Yacoub v. Yacoub, 2015 ONSC 6589

NEWMARKET COURT FILE NO.: FC-04-18754-00

DATE: 20151214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mary Yacoub

Applicant

– and –

Lamie Yacoub

Respondent

Andrea Kim, Counsel for the Applicant

Lyle Belkin, Counsel for the Respondent

HEARD: August 20 and September 4, 2015

RULING ON MOTION

JARVIS J.:

[1] This Ruling deals with changing child support terms of a final Order made by Shaughnessy J. dated October 24, 2005. The parties are now divorced: they shall be referenced as the father and the mother.

Relief Requested/Background Facts

[2] The mother started a Motion to Change on January 6, 2015. She claimed that there had been material changes in circumstances since the Order of Shaughnessy J. dealing with, in particular, the children’s residency with their parents, and their support arrangements. The following, undisputed, facts are relevant:

(a) the parties were married on July 8, 1986 and separated on November 11, 2003;

(b) there are two daughters of the marriage, namely Sabrina born November 30, 1996 and Julia born May 19, 2000;

(c) the mother started an Application in 2004. On or about October 24, 2005 the parties signed a comprehensive Separation Agreement that dealt with all issues arising from their marriage and its breakdown;

(d) on October 24, 2005 Shaughnessy J. made a final Order (“the Order”), as requested by the parties, incorporating the terms of their Separation Agreement;

(e) briefly, the Order provided that the parties would share joint custody of their daughters and that nothing would be paid for basic child support in recognition that, in light of his higher income, the father would be assuming all of the children’s private school tuition fees and expenses, and related incidentals;

(f) except for payment of private school expenses, the parties made specific arrangements for payment of the children’s special or extraordinary expenses;

(g) the provisions of the Order dealing with the children’s residency schedules with each parent and the child support arrangements were expansive and detailed. The Order provided for mandatory arbitration of parenting issues. In the event of arbitration, the arbitrator had the right to reapportion costs;

(h) the Separation Agreement recorded the mother’s annual income as $54,071 and the father’s annual income as $79,963.23;

(i) shortly after the final Order was made the father sought to change its custody provisions and so the parties proceeded to mediation/arbitration;

(j) the parties were divorced on July 5, 2006;

(k) the mother was nearly entirely successful on the Arbitration and on September 5, 2008 she was awarded costs payable by the father in the amount of $46,109.70 plus GST. It is not unchallenged that, in order to obtain the arbitrator’s award, the mother had to pay the father’s share of the unpaid balance of the arbitrator’s fees;

(l) in late 2008 the father made a consumer proposal that was not accepted and so was declared bankrupt in early 2009. Nothing had been paid on account of the costs awarded to the mother;

(m) on July 12, 2010 Kaufman J. made an Order requiring the father, among other things, to provide to the mother the children’s Passports for travel purposes;

(n) on July 30, 2010 McGee J. found the father in contempt of court because he failed to comply with the Order of Kaufman J. Costs of $10,000 were awarded, of which payment of $4,500 was stayed if the father complied with the Order made. He did;

(o) on October 29, 2010 McGee J. found the father in contempt of other provisions of her Order made July 30, 2010 which did not involve the children’s travel. The father was ordered to pay $8,000 costs;

(p) in February, 2012 Sabrina began to live exclusively with her mother;

(q) the mother declared bankruptcy in April 2012;

(r) in November, 2013 Julia began to live exclusively with her mother;

(s) in early 2014 the father brought a Motion to have the mother found in contempt of the final Order with respect to parenting issues, even though the mother had earlier proposed that the parties proceed with mediation/arbitration of those issues as required by the Order;

(t) on May 14, 2014 Nelson J. made an Order indefinitely adjourning the father’s contempt Motion and ordered that the parties mediate and, if that was unsuccessful, then arbitrate the parenting dispute. That Order also provided that the father was to pay 80% of the mediator/arbitrator’s costs, the mother 20%: the Order did not provide for reapportionment of costs by the mediator/arbitrator. This Order was never appealed;

(u) both children stopped attending private school in May 2014;

(v) on July 14, 2014 the parties signed a mediation/arbitration agreement. Paragraph 54 of that agreement authorized the mediator/arbitrator (“the mediator”) to reapportion costs;

(w) mediation/arbitration proceeded as ordered. On August 20, 2014 the mediator disclosed her findings that the father’s allegations about the mother alienating the children from him were unfounded. This opinion was based on meetings with the children and discussions with many collateral persons and professionals involved in the medical, social work and teaching fields;

(x) Sabrina began attending university in September 2014: Julia began attending a Toronto public high school that month too;

(y) on January 6, 2015 the mother started her Motion to Change the final Order with respect to child support;

(z) on March 2, 2015 the father delivered his Response to the mother’s Motion to Change, and also requested changes to the Order dealing with, primarily, its child support provisions;

(aa) on May 1, 2015 McGee J. made an Order requiring the father to pay Table child support and directed a long Motion to proceed on the issues now before the court;

(bb) apart from the mediator having disclosed her preliminary findings in August, 2014 to the parties, her retainer had not progressed to the arbitration stage. In addition, the mediator directed the parties to engage a further expert for unification counselling. By the time that the mother had started her Motion to Change the father had not paid for his share of the mediator’s outstanding account, and the expert had not yet been retained. In other words, the mediation/arbitration process ordered by Nelson J. was stalemated;

(cc) on June 29, 2015 the parties signed Partial Minutes of Settlement resolving issues relating to the children’s orthodontics, travel consent, and termination of the mediation/arbitration process, agreeing (with respect to this last issue) that they would engage a reunification therapist;

(dd) when the Motions were argued the mother was employed as an Administrator with a professional organization earning about $72,000 a year. The father was employed in a professional capacity with a local municipality earning about $126,000 a year.

[3] In accordance with the directions made by McGee J. the issues to be decided in the parties’ Motions are:

(a) retroactive Table child support;

(b) proportionate sharing of section 7 expenses, including post-secondary fees and orthodontics; and

(c) payment of mediation/counselling fees.

[4] At the outset of argument the parties advised that they had also settled some issues relating to summer camp, post-secondary expenses, life insurance and credit for support payments made by the father after January 1, 2015.

[5] Paragraphs 1 (4.19) of the Order dealing with mediating/arbitrating parenting issues, paragraph 1 (5) dealing with child support, and paragraph 1 (9) dealing with medical/dental benefits are relevant to the issues to be decided and will be reproduced later in this Ruling.

Discussion

[6] Each party has advanced different reasons why the Order needs to be changed. Both have complained about the conduct of the other and highlighted their continuing conflict in implementing the technical (or procedural) aspects of the Order dealing with, as one example, reimbursement of health care expenses for the children through each party’s employment.

[7] Complicating the analysis in this case are the different residential arrangements for the children (at least until Julia joined her sister living with their mother in November 2013), the effective date from which Guideline support and private school expense sharing should be calculated based on changes to the children’s residency, the termination of the children’s private schooling in May 2014 and Sabrina’s university attendance later that September.

[8] As a general observation, it is bewildering that the Order provides for joint custody of the children given the history of the litigation that preceded, and has ever since followed, it. The hallmark of joint custody is selfless parental cooperation and communication, and a situational adaptability that sensibly meets the children’s developing needs. Little of that is evident in the record.

[9] When, in July 2010, McGee J. found the father in contempt of court, she queried whether such an arrangement was any longer in the children’s best interests.

Given the atypical presentation in today’s hearing, I must also observe that the [father’s] conduct calls into question the appropriateness of an ongoing joint custodial order. A joint custodial parent must commit him or herself to collaborative decision making, support of the other parent’s relationship with the children and a forbearance of one’s own personal preferences in favour of those of the children. The [father’s] objections to this trip are not reasonable and his manner of objection has been to increase conflict, cost to the mother and no doubt, distress to the children. One can only imagine the tension suffered by Sabrina and Julia in this period leading up to the trip – a period that ought to have been marked by excited anticipation.

[10] Little, it seems, has changed since these observations were made. Almost nothing said by the mother, no matter how seemingly insignificant or obvious, is too trite for the father to challenge. More concerning though is the father’s singular, persistent, mind-set in accusing the mother of waging a campaign to alienate the children from him, notwithstanding the overwhelming evidence of the children's counsellors, Children's Aid Society and other involved professionals to the contrary.

[11] Excerpts from the notes of Sabrina’s school counsellor made when she decided to move exclusively to her mother’s residence are revealing.

14/02/12

Sabrina’s parents are divorced – shared custody – Sabrina has decided that she is not going back to her father’s ‘emotional’ abuse. Shared a number of incidents, the efforts she has made to talk to her father about – his refusal to listen.

Sabrina’s father is Egyptian and some of what is going on is culturally based. Sabrina knows this but insists it is too severe. We discussed our role as a school – which is to provide safety. Sabrina has asked that she would like an escort to her bus after school, since she has a right to make this decision.

It was also decided that her father would receive a call informing of our understanding of the situation – namely his daughter does not want to go home with him and since she has a safe place to go to (her M) we are obligated to supported (sic) her decision. Mr. Groot will make this call.

I also explored possible points of negotiation for Sabrina to consider when working things out with her Dad.

21/02/12

Sabrina has not gone to her father’s home since last week. Mr. Groot did call her father to explain the position of the school. Apparently her Dad assured the school there would be no disruption. So far there has been no response from her Dad …

[12] On July 16, 2013 Julia’s pediatrician contacted the local Children’s Aid Society. The doctor wrote,

This is to confirm our previous conversations regarding the above patient. As you are aware I am concerned that Julia has a depression and anxiety disorder related to her current living situation. She appears to be highly upset and frustrated living with her father and withdraws, eats poorly and experiences headaches as a result.

[13] Notes from the Society’s files record that the worker spoke to the parents, Sabrina, Julia and Julia’s doctor and that having determined that the issue was not around conflict with the parents but the relationship between Julia and her father, the worker expressed that she was “worried about Julia’s emotional well-being and so is [Julia’s doctor]”.

[14] In the course of a three hour disclosure/settlement meeting in late August 2014 involving the parties and their counsel, the father was told by the mediator that she (the mediator) did not view the situation as one where the mother was alienating the children from him. The process ordered by Nelson J. broke down months later after the father refused to refresh the mediator’s retainer. And yet, prominent in his affidavit sworn in response to the mother’s Motion in this case, the father titled portions as “Applicant turns Sabrina against me” and “Applicant turns Julia against me”. The father’s acknowledgement that he and the mother have “a history of animosity and dysfunction” is, to put it mildly, a gross understatement and, in my view, deflects and overlooks how significantly the father has contributed to the family conflict.

[15] While the Motions before the court deal with the children’s support, the context in which the issues have arisen is relevant. What, surprisingly perhaps, the parties do not dispute are the following facts that, in my view, individually and cumulatively constitute a material change in circumstances warranting a change to the Order dealing with child support:

(a) Sabrina began living exclusively with her mother in February 2012;

(b) Julia began living exclusively with her mother in November 2013;

(c) Both children stopped attending private school in May 2014, thus relieving the father of funding that expense;

(d) Sabrina began attending university, away from her mother’s residence, in September 2014.

[16] While an increase in payor income, including a disproportionate increase in parental incomes, may amount to a material change in circumstance, it is not necessary, for the reasons that follow, and in the circumstances of this case, to make that determination.

Analysis

(a) Retroactive Child Support

[17] The relevant provisions of the Order dealing with Table (or base) child support which the parties are seeking to change are the following,

5. Child Support

5.2 In recognition of the fact that the children reside equally with both parents and OSSAMA is responsible for 100% of all their private school tuition fees and expenses (except travel and clothing), before and after school care, school trips and hot lunches, there shall be no support payable by either parent to the other as long as private school expenses are provided by Ossama.

5.3 The parties each support the children without contribution from the other. Any application of the Guidelines would result in an amount of child support that is inappropriate. The parties’ present child support arrangements are reasonable and meet the objectives of the Guidelines.

5.11 For 2005 and following years OSSAMA will claim the Canada Child Tax Benefit including the National Child Supplement and dependent credit (equivalent-to-spouse credit) for Sabrina and all tuition fees paid on behalf of both children.

5.12 For 2005 and following years MARY will claim the Canada Child Tax Benefit including the National Child Supplement and dependent credit (equivalent-to-spouse credit) for Julia and all child care expenses paid in 2005 on Julia’s behalf.

5.13 OSSAMA will receive any income tax benefits related to the children’s religious school fees and will direct the school to issue all tax receipts, if any, to him.

[18] Paragraphs 1 (5.2) and 1 (5.3) of the Order clearly tied non-payment of Guideline Table support to the father’s funding of the children’s private school expenses. While a shared parenting arrangement between parents earning different incomes does not relieve the parent with the higher income from paying child support, it is not an unreasonable inference in this case that when the parties consented to paragraph 1 (5.2) that consent was given in the context of that shared parenting arrangement, and the financial trade-off between adjusted Table support, tax-driven deductions for the children and pro-rated private school expense funding. Paragraphs 1 (5.11) and 1 (5.13) entitling the father to tax credits for the children’s tuition and religious school fees support this.

[19] It follows then that a material change in each child’s residence engages the application of the Guideline Tables to the father’s payment obligation. And the parties’ obligations to share payment of the private school costs. This involves determining each parent’s qualifying income for 2012 to 2015.

[20] Critical to this determination is selecting the appropriate year on which to base the calculation. In this case the father relies on the prior year’s income as the base. For example, in considering the parties’ respective incomes for 2013, he relies on the parties’ 2012 incomes (and so on). While this may be assistive on a going-forward basis in many cases, it is inappropriate in circumstances where the actual income is known and retroactive support is claimed.

[21] In Vanos v. Vanos, 2010 ONCA 876 the Court of Appeal dealt unambiguously with this issue,

[13] In our view, where the amount of child support that should have been paid in a prior year is under consideration, the payor’s actual income for that year is the amount that should be used to calculate support for the prior period, so long as the payor’s actual income for the prior period is known.

[14] When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid.

[15] Our conclusion in this regard is rooted in common sense – but also in s.2(3) of the Child Support Guidelines, SOR/97-175, which states, “[w]here, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.” (emphasis added)

[22] The mother’s qualifying Line 150 incomes for 2012 to 2014 as represented by her tax returns and Notices of Assessment are unchallenged. However, she has argued that there should be imputed income to the father of about $25,000 a year in addition to his assessed Line 150 Total income due to (she alleges) “incomplete and misleading” financial disclosure and “unsubstantiated expenses and omission of income.” These submissions are also premised on her allegations that the father in some way benefits from his family’s affluence, although there is virtually no evidence of that in the record.

[23] There has been no questioning of either party.

[24] The father provided lengthy and detailed answers to the mother’s allegations which, clearly, the mother does not accept: those answers are reasonable and plausible. I am not prepared on the basis of the written record before the court to make credibility findings on this issue or to impute income to the father as requested.

[25] Accordingly, the parties’ qualifying support incomes for each of the years 2012 to 2014 are,

Year

2012

2013

2014

Mother

$70,129

$70,951

$71,772

Father

$122,840

$116,762

$125,664

Ratio %[^1]

37/63

38/62

37/63

[26] There is no challenge to the amount paid by the father for the children’s private school expenses for the same years,

Year

2012

2013

2014

Amount Paid

$20,499

$20,869

$8,255

Ratio[^2]

$7,548(M): $12,914(F)

$7,722(M): $13,147(F)

$3,054(M): $5,201(F)

[27] The father has argued that changes to the choice of private school Sabrina was attending before 2012 lost him the benefit of a “family rate” thereby increasing the overall costs to him of private school for both children and that any retroactive support calculations should be effective September 2010. Nowhere in the father’s evidence is there any reasonable explanation why, if this issue is so important now, it was not sufficiently important for him to raise before Sabrina began to live exclusively with her mother in February 2012, nor was it important enough to raise before the mother started her Motion to Change in January 2015. There is no reference to this issue in the father’s Response nor in his claim to change the Order. I am not prepared to deal with any change request pre-dating February 2012.

[28] Having determined that there has been a material change in circumstances and that a retroactive award is due, the issue then is the choice of the retroactive commencement date.

Effective Date of Notice

[29] The parties dispute the effective date before May 1, 2015 (being the date of the temporary Guideline support Order made by McGee J.) from which the father should be required to pay Table child support. In the case of Sabrina, the mother argues that the date should be March 1, 2012 being the first day of the month after Sabrina began living exclusively with her whereas the father argues that date should be September 1, 2013 as no request was made until (so he says) August 7, 2013: as for Julia, the mother, consistent with her position involving Sabrina, argues for a December 1, 2013 date whereas the father says that date should be October 1, 2014 because no request was made until September 5, 2014 for child support for her.

[30] In D.B.S. v. S.R.G., 2006 SCC 37 the Supreme Court considered the issues of delay in seeking child support, and the date of effective notice to which an award should be made retroactive,

[101] Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice: see Chrintz v. Chrintz (1998), 1998 14891 (ON SC), 41 R.F.L. (4^th) 219 (Ont. Gen. Div.), at p. 245. On the other hand, a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply.

[104] In deciding that unreasonable delay militates against a retroactive child support award, I am keeping in mind this Court’s jurisprudence that child support is the right of the child and cannot be waived by the recipient parent: Richardson, at p. 869. In fact, I am not suggesting that unreasonable delay by the recipient parent has the effect of eliminating the payor parent’s obligation. Rather, unreasonable delay by the recipient parent is merely a factor to consider in deciding whether a court should exercise its discretion in ordering a retroactive award. This factor gives judges the opportunity to examine the balance between the payor parent’s interest in certainty and fairness to his/her children, and to determine the most appropriate course of action on the facts. (emphasis added)

[31] Relevant to the issue of delay and the choice of date in this case, are the extensive history of litigation between the parties, and the mother’s financial circumstances in early 2012 that led her soon after Sabrina began living with her to declare bankruptcy.

[32] As for the date of retroactivity, the Supreme Court in D.B.S. observed that,

[118] Having established that a retroactive award is due, a court will have four choices for the date to which the award should be retroactive: the date when an application was made to a court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date when the amount of child support should have increased. For the reasons that follow, I would adopt the date of effective notice as a general rule.

[120] Disputes surrounding retroactive child support will generally arise when informal attempts at determining the proper amount of support have failed. Yet, this does not mean that formal recourse to the judicial system should have been sought earlier. To the contrary, litigation can be costly and hostile, with the ultimate result being that fewer resources – both financial and emotional – are available to help the children when they need them most. If parents are to be encouraged to resolve child support matters efficiently, courts must ensure that parents are not penalized for treating judicial recourse as a last resort. Accordingly, the first two start dates for retroactive awards – i.e., the date of application to court and the date of formal notice – ought not be used. So long as the enforcement of child support obligations is triggered by formal legal measures, a perverse incentive is created for recipient parents to avoid the informal resolution of their disputes: MacNeal v. MacNeal (1993), 1993 9310 (ON SC), 50 R.F.L. (3d) 235 (Ont. Gen. Div.); Steinhuebl v. Steinhuebl, 1970 411 (ON CA), [1970] 2 O.R. 683 (Ont. C.A.). A recipient parent should not have to sacrifice his/her claim for support (or increased support) during the months when (s)he engages informal negotiation: Chrintz; see Dickie v. Dickie (2001), 2001 28140 (ON SC), 20 R.F.L. (5^th) 343 (Ont. S.C.J.).

[121] Choosing the date of effective notice as a default option avoids this pitfall. By “effective notice”, I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling.

[125] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable… (emphasis added)

[33] Despite issues arising before February 2012 about co-ordination of health benefits, and notwithstanding what must have been obvious to the father by late Spring 2012 that Sabrina would not be returning to his residence, the first indication that the mother broached the issue of child support with the father was contained in an e-mail from her to him dated October 4, 2012 wherein the mother pointed out that the father was paying nothing on account of child support for Sabrina.

[34] In a subsequent e-mail from the mother to the father dated August 7, 2013 (and on which the father relies as constituting effective notice to him) the mother wrote,

“I am asking you to share in Sabrina’s expenses by paying child support according to Ontario guidelines for child support.”

[35] It is not the law that a notice so clear and unambiguous as this must always be given to engage the effective notice considerations referenced in D.B.S. Rather, and as that case demonstrates, once it is no longer reasonable for the payor parent to assume that the status quo is fair, then that should be the appropriate date from which the payor parent cannot presume, or reasonably believe, that a child’s support entitlement is being met. That is especially so in cases, like this, where departure from the Guidelines is premised on a shared parenting arrangement. In my view, the father should reasonably have known no later than the mother’s October 4, 2012 e-mail that he had an obligation to pay child support for Sabrina. In reality, he should have suspected sooner. In the exercise of my discretion then the effective date for notice of retroactivity is October 1, 2012.

[36] This finding impacts both parties’ child support obligations as set out in paragraph 1 (5.2) of the Order since the non-payment of child support in accordance with the Guidelines is directly linked to the father’s obligation to fund private school.

[37] Accordingly, not only is October 1, 2012 the effective date of notice of retroactivity for Sabrina but it is also the date from which the parties’ respective obligations to pay Table child support for both of the children, including their private school expenses, must be calculated.

[38] A similar approach must be taken with respect to determining the effective date of retroactivity for Julia’s Guideline support.

[39] Julia began residing exclusively with her mother after November 12, 2013. In explaining his delay, or reluctance, in bringing the motion heard on May 14, 2014 by Nelson J. to have the mother found in contempt of the Order dealing with Julia’s shared residency with both parents, the father stated that he was uncertain “how to cope with this situation”. Even so it is clear in a letter from the mother’s counsel to the father dated February 18, 2014, that a formal change in Julia’s residency was being sought and, in light of the fact that Julia had not returned to live at her father’s residence after November 12, 2013, the father knew or ought reasonably to have known no later than mid-February 2014 that the shared residency assumptions underpinning paragraph 1 (5.2) of the Order dealing with Julia’s support entitlement were no longer appropriate. As already noted, the father should have been aware that a residency change impacted the Guideline support assumption dealing earlier with Sabrina. So too the case with Julia. Since, as held in D.B.S., “child support is the right of the child”, it is my view that, and giving the father the benefit of any remaining doubt, the effective date for notice of retroactivity for his obligation to pay Table child support for Julia is March 1, 2014.

2012/2013

[40] Based on the foregoing calculations, and taking into account the effective dates of retroactivity, the following Table support is payable by the father, adjusted for the sharing of private school expenses (the supporting calculations may be found in Schedule “A” to this Ruling):

(1) 2012 - $1,278;

(2) 2013 - $3,966.

[41] The total owing by the father therefore for 2012 and 2013 is $5,244.

2014

[42] In September 2014, Sabrina began attending university away from her mother’s residence. There is no reason why, for the period from March to August of that year, the father should not pay Table support calculated on his 2014 income for two children in the amount of $1,729 a month.

[43] The mother, relying on Caravello v. Wickett, 2011 ONSC 3702, claims that for the balance of 2014, and in fact for subsequent years during which Sabrina continues her studies at university, the full Table amount for both children should be paid. In Caravello, a case noted by Wein J. in language descriptive of this case as having “a long and acrimonious history”, the court observed whether “it is appropriate to order child support in the Table amount for an adult child attending post-secondary education is a matter within the Court’s discretion”. Both sons in Caravello attended university away from their mother’s residence.

[44] After reviewing the authorities, Wein J. held,

27 The Court of Appeal in Rioux v. Rioux, 2009 ONCA 569, [2009] O.J. No. 2949. Epstein J.A., recently upheld a decision of the Superior Court where a court ordered Guideline support in the table amount for a child enrolled in post-secondary education and where the trial judge had also ordered s. 7 arrears in a lump sum. While the Court did not specifically comment on the trial judge's correctness in ordering the table amount, as this was not specifically challenged, the Court of Appeal appeared to approve of the trial judge's reasoning generally.

28 In this case, given the disparities in income, the frequent re-attendance of each child at the mother's home during the school year, and the need for certainty in how the post secondary education will be funded, the appropriate order is that child support in the guideline amount continue throughout the year.

29 The history of interactions between the parties convinces the Court that the order must be made as certain as possible. The parties have proven unable to abide by past orders that permit even reasonable interpretation by themselves or FRO, resulting in ongoing expense to the public and to the parties themselves … (emphasis added)

[45] The mother based her claim on Sabrina’s frequent return home during the academic year, and the father’s refusal to pay anything on account of support. Alternatively, she argued that the father should pay full Table support for both daughters when Sabrina was not attending university – the summer months, being May to August – and some additional amount during the other eight months to help defray the mother’s costs of maintaining her residence: Coghill v. Coghill, 2006 21778 (ON SC), [2006] O.J. No. 2602, 27 R.F.L. (6th) 434, 30 R.F.L. (6th) 298 (Ont. S.C.).

[46] The father maintains that he should only pay Table support for Julia for eight months of the year and full Table support for both daughters during the four summer months. While I am not prepared to accede to the mother’s principal argument requiring the father to pay full Table support throughout the year, his proposal to limit his Table obligations fails to take into account the unchallenged costs incurred by Sabrina and her mother about, for example, Sabrina’s frequent re-attendance at her mother’s home, and what will undoubtedly be Sabrina’s future co-op expenses and as otherwise detailed in the mother’s financial statement and affidavits. A more nuanced approach that will take into account that the mother will still be incurring some level of expense for Sabrina while she is residing at university, including Sabrina’s transportation and future co-op costs, is sensible for these reasons:

(1) the application of the Guidelines retroactive to October 1, 2012 and on a going-forward basis will answer the mother’s complaint about the funding of necessities;

(2) there is a need, especially in this case, for budgeting certainty and to avoid, as much as possible, interpretation or FRO enforcement issues due to the history of the parties’ interactions;

(3) in light of my Ruling (below) with respect to the children’s special or extraordinary expenses, there will be an indirect financial benefit to the mother by not applying the proportionate ratios of the parents’ incomes.

[47] In my view, and in the exercise of my discretion, there should be paid by the father to the mother, pro-rated throughout the year for those months that Sabrina is residing away, an amount equal to one-third of the difference in Table support between two children and one child. This ratio is well within an acceptable range. In Lu v. Sun (2005), 2005 NSCA 112, 17 R.F.L. (6th) 57 (N.S.C.A.) at para. 28, leave to appeal refused 248 N.S.R. (2d) 103n, a 50% allocation of the Table amount was applied for those times when the child was residing away from home attending university, and full Table support when at home (see also Jahn-Cartwright v. Cartwright (2010), 2010 ONSC 923, 81 R.F.L. (6th) 423 (Ont. S.C.J.) at para. 60).

[48] The father maintains that he should be permitted to pay Sabrina directly for his share of her support while she attends university, relying on Rosenberg v. Rosenberg, 2003 2227 (ON SC), [2003] O.J. No. 2962 (Ont. S.C.J.). This was also ordered in Coghill (see above). Given the nature of the strained relationship between Sabrina and her father, the distress this has caused her and the Order that will be made with respect to what the mother will be required to pay for Sabrina, I am not prepared to accede to the father’s proposal.

[49] There are three material changes in 2014 that affect the Table support calculation, namely Julia’s move to her mother’s residence, the end of the children’s private school funding by their father, and Sabrina attending university in September. While the first and third of these changes impact the Table calculations, there are three periods in 2014 where the Table support should change, those being, firstly, the months of January and February before the effective retroactivity date for Julia as of March 1, 2014, the next six months to the end of August 2014, when both children were residing with their mother and, lastly, Sabrina’s university attendance away from her mother’s residence as of the beginning of September 2014. Based on that year’s known income, the father should pay blended Table support for January and February of 2014 (i.e. Sabrina residing with her mother, and Julia with both parents). Commencing March 1, 2014 to and including the payment due August 1, 2014, the father shall pay Table support for both children, and for the period September 1, 2014 to the end of the year, Table support for one child (Julia) plus one-third of the Table support difference between two children and one child. This will result in the father owing the mother for Table support in 2014 the sum of $17,712, less $3,054 representing the mother’s share of private school costs, for a balance owing of $14,658. Schedule “A” accompanying these reasons sets out the calculation.

2015

[50] For 2015, the father’s qualifying income should be calculated on his 2014 income (see Vanos above) and shall be calculated in a manner consistent with 2014. That obligation is $17,292. He is entitled to a credit for all Table support paid pursuant to the Order of McGee J.

2016

[51] Commencing January 1, 2016 the father shall pay to the mother adjusted Table support of $1,441 a month through to and including the payment due on June 1, 2016. This amount is the average monthly payment otherwise due based on the father’s 2015 income. The first adjustment to the Table support payable shall be July 1, 2016 and be in effect for the ensuing 12 month period, and so on in future, and shall be calculated using each party’s line 150 incomes as may be adjusted by Schedule III of the Guidelines. In the event that the father’s income for 2015 is greater than 2014, I am not prepared to order any adjustment for the first six months of 2016. The father had been paying $100 allowance monthly to Sabrina while she was at university, until April 2015, and has claimed credit for that amount. While not, perhaps, a mathematically precise set-off, this approach is not unreasonable.

(b) Proportionate Sharing of Section 7 Expenses

[52] Paragraphs 1 (5.4), (5.6) – (5.10) of the Order deal with the children’s special or extraordinary expenses and provide as follows,

5.4 In this section, “special or extraordinary expenses” means “special or extraordinary expenses” as this phrase is defined in s. 7(1) of the Guidelines, except for the private school expenses as outlined above which are the sole responsibility of OSSAMA.

5.6 The parents will share agreed upon s. 7 expenses on a 65% (OSSAMA)/35% (MARY) basis. This figure does not reflect the parties’ current proportionate shares but is intended to address future fluctuations in the incomes and avoid future disputes on these issues.

5.7 Children’s lessons and other activities arranged by either parent without the other parent’s consent shall be at their own expense and must never interfere in the other parent’s time with the children, unless specifically agreed in writing in advance.

5.8 The children’s current special or extraordinary expenses are:

(a) private school tuition fees, before and after school care and school trips currently totaling $11,450 and paid solely by OSSAMA. The fees at Willowdale Christian School commencing September, 2006 are expected to be higher;

(b) People’s Church Camp, estimated cost $1,920, to be shared on a 65% (OSSAMA)/35% (MARY) ratio.

5.9 The parties will only contribute to other special or extraordinary expenses if the parties consent to the expenses in advance, in writing. If the parties cannot agree, they will use the section of this Agreement (sic) entitled “CHILDREN’S ENROLMENT IN EXTRA-CURRICULAR ACTIVITIES” to resolve this issue.

5.10 Future special or extraordinary expenses will include post-secondary education expenses of which OSSAMA will pay 65% as they arise.

[53] A plain reading of paragraph 1 (5) of the Order is that the parties intended that their Table support obligations be treated differently than their obligations to contribute to special or extraordinary expenses. This is made clear in paragraph 1 (5.6) where, in agreeing to a 65/35% ratio, the parties specifically noted that “[t]his figure does not reflect the parties’ current proportionate shares but is intended to address future fluctuations in income and avoid future disputes on those issues.” This 65/35% contributory ratio, elsewhere referenced in paragraphs 1 (5.8) (b) and 1 (5.10), was carried over into paragraph 1 (9) dealing with medical/dental benefits with somewhat more particular detail dealing with insurance reimbursement claims.

[54] Paragraph 1 (9) dealing with medical/dental benefits provides as follows,

9.1 In this section: “medical” means all mental and physical health needs, including prescriptions, vision care, psychological counselling, dental and orthodontic costs, chiropractic costs, speech therapy, occupational therapy, physiotherapy, homeopathy, acupuncture and massage therapy.

9.2 OSSAMA and MARY will both maintain the children as beneficiaries of extended health insurance through his or her employment, and will sign documentation authorizing the other to make claims directly to his or her insurer. A party who is reimbursed for a medical expense paid by the other will immediately forward the reimbursed amount to the other.

9.3 OSSAMA will pay 65% and MARY will pay 35% of the children’s medical expenses not covered by either party’s extended health insurance. A party incurring non-emergency child medical expenses will obtain the other’s consent in advance, in writing. Neither party will unreasonably withhold his or her consent. If they cannot agree, they will use the section of this Agreement entitled “MEDICAL/PROFESSIONAL DECISIONS” to resolve the issue.

9.4 Medical expenses not covered by either party’s extended health insurance are special or extraordinary expenses and will be paid according to section 5.6.

[55] The principal areas of dispute involve Sabrina’s post-secondary education expenses, extracurricular activities, and medical/dental benefits, the latter which focused on Julia’s orthodontics. Overlaying these, and the other issues directed to be determined, though, is the historic, and current, conflict between the parties into which their daughters have been unacceptably drawn. That the parties harbour continuing animosity towards each other is patently obvious but their battleground is the sharing of their daughters’ special or extraordinary expenses, and their weapons of choice are, especially in the father’s case, an almost obsessive preoccupation with procedural detail that repeatedly challenges the mother and daughters to deal with him – on his terms. That is not what these provisions in paragraph 1 (5), and especially 1 (9.2), of the Order intended. While the father’s estrangement from his daughters may help to explain his handling of the disputed issues, there is a point beyond which his approach is no longer reasonable, and clearer rules for disengagement are needed.

[56] The dispute-avoidance intent behind paragraphs 1 (5.5) - (5.10) are, in retrospect, prescient but for their non-conflictual, practical implementation. There is no reason to depart from the Order’s basic 65/35% proportionate sharing scheme: all that is required, in my view, is to better structure the parties’ compliance with those provisions to avoid future disputes and to determine whether anything is owing by either party to the other.

Post-Secondary Expenses

[57] After graduating from high school, Sabrina was accepted by, and chose to attend, a university outside of the Greater Toronto Area. She enrolled in a four year co-op course commencing in September 2014. During her first year, Sabrina resided on campus. For her second year (the current year) she shares rental premises off-campus with several other female students.

[58] Both parties presented detailed proposals how best to deal with the payment of, at this time, Sabrina’s post-secondary school expenses. Each proposal acknowledged the child’s obligation to share pertinent funding information with both parents and each parent addressed the issue of the child’s contributory means. Where those proposals differed related to the mechanics of ensuring the father’s timely contribution to those expenses. A review of the evidentiary record clearly reveals Sabrina being drawn into her parents’ dispute, her acute (almost plaintive) distress at her father’s micro-management-like probing into her affairs and her worry about timely compliance with tuition payment deadlines and her living expenses. Why the father needed to know about the size of a mattress for Sabrina’s bed, or felt that he had to verify with her bank the charges she said she incurred for arranging a new account, are but a couple of many examples.

[59] It is not helpful to undertake a comparative assessment of each party’s proposal and so, since the mother’s proposal better removes Sabrina from the pervasive conflict and, just as importantly, acknowledges and respects Sabrina’s obligation to share relevant information with both parents, that proposal is preferred, with some adjustments.

[60] There remain, however, several issues relating to the father’s refusal to contribute to Sabrina’s Ontario Universal Application fee ($130) and his share of her first and last month’s rental deposit for her 2^nd year accommodation expense paid by the mother ($1,138). As to the OUA fee, the father demanded proof of payment for what is, in any event, a mandatory charge and, disingenuously in my view, claims he contributed to his share of the rental deposit then elsewhere acknowledged that his cheques were returned by the landlord. Despite the mother’s requests that he contribute, she was ignored. The father shall pay to the mother 65% of the combined OUA and rental deposits costs of $1,260 in the amount of $824.20.

Camp

[61] As noted above, the parties settled the issues relating to Julia’s summer camp on the advent of their motions but their proportional share of camp fees they agreed would be 63.6% (father) / 36.4% (mother). This ratio differs, however nominally, from the 65%/35% ratio mandated in the Order and is premised on the parties’ estimated 2015 incomes. Quite apart from the potential for future conflict based on “estimates” in a case like this, there is no compelling reason why the Order’s proportionate sharing scheme should not be followed for last year and on a going-forward basis, provided that the overall summer camp cost does not exceed $1,000 (i.e. one-half of the paragraph 1(5.8)(b) cost of $1,920 for two children, notionally adjusted for inflation).

[62] The court is not bound by the terms of the parties’ agreement as to the amount of the proportional share for camp fees: Gatzke v. Gatzke, 2011 CarswellSask 649, 2011 SKQB 351, [2011] S.J. No. 580 (Q.B.). The original terms of the parties’ Order prevail, the percentage differential is nominal for this expense, and opportunities for parental conflict must be avoided.

[63] As for 2015, the unchallenged evidence is that the father has not paid his proportionate share of the $430 camp expense. He shall pay 65% of that amount, or $279.50, to the mother.

Non-Medical/Dental Expenses

[64] The mother has also raised issues about the children’s clothing costs (and some incidental expenses) and the father an issue about the mother contributing to the children’s piano lesson expenses. With respect to the former, the application of the Guidelines to the father’s support obligation will dispose of that issue because those expenses would ordinarily be captured by the Table support paid: with respect to the latter, the piano expenses were not specifically identified (unlike paragraph 1 (5.8) dealing with camp, for example) and there is nothing in the evidentiary record compliant with paragraph 1 (5.7) dealing with advance, written, consent from the mother, nor any suggestion that she consented to sharing that expense. In fact, she has stated that she never provided any such consent. The father acknowledged this too. While the children may have enjoyed, even benefited from, piano lessons, that is not a sufficient reason to depart from the terms of the Order and so, as with the mother’s claim involving the children’s clothing and incidental expenses, the father’s claim for a retroactive contribution from her for the piano expenses, both claims are dismissed.

Medical/Dental Benefits

[65] Paragraph 1 (9.2) of the Order anticipated the situation where a party incurred a medical expense for a child. In this case, problems have arisen because the parties each have medical/dental coverage through their employment and, as the mother’s birthdate precedes the father, medical expenses for a child must first be submitted to her insurer.

[66] The mother alleges that paragraph 1 (9.2) of the Order was agreed to avoid conflict and, as the provision clearly reads, permit reimbursement to a paying parent from the other’s insurer without the other parent’s interference. That paragraph specifically requires the other parent to “sign documentation authorizing the other to make claims directly to his or her insurer.” Instead of providing that authorization, the father has insisted that if, after applying for reimbursement from her insurer, the mother is not fully reimbursed then she must submit to him the documentation needed by his insurer for his submission. This does not comply with the Order.

[67] There is no evidence that the father’s insurance provider is any different than when the Order was made in 2005 and, to deal with this issue, the mother obtained from the father’s insurer the information needed, and the protocol to be followed, when submitting a non-emergency medical expense claim directly to the father’s insurance provider. That should be done in this case, and the Order I propose to make will incorporate that insurer’s requirements as confirmed in exhibit 32 to the mother’s affidavit sworn May 25, 2015. The byzantine procedure proposed by the father not only does not comply with paragraph 1 (9.2) of the Order but it also perpetuates communication and enforcement conflict between the parties.

[68] This conflict is especially clear when dealing with necessary orthodontic work for Julia – unlike the children’s dental or pharmacy benefits co-ordination where no problems seem to have arisen. Irrespective where the truth lies, the facts are that Julia resides with her mother, that she requires orthodontic treatment and that how and by whom those services are to be provided has been a continuing source of conflict. In my view, and in the event there should be any dispute about the choice of Julia’s orthodontist, the mother should be authorized to proceed with the selection of orthodontist and timing of the orthodontic work needed by Julia, without the father’s consent. Where the orthodontist requires as a contractual term both parent’s written authorization, then the father shall have 10 days from the date that the mother provides to him the authorization to be counter-signed by him to return that to her - not the orthodontist - failing which the mother may proceed to authorize treatment and, at her option, file with the Director a statement for enforcement purposes of the entirety of the father’s share.

[69] In this case, the mother incurred eyeglass costs for Sabrina in 2013 totalling $673 and for Sabrina and Julia in 2015 totalling $225 for which she was reimbursed by her health benefits insurer $124.50 (2013) and $175.50 (2015) respectively. The uninsured balance is $598. The father shall pay to the mother 65% of that balance in the amount of $388.70.

(c) Payment of Mediation/Counselling Fees

[70] Paragraph 1 (4.19) of the Order deals with mediation/arbitration.

If OSSAMA and MARY are unable to resolve a parenting issue, they will mediate/arbitrate the issue with Burke Doran. The parties will share equally the cost of the mediation/arbitration. If the parties cannot resolve the issue through mediation, the mediator/arbitrator will arbitrate the issue in his discretion. If there is an arbitration, the arbitrator will have the right to reapportion costs.

[71] As already noted, after Nelson J. directed the parties to mediate, the parties signed a mediation/arbitration agreement. Paragraph 5 of that agreement provides as follows:

54. Unless indicated otherwise, the parties shall share all fees in accordance with the Court Order designated split of 80% by Father and 20% by Mother. Fees may be allocated differently upon the discretion of the Arbitrator.

[72] In his Response to the mother’s Motion to Change the father also claimed changes that included relief of a non-financial nature. While he alleged that he was incurring high expenses relating to exercising access to Julia, which included fees for his lawyer, the mediator/arbitrator and other professionals, the father did not request any variation of the Order made by Nelson J. That Order, as already noted, made no provision for reallocating the mediator/arbitrator’s charges. It did not reserve the issues of those charges to the court if, for any reason, mediation was unsuccessful and arbitration proceeded. It is not unreasonable to infer not only that, cognizant of paragraph 1 (4.19) of Shaughnessy J.’s 2005 Order, Nelson J. intended the costs of that process were to be determined by the arbitrator but also that His Honour’s 80/20 fees allocation was intended to provide the funding direction needed to start, and fuel, that process to its conclusion and not to, in any way, derogate from the arbitrator’s primary costs authority. That the parties must have thought this too is evidenced by paragraph 54 of the mediation/arbitration agreement they later signed. In fact, the father acknowledged as much in his affidavit sworn June 10, 2005 (paragraph 13).

[73] Contextually, the direction given by McGee J. on May 1, 2015 must be viewed as dealing prospectively with what were the then anticipated, but not yet fully ascertained, mediation/counselling expenses, and not as changing the Order to abrogate the arbitrator’s costs authority. This is important in light of the parties’ later settlement conduct.

[74] It is clear from the parties’ evidence that, dissatisfied with the mediation process, the father declined to refresh the mediator’s retainer before, and after, the Order of McGee J. and justified that (after May 1, 2015) by pointing to the relief he was seeking in a Motion he was bringing to reapportion those charges.

[75] But after the Motion heard by McGee J., wherein she identified the outstanding issues to be decided, the parties entered into Partial Minutes of Settlement. Paragraphs 5-8 of the parties’ Partial Minutes of Settlement dated June 26, 2015, and which they agreed to being incorporated into an Order, provide as follows:

Reunification Therapy

5. The parties agree to terminate the current mediation/arbitration process with Jan Schloss, which was ordered by Justice Nelson on May 14, 2014, and these minutes of settlement constitute their joint written consent to terminate the process pursuant to section 33 of the Mediation/Arbitration with Jan Schloss dated July 14, 2014.

6. The parties agree to engage Howard Hurwitz for the purpose of reunification therapy, the goal of which is to reconcile the relationship between the Respondent and Julia. If Howard Hurwitz is unavailable or unwilling to act, the parties shall engage another reunification therapist as agreed upon by the parties or as ordered by the court on a motion.

7. Howard Hurwitz’s fees, net of amounts covered by the parties’ extended health insurance plans, shall be paid by the parties in shares proportionate to each party’s gross income for the previous year, with the Applicant paying 36.4% and the Respondent paying 63.6% in 2015 to be adjusted annually.

Costs

8. Each party shall bear their own costs of the issues set out above.

[76] These Minutes were made, as already noted, after McGee J. directed that payment of mediation/counselling fees be determined by the court. The Minutes clearly and unambiguously indicate that the parties considered, and terminated, the mediation/arbitration process (paragraph 5); the Minutes clearly record that the parties turned their minds to the issue of professional fees and their allocation (paragraphs 6 and 7) and, more globally, the issue of costs, which included the mediation/arbitration and counselling process (paragraph 8). The parties could have, but did not, reserve the issue of payment of mediation/arbitration, or counselling, fees other than those noted in paragraphs 6 and 7 of the Partial Minutes, to the arbitrator (as required by the Order) or to this court. In my view, the issue of payment of mediation/counselling fees has been settled: the father’s request to reapportion those expenses is dismissed and, so it follows, is his request to have those expenses taken into account as a credit against any child support owing.

Disposition

[77] Accordingly, an Order shall issue varying the final Order of Shaughnessy J. dated October 24, 2005 as follows:

(1) if not already taken out by the parties, an Order in accordance with the terms of their Partial Minutes of Settlement dated June 26, 2015;

(2) in accordance with paragraphs 2 and 3(a), (c) and (d)(i) of the father’s updated factum, except for the ratio of proportional sharing of camp fees which shall be 65% (father) and 35% (mother);

(3) the father shall pay to the mother as and for arrears of child support accruing prior to January 1, 2015 the sum of $19,902;

(4) for 2015, the father shall pay to the mother for child support sum of $17,292 and shall be credited with all support paid pursuant to the Order of McGee J.;

(5) effective January 1, 2016, and monthly thereafter on the 1^st day of each succeeding the father shall pay to the mother the sum of $1,441 through to and including the payment due on June 1, 2016;

(6) effective July 1, 2016 and on July 1^st each following year until further Order of the court, the monthly amount of child support payable by the father shall be changed to reflect his assessed Line 150 income for the previous year, adjusted (as may be applicable) in accordance with Schedule III to the Guidelines. The change shall reflect the children’s residency with their mother and a child’s attendance away from her mother’s residence for post-secondary education purposes. For those months that a child is attending post-secondary school and residing away from her mother’s residence, the father shall pay Table support for both children for the summer period (defined as May to August) and, for the other eight months of the year, the Table amount for one child and one-third of the difference between the applicable Table amounts for one child and two children. These amounts shall be blended for the ensuing 12 month period (and pro-rated where required – as was done with respect to 2014) to provide a regular payment stream on the 1^st day of each month throughout the 12 month period. Should any issue arise with respect to either party’s interpretation of this provision, further direction may be sought from me;

(7) post-secondary expenses for Sabrina shall be paid in accordance with Schedule “B” which forms part of this Ruling;

(8) the father shall pay to the mother for his share of Sabrina’s OUA fee and 2^nd year rental deposit the sum of $824.20;

(9) the father shall pay to the mother for Julia’s 2015 camp expense (if not already paid by him) the sum of $279.50;

(10) the father shall pay to the mother for eyeglass costs for the children the sum of $388.70;

(11) in the event of any dispute about the choice of orthodontist for Julia or the cost and timing of that treatment, the mother is authorized to make those decisions without the father’s consent. Where the orthodontist requires both parents’ written contractual authorization (which include payment terms) the father shall have 10 days from the date that the mother provides to him the authorization (email will suffice) to return to the mother the counter-signed authorization, failing which the mother may proceed to authorize treatment on behalf of both parents and, at her option, file with the Director a statement for enforcement purposes for the presumptive share of the entirety of the father’s share;

(12) the mother shall be entitled, without the father’s consent or authorization, to directly submit to the father’s health benefits insurer all insured benefits for the children. The terms of the Order shall be in accordance with tab 32 of the mother’s Affidavit sworn May 25, 2015 and shall also provide the following:

(a) the mother shall first submit claims for the children to her insurance provider;

(b) after reimbursement from her insurance provider, the mother shall submit to the father’s health benefits insurer the balance of any unreimbursed amounts and shall, after reimbursement from the father’s insurance provider, provide the details of her claim and the amount (if any) of the payment made by that insurer to the father in order to determine the amount of each party’s share of the uninsured expense, which shall be apportioned 65% (father) and 35% (mother).

(c) failing payment by the father to the mother of his share within 10 days of her submission of the information to him as required, she shall be entitled to enforce the father’s share as a support order pursuant to s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31 [as amended].

(This Order dealing with direct submission to the insurance providers shall be taken out separately from the balance of the terms of this disposition);

(13) the parties’ proportionate shares for the children’s dental and pharmacy-related expenses shall be 65% (father) and 35% (mother).

(14) The amounts payable by the father to the mother in subparagraphs (8) to (10) above shall be enforceable as child support

[78] A Support Deduction Order shall issue.

[79] Each party shall submit, no later than 15 days following the date of release of this Ruling, their submissions with respect to costs. Those submissions shall be restricted to three double-spaced pages and may be accompanied by Offers to Settle (if any), Bills of Costs and authorities upon which the parties may rely.

Justice D.A. Jarvis

Released: December 14, 2015

Schedule “A”

2012 - $1,278

(i.e. [3 months x $1,055[^3]] – [$7,548 for the mother’s share of private school expenses x .25 representing October to December 2012])

2013 - $3,966

(i.e. [12 months x $974[^4]] – [$7,722 for the mother’s share of the children’s private school expense])

2014 - $14,658

(i.e. ([2 months x $1,075[^5]] + [6 months x $1,729[^6]] + [4 months x $1,081] + [4 months x ($1,729 - $1,081) ÷ 3])[^7] = $17,712 less $3,054 representing the mother’s share of the children’s private school expenses)

2015 - $17,292

(i.e. [8 months x $1,081] + [4 months x $1,729] + [8 months x ($1,729 - $1,081) ÷ 3])

2016 - $1,441 monthly to

and including June 1, 2016

(i.e. same calculation as 2015 calculated for first six months of 2016 until July 1 change date)

Schedule “B”

1. The child shall contribute 30% of her total line 150 income on her income tax return for the previous calendar year toward her housing expenses (whether student residence, rental lease, or subletting) and, if any balance is remaining, toward her tuition expenses. For example, if Sabrina’s total line 150 income on her 2015 Notice of Assessment is $7,500, she shall apply $2,250 toward her accommodation expenses and tuition expenses during the 2016 calendar year.

2. If a child works two paid co-op terms within the same calendar year or has a total line 150 income of over $10,000 in a calendar year, she shall contribute 50% of her total line 150 income toward her accommodation expenses (whether student residence, rental lease, or subletting) and, if any balance is remaining, toward her tuition expenses in the following calendar year.

3. The parties shall share the following in proportionate 65% (father) / 35% (mother) shares:

a. Tuition, co-op fees and other fees as listed on the child’s Student Fee Bill after deducting any scholarships, grants, bursaries the child receives and after deducting the child’s contribution pursuant to paragraphs 2 or 3 above, with each party paying his or her respective share of the remaining fees directly to the school;

b. Textbooks, manuals, lab fees (i.e. lab coat, lab equipment, goggles, chemicals, etc.) and educational supplies required for registered coursework, with each party depositing his or her respective share directly into a bank account of the child;

c. Housing expenses (whether student rental or rental lease) after deducting the child’s contribution pursuant to paragraphs 2 or 3 above, with each party paying his or her respective share of the net balance directly to the landlord or, in the case of a sublet from other students, directly into a bank account of the child.

4. The child shall provide a copy of the following to both parties by email as soon as practicable once obtained and no later than 14 days after obtaining such documentation:

a. all documentation of any scholarships, grants or bursaries she receives;

b. Student Fee Bill that will also lists scholarships, bursaries and grants;

c. a transcript for each term;

d. signed lease agreement or, if the child is subletting from another individual, a copy of the sublet agreement, if applicable, and proof of payment;

e. if the child is subletting to another individual, a copy of any sublet agreement, if applicable, and proof of payment received;

f. receipts for textbooks, manuals and other educational supplies, if applicable;

g. commencing June 15, 2016, and by June 15^th of each year thereafter, a copy of her income tax return and notice of assessment for the previous year;

h. information regarding any refunds the child receives from the school; and

i. notification with particulars of any employment including co-op employment.

5. The child shall deposit any refunds she receives from the school back into her university student account such that the refund is credited toward her Student Fee Bill.

6. The child shall be entitled to retain and claim any and all tuition, education and textbook amounts as shown on her T2202A Tuition, Education and Textbook Amounts Certificate on her tax return. If any of such amounts are transferred to either party, the amounts transferred shall be proportionate to 65% (father) / 35% (mother). If the amounts can only be transferred to one parent, the party who claims and receives the credit shall reimburse the other party an amount equivalent to the other party’s proportionate share of post-secondary expenses based on a 65% (father) / 35% (mother) ratio.

7. The Applicant shall be responsible for paying all of the following expenses for the children:

a. furnishings (including any furnishings for accommodations while residing away from home for the purpose of education);

b. groceries and meals;

c. clothing;

d. cosmetics and toiletries;

e. cleaning supplies;

f. kitchen supplies;

g. internet;

h. computer costs (including computer, jump drives, repairs, etc.)

i. printer costs (including printer, paper, toner/ink, repairs, etc.)

j. stationery;

k. transportation to and from campus;

l. cell phone and cell phone bills;

m. entertainment; and

n. pocket money.

[^1]: The ratios will be averaged 37% (mother): 63% (father).

[^2]: The amounts have been rounded to the nearest dollar.

[^3]: The amount of $1,055 represents Sabrina residing with her mother and Julia with both parents from and after October 1, 2012.

[^4]: The amount of $974 represents Sabrina residing with her mother for 2013. No adjustment is made for Julia as the effective date for retroactivity for her is March 1, 2014.

[^5]: The Table amount for a payor earning $125,664 a year where one child resides with the mother earning $71,772 and the other child residing with both parents.

[^6]: The Table amount for two children for a payor earning $125,664 a year from March 1 to August 1, 2014.

[^7]: The Table difference between two children and one child for a payor earning $125,664 a year, calculated for the months of September to December 2014