Coté v. Coté, 2015 ONSC 6924

COURT FILE NO.: 09-2006

DATE: 2015/11/17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marie Rollande Lucie Coté, Applicant

And

Marcel John Coté, Respondent

BEFORE: The Honourable Michel Z. Charbonneau

COUNSEL: Judith E. Wilcox, Counsel for the Applicant

Thomas R. Hunter, Counsel for the Respondent

HEARD: October 23, 2015

ENDORSEMENT

1The respondent brings a motion to vary the final order of Smith J. dated July 19, 2007. The variations sought by the respondent in his notice of motion are as follows:

1. Child support for Gabrielle born May 12, 1993 and Alexandre born October 3, 1995 to be reduced to $0 effective June 1, 2015.

2. Contributions to both children’s special and extraordinary expenses be reduced to $0 effective June 1, 2015.

3. Each party to maintain a life insurance policy of $50,000 for each child until he or she attains the age of twenty.

2There is no dispute about the request for mutual life insurance for the benefit of the children. The issues are whether the children are still children of the marriage and if so, what amount of child support should be paid by the respondent pursuant to the provisions of section 3 and section 7 of the Child Support Guidelines.

3The applicant submits Gabrielle and Alexandre are still children of the marriage and the respondent must continue to pay child support and his proportionate share of the extraordinary and special expenses mentioned in the order and over and above those expenses, start paying his proportionate share of the post-secondary education expenses.

The legal principles

4The issues in this case are governed by the definition of “child of the marriage” in s.2(1|)(a) Divorce Act (the Act) and ss 3(2) and 7 of the Child Support Guidelines (the Guidelines).

1. The Divorce Act “child of the marriage”: means a child of two spouses or former spouses who, at the material time, (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause to withdraw from their charge or to obtain the necessaries of life.

2. The Guidelines

3. (1) Unless otherwise provided under these guidelines, the amount of a child support order for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

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

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability to each spouse to contribute to the support of the child.

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

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

( e ) expenses for post-secondary education; and

( f ) extraordinary expenses for extracurricular activities.

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

5The case law has provided some guidance in the interpretation of the above statutory provisions.

6In Rosenberg v. Rosenberg (2003), 2003 2227 (ON SC), 42 R.F.L. (5th) 440, Chapnik J. sets out important factors to consider in determining whether a child is unable to provide for himself or herself by reason of post-secondary education at para 13:

“It is well settled, however, that attendance at a post-secondary institution

is not sufficient for a finding that the child is still a “child of the marriage”. Other factors include,

(1) whether the child is in fact enrolled in a course of study and whether on a full-time or part-time basis;

(2) whether the child has applied for or is eligible for student loans or other financial assistance ;

(3) the career plans of the child;

(4) the ability of the child to contribute to his or her support through part-time employment;

(5) the age of the child;

(6) the child’s past academic performance;

(7) what, if any plans the parents had made for the education of their children;

(8) whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

7It is clear from the above that whether a child of 18 or over is a “child of the marriage” is a question of fact to be determined on the facts of each case.

8In deciding the amount payable under s. 3(2) of the guidelines, the motion judge must find and decide whether the “approach ” is inappropriate, namely fixing the amount as if the child is a minor. It is only if the judge finds that approach inappropriate that the judge may determine a different amount:

see Lewi v. Lewi, 2006 15446 (ON CA), 2006 80 O.R. (3rd) 321.

9Once a judge determines that the “approach” is inappropriate for a child of majority age, the means of the children must be considered under both s. 7 and s. 3 (2) b:

Lewi v. Lewi (supra). An important factor to consider when determining whether the approach is inappropriate is: whether the child lives with the recipient parent and the recipient parent makes a significant contribution to the living and education costs of the child.

10There is an obligation on a parent who claims that a child over 18 is a “children of the marriage” as a result of full time attendance at a post-secondary institution, to provide the other parent with full disclosure of the details of the post-education including curriculum, grades and the child’s overall education plan.

The facts

11The parties have two children. Gabrielle is 22 and Alexandre is 20. Both are enrolled at post-secondary institutions. The exact detail of Alexandre’s enrolment is the subject of contradictory evidence.

12On July 19, 2007, Justice R. Smith made a final order that the respondent pay child support for the two children in the amount of $1,343.00 per month based on his annual income of $95,027.00.

13On May 12th, 2008, Justice R. Smith ordered the respondent father to pay $107.00 per month towards the special and extraordinary expenses of both children. In addition thereto, he was ordered to contribute 59% of the medical drug and dental expenses and a maximum of $500.00 per year of the cost of the summer camps for both children.

14The father is a Research Scientist at the National Research Council. He earned $121,401.00 in 2005. In 2014 he earned $175,100.00 as a result of a one-time

payment of a severance in the amount of $46,177.87. His income in 2012 was $113,300.00 and in 2013 it was $119,000.00.

15The mother is a teacher. She earns $94,200.00 in 2015. In 2015 and in 2014 she earned $94,000.00.

16Gabrielle started post-secondary education in 2011. In April 2015 she graduated with a diploma as a Physiotherapy Assistant. She is now enrolled in the first year of a four year program in Human Kinetics at the University of Ottawa.

17Alexandre enrolled in a two-year Electronics Technician program at La Cité Collégiale in 2013. There is some evidence he has now enrolled this year in a three year program at La Cité Collégiale in the Mechanical Technologist Program.

18The respondent made several requests for full disclosure of Gabrielle and Alexandre’s attendance at post-secondary institutions since 2013. He swears the applicant has failed to provide that disclosure. The wife indicated in her material that the respondent is well aware of the children’s post-secondary education information and if he really needs further details he can ask them directly.

19The respondent has not contributed to the cost of the post-secondary studies to date.

20Both children reside with the applicant. Both children have a part-time job. Gabrielle’s income in 2014 was $9,525.31. Alexandre’s income in 2014 was $10,020.76.

Analysis

Child of the marriage

Gabrielle

21I find that Gabrielle is enrolled in a full-time post-secondary course of study. I find nothing out of the norm in the path she has followed up to now in attaining a first degree at La Cité Collégiale and now pursuing a degree to obtain a degree in Human Kinetics. She is 22 years old and still living with her mother at this time, although from time to time she has lived away from home. The applicant has assumed most of the costs of post-secondary expenses incurred by Gabrielle up to now and the bulk of her living expenses.

Alexandre

22He lives with his mother and he is largely financially dependent on her as a result of attending full-time post-secondary studies. His career plan now appears to be settled and reasonable. He has worked part-time. The applicant has assumed most of Alexandre’s living expenses and school expenses.

23The parents are well-educated and I find it was in their reasonable contemplation that the children would undertake post-secondary studies. I find both children are unable to support themselves as a result of their full-time attendance in post-secondary education programs. They are still children of the marriage and entitled to financial support.

24I agree with the respondent that the applicant has not been forthcoming in providing all the information about the children’s studies. However, the applicant is not seeking help for the post-secondary expenses for the school years preceding the 2015-2016 academic year. She will have to provide proper disclosure for the expenses starting in September 2015, as a condition to the respondent’s obligation to pay his proportionate share of those expenses.

The quantum of support

The “appropriate approach”

25I find that the respondent has failed to establish that the usual Guidelines approach is not appropriate. I find the mother is still contributing to most of the children’s cost of living. There is no evidence that the children could earn substantially more than they are in a part-time job. In any event, those earnings will be used in determining their contribution for post-secondary education expenses.

26The quantum of basic support provided by the Guidelines applies. I agree with the respondent that it is fair and reasonable to average his income for the last three years in order to properly assess the one-time severance payment in 2014. I find that his income for 2013, 2014 and 2015 for the purpose of calculating the basic child support is $136,500.00.

27The applicant did not ask for a change to the basic child support in her response to the motion to change. The respondent will therefore continue to pay the amount ordered by Smith J. namely $1,343.00 per month.

28I find the respondent must pay 1/3 of the overall education expenses for both children starting with the September 2015 school year. Each child must assume 1/3 of those costs and the applicant the remaining 1/3. The respondent’s obligation will terminate with the completion of the present education program of each child.

29The respondent’s obligation to pay the post-secondary education expenses is subject to the applicant providing him with full disclosure of the children study programs including curriculum, grades and attendance requirements. The applicant will promptly notify the respondent of any change in the studies and/or living arrangement of the children.

30All other terms of the orders of Justice Smith will remain unchanged. An order will issue accordingly. Counsel to submit a draft order for my approval within 10 days.

31If need be, I will entertain written submissions on costs within the next 30 days namely 15 days for the applicant’s submissions, 10 days thereafter for the respondent’s submissions and 5 days for reply if required.

Charbonneau, M.Z.

Date: November 17, 2015

COURT FILE NO.: 09-2006

DATE: 2015/11/17

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Marie Rollande Lucie Coté, Applicant

And

Marcel John Coté, Respondent