COURT FILE NO.: FC-08-1681-1

DATE: 2015/11/18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KIM MARTINUK

Applicant/Mother

– and –

MARK GRAHAM

Respondent/Father

Tamara Scarowsky, for the Applicant

Self-Represented

HEARD: June 18, 2015 (at Ottawa)

AMENDED REASONS FOR decision

The text of the original decision was corrected on November 18, 2015

and the description of the corrections is appended

kane j.

RELIEF SOUGHT

[1] The father in April 2014, brought a motion to change the final order of Mackinnon J. dated August 9, 2009 (the “Order”). In this variation motion, the father seeks:

(a) A declaration that the child of the parties has resided with each of the parties “on a shared basis” since November 1, 2009;

(b) An order varying the 2009 Order retroactively eliminating the obligation therein that he pay the mother monthly child support of $580 commencing April 1, 2009;

(c) An order that the mother repay the father the $580 per month child support he has paid her commencing April 1, 2009; and

(d) An order that the mother pay the father offset child support retroactive to November 2009.

[2] The father`s January 20, 2015 affidavit and his April 2, 2015 Notice of Motion together seek:

(a) Retroactive recovery of $29,580 of child support payments to the mother since November 2009; and

(b) Offset child support payable by the mother to the father.

[3] The father seeks variation of the 2009 Order on the basis that the son, now 18 years old, has resided with the father 40% to 50% of the time since November 2009.

[4] The father states he, the mother and the child were traumatized by the separation and the implications and realities resulting therefrom. His intention was that he would pay child support only until he relocated back to Ottawa in November 2009 and thereafter, should not be required to pay child support as the reason for moving to Ottawa was to place his residence in proximity to the mother’s residence and for the child to begin spending equal time living with each parent.

[5] The father acknowledges that he did not seek an order to terminate his child support obligation under the Order, for repayment of the child support he paid and for the mother to pay him child support until his motion to vary dated in April 2014.

[6] The mother in May 2014 filed a Response to the father’s variation motion and seeks therein:

(a) Dismissal of the father’s motion to change the Order;

(b) An order requiring the father to pay eight months of retroactive child support totalling $4,277 for the period August 1, 2008 to March 31, 2009, during which period no child support was paid;

(c) Increased retroactive Guideline child support based on the father`s income less amounts paid, retroactive to August 1, 2008 and until August 31, 2015, and thereafter if the son attends university in another city, child support for the months of May 1 to August 31;

(d) Retroactive s. 7 expenses since August 2008 totalling $7,842;

(e) An order that the father maintain a $100,000 life insurance policy with the mother as irrevocable beneficiary to secure his child support obligation;

(f) An order that the father maintain the child as beneficiary of his employment health and dental insurance during the accessibility of that insurance coverage;

(g) An order that the insurance carrier of the father’s health and dental insurance be permitted to deal directly with the mother with respect to claims by the mother and to reimburse her directly;

(h) An order varying the Order in requiring the parties to contribute $10,000 per academic year towards the son’s university costs on a proportionate basis according to their income upon expiration of the RESP savings;

(i) Enforcement by FRO as to support payments owed by the father to the mother;

(j) A divorce; and

(k) Full indemnity costs payable by the father.

[7] In argument, the mother:

(a) did not pursue her claim for retroactive increased child support for the period April 1, 2009 to August 30, 2015;

(b) did not pursue her claim for future child support for the months of May to August each year while the son attends university in another city;

(c) requested that the father`s obligation to pay child support cease effective August 31, 2015 and accordingly; and

(d) agrees that the Order requires variation to terminate his obligation to pay child support.

[8] As stated above, the mother’s position is that child support payable to her by the father should cease effective August 31, 2015, being the son’s commencement of his university education at Bishops University in Quebec.

BACKGROUND

[9] The relevant dates are as follows:

(a) June 21, 1996 – date the parties married one another;

(b) March 2, 1997 – date of birth of the parties’ son, who is currently 18 years of age;

(c) February 5, 2008 – date the parties separated but continued to reside in the matrimonial home;

(d) August 1, 2008 – date the father moved out of the matrimonial home pursuant to an order of interim exclusive possession in favour of the mother. The father then moved to and lived in Chelsea Quebec;

(e) April 14, 2009 – date the parties entered into partial minutes of settlement which requires payment of $580 monthly child support by the father to the mother and payment by the mother to the father for his transfer of his interest in the matrimonial home to her.

(f) April 1, 2009 – commencement date of child support payable under the August 2009 Order by the father to the mother;

(g) August 12, 2009 – date of the 2009 Order; and

(h) November 2009 – date the father moved back to Ottawa.

[10] The final 2009 Order:

(a) provides for the purchase of and transfer of the father’s interest in the matrimonial home;

(b) provides for joint custody of the son with his primary residence to remain with the mother;

(c) provides that the child shall be in the care and control of the father on a generous basis, taking into consideration the wishes of the child;

(d) requires the father to pay the mother monthly child support in the amount of $580, commencing April 1, 2009; and

(e) states that the retroactive child support claimed by the mother is to be reviewed at a later time.

TIME SON LIVED WITH EACH PARENT

[11] The father in his affidavit dated January 20, 2015 filed a calendar on which he notes the son’s presence with him for the years 2010 until March 31 in 2015.

[12] In relation to his calendar, the father states in his January 20, 2015 affidavit that his calendar notations are “the dates my son has lived at my residence”. There is no indication or information when the son on those dates came, left or whether the son slept overnight on the dates noted.

[13] Surprisingly, the father presented no such calendar evidence in his April 2014 motion to change the 2009 Order. That motion and Change Information Form were filed July 7, 2014.

[14] Counsel for the mother on July 8 and 11, 2014, asked the father to produce evidence in support of his allegation the son had resided an equal amount of time with him. The father did not respond to that request.

[15] Phillips J. on September 19, 2014, ordered the parties to exchange documentation within 30 days as to where the child resided since 2009. The father did not produce his calendar in response to that order.

[16] The Case Conference Master on January 21, 2015 (the “2015 Order”), ordered that the father and mother, by February 20, 2015 and March 20, 2015 respectively, could file supplementary affidavits. The father was granted until April 3, 2015, to file a reply affidavit in response to the mother’s supplementary affidavit.

[17] On February 20, 2015, the father filed his supplementary affidavit which contains the calendar he now relies upon.

[18] The mother filed a voluminous affidavit dated March 19, 2015, with several categories of evidence she relies upon as to where the son resided which contradicts the father’s calendar.

[19] The father choose not to reply to allegations in the mother’s affidavit that:

(a) he pressured the son to spend time with him in the form of rewards and penalties, such as restricting the son’s use of a car the father bought for the son in 2013 to times the child resided with the father;

(b) the father promised the son he will give the child support money the mother is ordered to pay to the father;

(c) the mother has consistently told the son that he may reside as much time as he wishes with each parent, with the result the son had complete control as to how often he has with his father since November 2009 when the father moved back to Ottawa;

(d) the mother has taken the son to 90% of each of his many hockey practices and tournaments over the years;

(e) the father and son were estranged and seldom saw one another between August 2008 and October 2009;

(f) the father paid no child support between August 2008 and March 2009;

(g) the son has been at her house at least part of every day since the installation of the security camera on August 15, 2014 until March 2, 2015;

(h) the father did not activate the mother’s suggestion that he establish a regular schedule when the son would reside with him;

(i) the father includes on his calendar dates the son slept over at his girlfriend’s house;

(j) the son consistently did his homework at his mother’s home even if staying overnight at his father’s home;

(k) all scholastic tutoring of the son was conducted at the mother’s home; and

(l) the son took from and returned his belongings to the mother’s home when he resided overnight with the father.

[20] The mother submits that the child has not resided with his father 40% of the time, whether one calculates time by overnights or using the more liberal calculation and approach as reflected in case law.

[21] The mother states the son has never spent more than 38% of a month with his father. She states her home is where the son eats, does his homework and attends meetings with his academic tutor. She states she makes all her son’s medical and dental appointments and at least until he had a car, took time off and took him to and from such appointments.

[22] The father filed several notes from the son which indicate the wish of the son to live with the father on a shared and equal basis. These notes of the son as to his wish to have equal residency with both parents are not relevant as to where the son in fact has lived.

[23] The father filed a new notice of motion and a responding affidavit of the son on April 2, 2015. This one paragraph affidavit from the son states he wishes to live with the father on a shared and equal basis and that he has lived with the father equally since November 2009. The son’s wish again does not answer how much time has the son resided at his father’s residence.

[24] The phrase in the son’s affidavit “lived equally with the father” does not clearly answer the question, namely whether the son has lived an equal amount of time with each parent. The affidavit, undoubtedly prepared by the father, could simply have stated that the son “lived an equal amount of time with my father” and thereby address the issue before the court.

[25] The mother introduced two calendars, as well as security video recordings since August 2014, as to dates when the son was in her house.

[26] The mother’s first calendar tracks activities of the son including pickup and return times of her son to her residence. The second is a work calendar which records date information regarding her son and corroboration of her first calendar.

[27] The mother installed a video security camera at her front door in August 2014. It records the dates of her son entering and leaving her home. The father agreed that the video pictures are of their son. The mother submits that these photographs record her son coming into and/or leaving her home every day between August 2014 and March 2015, other than on October 28, December, 2014 and January 20 and February 21, 2015. The father does not deny that. She states that the pictures at the front door and the frequency of the son’s attendance at her home further corroborate the accuracy of her calendars.

[28] The mother has produced copies of things like airplane and hotel receipts which corroborate numerous of her calendar entries as to the son being with her on certain dates and which contradict the father’s calendar as to those dates.

[29] The father presented no record as to the time of his son with him in 2009, despite the fact that his claim for repayment of child support commences in November 2009.

[30] During argument, the father acknowledged some errors in his calendar as to the son residing with him.

[31] The mother lists 38 specific dates where the father has claimed that their son stayed overnight with him which she disputes. Of those 38 specific dates, the father during argument admitted errors in his calendar and that the son was not with him on 33 dates he records in the years 2010 to 2014.

[32] In paragraph 49 of her affidavit, the mother produced documents and demonstrated the son was not with the father as he claimed in his calendar as to the 36 dates listed. Those dates are all in the years 2010 to 2012.

[33] The mother in paragraphs 52 to 54 of her affidavit cites reasons why the father’s calendar is incorrect.

[34] The mother cites dates on the father’s calendar when she states that the son did not see his father and often lists her reason why the son was not with his father on those dates. Those contested dates total:

(a) 67 dates in 2010;

(b) 81 dates in 2011;

(c) 59 dated in 2012; and

(d) 43 dates in 2013.

[35] If the above annual totals of disputed dates are subtracted from the days in the years claimed by the father, the father’s resulting percentage claims as to time sharing for the following years are materially overstated, namely:

PERCENTAGE

FATHER CLAIMS

PERCENTAGE

AFTER PARA. 35

REDUCTIONS

PERCENTAGE

MOTHER CLAIMS

2010 – 40%

21.6%

17%

2011 – 39%

18%

18%

2012 – 42%

24%

24%

2013 – 46%

29%

29%

2014 – 46%

27%

2015 (January to March) 45%

(41 of 90 days)

30% to March 31

[36] The father when asked in July 2014 and then ordered in September 2014, did not produce the calendar he allegedly had been recording since 2010. He only did so in February 2015 and now admits it contains errors. To bolster his lack of concurrent record keeping, the father obtained notes and finally an affidavit of his son in an attempt to remedy his lack of records.

[37] The court notes that the mother’s calculation as to the time spent by the child with his father, involves deducting the specific time the child was with his father and then crediting herself with all other time, including time when the child was at school or off with his grandparents in Thunder Bay for a month during summer holidays.

[38] The parties agree that the son’s school is closer to his mother’s home. The son must pass the mother’s home from his school to get to the father’s home. That makes her home more convenient for things such as homework and spare periods during the day. The son, if only for convenience, used the mother’s home on school days even when he had dinner with or slept over at his father’s home. The obligation to pay child support should not be determined upon where the son spent spare periods during the day.

[39] The mother’s records are more complete compared to the father’s calendar which contains numerous errors, particularly during the years 2010 and 2013.

[40] The father has materially misstated the son’s presence with him during the years 2010 to 2013. His calendar was created retroactively as to those years.

[41] Paragraphs 49 to 55 of the mother’s affidavit address and contradict one date in the father’s 2014 calendar. The mother’s annotations to the father’s calendars in her exhibit M points out his errors in the years 2010 to 2013 but does not address 2014 and January 2015.

[42] The court has compared the mother’s detailed calendar tracking the son’s hours of work, his arrival and departure times at her house, often who the son was with or going to meet and sleep overs. Comparing that calendar to the calendar of the father over the period July to December 2014 and January 2015 is informative. That comparison indicates:

(a) The mother agrees to the son’s attendance with his father on a number of the dates he claims;

(b) The mother’s notes contradict the alleged dates claimed by the father on July 9, 16, 21, 24, 28 and 29, 2014 of the 12 dates claimed; on August 13, 25 and 28, 2014 of the 13 dates claimed, on September 4, 5, 10, 11, 15, 16, 17 21, 22, 26, 28, 29 and 30, 2014 of the 15 dates claimed; on October 8, 2014 of the 12 dates claimed; on November 6, 7, 20 and 25, 2014 of the 13 dates claimed; on December 4 and 5, 2014 of the 16 dates and on January 4, 8, 9, 20 and 30, 2015 of the 15 dates claimed that month;

(c) Where the mother’s calendar acknowledges the son staying over at the father’s home, the father often claims both the date of the son’s arrival and the date of his departure back to the mother’s home, thereby doubling the dates of access; and

(d) Some of the dates with the father are visits limited to a few hours with the time of the son’s subsequent return to the mother’s home. The father included those dates in calculating his percentage of days with the son.

[43] The above analysis of the period July to December 2014 and January 2015 indicates the father’s calendar cannot be taken at face value, is inaccurate and overstates his time with the son.

[44] The father’s position is further problematic by his delay in seeking reimbursement of child support paid and payment of child support arrears to him. If the father’s calendar was accurate, he has known during and since 2010 that he is entitled to termination of his obligation to pay child support and his entitlement to receive child support. Despite that, he served no notice and made no claim for 4.5 years, and then produced no supporting evidence of his claim until February 2015 with his calendar which contains numerous errors.

[45] The father’s assertion that these parents and the child were upset following the separation does not come close to justifying his delay and whether to now impose reimbursement of $29,580, plus the mother’s obligation to pay child support, for the past six years. Such relief given the child’s present circumstances, is for the benefit of the father, not the son.

[46] The father does not dispute that the child support he paid, if the child did not reside with him 40% or more during the period under review, was below Guideline levels due to his increase of salary over the years by a cumulative total of some $5,500. He in addition paid no child support between August 2008 and March 2009.

[47] Given the detailed evidence of the mother, the quantity thereof, and the father’s acknowledgment of the numerous errors in his calendar, this court concludes the father has not proven the son spent a minimum of 40% of the time with him between November 2009 and June 2015 to justify such variation to the 2009 Order.

[48] The father’s claim for reimbursement of child support he paid and for payment of child support by the mother to him during that period is accordingly dismissed.

MOTHER’S RETROACTIVE CHILD SUPPORT CLAIM - AUGUST 1, 2008 TO MARCH 31, 2009

[49] The mother’s claim for this eight month period of child support in the amount of $4,277, has merit in that the father was obligated to financially support this child for the eight months following separation. The court’s concern however is the lateness in bringing this claim which was not presented until May, 2014, some five to six years.

[50] The mother’s right to seek this prior child support was recognized in the 2009 Order. Despite that, the mother has not pursued that claim until confronted with the father’s present claim.

[51] The mother in her affidavit was frank in acknowledging that she would not have sought recovery of this indebtedness if the father had simply accepted his limited financial obligation under the 2009 Order. The mother’s claims herein for retroactive child support and his share of past s. 7 expenses were only made in response to the father’s attempt to recover his prior payment of child support and for child support from the mother over the last seven years.

[52] The leading case on retroactive child support is D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.

[53] The court in D.B.S. states that retroactive child support will not be appropriate in all circumstances. Courts should consider whether the retroactive order will provide a benefit to the child. Where a retroactive order does not provide any present benefit to the child, then it may not be appropriate to enforce the obligation: (at para. 95).

[54] This child currently is reasonably comfortable with the benefit of the RESP, current and longer future periods of summertime earnings. Recovery now of support due since 2008 is more about reimbursing the mother.

[55] The court in D.B.S. identified four factors for courts to consider when deciding whether to grant retroactive support. They are:

1. Reasonable excuse for delay: Delay is not presumptively justifiable. The party seeking retroactive support must show a basis for not seeking the intervention of the courts sooner. On the other hand, courts should be open to the practical concerns associated with applications, such as a fear of retaliation or limited financial means: (at para. 101).

2. Conduct of payor parent: Courts must consider any blameworthy conduct of the payor parent. This includes any behaviour that privileges the payor’s interests over the child’s right to an appropriate amount of support: (at para. 106).

3. Circumstances of the child: Courts must consider both the past and present circumstances of the child. A child who is currently enjoying a high standard of living may benefit less from a retroactive award: (at para. 111). Past hardship can be an important consideration: where the child enjoyed the advantages he or she would have had the payor fully met his or her obligations, the argument for retroactive child support is weaker: (at para. 113). In considering hardship, the courts are not to consider any hardship suffered by a recipient parent or other family member who was forced to make sacrifices: (at para. 113).

4. Hardship occasioned by retroactive award: Before granting a retroactive award, courts must consider whether doing so would lead to hardship on the payor or others the payor supports: (at paras. 114-5). Though the payor should have made the payments in the past, enforcing the obligation now can cause complications that were not present at the time: (at para. 115).

[56] When determining the date of retroactivity, the court should consider the following core principles:

(a) child support is the right of the child;

(b) the right to support survives the breakdown of a child’s parents’ marriage;

(c) child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally,

(d) the specific amounts of child support owed will vary based upon the income of the payor parent: D.B.S., (para. 38).

[57] Points (a), (b) and (c) above are not determinative in this case.

[58] Pursuing a claim for retroactive child support inevitably causes friction between the parents. Avoidance of that friction while understandable is not a complete response to delay, as that would always justify delay.

[59] Neither parent has a large income, particularly the father whose income is limited.

[60] There is no evidence what the child went without during this eight month period of time.

[61] The child is now reasonably comfortable.

[62] The court should recognize that both parents have obligations. The recipient parent has obligations to “act promptly and responsibly in monitoring the amount of child support paid”: D.B.S., (para. 103.)

[63] It will usually be inappropriate to make a support order retroactive to a date more than three years before formal notice was given to the payor parent, even where effective notice predates this: D.B.S., (para. 123). Such an order would undermine the payor parent’s reasonable interests in certainty.

[64] Based on the evidence as to the above factors, the mother’s claim for retroactive child support between August 2008 and March 2009 was not pursued within a reasonable time and is therefore denied.

Retroactive Section 7 Expenses

Father’s Claim

[65] The father does not claim retroactive s. 7 expenses in his motion to change.

[66] There is nothing in the father’s affidavits regarding:

(a) what s. 7 expenses he has paid since separation;

(b) the amount thereof and when they were paid; or

(c) presentation of bills or evidence of his payment of s. 7 expenses.

[67] The father instead during argument presented the court with a category list of expenses he alleged he paid since 2008, which is identified as exhibit 1 on this motion.

[68] The father’s exhibit 1 categories of expense do not indicate when such expenses were incurred, the service or product provider or the amount thereof.

[69] The father’s list in exhibit 1 includes:

(a) Haircuts;

(b) Costs to set up a residence;

(c) The purchase price for the car given to the son as well as the cost of insurance, gas money, car washes and related expenses;

(d) Video games and system;

(e) Golf green fees;

(f) Clothing;

(g) Ski lift tickets;

(h) Water ski equipment;

(i) Boat and fishing equipment;

(j) Lunch money; and

(k) Money for movie night outs;

which are not extraordinary expenses under s. 7 of the Federal Child Support Guidelines. The above are either daily out of pocket expenses or, while generous, expenditures of a discretionary and luxurious nature.

[70] The father admitted that “prescriptions” as listed on exhibit 1, are not prescribed medication but instead things like aspirin and items used daily in the washroom. That is not a s. 7 expense.

[71] The mother as to other categories of expenses on exhibit 1 alleges she pays the son’s cellular account, the laptop was a gift from the father, she pays for 90% of the son’s clothes and their son purchased the weight equipment and are not therefore valid s. 7 expenses. The father did not deny these allegations.

[72] The father agreed that the son contributes towards the cost of his automobile insurance, gas, and regular automobile expenses like carwashes.

[73] The father raises his s. 7 expenses but again presents no supporting evidence and then admits during argument that he has misstated or omitted certain facts.

[74] The father’s reference to s. 7 expenses is not in fact a claim by him. Such expenses in any event have not been proven. They at most suggest a set-off in response to the s. 7 claim by the mother.

Mother’s Claim

[75] The mother alleges she paid $24,837 for s. 7 category expenses since 2008, of which she seeks reimbursement of $7,842.

[76] It is not disputed that the father since 2008, has never contributed anything towards the s. 7 extraordinary expenses paid by the mother which include normal s. 7 expenses such as scholastic tutoring, physiotherapy, summer camps and daycare, driving lessons, eye glasses, contact lens as well as hockey registrations and equipment.

[77] The father in addition does not dispute that he has either not submitted or has improperly retained the benefit of insurance reimbursement for $1,159 dental surgery expenses of the son paid by the mother in 2014, despite being ordered to do so on January 23, 2015.

[78] Numerous courts have noted that the principles in D.B.S., which includes the expectation that the normal period of retroactivity be restricted to three years, apply equally to claims for child support table amounts and for s. 7 extraordinary expenses: Green v. Monah, 2015 ONCJ 368 at para. 26; Surerus-Mills v. Mills, [2006] O.J. No. 3839 at para. 24 (Sup. Ct.) and Selig v. Smith, 2008 NSCA 54; (2008), 56 R.F.L. (6th) 8 at paras. 25-26.

[79] The court repeats its above noted concern as to the lateness of at least part of this retroactive claim by the mother.

[80] The mother has produced many copies of invoices and evidence of payments.

[81] As to the mother’s claim for retroactive s. 7 expenses, the father points to her evidence and instances where the expenses claimed are duplicates, in that the same amounts on the same date are claimed on several occasions. In response, the mother agreed that there is some duplication in her accounting of s. 7 expenses she paid and accordingly her claim should be reduced to the $7,234.

[82] There is a further issue in that the mother’s claim is in her Response. Her counsel acknowledges an Application should have been issued but urges the court to rule on the matter given the obvious limited capacity of the parties and their inability to start anew with new proceedings.

[83] The mother’s level of documentation presented on this issue is extensive and would likely not be much greater or clearer upon the issuance of a new application and trial of this issue. The father is not objecting to this court’s determining of all or any issues argued.

[84] In fairness to the parties and in order to properly determine these long outstanding issues, the court exercises its jurisdiction to consider the father’s Motion to Change and the mother’s Response as an Application and sufficient to determine the issues argued: Mehling v. Mehling, 2008 MBCA 66, (2008), 62 R.F.L. (6th) 25 para. 45; and Colt v. Colt, 2009 CanLII 77491 (ON SC), [2010] 78 R.F.L (6th) 95 (OSC) paras. 13-14.

[85] The mother’s claim for contribution towards the s. 7 expenses she paid is granted but limited retroactively to the normal three years prior to the start of these proceedings, namely since July 2011.

[86] Based on the review of the invoices and payments contained in exhibits GG and HH of the mother’s March 19, 2015 affidavit, the court determines that cumulative appropriate s. 7 expenses paid by the mother between July 1, 2011 and December 30, 2014, excluding the $1,159 in para. 77, totals $8,285, of which the father is obligated to pay the mother his 32% proportionate share, namely $2,651 by November 30, 2015. That amount is recoverable through the Family Responsibility Office (“FRO”).

[87] The father’s 32% share of the mother’s above s. 7 expenses has been determined based on the analysis set out below.

[88] Notices of assessment of the mother and father’s record line 150 incomes are as follows:

Mother’s Income

Year

Father’s Income

Year

Mother/Father’s proportionate share of s. 7 expenses

$133,011

2008

$65,364

2008

67/33%

$143,960

2009

$66,886

2009

68/32%

$160,104

2010

$66,401

2010

71/29%

$158,461

2011

$68,294

2011

70/30%

$163,823

2012

$72,368

2012

69/31%

$158,245

2013

$72,656

2013

69/31%

$153,474

2014

$72,000 (based on 2013)

2014

68/32%

$153,000

2015

$72,000 (based on 2013)

2015

68/32% (projected)

FUTURE UNIVERSITY EXPENSES AND RESP

[89] The father agreed during argument to the mother’s estimate of the son’s annual university costs, namely:

(a) tuition $7,823;

(b) books $1,000;

(c) residence $4,960;

(d) meal plan $4,252;

(e) recreation $600;

(f) clothing $400;

(g) travel to and from Ottawa $600; and

(h) laundry, lab fees, printing fees, extra food, toiletries, etc. $3,200.

[90] The anticipated average annual university costs of the son attending university outside of Ottawa are for the purpose of calculating the parties’ contribution thereto assumed to be $21,000.

[91] This court declared during argument that the RESP of $54,000 is to be divided equally between the four years of undergraduate university program at Bishop’s University resulting in an annual contribution from that source of $13,500 per year which leaves a balance or shortfall of some $6,500 to $8,000 per year.

[92] The present RESP balance and any income earned thereon shall not hereafter be deducted or used other than as stated above.

[93] This court and the parties agree that the proposed annual income to be earned by the son of $10,000 per year is too high and not realistic. The mother suggested that $6,000 per year is more realistic. The father suggested that $3,000 per year is more realistic.

[94] The court stated during argument that one cannot look only at the gross income anticipated to be earned by the son as some of that money will be expended by the child during the four-month summer period. The court further indicated during argument that it was not realistic to count on the son gaining part-time employment during the academic year. The court concluded that it was more realistic to project that the son will contribute $4,500 annually towards his annual university costs, based on his income of $5,623 in 2013 and $8,921 in 2014.

[95] The father and mother each year shall pay their proportionate share of the balance of the annual university costs up to a maximum combined total of $3,000 ($21,000 minus $13,500 minus $4,500 = $3,000).

ORDERS GRANTED

[96] During argument, the father consented to the following orders requested by the mother which are hereby granted and vary the 2009 Order, namely:

(a) That Mr. Graham maintain the child as beneficiary in his health and dental insurance available through his employer for so long as coverage is available to him and Mitchell Graham qualifies for such coverage;

(b) That Mr. Graham’s health and dental insurer is permitted to deal directly with Ms. Martinuk directly with respect to claims as to Mitchell Graham, and to reimburse her directly for the same;

(c) That Mr. Graham maintain or acquire and designate Ms. Martinuk as the irrevocable sole beneficiary, in trust for the child Mitchell Graham, of his life insurance policy or policies of a least $68,000 as security for child support, failing which Mr. Graham’s child support obligation will be a first charge on his estate;

(d) That the 2009 Order is varied in terminating Mr. Graham’s obligation to pay child support to Ms. Martinuk, effective August 31, 2015; and

(e) $13,500 of the RESP, plus interest thereon, will be used each academic year towards the son’s university expenses. After application annually of that one quarter of the RESP, and after the son’s annual $4,500 contribution towards such university costs; the parties are to contribute proportionately to the son’s remaining annual university expenses to a combined annual maximum of $10,000, on the basis of 68% by the mother and 32% by the father.

[97] The court further orders that:

(a) The father shall provide the mother on January 15 annually with documentary evidence from the insurer or his employer that the son continues to be insured for health and dental by the father’s carrier, failing which the father shall pay 100% of any such expenses.

(b) FRO shall enforce any child support or s. 7 expense payments hereunder.

(c) The father shall immediately pay the mother the $1,159 referred to in para. 77 above if that has not been paid.

(d) The father shall immediately pay the mother the $2,651 referred to in para. 86 above.

[98] Mr. Graham does not oppose the granting of a divorce of their marriage. An order of divorce is hereby granted upon Ms. Martinuk filing the requisite documentation in support thereof, based upon their living separate and apart since August 1, 2008.

[99] The father’s motion to change, aside from para. 84 above, is dismissed.

COSTS

[100] The mother on argument filed a sealed copy of her cost submissions.

[101] The father, presuming he has been served with the mother’s cost submissions including tabs 1 to 4, shall have until November 30, 2015 (or 30 days after service of the mother’s costs submissions on him if that has not yet occurred) to reply in writing thereto setting for his reasons why all or any part of the costs requested by her should not be granted, and any cost claim by the father in this proceeding including his identification of such costs and reasons such costs should be awarded.

[102] The mother shall have 10 days after being served with the father’s submissions to reply thereto in writing.

Kane J.

Released: November 18, 2015

APPENDIX

November 18, 2015:

Paragraph [86]

The words “excluding the $1,159 in para. 77, totals” have been added

Paragraph [90]

$20,000 replaced with $21,000

Added new paragraph [95]

Paragraph [95] in original judgment becomes paragraph [96]

Paragraph [96] in original judgment becomes paragraph [97]

Added subparagraphs (c) and (d) to paragraph [97]

Paragraph [97] in original judgment becomes paragraph [98]

Paragraph [98] in original judgment becomes paragraph [99]

Paragraph [99] in original judgment becomes paragraph [100]

Paragraph [100] in original judgment becomes paragraph [101]

Paragraph [101] in original judgment becomes paragraph [102]

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KIM MARTINUK

Applicant/Mother

– and –

MARK GRAHAM

Respondent/Father

AMENDED REASONS FOR DECISION

Kane J.

Released: November 18, 2015