being taken from the exhibits:
Expenses
Tuition
Rent
Books
Living Expenses
Car Insurance
Total Expenses
Funding Sources
Employment Income (2012)
OSAP Loans
Government Grant
Total Funding Sources
(2 x $1,774.79) $3,500
(12 x $475) $5,700
$500
(8 x $350) $2,800
(8 x $90) $720
$13,220
($7,028 x 50%) $3,514
($4,813 x 75%) $3,610
$3,237
$10,361
[77] The unfunded balance is $2,859. For 2013 the applicant’s income was $55,443 (line 150 rounded from his tax return $56,230 less $787 union dues). I use the respondent’s line 150 income from her 2013 Notice of Assessment in the amount of $32,258. A dividend income adjustment was not possible as I could not locate any relevant T3 slips showing the actual and taxable dividend income. The applicant’s share is 63 per cent.
[78] The amount payable by the applicant is 63 per cent x $2,859, equals $1,801 (rounded).
[79] Jennifer began work as a law clerk on a part-time basis in early May 2013 and she also worked part-time in a retail store. Effective April 2014 her law clerk employment became full-time. Jennifer’s monthly payment for her OSAP loan is $173 per month.
D. Section 7 Expenses Claimed for Jennifer
[80] There was a claim for a hockey registration expense for Jennifer for the 2008/2009 year while she was in high school. The registration form showing the amounts is filed (see Ex. 3, tab G-14). The amounts shown are not “extraordinary” expenses and are covered by the table amount of support. In relation to the claim for $525 for driver’s education, I disallow the claim on the same basis that Lynsay’s claim was disallowed.
[81] There was a claim for $693 for some orthodontic costs for Jennifer, but that amount was paid prior to trial.
Post-Secondary and Section 7 Expenses for Taryn
A. The Effect of the Acknowledgement and Release Signed by the Respondent
[82] The first issue is to determine the effect of the acknowledgement and release signed by the respondent on January 18, 2008. The relevant portion of this release is paragraph 2 which states as follows:
I hereby release the applicant Steven Wayne Corby from any and all claims for child support for the child Taryn Victoria Corby, to the present, that is to January 18, 2008.
[83] The respondent submits that this release does not include “s. 7 expenses”. For convenience, in the discussion relating to the acknowledgement and release, I use the term “s. 7 expenses” to include also university expenses that would be included pursuant to s. 3(2)(b) of the Guidelines.
[84] The respondent’s claim for Taryn for s. 7 post-secondary expenses goes back to September 2006. While the respondent submits that the release can be interpreted not to apply to s. 7 expenses, the applicant submits that it is conceivable that the release did not also include s. 7 expenses. I agree with the applicant.
[85] As noted earlier in these reasons, the parties, who each had counsel, negotiated a comprehensive settlement that involved property, child support and spousal support issues pursuant to minutes of settlement dated January 8, 2008 that were incorporated into the final order.
[86] At the time of the final order, Taryn was in her second year at university. The documentary evidence filed in the case at bar indicates that at the time the minutes of settlement were signed, that Taryn had already received various student loans and grants, including grants for students from low-income families. Further in 2006 and 2007 Taryn had employment income of $8,788 and $9,404, respectively. During cross-examination it was suggested to the respondent that as of January 18, 2008, that all of Taryn’s post-secondary education expenses to that point in time had been paid for from various funding sources. The respondent denied this suggestion, but I place little weight on that denial.
[87] It would have been extremely unlikely for the parties to have reached a comprehensive settlement on all issues including child support in January of 2008, and not to have dealt with any potential s. 7 expenses owing for Taryn prior to the date of the settlement. I find that the purpose of the acknowledgement and release was to make it clear that in fact all child support in relation to Taryn had been settled and that the release was signed to evidence this intention. I find that the reference to payment of Taryn’s post-secondary education expenses in the final order referred necessarily to prospective s. 7 expenses, not retrospective s. 7 expenses.
[88] Finally on a plain meaning of the acknowledgement and release it means what it says. It releases “…all claims for child support…”. Child support is not limited to table amounts; child support includes all child support including s. 7 expenses (see Lewi, para. 126). There is no merit to the respondent’s position, and I find that in the case at bar the only s. 7 expenses for Taryn that the applicant is obliged to contribute to are the expenses incurred after January 18, 2008.
B. Taryn’s Post-Secondary Education Expenses for Her Second Academic Year From January 19, 2008 to April 30, 2008
[89] Taryn completed a four year nursing program at Western University. She started in September 2006 and finished in the spring of 2010. The post-secondary education expenses claimed by the respondent, for Taryn, end in April 2010 (see exhibit 7). In her affidavit, Taryn deposes she graduated in “spring 2010” and that she worked for the rest of the year. She earned $19,320 in 2010. She was living on her own. I find that Taryn ceased being “a child of the marriage” at the end of April, 2010.
[90] In determining whether there were any unfunded expenses for Taryn’s second year for the period after January 18, 2008, it is instructive to look at Taryn’s entire second year. If there was some underfunding then that could be apportioned for the period starting January 18, 2008.
[91] Consistent with the reasons discussed in relation to Jennifer and Lynsay, the funding sources for Taryn should include 50 per cent of her income earned during the summer months and 75 per cent of OSAP loans.
[92] For Taryn’s second year at Western she had rental accommodation from May 2007 to April 2008. In the schedules for Ontario credits contained in Taryn’s income tax returns for 2007 and 2008, her rent from May 2007 to December 2007 was $3,200 (8 months x $400) and her rent from January 2008 to April 2008 was $1,600 (4 months x $400) for a total of $4,800. I allow a full twelve-month rental expense for the same reasons as discussed below in relation to Taryn’s third and fourth years.
[93] In relation to book expenses, again, there was little evidence regarding the book expenses but I use the amounts estimated by the applicant in Ex. 11 for all of the academic years discussed below. I find, similar to Lynsay, that the applicant’s exhibit 11 constitutes an admission as to the book expenses and I find that the expenses shown are reasonable.
[94] Taryn did give some evidence regarding her living expenses and I accept that her living expenses were $500 per month.
[95] All amounts in relation to tuition and funding sources are verified in the exhibits filed. The following is a summary for Taryn’s second year:
Expenses
Tuition
Rent
Books
Living Expenses
Total Expenses
Funding Sources
Employment Income (2007)
OSAP Loans
Government Grant
Total Funding Sources
$4,936
$4,800
$600
(8 x $500) $4,000
$14,336
($9,404 x 50%) $4,702
($8,280 x 75%) $6,210
$3,529
$14,441
[96] Therefore, Taryn’s second year of university was fully funded. During the summer of 2008 Taryn lived with the respondent and accordingly for the summer months the child support payable for Taryn is the Guideline amount pursuant to s. 3(2)(a).
C. Taryn’s Post-Secondary Education Expenses for Her Third Academic Year From September 2008 to April 2009
[97] For her third year Taryn lived in a rental accommodation. Similar to Taryn’s siblings, I allow the entire twelve-month rental accommodation as a reasonable cost to be allocated over the eight-month semester for the same reasons as set out earlier for Taryn’s siblings. From May 2008 to December 2008 the total rent paid by Taryn was $3,004 as verified in her Ontario Credits schedules attached to her 2008 tax return. In 2009 Taryn paid a total of $5,312 for rent, as shown in her 2009 tax return. Of that amount one-third of the rent was for the period January 2009 to April 2009 in the amount of $1,771 rounded. Accordingly, the total rent expense is $4,775.
[98] It is noted that in the summer of 2009 Taryn did not live at her mother’s residence although she may have stayed there from time to time. (In her affidavit, Taryn deposed that she lived with her mother for the summers of 2006, 2007 and 2008.) Accordingly, I do not allow the table amount of child support for the summer months in 2009, and instead living expenses are shown below for the entire twelve-month period. Accordingly for Taryn, child support for the period September 2008 to August 2009 inclusive, is payable solely pursuant to s. 3(2)(b).
[99] The following is a summary for Taryn’s third year at Western with the amounts for tuition, and funding sources being taken from the exhibits filed:
Expenses
Tuition
Rent
Books
Living Expenses
Total Expenses
Funding Sources
Employment Income (2008)
OSAP Loans
Government Grant
Total Funding Sources
$5,048
$4,775
$700
(12 x $500) $6,000
$16,523
($10,531 x 50%) $5,266
($7,051 x 75%) $5,288
$51
$10,605
[100] The above results in a funding deficit of $5,918.
[101] Similar to Jennifer, it is appropriate to use the parties’ incomes for 2009 given that the funding deficit would have occurred in the second semester. The applicant’s income for 2009 is $54,595 (line 150 $55,191 minus union dues $596). In 2009 the respondent’s line 150 income as shown in the notice of assessment is $31,036. In 2009 the respondent’s line 150 included over $4,000 of dividend income. However, the tax information for the respondent for 2009, filed in Ex. 2, tab D-8 does not contain the T3 slips for the dividend income; accordingly it is not possible to do the calculation to replace taxable dividends with actual dividends and therefore I use the line 150 income.
[102] The applicant’s share of university expenses is 64 per cent rounded. Accordingly, the applicant is responsible for $3,788 rounded (64 per cent x $5,918 equals $3,787.52).
D. Taryn’s Post-Secondary Education Expenses for Her Fourth Academic Year From September 2009 to April 2010
[103] Taryn’s rent for the period May to December 2009 is two-thirds of the annual rent of $5,312 which amounts to $3,541. From January to April 2010 Taryn had an annualized rent of $4,900 and one-third of that for the first 4 months is $1,633. The rent information is set out in the Ontario Credits schedules appended to her 2009 and 2010 tax returns. Accordingly, Taryn’s rent for her fourth year is $5,174 ($3,541 plus $1,633). Also as before the amounts for tuition, and funding sources are disclosed in the exhibits filed.
[104] The summary for Taryn’s fourth year of university is as follows:
Expenses
Tuition
Rent
Books
Living Expenses
Total Expenses
Funding Sources
Employment Income (2009)
OSAP Loans
Government Grants
Total Income Sources
$5,244
$5,174
$750
(8 x $500) $4,000
$15,168
($10,954 x 50%) $5,477
($5,691 x 75%) $4,268
$1,919
$11,664
[105] The funding shortfall is $3,504. For 2010 the applicant’s income was $52,696 (line 150 $53,298 minus $602 for union dues). The respondent’s line 150 income was $30,005. The respondent’s T3 slips show taxable dividend income of $2,488.68 and actual dividends totalling $1,728.75 with the difference being $760.43 which I round to $760. Therefore replacing the taxable dividends with the actual dividends results in an income of $29,245 ($30,005 minus $760).
[106] The applicant’s proportionate share is 64 per cent rounded.
[107] Therefore the applicant’s contribution towards Taryn’s fourth year of university expenses is $2,243 rounded (64 per cent times $3,504).
[108] Taryn has been working as a full-time registered nurse at a hospital in London since April 2011. Her monthly student loan payments are $308. As of March 2014 Taryn’s hourly income was $31.50 plus premiums for evenings, nights and weekends.
E. Claim for Taryn’s $75 Orthotics Expense
[109] It is somewhat difficult to understand why the respondent would invest time, effort and legal fees in this trial to pursue a very minimal claim of $75 for an orthotics expense, alleged to have been incurred for Taryn in 2008. It appears that the principle of proportionality seems to have fallen by the wayside.
[110] The respondent, in her affidavit sworn March 9, 2014, in para. 40 of Ex. A appended to that affidavit, as part of the 2008 expenses, describes that she paid this $75 expense and submitted the claim to the applicant’s insurer and alleges that she never received reimbursement “despite repeated requests”. The respondent then refers to a document she filed as Ex. 3 at trial (volume 2, Respondent’s Book of Documents, tab c-1) as being a letter from the respondent to the applicant. That letter, dated September 5, 2008 says nothing about the orthotics expense (although at tab c-3 there is a letter dated June 1, 2010 from the respondent to the applicant referring to the $75 orthotics claim, and alleging that the applicant “must have” a cheque in his possession for that amount.
[111] The applicant, in his affidavit sworn November 14, 2014, claims to have no records of receiving a cheque for $75.
[112] The respondent does not refer to any receipts being filed to verify this expense, nor could I locate a receipt in the mass of documents filed. There is insufficient evidence to establish that this expense was even covered by the applicant’s medical plan. Taryn turned age 21 in February, 2008. Most likely this expense would have to be considered as part of child support under s. 3(2)(b). However, if the expense was payable pursuant to s. 3(2)(a) and assuming there was no entitlement to insurance reimbursement then pursuant to s. 7(c) nothing would be payable in any event because this health-related expense did not exceed $100.
[113] The viva voce evidence at trial did nothing to shed any further light on this issue. In all the circumstances, I decline to make any order requiring the applicant to be responsible for any portion of this alleged expense.
The Table Amount of Child Support
[114] The table amount of child support, as summarized below, is payable pursuant to s. 3(1)(a), or in the situation of the children having attained the age of majority, and attending high school or living with the respondent during summer vacation between academic semesters, table child support is payable pursuant to s. 3(2)(a).
[115] For 2008, both Jennifer and Lynsay were in high school. Taryn lived with her mother during the summer after second year university. Table amount of child support is payable for 2 children for 8 months and for 3 children for 4 months. The applicant’s income was $54,835 and this income is taken from a support overpayment calculation found at Ex. C of the applicant’s affidavit sworn November 14, 2014 found in the Document Brief filed as Ex. 1 at trial. There did not appear to be any other documents filed as to the applicant’s 2008 income. The table amount of child support for 2 children is $824 per month and for 3 children it is $1,078 per month. For 2008 the respondent’s table child support obligation is $10,904 (8 x$824 plus 4 x $1,078).
[116] For 2009, Jennifer and Lynsay continued to live at home and attend high school. Taryn lived on her own the entire year and therefore table child support is payable for the year for 2 children. The applicant’s income as discussed earlier after deducting union dues is $54,595. The table amount is $821 per month. Therefore the table child support obligation for 2009 is $9,852 (12 x $821).
[117] In 2010 Taryn is no longer a factor as she finished her university in the spring. Lynsay was attending high school the entire year and Jennifer started university in September; therefore child support is payable for 2 children for 8 months and for 1 child for 4 months. The table amount for 1 child is $488 and for 2 children it is $793. The applicant’s income after deducting union dues was calculated earlier and was $52,696. Therefore the table child support obligation for 2010 is $8,296 (4 x $488 plus 8 x $793).
[118] For 2011 Lynsay was home and a high school student for the full year. Jennifer came home during the summer. Therefore child support is payable for 1 child for 8 months and for 2 children for 4 months. The applicant’s income was $61,462 ($62,079 line 150 minus $617 union dues). The child support payable for 1 child is $571 and for 2 children it is $923. For 2011 the applicant’s table child support obligation is $8,260 (8 x $571 plus 4 x $923).
[119] For 2012 Lyndsay was at home for the first 8 months (having finished high school in January of that year). Jennifer was home for the summer. Effective September both Jennifer and Lynsay were in school. Therefore child support is payable for 1 child for 4 months and for 2 children for 4 months. The applicant’s income after deducting union dues had been previously calculated and it is $62,353. The table child support for 1 child is $568; and for 2 children it is $926. For 2012 the applicant’s table child support obligation is $5,976 (4 x $568 plus 4 x $926).
[120] The applicant’s obligation to pay table child support ends in August 2012 as Jennifer and Lynsay returned to university or college and completed their programs in the spring of 2013.
[121] The applicant’s total obligation to pay child support starting from 2008 up to and including August 2012, as calculated above, totals $43,288.
[122] As stated previously, there is no dispute that the applicant paid child support for 5 years from 2008 to 2012 inclusive in the amount of $8,340 per year (12 x$695). Accordingly, during those 5 years the applicant paid table child support in the amount of $41,700 (5x $8,340). In 2013 there is also no dispute that the applicant paid child support for the first 5 months for a total of $3,475 (5 x $695). Accordingly, the applicant has paid total table child support of $45,175 ($41,700 plus $3,475).
[123] The applicant therefore has an overpayment of table child support in the amount of $1,887 ($45,175 paid minus $43,288 obligation).
Summary of Child Support Owing by the Applicant
[124] For Jennifer, the applicant owes $3,156 as his share of post-secondary expenses ($1,355 for second year plus $1,801 for third year). For Taryn the applicant owes $6,031 ($3,788 for third year plus $2,243 for fourth year). The total owed by the applicant for post-secondary education expenses is $9,187.
[125] The net amount owing by the applicant, after deducting the overpayment of table child support is $7,300 ($9,187 minus $1,887).
Pre-Judgment Interest
[126] The respondent claims pre-judgment interest. While I find that the respondent is entitled to pre-judgment interest, the calculation would be a labourious exercise given the ongoing periodic payments; and further the amount of pre-judgment interest would not be large. The parties are encouraged to agree to an amount of pre-judgment interest. If the parties cannot agree, then the respondent will need to calculate the pre-judgment interest and in doing so, given the ongoing periodic payments, the respondent should do the calculations applying s. 128(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 [as am. by S.O. 1991, c.46] by analogy.
The Payment of Child Support
[127] During his cross-examination, the applicant disclosed that he and his brother are each entitled to receive money from their late parents’ estates. The applicant testified his share would be $175,000 to $200,000. The applicant further admitted in cross-examination that he had just received a cheque for $30,000 as a partial payment.
[128] I did raise with Mr. Haas that the applicant failed to disclose any of this information prior to his cross-examination; further the applicant’s interest in his parents’ estates was not disclosed in any financial statement. I raised the issue as to whether that money should be paid in trust to Mr. Haas pending the decision on child support.
[129] During argument Mr. Haas advised the court that the applicant did agree to forward to Mr. Haas’ trust account the sum of $30,000.
The Support Calculations
[130] If I have made any arithmetic errors in the numerous calculations summarized above, then counsel should contact the trial coordinator, and the trial coordinator shall schedule the matter before me at 9:30 a.m., no later than two weeks following the date of this judgment.
Order
[131] For reasons set out above, I make the following order:
Pursuant to the Divorce Act, the applicant shall pay to the respondent for child support for the children Taryn, Jennifer and Lynsay, for the period starting January 2008 to April 2013, inclusive, a lump sum in the amount of $7,300.
If the parties cannot agree on costs, then the parties shall contact the trial coordinator and arrange an appointment before me to address the issue of costs. At least 7 days prior to the date set to hear the issue of costs, the parties shall exchange all documents that they intend to rely on in relation to the issue of costs.
If the parties cannot agree on pre-judgment interest then the parties shall contact the trial coordinator and arrange an appointment before me to address the issue of pre-judgment interest. At least 7 days prior to the date set to hear the issue of pre-judgment interest, the respondent shall serve the applicant with a schedule setting out in detail the calculation of pre-judgment interest.
If the parties are unable to resolve both costs and pre-judgment interest, then those issues shall be dealt with together.
Any hearing to deal with costs or pre-judgment interest or both shall be heard on a date not later than June 30, 2015 as scheduled by the trial coordinator.
Any money paid to the applicant’s lawyer, Mr. Haas, in trust, pursuant to the applicant’s agreement at trial, shall be applied towards the payment of the child support set out in paragraph 1, and any payment directly to the applicant is conditional on the parties first signing all necessary documents to withdraw the enforcement of this order from the Director of the Family Responsibility Office.
This order shall satisfy in full the applicant’s obligation to pay child support pursuant to the final order of G.A. Campbell J. dated January 15, 2008 made pursuant to the Family Law Act, and it is ordered that the applicant has no further obligation to pay child support pursuant to that order, nor does the applicant have any other further financial obligation to any of the children pursuant to that order.
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: May 12, 2015
CITATION: Corby v. Corby, 2015 ONSC 2700
COURT FILE NO.: FD744/06
DATE: May 12, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Stephen Wayne Corby
Applicant
- and -
Catherine Denise Corby
Respondent
REASONS FOR JUDGMENT
MITROW J.
Released: May 12, 2015