ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-12-2176-0
DATE: 2015/07/17

BETWEEN:

MARIE CECILE STEPHANIE ROBITAILLE
Applicant

– and –

MARK KURTIS TRZCINSKI
Respondent

Self‑represented

Ron Paritzky, Counsel for the Respondent

HEARD: July 9, 2015 at Ottawa

REASONS FOR decision

DOYLE J.

[1] The Applicant mother brings a motion to change the Divorce Order of Justice Sers (Nova Scotia) dated December 21, 2010 in which custody of the three children was granted to the Respondent father. In August 2011, the children moved with their mother to Ontario from Nova Scotia where the parties had resided. She was pursuing translator courses at the University of Ottawa. On this motion, the mother seeks custody and child support.

[2] Custody and access issues were resolved on consent by way of a Final Order of Justice McNamara dated January 15, 2013. The parties agreed that they would have joint custody.

[3] On a temporary basis, the consent Order provided a re‑calculation of support from August 2011 to January 31, 2013. Based on the annual income of the father of $80,952 and the mother attending school, the father would pay child support at $821 per month and $1028 per month as spousal support. The support provisions were without prejudice to the ultimate determination of ongoing support or to future claims for variation commencing February 1, 2013.

[4] The parties agreed there was a shortfall of support paid by the father in the amount of $8,463, which was to be paid within 30 days.

[5] In response, the Respondent father brings a motion for retroactive adjustment of spousal support and child support from February 1, 2013.

[6] For the reasons set out below, commencing August 1, 2015, the father will pay the following:

i. Child support in the amount of $726 per month for Ambroise, so long as the child is attending a full‑time educational institution and residing with the mother;

ii. Child support in the amount of $50 per month for Gabrielle until she completes her first post‑secondary degree;

iii. Spousal support in the amount of $300 per month.

[7] After considering retroactive spousal and child support adjustments and section 7 expenses claimed, I find that there are no monies owing.

The Facts

[8] The parties were married on December 29, 1990 and separated on April 5, 2009.

[9] They have three children: Gabrielle, who is almost 22 years old, has just completed her third year at McGill University. She has been residing in Montreal since 2014. Unlike previous summers, Gabrielle is not living with her mother this summer. She is living and working as a server in Montreal.

[10] Ambroise, who is almost 20 years old, will be attending his third year at the University of Ottawa in September 2015. He currently lives with his mother. Last year he lived in residence. He lived with his mother during his first year of university.

[11] Max, who is 23 years old, had been attending school full‑time in the 2014‑2015 school year in Nova Scotia. He withdrew from school and is not likely to return to school in the near future.

[12] The father’s parents pay for the children’s tuition, books, room and board, and other day‑to‑day expenses.

[13] The mother is a Reviser and earns $55,000 per year. The father is currently seeking employment. His employment with the Centre national de la recherche scientifique ended in 2014 and his fellowship with the University of Toulouse ended in February 2015. Recently, he completed a contract with Quest University in British Columbia. If he obtains another fellowship, he hopes to earn a total of $50,000 in 2015.

Mother’s Position

[14] The mother wishes spousal support to remain the same. She contributed to the father’s career and supported him throughout his studies. The mother has health ailments that limit her job opportunities. She succeeded in becoming a bilingual translator and is gainfully employed.

[15] The mother raises the issue of the division of pensions, an issue which is alluded to in the Divorce Order. She agreed that this issue is not formally before the court and after the valuation of the parties’ respective pensions she will take the steps necessary to resolve this issue.

[16] The mother claims section 7 expenses dating back to 2011 and requests expenses for Max, who is not a subject of the proceeding.

[17] She mother requests reimbursement for the following section 7 expenses:

i. Max − $7226.71 and $960 for medical/dental expenses;

ii. Gabrielle −$3618.74;

iii. Ambroise −$3790.59.

[18] The mother anticipates that Ambroise will live with her for the next academic year. Although Gabrielle is attending university in Montreal, she visits her mother often.

[19] The mother also indicates that the father is not making reasonable efforts to find work and has only applied for two jobs. She submits that the father is under‑employed. He is currently living with his parents in Oregon. His parents are multi‑millionaires, as her father‑in‑law was successful in selling a patent for a sizeable amount of money.

Father’s Position

[20] The father also left Nova Scotia and looked for other work. He states that his 2015 income is likely to be approximately $44,000 but is prepared to accept an income imputed to him of $50,000 per annum.

[21] The father wishes a retroactive adjustment to February 1, 2013, as was alluded to in Justice McNamara’s Order. There have been changes in circumstances in the mother’s income and the children’s situation. The father’s income has also changed.

[22] The father disputes the mother’s section 7 payments for the following reasons:

i. Some expenses are not valid section 7 expenses as some are small amounts and therefore covered by the Table amount;

ii. Some expenses relate to Max and issues relating to Max are not subjects of this motion;

iii. Some expenses pre‑date February 1, 2013 and were captured by the order of Justice McNamara.

Analysis

Change of Circumstances

[23] I find that there has been a change of circumstances justifying a change of child and spousal support payments. Section 17(1)(a) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) provides that “a court … may make an order varying, rescinding or suspending, prospectively or retroactively, a support order or any provision thereof on application by either or both former spouses.” According to section 17(4), before the Court changes a child support order, it must satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the last child support order.

[24] Section 17(4.1) stipulates that “the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order....”.

[25] I find that there has been a material change of circumstances as the mother now has employment and the children’s circumstances have changed over the past few years.

Adult Children

[26] Child support is governed by section 17(6.1) of the Divorce Act, which indicates that a child support order shall be made in accordance with the applicable guidelines.

[27] Section 3(2) of the Federal Child Support Guidelines stipulates that for a child over the age of majority, the amount of child support is the amount under the guidelines, i.e. tables or “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.”

[28] In Corby v. Corby, 2015 CarswellOnt 8294 [which referred to Park v. Thompson, 2005 14132 (ON CA), [2005] O.J. No. 1695 (Ont. C.A.)] the Court stated at para. 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 expense 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.

[29] At para. 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.

Father’s income

[30] Throughout the calculations below, I impute an income of $80,952 to the father, which is the income he has earned in the past. I find that this is the appropriate income to be attributed to him. Counsel for the father indicates that the father has applied in various parts of the world to find a fellowship. I have no substantial record before me setting out the father’s efforts to becoming gainfully employed.

[31] Given his education, including a PhD in Ecology, it is reasonable to assume that he can and should be able to earn the income he has earned in the past. He has university age children. Although he has generous parents who are financially able to pay the sizeable post‑secondary expenses for his three children, the father is not absolved from working to his potential.

[32] Therefore, I find that the father is under‑employed pursuant to section 19 of the Federal Child Support Guidelines and impute an income of $80,952 per year to determine the appropriate level of child and spousal support.

February 1, 2013 to December 31, 2013

[33] For this period of time, I make the following findings:

i. Father’s income earned is $80,952 per year;

ii. Mother’s income was $6,174;

iii. Ambroise and Gabrielle are with mother only during the summer months.

[34] Therefore, child support is set at $369 per month which is the Table amount for the four summer months divided by 12. Spousal support is set at the mid‑range of the Spousal Support Advisory Guidelines at $1755 per month.

[35] During this period of time, the father actually paid $821 for child support and $1,028 per month for spousal support.

[36] The father overpaid child support and underpaid spousal support. Given the tax differences, the Court finds that there need not be an adjustment for this period from February 1, 2013 to December 31, 2013.

2014

[37] For this calendar year, I make the following assumptions:

i. Father’s earnings are $80,952 per year;

ii. Mother earns $51,887 and receives tuition credits of $13,661;

iii. Ambroise is living with his mother and attending the University of Ottawa;

iv. Gabrielle is with her mother in the summer and in Montreal for the remainder of the year.

[38] The father’s support payment is the Table amount for Ambroise for eight months of the year and the Table amount for two children during the summer months. I find this is appropriate pursuant to section 3(2) (b) of the Federal Child Support Guidelines. Therefore, the amount of child support is $821 per month.

[39] Spousal support is zero.

[40] The above payments would provide the mother with 53.4% of the Net Disposable Income (“NDI”) which is reasonable.

[41] Therefore, the father overpaid spousal support $1,028 per month in 2014.

2015

[42] Circumstances at the date of this hearing are:

i. Ambroise is living with his mother;

ii. Gabrielle is in Montreal during the summer;

iii. Mother is working full‑time and earning $55,000 per year;

iv. Father is unemployed and an annual income of $80,952 is imputed to him.

[43] The Court orders the Table amount of child support for Ambroise in the amount of $726 per month (according to the Ontario Tables, which must be used when a payor lives outside Canada). If current circumstances change, then child support can be adjusted in the future.

[44] Gabrielle has chosen to stay in Montreal during the summer. I accept that she spends time with her mother on a regular basis resulting in extra costs to the mother. Therefore, it is appropriate to order an amount for child support until Gabrielle completes her first post‑secondary education degree. Child support in the amount of $50 per month is ordered with respect to Gabrielle.

[45] In order for the mother to be able to have approximately 53% of the Net Disposable Income, spousal support is payable in the amount of $300 per month.

Section 7 Expenses

[46] Regarding section 7 expenses, I allow certain of the mother’s section 7 expenses claimed. Expenses for Max are not allowed, as they are not subject of this motion. In addition, no expense claimed is allowed if it was incurred before February 1, 2013.

[47] For Gabrielle, I am allowing:

i. $293.19 for U‑Haul incurred on May 1, 2015;

ii. $274.59 for U‑Haul for August 30, 2013;

iii. $1,670 in cash transfers from June 20, 2014 for miscellaneous expenses, including bus tickets, phone, furniture and end of year chemical engineering reception.

[48] For Ambroise, I am allowing the following section 7 expenses claimed by the mother:

i. $544.08 for lap top computer;

ii. $200 for meal plan purchase;

iii. $134.47 for a book bag;

iv. $300 for cash transfers for heating and Internet;

v. $383.75 for student pass for five months after February 2013 at $76.75 per month;

vi. $603 for dental work.

Father is responsible for 59% for his proportionate share of the section 7 expenses = $2597.82 ($4,403.08 x 59%).

[49] All section 7 expenses, up to and including January 31, 2013, were dealt with by consent of the Final Order of Justice McNamara.

[50] To summarize the retroactive payments and section 7 expenses:

i. The father owed $2597.82 as his share of section 7 expenses incurred by the mother.

ii. When reviewing the retroactive adjustments for spousal and child support from February 1, 2013 to present, the father overpaid spousal support of $1028 per month in 2014.

iii. In 2015, the father has been paying $821 per month as child support. It has now been varied to $776 month, and hence he has been overpaying $45 per month in child support.

iv. In 2015, he has been paying spousal support in the amount of $1,028 per month and it has now been adjusted to $300 per month – which is an overpayment of $728 per month of spousal support (before tax dollars).

[51] He is not seeking a reimbursement for overpayment and hence, there are no monies owing by either party.

[52] If the parties cannot agree on the issue of costs, they can provide a two‑page submission of costs, by August 15, 2015.

Madam Justice A. Doyle

Released: July 17, 2015

COURT FILE NO.: FC-12-2176-0
DATE: 2015/07/17

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MARIE CECILE STEPHANIE ROBITAILLE
Applicant

– and –

MARK KURTIS TRZCINSKI
Respondent

REASONS FOR decision

Doyle J.

Released: July 17, 2015