Aubert v. Cipriani, 2015 ONSC 6103

CITATION: Aubert v. Cipriani, 2015 ONSC 6103

COURT FILE NO.: F-285/97

DATE: 2015/10/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Melinda Sharon Aubert

Applicant

– and –

Peter John Cipriani

Respondent

William Tidball, counsel for the Applicant

Respondent Self Represented

HEARD: May 5, 2015 and June 2, 2015

THE HONOURABLE MADAM JUSTICE DEBORAH L. CHAPPEL

REASONS FOR JUDGMENT

PART I: INTRODUCTION

[1] The Applicant Melinda Sharon Aubert (“the Applicant”) and the Respondent Peter John Cipriani (“the Respondent”) are the parents of Sommer Melynn Aubert, born April 26, 1994 (“Sommer”). This was the hearing of a Motion to Change Final Order (“the Motion to Change”) which the Respondent commenced on March 20, 2014. In his Motion to Change, the Respondent requested that his obligation to pay child support to the Applicant for Sommer pursuant to the order of Czutrin, J. dated July 27, 1999 be terminated effective January 2014. That order required the Respondent to pay the Applicant child support in the amount of $300.00 per month commencing August 1, 1999. The Respondent’s position is that Sommer’s eligibility for support ended as of January 2014.

[2] The Applicant requests that the Respondent’s Motion to Change be dismissed. She argues that Sommer has remained eligible for support, and seeks an order requiring the Respondent to pay an increased amount of monthly child support pursuant to the Tables under the Child Support Guidelines (Ontario) (O. Reg. 391/97, as am.) (the “Tables”) commencing in 2014. In addition, she seeks an order requiring the Respondent to contribute to Sommer’s post-secondary education expenses commencing September 2014.

[3] The issues to be decided in this case are as follows:

a. Have there been any material changes in circumstances since the July 27, 1999 order was made which justify this Motion to Change?

b. Is the Respondent correct that one of the material changes in circumstances is that Sommer became ineligible for ongoing support as of January 2014?

c. If Sommer’s eligibility for support terminated in or around January 2014, has it been revived?

d. In the event that Sommer’s eligibility for support terminated and then revived, what are the applicable termination and revival dates with respect to the support obligation, and what is the appropriate quantum of child support payable by the Respondent?

[4] For the reasons that follow, I have concluded that there have been a number of material changes in circumstances since the July 27, 1999 order was made which justify this Motion to Change. I have determined that Sommer’s eligibility for support terminated temporarily as of February 28, 2014, but that it revived effective May 23, 2014. I have found that the proper approach to determining the Respondent’s child support is obligation is the approach set out in section 3(2)(a) of the Guidelines, and I have ordered increases to the Table amount of support payable by the Respondent commencing September 1, 2014. In addition, I am ordering the Respondent to make an annual contribution of $2,500.00 to Sommer’s post-secondary education expenses relating to the Bachelor of Science in Nursing (“BScN”) program that she is currently enrolled in, retroactive to September 2014. Finally, I have determined that the Respondent’s child support obligation relating to Sommer should terminate effective June 30, 2017.

PART II: BACKGROUND

A. Background and History of Court Proceedings

[5] The Applicant and Respondent began cohabiting in January 1994. They were never married. Sommer is the only child of their relationship. She was born on April 26, 1994, soon after the parties began cohabiting. The Respondent has two older daughters from a previous relationship who lived with the parties, namely Amanda Cipriani and Marissa Cipriani (“Amanda” and “Marissa”). The parties separated shortly after they began cohabiting, and Sommer remained in the primary care of the Applicant. The Applicant subsequently commenced Family Law proceedings to address the issues of custody, access and child support. In the context of those proceedings, the Respondent advanced a counterclaim for child support from the Applicant for Amanda and Marissa. The order dated July 27, 1999 resolved the child support issues. As noted above, the order required the Respondent to pay child support to the Applicant for Sommer in the amount of $300.00 per month commencing August 1, 1999. This sum was a set-off amount of child support which took into consideration the Applicant’s support obligation towards Amanda and Marissa. The Applicant’s obligation in relation to Amanda and Marissa was calculated to be $153.00 per month, based on her 1999 income of $11,200.00. The Respondent’s support obligation for Sommer was determined to be $453.00 per month, based on his 1999 income of $52,900.00. The set-off approach yielded the sum of $300.00 payable by the Respondent to the Applicant.

[6] The Respondent has continued to pay the Applicant child support in the amount of $300.00 per month since the July 27, 1999 order was made. I have no evidence respecting the ages of the Respondent’s daughters Amanda and Marissa. However, I find based on the evidence before me that Amanda has been living independently for several years and is currently living with her boyfriend. I also find that Marissa has been living independently for at least four years.

B. Sommer’s Circumstances Since July 1999

[7] Sommer has remained in the care of the Applicant since the parties separated. She turned eighteen years of age on April 26, 2012, and successfully completed secondary school in June 2012. At that time, she decided to pursue a career in nursing. She applied for and was accepted into a sixteen month Registered Practical Nursing (“RPN”) program at Mohawk College, which she commenced in September 2012. Sommer remained enrolled in this program on a consistent basis and graduated from the program on February 14, 2014.

[8] During the later stages of her RPN program, Sommer decided to continue with her nursing studies to improve her future career opportunities. Her goal is to become a Registered Nurse. She applied for the BScN program at McMaster University, which is a three year program. She was accepted into this program on May 23, 2014, soon after graduating from the RPN program. She was officially accepted into the BScN program on May 23, 2014. Unfortunately, the timing of the completion of her RPN diploma and the commencement of her BScN studies did not mesh well, since the BScN program did not begin until September 2014. Sommer began her BScN degree in September 2014 and she successfully completed her first year of the program in April, 2015. She undertook her first year of the BScN degree through a program which is referred to as the “RPN to BScN bridging program” at Mohawk College. Sommer expects to graduate from the BScN program in June 2017.

[9] Sommer did not earn any significant income in 2013. Her transcripts from her RPN program indicate that there was a summer component to her studies. After graduating from the RPN program in mid-February 2014, she sought employment related to her career objectives, and obtained a part-time position with the Six Nations Council working as a Personal Support Worker at a long term care facility. She earned $4,684.80 from this employment in 2014.

[10] I find that the Respondent did not contribute to any of the post-secondary expenses relating to Sommer’s RPN diploma. Sommer was able to pay the expenses from assistance which she received from the Applicant and her husband, student grants totalling $6,552.00 and student loans totalling $8,339.00. The grants were applied towards the Ontario Student Assistance Program loans, resulting in an OSAP debt of $1,787.00 relating to her RPN diploma.

[11] Sommer’s expenses in relation to her BScN program include tuition, supplies, textbooks, a vehicle to travel to school and vehicle insurance. Her tuition for the 2014-2015 year was $7,447.62. The Applicant pays for the car insurance for Sommer’s vehicle, which amounts to approximately $3,000.00 per year. Sommer pays for her gas expenses and the lease payments on the car. Sommer received student loans totalling $6,332.00 for her first year of her BScN program, and student grants totalling $3,699.00 which were applied towards the loans, resulting in a further OSAP liability of $2,623.00 for her first year of the program. Her total student debt at this time is therefore $4,410.00.

PART III: POSITIONS OF THE PARTIES

[12] As noted above, the Respondent requested in his Motion to Change that his obligation to pay support for Sommer be terminated effective January, 2014. At the hearing of the Motion, he suggested that child support should terminate effective January 2013, as he believed that Sommer may have completed her RPN program at that time. In his affidavit sworn May 25, 2015, he indicated that he was seeking a termination of his child support obligation effective September 2012, when Sommer completed her secondary school studies. The Respondent’s position is based on his view that Sommer ceased at some point to be enrolled in a full-time program of education, and that her eligibility for support under the Family Law Act, (R.S.O. 1990, c. F-3, as amended) therefore ended. In addition, he relied on the financial difficulties which he has experienced since 2006 in support of his request to terminate child support. He noted that he had been laid off from work at times since 1999, including the period from October 18, 2006 until January 2007 and from January 18, 2013 until May 2013. He further indicated in his affidavit sworn October 28, 2014 that he owes Canada Revenue Agency money on account of unpaid taxes, and that he has to purchase expensive heart medication every three months due to his health issues, at a cost of approximately $130.00 each time he purchases it.

[13] The Applicant asserts that Sommer has remained enrolled in a full-time program of education since she completed her secondary school studies, and that she has therefore remained entitled to child support. With respect to the hiatus period from February 2014, when Sommer’s RPN program ended, until September 2014, when the BScN program began, counsel for the Applicant submits that Sommer resumed her studies at the earliest possible opportunity having regard for the commencement date of the BScN program. He argued that the existence of a hiatus period between educational programs that is beyond the child’s control does not disentitle the child to support.

[14] The Applicant further submits that there have been material changes in circumstances since the July 27, 1999 order was made which justify an increase in the Respondent’s support obligation for Sommer. She relies in part on the fact that the original monthly support obligation of $300.00 was a “set-off” amount of child support which took into account her child support obligation respecting Amanda and Marissa, who remained in the Respondent’s care at the time of the parties’ separation. She submits that those two children became independent and disentitled to child support many years ago. In addition, she states that Sommer’s needs have increased as a result of her enrollment in post-secondary studies, and that the Respondent’s income has increased in 2015.

[15] The Applicant submits that it is appropriate for the Respondent to continue to pay both the Table amount of child support and a contribution towards Sommer’s post-secondary expenses in relation to the BScN program. She is not seeking any contribution from the Respondent for the expenses related to Sommer’s RPN diploma. With respect the Table amount of child support, counsel for the Applicant requested an order that the Respondent pay the sum of $354.00 per month commencing January 1, 2014, and $508.00 per month commencing January 1, 2015, based on the Respondent’s income for those years. However, in both her Response to Motion to Change and her affidavit sworn May 19, 2015, the Applicant indicated that she was only seeking an increase in child support commencing September 1, 2014. There was no request to amend the Applicant’s pleading, and therefore I am only considering the claim for an increase in child support effective September 1, 2014. Finally, the Applicant requests an order requiring the Respondent to pay one third of Sommer’s tuition expense for the three years of her BScN program, which will end in June 2017. The total amount of Sommer’s tuition for the 2014-2015 year was $7,447.00, and therefore the sum which the Applicant requests is approximately $2,482.00 per year.

PART IV: THE LAW

I. General Principles Applicable on a Motion to Change Child Support

[16] The Applicant and Respondent were never married, and therefore the legislation that applies to this Motion to Change is the Family Law Act. Section 37 of the Act provides that an application to vary an order for child support may be made by a parent of a dependant named in the order to be varied. The test to be applied on a motion to change child support under the Act, and the powers of the court on such a motion, are set out in sections 37(2.1) of the Act, which provides as follows:

37. Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6.

[17] The powers of the court on a motion to vary child support are very broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The court’s authority with respect to arrears is similarly broad, and includes the power to rescind the arrears and interest either entirely or in part, or to reduce the amount of arrears payable. The powers of the court in a variation proceeding also include the power to order appropriate set-offs (Campbell v. Chappel, 2006 CarswellNWT 28 (S.C.)).

[18] Section 37(2.1) of the Family Law Act delineates threshold issues that must be addressed in a motion to change child support. Specifically, the moving party must establish either that there has been a change in circumstances within the meaning of Guidelines since the order was made, or that evidence that was not available at the hearing respecting the order has now become available. Section 14.1 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any new circumstances that would result in a different order for the support of the child will constitute a change within the meaning of section 37(2.1). Accordingly, a change in the payor’s income or evidence that the child is no longer entitled to child support under the Family Law Act would satisfy the threshold test.

[19] In ascertaining whether a change in circumstances has occurred for the purposes of a motion to change child support, the court must consider whether the alleged change was “significant and long lasting; whether it was real and not one of choice” (Brown v. Brown, 2010 NBCA 5, 2010 CarswellNB 30 (C.A.); Haisman v. Haisman, 1994 ABCA 249, 1994 CarswellAlta 179 (C.A.), leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)). Furthermore, as in the case of variation of spousal support, the change must be material, and must have been unforeseen when the existing order was made (Willick v. Willick, (1994), 1994 CanLII 28 (SCC), 6 R.F.L. (4th) 161, [1994] S.C.R. 670 (S.C.C.); Stevenson v. Smit, 2014 CarswellOnt 9001 (C.A.)). The exception to the requirement that the change be unforeseen is where the request is for a termination of child support based on a loss of eligibility for support. In those circumstances, the proceeding is essentially a matter of giving effect to the intent that the original order would only continue for so long as entitlement existed (Erskine v. Erskine, 2011 CarswellBC 1888 (S.C.)).

II. Legal Principles Relating to Eligibility for Support under the Family Law Act

[20] In both original applications for support and variation proceedings, the court must as a preliminary matter address the child’s eligibility for support. Termination of a child’s eligibility for support is often the change in circumstances which moving parties rely upon in bringing a Motion to Change. This is the basis of the Respondent’s claim in this proceeding.

[21] Section 33 of the Family Law Act, which deals with original child support applications, and section 37 respecting variation proceedings both stipulate that the obligation to pay support relates to a child who is a “dependant” within the meaning of the Act. Section 37(1) of the Act provides that an application to vary an order for child support may be made by, inter alia, a parent of a “dependant” named in the order to be varied. Entitlement to child support is therefore contingent on the child being a dependant within the meaning of the Act. The term “dependant” is defined in section 29 of the Act as a person to whom another has an obligation to provide support under Part III of the Act. Section 31 of the Act establishes the obligation of a parent to support a child, as follows:

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2.

Idem

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).

[22] Based on these provisions, a parent seeking child support under the Family Law Act must as a preliminary issue establish that the child is unmarried and is either:

a. Under the age of sixteen years;

b. Sixteen or seventeen years of age and has not withdrawn from parental control; or

c. Eighteen years of age or older, is enrolled in a full time program of education and has not withdrawn from parental control.

[23] Since Sommer turned eighteen years of age on June 16, 2011, it is necessary to consider the law respecting eligibility for support for children who have acquired adult status. The purpose of the obligation under the Family Law Act to provide support for adult children is to ensure ongoing assistance to children who are pursuing an educational program and remain dependent on their parents while they complete their education (McNulty v. McNulty, 2005 CanLII 44836 (Ont. S.C.J.)). The wording of section 31(1) of the Act should be interpreted broadly and for the benefit of children in such a manner as to further this purpose and to ensure that children enrolled in an educational program have “easy access to the fruits of this section” (Copeland v. Copeland, [1992] O.J. No. 2677 (O.C.J.); Wilson v. Wilson, 2002 CanLII 2824, 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 CarswellOnt 3838 (S.C.J.); McNulty, Supra.).

[24] The cases decided under both the Divorce Act, (R.S.C. 1985 c. 3 (2nd Supp.), as amended) and the Family Law Act have held that the onus is on the party seeking child support to demonstrate the child’s eligibility for support (Rebenchuk v. Rebenchuk, 2007 MBCA 22, 2007 CarswellMan 59 (C.A.); Olson v. Olson, 2003 ABCA 56 (C.A.); MacLennan v. MacLennan, 2003 NSCA 9 (C.A.); Whitton v. Whitton (1989), 1989 CanLII 8868 (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.); MacLean v. Taylor, 2014 CarswellOnt 12302 (O.C.J.); Vohra v. Vohra, 2009 ONCJ 135 (O.C.J.)). Where a claim for support under the Family Law Act relates to an adult child, the party seeking support must provide tangible evidence of the child’s enrolment and attendance in a full-time program of education, and has the onus of satisfying the court that the child’s level of participation in the program meets the requirements of section 31(1) of the Act (Vohra, Supra.). The word “enrolled” requires a careful analysis of the nature and quality of the child’s participation in the program. In order to remain eligible for support, the child’s participation in the program must be meaningful from both a quantitative and qualitative standpoint, and must be “consistent with the program’s purposes and objectives” (Figueiredo v. Figueiredo (1991), 1991 CanLII 4204 (ON SC), 33 R.F.L. (3d) 72 (Ont. Gen. Div.); Giess v. Upper, 1996 CanLII 8102 (ON SC), [1996] O.J. No. 5600 (Gen. Div.); Vohra, Supra.) The policy of the applicable educational institution as to what constitutes enrolment in a full-time program is not determinative of whether the child’s involvement in the program meets the requirements of section 31(1) of the Act (Cava v. Cava, 2005 CanLII 19815, 139 A.C.W.S. (3d) 904, [2005] O.J. No. 2316, [2005] O.T.C. 430, 2005 CarswellOnt 2287 (S.C.J.)).

[25] From a quantitative standpoint, a child need not have stellar school attendance in order to meet the test for enrolment, but there must be a reasonable degree of attendance taking into consideration the child’s particular needs and challenges. From a qualitative perspective, the child must demonstrate a reasonable degree of involvement, engagement and success in the program having regard for their overall level of functioning. The determination of whether a child’s participation in an educational program is sufficiently meaningful to secure ongoing entitlement to support must be undertaken with a focus on the particular circumstances of the child. A child may remain entitled to support on the basis of enrolment in an educational program even if their participation and achievement levels are problematic, provided that the effort which the child is putting forth is within their capability given their particular circumstances (Copeland, Supra; Vohra, Supra.; Sullivan v. Sullivan (1999), 126 O.A.C. 292, 50 R.F.L. (4th) 326, [1999] O.J. No. 3973, 1999 CarswellOnt 3340 (Div. Ct.); Styles v. Styles, 2011 CarswellOnt 1134 (S.C.J.); Vivian v. Courtney, 2012 CarswellOnt 16444 (S.C.J.); Gillesse v. Earl, 2011 CarswellOnt 826 (S.C.J.)).

[26] A finding that a child over the age of majority is enrolled in a full-time program of education does not end the entitlement analysis. Eligibility for support also requires a finding that the child has not withdrawn from parental control. A child will be found to have remained under parental control if their overall circumstances are such that they remain financially and emotionally dependent on one or both of their parents (Martin v. Taylor, 2007 CarswellOnt 8863 (S.C.J.); Oates v. Oates, 2004 CarswellOnt 2878 (S.C.J)). The analysis of this issue must be undertaken from a broad and objective standpoint. The judge must scratch beneath the surface of outward appearances to determine whether the child is truly dependant on a parent, or whether their overall circumstances are such that they are independent or reasonably capable of being so.

[27] One of the legal issues in this case is whether eligibility for support under the Family Law Act continues when there is a gap in time between the end of a child’s first educational program and the commencement of a subsequent program. Sommer did not attend classes from approximately mid-February 2014, when her RPN studies ended, until September 2014, when her BScN program began. Wolder, J. dealt with the question of eligibility for support under the Family Law Act during this type of transitional period in Nikita v. Nikita, 2002 CanLII 46584 (O.C.J.). He noted that the period between the end of one program and the start of the second program can in certain circumstances be considered a transitional period during which the child support obligation continues. However, he concluded that eligibility for support only endures on a continuous basis during such a transitional period if the following conditions are met:

a) The transitional period is the result of a reasonable educational plan that has been thought out and put in place prior to the commencement of the transitional period;

b) The child is not reasonably able to commence the next portion of the educational plan sooner;

c) The transitional period is necessary to achieve the overall educational plan and is being used to advance that plan or for legitimate educational purposes to further the plan. Wolder, J. held that this criterion would be satisfied if the child was earning income to apply towards the educational plan in circumstances where they were not receiving financial assistance from a parent;

d) The child is actually enrolled in a full-time program of education prior to the start of the transitional period;

e) The transitional period does not exceed the time between the end of the semester for the first program and the beginning of the very next semester of the subsequent program, or between the summer months at the end of school in the spring and the commencement of school in the late summer or fall.

[28] If the child is not actually enrolled in a full-time program of education by the time their first educational program ends, but is accepted into a further program shortly thereafter, additional legal questions arise: First, can eligibility for child support be revived after it has ended? Second, if eligibility can revive, but there is a gap between the time of enrolment in the subsequent program and the actual commencement of the program, does the eligibility resume as of the date of enrolment or as of the date when classes actually begin? This is an important issue in cases where the period from the time of enrolment until the commencement of the program is lengthy. Dealing with the first question, a child who loses their entitlement to support by quitting school may regain their entitlement at a later date by meeting the test under the applicable legislation (Lawless v. Asaro, 2003 CarswellOnt 2416 (S.C.J.); Fergusson v. Kurylo, 2005 CarswellSask 167 (Sask. Q.B.); Haley v. Haley, 2008 CarswellOnt 369 (S.C.J.); Vohra, Supra.) Much of the case-law dealing with this issue has been decided under the Divorce Act, which sets out different criteria for child support eligibility in cases involving children. However, cases decided under the Family Law Act have also established that entitlement to child support can be revived when a child of the relationship resumes their educational pursuits after taking time off from their studies (Vohra, Supra.; F. (R.L.) v. F. (S.) (1996), 1996 CanLII 8101 (ON SC), 26 R.F.L. (4th) 392 (Ont. Gen. Div.); Murchison v. Farmer, 2013 CarswellOnt 16632 (O.C.J.)). As I previously held in Radford v. Nunn, 2011 ONSC 7276 (S.C.J.), the test for determining whether there has been a revival of child support entitlement under the Family Law Act is whether the evidence considered as a whole leads to the conclusion that the child achieved a status of true and meaningful independence from their parents during the time when they were out of school. In determining this issue, the factors to consider include:

a. The amount of time that the child took off from school;

b. Whether the time off was intended to be temporary for the purpose of saving money for school or for any other purpose aimed at improving the child’s life;

c. Whether the child required a period of time to devise a plan for their future;

d. Whether the child was exploring educational alternatives during the time in question;

e. Whether the child was in fact able to achieve any degree of independence from their parents during the time off school; and

f. The child’s living arrangements while they were independent, and in particular whether they were cohabiting in a common law relationship. (Radford, Ibid; MacLean, Supra.)

[29] In general, the longer the time that elapses between the point when entitlement ended and when the moving party seeks to have it reinstated, the more onerous the burden will be on the moving party (Radford, Ibid.; Lawless, Supra.).

[30] I turn to the question of whether a revived entitlement commences as of the date of enrolment in full-time studies or the date when the studies actually begin. In my view, it is open to the court to determine that eligibility for support resumes as of the date of enrolment, provided that the following conditions are met:

a. The child was diligent and timely in planning and applying for the further educational programming, and they became enrolled in the program within a reasonable time after their initial program ended;

b. The child was ready and willing to commence the subsequent program at the time of enrolment, and did everything within their control to resume their studies as soon as possible after the completion of the first program (Vohra, Supra.);

c. The child actually began attending the subsequent program at the earliest possible time that the program was scheduled to begin following the completion of the first program;

d. The child remained dependent on their parent and had not withdrawn from parental control at the time of enrolment; and

e. The subsequent program was part of a reasonable educational plan, and the child is used the period from the time of enrolment until the commencement of classes to further the implementation of the plan in a meaningful way.

[31] If these criteria are satisfied, the temporary break in the child’s studies is relevant not to the threshold issue of eligibility for support, but rather to the appropriate approach for the support analysis under section 3(2) of the Guidelines and the extent to which the child should be required to contribute to their own support.

III. Calculation and Quantum of Child Support

A. General Principles

[32] Once the preliminary issue of eligibility for support is determined, it is necessary to determine the appropriate approach to calculating support and the quantum of support payable, if any. Sections 37(2.2) to 37(2.6) of the Family Law Act and the provisions of the Guidelines provide the framework within which the court is to undertake the calculation of child support in a variation proceeding. The object of the child support provisions set out in the Act and the Guidelines is to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient (D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37 (S.C.C.); Ethier v. Skrudland, 2011 SKCA 17 (C.A.); Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 333 (C.A.)).

[33] Section 37(2.2) of the Family Law Act stipulates that a court making a variation order under section 37(2.1) must do so in accordance with the Guidelines. There is an exception from this rule set out in section 37(2.3), which allows for a deviation from the Guidelines where special provisions in an order or agreement are in place which directly or indirectly benefit the child, or special provisions have otherwise been made for the benefit of the child and the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The second exception to the application of the Guidelines set out in the Family Law Act is section 37(2.5), relating to consent orders, where the court is satisfied that reasonable arrangements have been made for the support of the child.

[34] Turning to the relevant provisions of the Guidelines, it should be noted that section 2(4) (b) reiterates the general principle that the Guidelines apply, with such modifications as the circumstances require, to orders varying a child support order. The starting point for the determination of the amount of child support under the Guidelines is section 3, which sets out the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child 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 parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child 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 parent or spouse to contribute to the support of the child.

[35] Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[36] In Titova v. Titov, 2012 CarswellOnt 15666 (C.A.), the Ontario Court of Appeal set out the following steps for determining whether to make an award for section 7 special or extraordinary expenses:

a. Calculate each party’s income for child support purposes;

b. Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines;

c. Determine whether the expense is necessary in relation to the child’s best interests and is reasonable in relation to the means of the spouses and to those of the child and to the spending pattern prior to separation;

d. If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of “extraordinary;”

e. Consider what amount, if any, the child should reasonably contribute to the payment of the expense; and

f. Finally, apply any tax deductions or credits to reach the net amount of the expense.

[37] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes, after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also by virtue of section 7(3) take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.

[38] In Lewi v. Lewi, 2006 CanLII 15446 (ON CA), 2006 CarswellOnt 2892 (C.A.), the Ontario Court of Appeal outlined the following general principles regarding the manner in which the calculation of child support should be determined pursuant to section 3 of the Guidelines:

a. Where the child is under the age of majority, the analysis is undertaken pursuant to section 3(1). The presumption is that the amount of child support is the amount set out in the Tables and the amount, if any, determined under section 7 in relation to special and extraordinary expenses. The court determined that pursuant to section 3(1), contributions to section 7 expenses that the court determines are appropriate are not properly characterized as “add-ons” to the child support order, but are a part and parcel of the basic child support amount ordered under section 3(1).

b. If the case involves a child who has reached the age of majority, the amount of child support payable after the child becomes an adult must be determined under section 3(2) of the Guidelines.

c. The court is directed by section 3(2)(a) to start with the presumption that in cases involving children over the age of majority, child support should be calculated in the same manner as for a child under the age of majority, that is, by calculating the applicable Table amount and adding any contribution to section 7 expenses which is determined to be appropriate. The court described this approach as “the standard Guidelines approach.” However, the court must then determine whether this approach is “inappropriate” based on the particular facts of the case.

d. If the court determines that the standard Guidelines approach is inappropriate, the court must determine the amount of child support in accordance with section 3(2)(b) of the Guidelines, which provides that the amount of support is the amount which the court considers appropriate, “having regard for the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.” The use of the term “approach” in section 3(2)(b) makes it clear that the court cannot depart from the standard Guidelines approach simply on the basis that the amount determined using the standard Guidelines approach is inappropriate.

e. Where the child is over the age of majority, and the court determines that applying the standard Guidelines approach is inappropriate, the analysis should be carried out entirely pursuant to section 3(2)(b) of the Guidelines, and resort should not be made to section 7. However, in carrying out the section 3(2)(b) analysis, the court may draw upon the principles set out in section 7 and other provisions of the Guidelines and its experience in applying them. By way of example, it would be entirely appropriate for the court, pursuant to section 3(2)(b), to follow the guiding principle set out in section 7 that expenses referred to in that section should be shared between the parents in proportion to their respective incomes, after deducting the contribution if any of the child.

f. Section 3(2)(b) requires the court to consider the means of the child along with the means of the parents in determining an appropriate amount of child support. The court has the discretion to decide the amount that the child should be expected to contribute.

[39] Based on the foregoing, the preliminary issue to be determined in addressing quantum of child support for adult children is whether the standard Guidelines analysis is an inappropriate approach to calculating support. The term “inappropriate” in the context of section 3(1) of the Guidelines means “unsuitable” rather than “inadequate.” There is a broad discretion with the trial judge to determine whether or not the standard Guidelines approach should be resorted to (Rebenchuk, Supra.). However, section 3 creates a presumption in favour of the Table amount being ordered, and the party seeking to deviate from that approach bears the onus of rebutting the presumption. That party is not required to call evidence to rebut the presumption. They may do so by simply questioning the other party’s evidence. The evidence to support a departure from the Guidelines must be clear and compelling (Senos v. Karcz, 2014 ONCA 459 (C.A.)).

B. Factors Relevant to Adult Dependants Enrolled in Post-Secondary Studies

[40] There is a considerable amount of case-law under both the Divorce Act and the Family Law Act relating to eligibility for child support for adult dependants who are enrolled in post-secondary studies and the appropriate approach to calculating child support in such circumstances. It is important to note that a finding of eligibility for support under section 33 of the Family Law Act does not necessarily mean that the court will order support for a child who is enrolled in full-time post-secondary studies. The relevant legislative provisions as outlined above provide the court with a wide scope of discretion after deciding the threshold issue of eligibility to determine the appropriate approach to calculating child support, the contribution which the child should make to their support if any, and the quantum of child support that should be paid by the parent, if any. These cases involve a careful consideration of all of the circumstances to arrive at a just result.

[41] The case-law involving support for adult children decided under both the Divorce Act and the Family Law Act reveals numerous factors which the courts consider in determining the appropriate approach to the child support analysis, the extent if any to which the child should contribute to their own support and the amount if any which parents should contribute. These factors include the following:

a. The condition, means, needs and overall financial circumstances of the parents, and the effects that the order would have on them

Section 31 of the Family Law Act includes the proviso that the obligation of a parent to support their child applies “to the extent that the parent is capable of doing so.” In cases involving adult dependants, the overall financial situation of the payor parent is an important consideration. This factor will come into play in determining the appropriate approach to calculating child support under section 3(2) of the Guidelines. If the standard Guidelines approach is considered appropriate, the general financial circumstances of the parents will be relevant to the analysis under section 7(1) of the Guidelines regarding the reasonableness of a section 7 expense, whether a parent should be required to contribute to it and if so, the appropriate contribution. If a different approach to calculating support is adopted, the financial situation of the parties will assist the court is fashioning the appropriate approach and contribution levels of the parents and the child.

b. The condition, means, needs and overall financial circumstances of the child, and the ability of the child to contribute to their own support

The child’s overall financial circumstances also figure prominently in the analysis of child support in these cases. This factor will be relevant to the decision as to whether the standard Guidelines approach is appropriate. If the child has an income source or assets, or is able to work and earn a significant wage, the court may conclude that the standard approach should not be followed since the child can contribute meaningfully to their basic living expenses (Rebenchuk, Supra.; Lewi, Supra.) In those circumstances, the child’s financial situation will assist the court in tailoring the appropriate approach pursuant to section 3(2)(b) of the Guidelines. If the standard Guidelines approach is followed, the child’s financial circumstances will play a significant role in the section 7(1) analysis in determining the reasonableness of a section 7 expense and the section 7(2) analysis regarding the contribution which the child should make to it. The extent to which a child will be expected to contribute to their post-secondary education costs depends on the particular facts and dynamics of each case. This duty to contribute does not necessarily require that the child devote their entire earnings to their educational expenses. If possible, children should be allowed to enjoy some of the fruits of their labour (Mickle v. Mickle, 2008 CarswellOnt 193 (C.A.); Wesemann v. Wesemann (1999), 1999 CanLII 5873 (BC SC), 49 R.F.L. (4th) 435 (B.C.S.C.); Darlington v. Darlington, (1997), 1997 CanLII 3893 (BC CA), 32 R.F.L. (4th) 406 (B.C.C.A); Roth v. Roth, 2010 CarswellOnt 2918 (S.C.J.)). However, where the means of the parents and the children are limited, the contribution expected from the child may very well increase.

c. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any grants, bursaries or scholarships, and if so, the amounts received.

These factors, when considered in the context of the parents’ and the child’s overall financial circumstances, may also influence the general approach which the court adopts under section 3(2) of the Guidelines, and the appropriate amount of the child’s contribution. The question of whether the availability of student loans should be taken into account in determining the child’s ability to contribute is a discretionary matter for the trial judge, and must be determined on a case by case basis taking into consideration the particular facts and dynamics of each case (Roth, Supra.; Smith v. Selig, 2008 NSCA 54, 2008 CarswellNS 307 (C.A.)). Typically, the courts will only require a child to contribute by taking out and assuming responsibility for student loans as a last resort, where the means of the child and those of the parents are insufficient to cover the child’s education and living expenses (Rebenchuk, Supra.; Rotto v. Rotto, 2014 CarswellBC 2046 (S.C.)). However, this is not a hard and fast rule, and the trial judge’s exercise of discretion on this issue will be deferred to provided that the conclusion reached by the trial judge was reasonable (Smith, Supra., at para. 20; Caterini v. Zaccaria, 2010 ONSC 6473, [2010] O.J. No. 5291 (S.C.J.).

d. Whether the child has a reasonable and appropriate education and career plan that will improve their future prospects for employment

If the educational program is well suited to the child’s character and interests and will support the child’s future employment prospects, this may impact both the approach which the court adopts for the child support analysis and the amount that the payor parent is required to contribute. If the court concludes that the standard Guidelines approach is appropriate, this factor will be relevant to the analysis pursuant to section 7(1) of the necessity of the post-secondary expenses in relation to the child's best interests. In reviewing the child’s educational and career plan, important considerations will include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.

e. The aptitude and abilities of the child, their level of maturity and commitment to their education, and how well they are performing in their studies

If the child is not performing well, this may support a deviation from the standard Guidelines approach and may influence the court’s decision regarding the appropriate contribution from the parents. This factor becomes particularly important if there is a request for ongoing child support beyond the first diploma or degree (Rebenchuk, Supra.; Wiewiora v. Wiewiora, 2014 CarswellMan 689 (Q.B.)).

f. The cost of the program which the child has chosen as compared to other available options

While the courts tend to support children with respect to their choice of a post-secondary education program, the child may be called upon to make a greater contribution to their education costs if their choice comes with a higher price tag than other comparable options. As Martinson, J. of the British Columbia Supreme Court aptly stated in the often quoted case of Wesemann, Supra., post-secondary education is a privilege, not a right. The law should create incentives for decision-making regarding appropriate educational programming that remains grounded in the reality of the family’s financial means.

g. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress

If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, this may impact the approach which the court adopts and the amount which the parents are required to contribute.

h. The intention of the parties with respect to post-secondary education when they cohabited

If there was a clear plan regarding the level and duration of support which the parties intended to contribute to the child, this may be a significant factor in determining the appropriate approach and contribution from the parties (Lewi, Supra.; R.(T.M.) v. R. (J.W.R.), 2013 CarswellBC 3875 (S.C.)).

i. Whether the child continues to reside with the recipient parent, or is living away from home for their studies

A review of the case-law reveals that typically, the closer the circumstances of the child are to those upon which the standard Guidelines approach is based, the more likely it is that the standard approach set out in section 3(1) of the Guidelines will be applied. (Wesemann, Supra.; MacEachern v. MacLeod, 2014 CarswellNS 499 (S.C.)). By contrast, the courts have often considered the standard Guidelines approach to be inappropriate where children are attending post-secondary education programs away from home (see for example Park v. Thompson, 2005 CanLII 14132 (ON CA), 2005 CarswellOnt 1632 (C.A.); Radford, Supra.).

j. Whether the child is working on their first post-secondary degree or diploma or is engaged in further post-graduate studies

In circumstances where the child is diligently pursuing studies in a suitable program and there is evidence of need for support, the courts will generally order some form of ongoing support until the completion of at least the first college or university program (see Achkewich v. Achkewich, 1998 CarswellAlta 1275 (Q.B.); Marsh v. Jashewski, 2011 ONSC 3793 (S.C.J.); Caterini, Supra.; Metter v. Solomon, 2005 CarswellOnt 986 (S.C.J.)). With respect to second and subsequent degrees and diplomas, there is no clear cut-off date for support (Woody v. Milner, 2014 CarswellBC 644 (S.C.); Blaschuk v. Bridgewater (2005), 2005 CanLII 28787 (ON SC), 18 R.F.L. (6th) 271 (Ont. S.C.J.)) In Blaschuk, Quinn, J. noted that section 31 of the Family Law Act does not circumscribe the child support obligation by the length or type of educational program the child is taking. With respect to ongoing eligibility during a second diploma or degree, he held that the analysis should begin with an assessment of whether the educational path upon which the child is travelling or intends to travel is a reasonable one in all of the circumstances. He concluded that if the first program is significantly preparatory in nature for a further reasonable educational path, the court is more likely to impose an ongoing support obligation during the subsequent post-secondary program. The courts are becoming increasingly open to extending the support obligation beyond the first post-secondary diploma or degree. In Martell v. Haight (1994), 1994 NSCA 65, 130 N.S.R. (2d) 318 (N.S.C.A.), Freeman, J.A. emphasized that in analyzing the issue of ongoing support past the first post-secondary educational program, the court cannot be blind to the prevailing social and economic conditions, including the fact that “a bachelor’s degree no longer assures self-sufficiency”. He added that as a general rule, parents of a bona fide student will remain responsible for support in some form until the child reaches a level of education commensurate with their abilities, and which will prepare the child for entry-level employment in an appropriate field. All of the factors listed above come into play in the analysis of whether support should extend beyond the first degree or diploma, and the outcome is ultimately a matter of judicial discretion (N. (W.P.) v. N. (B.J.), 2005 BCCA 7, 2005 CarswellBC10 (B.C.C.A); Albert v. Albert, 2007 CanLII 29972 (ON SC), 2007 CarswellOnt 4863 (S.C.J.); C.(J.) v. M. (A.M.), 2007 CarswellOnt 6512 (S.C.J.); Caterini, Supra.; Haist v. Haist, [2010] O.J. No. 785 (S.C.J.); MacLennan v. MacLennan, 2003 NSCA 9, [2003] N.S.J. No. 15 (N.S.S.C.); Marsh v. Jashewski, Supra.). One theme which clearly emerges from the case-law is that support is likely to continue if the payor parent has historically supported the child’s educational and career aspirations and has the ability to contribute to the child’s support and educational expenses (Kennedy v. Kennedy, 2000 CarswellOnt 1127 (S.C.J.); N. (W.P.) v. N. (B.J.), Supra.).

[42] It is not necessary to address all of the factors set out above in carrying out the support analysis. The judge is only required to address those factors which they believe are relevant to the case under consideration. (Darlington, Supra.; Wesemann, Supra.).

C. Income Determination

[43] Sections 15 to 20 of the Guidelines are the starting point for the calculation of a party’s income for child support purposes. Section 15(1) provides that subject to section 15(2), a party’s annual income is determined by the court in accordance with sections 16 to 20. Section 15(2) stipulates that where both parties agree in writing on the annual income of a party, the court may consider that amount to be the party’s income for the purposes of the Guidelines if it thinks that the amount is reasonable.

[44] Section 16 of the Guidelines provides that subject to sections 17 to 20, a party’s annual income is determined using the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency, and by then making the adjustments provided for in Schedule III to the Guidelines. Federal Child Tax Benefits and GST/HST Tax Credits for children are not included in the calculation of income for the purposes of child support (Guidelines, Schedule I, para. 6). Section 16 does not require the court to blindly use the previous year’s total income as reported by the party in the T1 General Form for the previous year as a basis for determining ongoing child support. Rather, the goal is generally to ascertain current income based on the sources set out in the T1 form (Coghill v. Coghill, 2006 CanLII 21778 (ON SC), [2006] O.J. No. 1489 (S.C.J.)). By virtue of section 2(3) of the Guidelines, the court is required to determine issues relating to income based on the most current information available. Where a party’s prior year’s income is not predictive of what they are likely to earn in the upcoming year, the court generally determines the party’s Guidelines income for the upcoming twelve months from when child support will be paid (Nelson v. Nelson, 2005 CarswellNS 18 (S.C.); Kimla v. Golds, 2005 CarswellOnt 1000 (S.C.J.); Bonthron v. Bonthron, 2004 CarswellOnt 96 (S.C.J.); Lemmon v. Lemmon, 2004 CarswellOnt 771 (S.C.J.), additional reasons at 2004 CarswellOnt 1541 (S.C.J.)). The exception to this principle is where there is an agreement or order in effect that stipulates that income for the purposes of prospective child support should be based on the annual income for the previous year.

PART V: ANALYSIS

I. ISSUE #1: HAVE THERE BEEN MATERIAL CHANGES IN CIRCUMSTANCES SINCE THE JULY 27, 1999 ORDER WAS GRANTED?

[45] The first issue that must be determined on this motion to change is whether there have been any material changes in circumstances since the order was made on July 27, 1999. I find that there have been several material changes in circumstances that are relevant to the issue of child support.

A. Changes in Sommer’s Circumstances

[46] The Respondent submits that the material change in circumstances in this case is that Sommer’s eligibility for support terminated in January 2014. I do not agree that Sommer became ineligible for support as of January 2014. However, as I will discuss in further detail below, I have concluded that her eligibility for support ended temporarily as of February 28, 2014 and revived again on May 23, 2014. In addition to these developments, Sommer turned eighteen years of age and began attending post-secondary studies in September 2012. Her expenses have increased as a result of tuition and other post-secondary education costs. When she completed her RPN program in February 2014, she had several months before the commencement of the RPN to BScN bridging program to work and save money to contribute to her support. These are all material changes in circumstances which satisfy the threshold test under section 37 of the Family Law Act.

B. Termination of the Applicant’s Support Obligation for The Respondent’s Children

[47] As noted earlier in these Reasons, the Applicant submits that the Respondent’s original monthly support obligation of $300.00 was a “set-off” amount of child support, which took into account her child support respecting the Respondent’s children Amanda and Marissa. She asserts that those two children became independent and disentitled to child support many years ago, and that this is a material change in circumstances that supports her claim for adjustments to child support. I agree.

[48] The Respondent acknowledges that the child support award of $300.00 per month set out in the order was a set-off amount based on the Applicant’s obligation to support his two children. I find that both Amanda and Marissa have been living independently for at least four years. The Respondent acknowledged in his affidavit sworn May 25, 2015 that Amanda has been living with her boyfriend. Based on these findings, the set-off approach to calculating the Respondent’s child support obligation has been inappropriate for several years.

C. Changes in the Parties’ Financial Circumstances

[49] The parties also rely on alleged changes in each other’s financial circumstances in support of their positions in these proceedings. Dealing first with the Respondent’s position, he alleges in his affidavit sworn May 25, 2015 that the Applicant and Sommer were involved in a car accident in 2008, as a result of which they received a financial settlement that was sufficient to provide for all of Sommer’s needs and education. He did not provide any documentary proof in support of this statement, and counsel for the Applicant denied that there was any such significant cash settlement. A review of the Applicant’s Financial Statement sworn April 24, 2015 indicates that her only significant assets are her home and a vehicle. She has no investments, pension plans or savings. There is no credible evidence before me to support the Respondent’s allegation regarding the existence of a large personal injury settlement.

[50] The Applicant alleges that there have been changes in the Respondent’s income since 1999 which justify adjustments to the Table amount payable. As previously noted, the July 27, 1999 order was based on the Respondent having an income of $52,900. I make the following findings respecting the history of the Respondent’s income in the last several years:

2011

[51] Based on the Respondent’s 2011 Tax Return Summary, I find that his total income for 2011 was $59,999.47. However, of this amount, the sum of $12,059.36 was attributable to an RRSP withdrawal. The Respondent’s total income from employment and employment insurance benefits was $47,940.11.

2012

[52] Based on the Respondent’s 2012 Tax Return Summary, I find that his income for that year was $54,650.01. This income consisted of employment income and CPP survivorship pension benefits.

2013

[53] The Respondent’s income for 2013 was $39,543.93. This income included employment income of $24,676.48, CPP survivorship pension benefits of $5,253.00, employment insurance benefits of $7,515.00 and RRSP withdrawals of $2,099.45. Excluding the RRSP withdrawals, the Respondent’s total income was $37,444.48. The evidence indicates that the decrease in his earnings was due to the fact that the Respondent underwent surgery on his shoulder and was also laid off from his employment due to a shortage of work.

2014

[54] Despite the critical importance of his income to the child support analysis, the Respondent did not adduce any evidence regarding his total income for 2014. He indicated at the hearing that his 2014 income was likely very close to his total 2013 income of $39,543.93. Based on the minimal evidence that I do have respecting his employment in 2014, I find that he worked at CareGo Steelcare from January 2014 until early November 2014, earning a regular wage of $13.75 an hour. From November until the end of the year, he worked at National Steel Car Limited (“National Steel”) earning $17.48 per hour. Without any overtime, these wages would have yielded an annual salary in the range of $30,000.00. In addition, the Respondent received a monthly CPP survivorship pension amount of $433.00 in 2014, resulting in additional annual income of $5,196.00. I do not have any information respecting other sources of income for the Respondent in 2013, but I note that in both 2011 and 2013, he also received employment insurance benefits. Based on the evidence before me and the representations of the Respondent, I attribute an income of approximately $39,500.00 to the Respondent for 2014.

2015

[55] The Applicant’s income increased significantly in 2015 as a result of his move to a higher paying position at National Steel in November 2013. Based on the Respondent’s pay statement from National Steel for the period ending April 11, 2015, I find that the Respondent had earned year to date income of $14,102 as of April 11, 2015. Relying on that figure, I find that his projected total income for 2015 from employment with National Steel will be approximately $50,962.67. In addition, he receives CPP survivorship pension income in the amount of $449.00 per month. His total annual CPP pension income is currently approximately $5,388.00. This sum coupled with his total income from National Steel results in a total estimated income for 2015 of $56,350.00.

[56] Based on the foregoing findings, I find that there have been material changes in the Respondent’s income, both downward and upward, since the order was made in 1999.

II. ISSUE #2: HAS SOMMER REMAINED ELIGIBLE FOR CHILD SUPPORT SINCE JANUARY 2014?

[57] As noted above, the Respondent alleges that Sommer has become ineligible for ongoing support, whereas the Applicant submits that Sommer has remained entitled to support since she turned eighteen years of age. For the reasons that follow, I find that Sommer remained entitled to support until February 28, 2014, that her eligibility ended temporarily at that time, but that it revived again commencing on May 23, 2014.

[58] Sommer was enrolled in the sixteen month RPN diploma program at Mohawk College when her secondary school studies ended. As previously noted, that program ran from September 2012 until mid-February 2014, when Sommer officially graduated and obtained her RPN designation. I find that Sommer remained eligible for support during the hiatus period from the completion of her secondary school education in June 2012 until the commencement of the program in September 2014. She had a clear plan in place for her education, had enrolled in the program before the hiatus began, and she began her RPN studies at the earliest possible time based on the commencement date set by Mohawk College. I find that she remained enrolled in the RPN program on a consistent basis until she graduated in mid-February 2014. I am satisfied based on Sommer’s transcripts from this program that it was a full-time program of education within the meaning of section 31(1) of the Family Law Act. Sommer took several courses during each semester, and the program continued without a break during the summer months in 2013. I also find that Sommer did reasonably well in this program. Her grades ranged from 60% to 95%, with most of the marks being in the 60’s and 70’s. In considering her success in the program, I have taken into account the fact that she suffers from Graves’ Disease. This is an autoimmune disease which causes a number of debilitating symptoms, including hyperthyroidism, anxiety, irritability, poor concentration and heart palpitations. I find that Sommer has experienced hyperthyroidism and problems concentrating and focussing as a result of this disease, and that these symptoms have at times caused Sommer to experience difficulties with her studies. Her consistency in attending the RPN program and the success which she achieved are highly commendable having regard for the health challenges which she has faced.

[59] As I have already noted, at some point during her RPN studies, Sommer decided to continue on with her studies in order to become a Registered Nurse. While it appears that she applied for the RPN to BScN bridging program through Mohawk during her RPN studies, she was not in fact accepted into and enrolled in the program until May 23, 2014. Had she been enrolled in the program prior to graduating from the RPN program in February 2014, her eligibility for support would have in my view continued on a seamless basis. However, the wording of section 31(1) of the Family Law Act is clear that actual enrollment in an educational program is a pre-requisite to ongoing eligibility for support of an adult dependant. Accordingly, I conclude that Sommer’s eligibility for support ended temporarily during the months of March and April, 2014.

[60] Sommer’s eligibility for support revived on May 23, 2014, when she was accepted into the RPN to BScN bridging program at Mohawk College. Although she was not physically attending classes until September 2014, I am satisfied based on the particular circumstances of this case that eligibility arose as of the date of enrolment on May 23, 2014. I find that Sommer was timely and diligent in pursuing her continued studies in nursing, that she did everything within her control to pursue this educational plan as quickly as possible, and that the BScN program was part of a well-orchestrated and excellent plan to achieve independence and a rewarding career. Sommer resumed her studies at the earliest possible opportunity after the completion of the RPN program, and she used the hiatus period from February until September 2014 to work as a Personal Support Worker. This line of work was relevant to her area of study and intended career path, and provided her with an opportunity to save money to apply towards her schooling. All of these considerations support the finding that Sommer’s eligibility for support revived as of May 23, 2014.

[61] The Respondent questioned whether the RPN to BScN bridging program was a full-time program of education. I find that it was. Correspondence from Dr. Olive Wahoush, Assistant Dean of the Undergraduate Nursing Education Programs at McMaster University dated February 20, 2015, confirms that the program meets the criteria for a full-time program according to the university’s standards. Sommer’s transcript from her first term in this program dated May 6, 2015 confirms the full-time nature of her current studies. The transcript indicates that Sommer took six courses in the fall term and four courses in her second term. The transcript also reveals that Sommer is performing fairly well in the bridging program. Although she had two C grades and two C+s, her other marks were B’s and B+s. These marks are impressive having regard for Sommer’s health challenges.

[62] Finally, I find that Sommer has not withdrawn from parental control since she graduated from secondary school in June 2012. She has continued to live with the Applicant on a consistent basis and has remained highly dependent on the Applicant and her husband from a financial standpoint. She did not earn any income in 2013 because she was in school full-time and her RPN studies continued during the summer months. Although she worked part-time as a Personal Support Worker from early 2014 until late August 2014, she only earned income of $4,684.80 from that position in 2014. This is a reasonable income for the period when she was out of school having regard for her health issues. There is no evidence that Sommer had any assets which she could realize upon to support herself.

III. ISSUE #3: WHAT IS THE APPROPRIATE APPROACH TO THE CHILD SUPPORT ANALYSIS UNDER SECTION 3(2) OF THE GUIDELINES?

[63] Having addressed the issue of Sommer’s eligibility for support, it is necessary to determine the appropriate approach to the child support analysis in this case. The Applicant submits that the standard Guidelines approach is appropriate. The Respondent objects to this approach based on his difficult financial circumstances and the fact that he has already supported Sommer through one post-secondary program of education.

[64] The Respondent has the onus of proving that the standard Guidelines approach is inappropriate in this case. I agree with the Applicant that he has not met this onus, and that the standard Guidelines approach should apply. My decision on this issue is based in part on Sommer’s residential arrangements since she turned eighteen years of age. Sommer’s living situation has remained identical to that upon which the standard Guidelines approach is based. She has remained in her mother’s sole care, and the Applicant has continued to assume full responsibility for all of Sommer’s basic housing and daily needs.

[65] I have also considered the Applicant’s overall condition, means, needs and circumstances in deciding the appropriate approach to the support analysis. The Applicant is now married, and the evidence indicates that her husband assists in supporting Sommer financially. Her annual income for 2013 and 2014 was only approximately $10,947.00. It has not changed significantly since the July 27, 1999 order was made. The Respondent did not argue that income should be imputed to her. The Applicant clearly requires financial assistance from the Respondent in order to meet Sommer’s needs.

[66] I have carefully considered the Respondent’s overall financial circumstances, as his argument that support should terminate based in large part on alleged financial hardship. The Respondent has not convinced me that his financial circumstances justify a deviation from the standard Guidelines approach. Unfortunately, the Respondent failed to provide a clear and coherent picture of his financial situation. In this regard, I note that this matter was set down for a one hour hearing, and there was no request by the Respondent at any point for leave to adduce oral evidence. Furthermore, I adjourned the matter on my own initiative from May 5, 2015 until June 2, 2015 specifically to allow the parties an opportunity to file further and better evidence in support of their respective positions. Notwithstanding the fact that he was given further time to adequately prepare his case, the Respondent failed to comply with his basic financial disclosure obligations under the Guidelines and the Family Law Rules. He did not produce and file copies of his complete Income Tax Returns with all attachments, Notices of Assessment and Notices of Reassessment for 2011 to 2014, and did not adduce evidence of his total year to date income for 2015.

[67] The evidence that the Respondent did adduce respecting his financial situation does not provide a credible or reliable picture of the Respondent’s overall condition, means, needs and circumstances. For instance, although the Respondent spoke during his submissions about owning a house, having problems carrying the mortgage and having recently faced potential foreclosure proceedings on his home, his Financial Statements sworn March 20, 2014 and April 28, 2015 do not make any references to a house in the Assets section or a mortgage in the Debts portion. I have no information whatsoever respecting the value of the Respondent’s home or his equity in the home. Furthermore, although the Respondent made reference to a CIBC loan and a significant debt owing to Canada Revenue Agency for unpaid taxes in both his submissions and his affidavit sworn October 28, 2014, he did not list any outstanding debts in the Debts section of his two Financial Statements. In his Financial Statement sworn March 20, 2014, he referred to a monthly debt repayment of $283.00, but this debt was increased to $816.00 per month in the Financial Statement sworn April 28 2015. The Respondent did not adduce any proper evidence explaining any of these matters. In the Respondent’s affidavit sworn October 28, 2014 he briefly mentioned the debt owing to Canada Revenue Agency for unpaid taxes, and indicated that the total amount of the debt was $6,668.00. He stated in that affidavit and in his submissions that the federal government was garnishing his CPP survivorship pension benefits to recoup the debt for unpaid taxes, and that he had decided to take out the CIBC loan to pay off the Canada Revenue Agency debt. A loan payout quote dated April 21, 2015 attached to the Respondent’s Financial Statement sworn April 28, 2015 indicates that this loan was taken out on November 5, 2014, and that the total outstanding balance owing on the loan as of April 21, 2015 was $6,596.51. I conclude from the evidence that the Respondent has now paid off the Canada Revenue Agency debt, that he continues to receive his CPP survivorship pension benefits and that he is now paying off the CIBC loan. In his affidavit sworn October 23, 2014, he stated that he was paying off this loan at the rate of $160.00 per month. However, the loan payout quote dated April 21, 2015 and the Respondent’s Financial Statement sworn April 28, 2015 both indicate that the Respondent is paying the CIBC loan at the rate of $816.98 per month.

[68] The Respondent did not explain how he incurred the Canada Revenue Agency debt in his affidavit evidence. Based on his submissions at the hearing of this matter, it appears that this debt arose because he withdrew monies from his RRSP savings to meet his needs during years when his income decreased. It was incumbent upon the Respondent to include this information in a properly sworn affidavit. I note that there is no evidence before me respecting the Respondent’s income for the years from 2000 to 2010. Accordingly, I lack the evidence required to determine whether the Canada Revenue Agency debt was the result of legitimate, unfortunate financial hardship which the Respondent experienced since 1999 or irresponsible spending and poor financial planning on the part of the Respondent. I note, however, that if the Respondent did in fact have RRSP savings, this would work against his request for a deviation from the standard Guidelines approach. The Applicant has no pension plan, RRSP’s or any other savings. She and her husband have borne the primary responsibility of caring for Sommer and her needs since 1999. Any consideration of financial hardship must be comparative in nature, and I am satisfied that the Applicant’s financial hardship as Sommer’s primary caregiver has far surpassed the Respondent’s in this case.

[69] In support of his financial hardship argument, the Respondent also stated in his affidavit sworn October 28, 2014 that he had suffered a heart attack in October 2011, and that he had had three stents inserted into his arteries at that time. He noted that he is now on heart medication which costs him approximately $560.00 per year. However, he did not adduce any supporting evidence respecting his heart condition or the cost of his medication. Furthermore, in his affidavit sworn May 25, 2015, he indicated that he now has a medical benefits plan through his employer National Steel, where he has been working since November 3, 2014.

[70] I have carefully reviewed the Respondent’s Financial Statement sworn April 28, 2015 to obtain a full appreciation of the Respondent’s overall financial status. The expenses which he sets out in that Financial Statement are all reasonable, with the exception of groceries and meals outside of the home, for which he claims he spends $600.00 and $100.00 per month respectively. In his affidavit sworn October 28, 2014, he stated that he spends $400.00 per month on food. I conclude that a total sum of $500.00 per month for both groceries and meals outside the home is appropriate. Taking into account that expense and all of the other expenses which the Respondent has set out in his Financial Statement, I find that his total monthly expenses are $3,922, not including his child support payments. This sum translates into an annual amount of approximately $47,000.00. Given my finding that his annual income for 2015 is approximately $56,350.00, I estimate that he has an annual surplus of $9,350.00, or approximately $779.00 per month.

[71] My conclusion respecting the comparative hardship which the parties have experienced since 1999 is based in part on the extent of the Respondent’s contribution to the support of Sommer since 1999. While I do not have evidence relating to the Respondent’s income from 1999 until 2011, the evidence from 2011 onward suggests that he has underpaid the Table amount of child support since at least that time. This is another factor which I have considered in concluding that the standard Guidelines approach is appropriate in this case. As I have already noted, the Respondent’s children have been living independently and have not been entitled to child support from the Applicant since at least 2011. The Respondent has nonetheless continued to pay child support for Sommer in the amount of $300.00 per month since 1999, based on the set-off formula. The chart set out below outlines what the Respondent should have been paying since 2011 based on his actual earnings. For the purposes of this analysis, I have excluded RRSP withdrawals from the Respondent’s income, since those amounts could potentially be considered non-recurring amounts within the meaning of section 17 of the Guidelines.

YEAR	RESPONDENT’S INCOME	TABLE AMOUNT
2011	$47,940.11	$443.00 per month
2012	$54,650.01	$494.00 per month
2013	$37,444.48	$330.00 per month
2014	$39,500.00	$354.00 per month

[72] In light of these findings, I conclude that the Respondent underpaid the Table amount of child support in the total amount of $4,836.00 for the period from January 2011 until August 31, 2014. As I have already indicated, the Applicant did not ask for a retroactive increase of the Table amount for this period in her pleading. Furthermore, I find that the Respondent did not make any contributions to Sommer’s post-secondary expenses in relation to her RPN program. These considerations support my conclusion that the standard Guidelines approach is the fair and just one on a go-forward basis.

[73] An analysis of Sommer’s condition, means, needs and circumstances is also relevant to the determination of the appropriate approach to the child support analysis. As I have already discussed, Sommer has not been able to earn any significant income since she began her post-secondary studies. She did not earn any income in 2013. This is understandable, given that her studies continued throughout the summer months. Furthermore, having regard for her health challenges, I am satisfied that it would be very difficult for her to work part-time while she is engaged in her studies, and that working during the school year could negatively impact her educational success. Sommer was responsible and diligent in obtaining employment during the period from February until September 2014, when she was not attending school. However, her total reported income for 2014 was only $4,684.80. The Applicant indicated in her affidavit sworn April 24, 2015 that Sommer has been able to earn approximately $7,000.00 per year to assist with her educational expenses, which suggests that Sommer may be earning additional cash income. Even using the figure of $7,000.00, Sommer is clearly unable to fund her educational studies entirely from her own earnings. I have considered the fact that Sommer has received grants for her educational studies. For her RPN diploma, she received grants totaling $6,552.00. Despite that funding, she incurred an OSAP debt of $1,787.00 relating to her RPN program because she and the Applicant were unable to cover all of her expenses. She received grants totalling $3,699.00 for the first year of the RPN to BScN bridging program, but she nonetheless incurred an additional OSAP debt of $2,623.00 for that year in order to cover her expenses. The evidence respecting Sommer’s financial situation, when considered in its totality, does not in my view support a departure from the standard Guidelines approach.

[74] My decision to conduct the child support analysis pursuant to section 3(2)(a) of the Guidelines is also based on my conclusions respecting the appropriateness of Sommer’s educational plan and her commitment to her studies. Her educational programming has been well planned and thought out. She has been diligent and in pursuing her studies, has performed well and has remained consistent with respect to her ultimate career objective. I am satisfied that the studies which she has pursued will yield her positive employment prospects once she completes her BScN degree. I have taken into consideration that this degree is her second post-secondary program. This is not in my view a significant factor in this case. Most first post-secondary programs are three to four years in duration, and Sommer’s RPN and BScN programs combined are just over four years in duration. Furthermore, the Applicant is not requesting any contribution from the Respondent for Sommer’s post-secondary expenses relating to the RPN diploma.

IV. ISSUE #4: CALCULATION OF CHILD SUPPORT PAYABLE BY THE RESPONDENT

A. The Table Amount Payable by the Respondent Commencing September 1, 2014

[75] Having concluded that the child support analysis should be carried out pursuant to section 3(2)(a) of the Guidelines, it is necessary to determine first the Table amount which the Respondent should have paid commencing September, 2014. Based on my finding that the Respondent earned approximately $39,500.00 in 2014, the Respondent should have been paying the Table amount of $354.00 per month commencing September 1, 2014.

[76] I have found that the Respondent’s projected income for 2015 is $56,350.00. The appropriate Table amount based on this income is $511.00 per month, and an order shall issue requiring the Respondent to pay this amount commencing January 1, 2015.

B. The Respondent’s Contribution to Sommer’s Section 7 Post-secondary Education Expenses

[77] I make the following findings respecting Sommer’s post-secondary education expenses for the 2014-2015 school year, which was the first year of her BScN program:

Item	Notes	Amount
Tuition	Mohawk College receipt, Exhibit “A” to the affidavit of the Applicant sworn March 24, 2015	$7,447.62
Books and Supplies	The Applicant did not adduce evidence relating to these expenses. Pursuant to section 7 of the Guidelines, I am permitted to estimate the expense. I conclude that a reasonable annual amount for these expenses is $2,000.00.	$2,000.00
Car Lease Payments	$167.00 bi-weekly: see affidavit of the Applicant sworn April 24, 2015. The estimated annual cost for this expense is $4,342.00. Of this amount, I am estimating $2,900.00 to be attributable to Sommer’s post-secondary studies. This sum represents the approximate lease payments required over the eight month period of the school year.	$2,900.00
Gas for vehicle	The Applicant did not adduce any evidence respecting the amount of this expense. Sommer is required to travel from her home in Caledonia to Mohawk College for classes. I conclude that a reasonable estimate for this expense for the eight month school year is $1,600.00.	$1,600.00
Car Insurance	$3,000 per year, as per the affidavit of the Applicant sworn April 24, 2015. Of this amount, I am attributing the sum of $2,000.00 to Sommer’s post-secondary expenses, which represents the amount payable for the eight month school year.	$2,000.00
TOTAL:		$15,947.62

[78] Pursuant to section 7(3) of the Guidelines, I am required to calculate the net cost of the section 7 expenses, taking into account any subsidies, benefits or income tax deductions or credits relating to the expense. As previously noted, Sommer received grants totalling $3,699.00 for the first year of her BScN program. Taking into consideration those grants as well as the applicable tuition/educational/textbook credits that would be available to the Applicant, I find that the total net amount of Sommer’s annual post-secondary educational expenses commencing September 2014 is $11,719.00. I am satisfied that this is a reasonable estimate of Sommer’s annual post-secondary education expenses for the remainder of her program.

[79] I conclude that all of the expenses set out above are both necessary in relation to Sommer’s best interests and reasonable having regard for all of the circumstances in this case. I have already discussed the merits of Sommer’s educational plan and how I believe it will serve her long term interests with respect to future employment prospects. The tuition, books and supplies expenses are modest for a BScN program. It is not realistic or practical for Sommer to use public transportation to get to and from school, and I accept that the vehicle, insurance and gas expenses are necessary for Sommer to engage in her studies.

[80] It is necessary to determine the appropriate contribution which Sommer should make to her post-secondary education expenses. Based on the Applicant’s evidence, I find that Sommer should be able to earn approximately $7,000.00 per year during her time off school. As I have stated, it is not realistic to expect Sommer to earn income during the school year given her health issues. I conclude that it is reasonable to require Sommer to contribute $6,000.00 per year towards her educational expenses. While this does not leave her with very much spending money on a monthly basis, I have taken into consideration the fact that the Applicant will be receiving the Table amount of support. Those monthly support payments can be used to cover many of Sommer’s daily expenses such as clothing, toiletries and entertainment. I have also taken into account the Applicant’s low income and the Respondent’s moderate income and current debt load.

[81] Sommer has already incurred a student loan in relation to her RPN program. I am requiring her to contribute approximately 60% towards her net educational expenses for the BScN program. In addition, she has been diligent in applying for and obtaining grants which have reduced her expenses significantly. These contributions from Sommer are meaningful and significant, and I conclude that she should not be required to incur further student loans. The balance of Sommer’s annual educational expenses after deducting Sommer’s contribution is $5,719.00. The Applicant requests that the Respondent contribute $2,482.00 per year towards Sommer’s educational expenses commencing September, 2014. This sum represents less than 50% of the balance of the expenses after Sommer’s contribution is deducted. Section 7(2) of the Guidelines stipulates that the guiding principle in determining the amount of a section 7 expense is that it is shared by the parents in proportion to their respective incomes, after deducting the child’s contribution. Having regard for the significant discrepancy in the parties’ incomes and the level of Sommer’s contribution, I conclude that the Applicant’s position is eminently reasonable. I am not satisfied based on the evidence before me that this contribution will cause hardship to the Respondent. Accordingly, the sum of $2,482.00 will be rounded up to $2,500.00, and the Respondent will be required to contribute this amount annually, commencing on a retroactive basis as of September 1, 2014 and continuing each year thereafter until September 1, 2016. This contribution will cease after September 2016, since Sommer will be completing the BScN program in the spring of 2017.

[82] I find based on the Applicant’s evidence that Sommer will be graduating from her BScN program in June 2017. Having regard for the modest means of the parties and the fact that Sommer will have completed her second post-secondary educational program by that time, I conclude that it is appropriate to terminate the Respondent’s support obligation effective June 30, 2017.

[83] The order which I am making will result in the Respondent owing arrears of support to the Applicant. In addition, there is the possibility of the Respondent accruing additional arrears as a result of the order which I am making for payment of s. 7 expenses in the future. Having regard for the Respondent’s modest income and the CIBC loan which he is currently paying, a payment plan respecting arrears is appropriate. As I have noted, I estimate that he has a monthly surplus of $779.00 at this time after payment of his reasonable expenses. After deducting the monthly child support amount that I have ordered of $511.00 per month, his surplus will be approximately $268.00 per month. The CIBC loan will be paid off by approximately December 2015. Accordingly, he will have a surplus of $816.00 per month commencing January 2016, for a total surplus of approximately $1,084.00 per month. Based on these findings, I am limiting enforcement of arrears of child support to $200.00 per month commencing November 1, 2015, and to a maximum of $1,000.00 per month commencing January 1, 2016, plus garnishment of any provincial and federal monies payable to the Respondent.

PART VI: TERMS OF ORDER TO ISSUE

[84] On the basis of the foregoing, a final order shall issue as follows:

Paragraph 2 of the order of Czutrin, J. dated July 27, 1999 (“the order”) is changed to provide as follows:

1. The Respondent’s obligation to support the child Sommer Melynn Aubert, born April 26, 1994 (“the child”) pursuant to paragraph 2 of the order is terminated effective February 28, 2014.

2. The Respondent’s obligation to support the child pursuant to paragraph 2 of the order is revived effective May 23, 2014. Commencing on that date, and continuing on the first day of each month that follows, the Respondent shall pay the Applicant child support for the child in the amount of $300.00 per month as provided for in the order.

3. Commencing September 1, 2014 and continuing of the first day of each month that follows until December 31, 2014, the Respondent shall pay the Applicant child support for the child in the amount of $354.00 per month in accordance with the Tables under the Child Support Guidelines (Ontario) (the“Guidelines”), based on the Respondent’s estimated 2014 income of $39,500.00.

4. Commencing January 1, 2015 and continuing on the first day of each month that follows until June 30, 2017, the Respondent shall pay the Applicant child support for the child in the amount of $511.00 per month in accordance with the Tables under the Guidelines, based on the Respondent’s estimated 2015 income of $56,350.00. This term is subject to paragraph 6 herein.

5. For so long as child support is owed, the Applicant and the Respondent shall provide updated income disclosure to each other each year by June 1st each year. The income disclosure required shall consist of the documentary financial disclosure set out in section 21 of the Guidelines.

6. The Table amount of child support shall be adjusted upward forthwith in the event of any increase in the Respondent’s income. If it becomes apparent when annual income disclosure is made by June 1st each year that the Respondent’s income increased during the previous calendar year and/or during the current calendar year, and that the Respondent accordingly underpaid the Table amount of child support for the previous calendar year and/or the period from January 1st to June 1st of the current year, the Respondent shall pay the Applicant the full amount of the underpayment up to and including June 1st by June 30th of the current calendar year. Furthermore, the Respondent shall begin to pay the adjusted Table amount based on his current estimated annual income on a monthly basis commencing July 1st of the current calendar year.

7. The Respondent shall pay the Applicant the following amounts pursuant to section 7 of the Guidelines on account of the child’s post-secondary educational expenses:

a. The sum of $2,500.00, payable forthwith, on account of his contribution to the expenses relating to the 2014-2015 school year;

b. The sum of $2,500.00, payable by November 1, 2015, on account of his contribution to the expenses relating to the 2015-2016 school year; and

c. The sum of $2,500.00, payable by September 1, 2016 on account of his contribution to the expenses relating to the 2016-2017 school year.

8. The Applicant shall apply the amounts which she receives from the Respondent pursuant to paragraph 7 herein towards the child’s tuition expenses and outstanding current student loans. She shall apply any surplus remaining after making these payments towards the child’s car lease payments, gas expenses and textbook and school supply expenses.

9. The Applicant shall contribute the sum of $2,500.00 each year towards the child’s vehicle insurance expense, commencing September 2014 and continuing each year thereafter until the child completes her BScN degree in June 2017.

10. The Respondent’s obligation to support the child shall terminate effective June 30, 2017. This termination date does not apply to the enforcement of arrears of child support owing as of June 30, 2017, which is governed by paragraph 11 herein.

11. Arrears of child support owed by the Respondent to the Applicant, if any, shall be recalculated based on the terms of this order. Any arrears now owing or which may accrue in the future shall be enforced at the rate of $200.00 per month, plus garnishment of any provincial and federal monies payable to the Respondent, for the period commencing November 1, 2015 and ending on December 31, 2015. Commencing January 1, 2016, any arrears owing at that time or that may accrue in the future shall be enforced at a maximum rate of $1,000.00 per month, plus garnishment of any provincial and federal monies payable to the Respondent, commencing January 1, 2016 and continuing on the first day of each month that follows until the arrears are paid in full.

12. The Respondent shall advise the Family Responsibility Office in writing of any changes in his employment within seven days of securing new employment, and he shall also within this time frame provide the office with all of the details regarding his new employment which the office requires for the purposes of enforcing the child support terms of this order.

13. Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

14. A Support Deduction Order shall issue.

15. This order bears post-judgment interest at the rate of 3% per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

16. If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by October 30, 2015. Any responding submissions shall be served and filed by November 6, 2015. Reply submissions shall be served and filed by November 13, 2015. There shall be no extensions to these deadlines. If a party does not submit submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party.

The Honourable Madam Justice Deborah L. Chappel

Released: October 1, 2015