Court File and Parties
COURT FILE NO.: FC-02-1908-4
DATE: 2015/12/10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GUYLENE TERRACOL, Applicant
AND
THIERRY TERRACOL, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL: Steven Fried, counsel for the Applicant
Thierry Terracol, Self-Represented
HEARD: December 8, 2015 (at Ottawa)
ENDORSEMENT
[1] There are two motions before the Court. The Applicant, Guylene Terracol, seeks an order varying the order of R. Smith J., dated March 10, 2011, requiring the Respondent, Thierry Terracol, to pay his proportionate share of their daughter Erika’s post- secondary expenses for the years 2013-2014 and 2014-2015, an amount totalling $3,323.61. She also seeks an order that the balance of a costs award from the Court of Appeal of Ontario, of $770.70, dating back to May 23, 2013, be paid by December 31, 2015. She also seeks her costs in this motion.
[2] The Respondent seeks a finding of this Court that the child Erika was not a child of the marriage from the years 2012 to 2015 and seeks a recalculation and reimbursement of child support paid by him to the Applicant for those years. He also seeks a recalculation and payment of certain s. 7 expenses for the child Melodie which he claims the Applicant continues to owe to him, a total of $435.05. The Respondent also seeks an order awarding him some of the child tax credits given to the Applicant as a result of an election made by the child Erika in view of the fact that he too supported this child.
[3] The Respondent seeks his costs.
[4] The Respondent contests the motion brought by the Applicant for the payment of his proportionate share of Erika’s post-secondary expenses for the last two years of Erika’s University studies. It is his position that Erika, given the substantial amount of money she earned in those two years, was quite able to meet all of her post-secondary expenses as well as live independently and not in her mother’s home, like her sister Melodie who chose to leave her father’s home and live independently. It is for that same reason, the Respondent submits, that Erika should not be considered a child of the marriage during those two years thus, ending his obligation to support her.
[5] The Respondent submitted that he is willing to assist his daughter Erika with her post-secondary expenses for the years in question, but that in his calculation, taking into account the money saved by Erika during those years, that amount should only be about $1,000 and not the amount the Applicant is asking, of $3,323.61.
[6] The Applicant takes the position that during the first two years of Erika’s post-secondary studies the parties had agreed and put into effect a one-third sharing of Erika’s post-secondary expenses (one-third paid by Erika and one-third paid by each of the parties). The evidence appears to support this conclusion. The Respondent requests that the same be done for the last two years of Erika’s University studies. This is further amended by the fact that Erika agreed to pay for 50% of her post-secondary expenses for her last year at University (2014-2015) leaving the remaining 50% to be shared proportionally by her parents. In anticipation of the Respondent paying his proportionate share, the Applicant paid all of the parental share amounts of these post-secondary expenses and now seeks reimbursement from the Respondent who has refused to pay them.
[7] The Applicant contests the Respondent’s motion. She submits that Erika continued to reside with her during all of her years at the University of Ottawa, unlike her sister, Melodie who chose to leave the residence of her father and live independently during the last two years of her University studies, which was Melodie’s choice. She submits that Erika’s status as a child of the marriage in that she chose to continue to reside with her mother for the whole of her University studies, ought not to be determined by what her sister did. The Applicant submits that regardless of how much money Erika earned during those last two years of studies she did not withdraw from the charge of her parent because of her studies. As a result, the Applicant continued to support her in the same way she did for her first two years of University studies.
[8] The Applicant also contests the Respondent’s claim for a recalculation and reimbursement for certain s. 7 expenses relating to Melodie. She submits that the court proceedings between the parties before the Divisional Court and by order of that Court dated May 11, 2012, dealt with all of these issues.
[9] The Applicant further contests the Respondent’s claim to share in any child tax credits she may have received which were not as much as the Respondent claims because of a CRA reassessment made of her circumstances. According to the Applicant, this issue was never raised nor dealt with by any of the many previous court orders and ought not to be raised at this late date in the parties’ conflict.
[10] There is a long, unhappy history of parental conflict and litigation between these parties. This would appear to be the last chapter of this family litigation. Briefly stated, the facts leading to the present litigation are the following. The parties are the parents of twin daughters, Erika and Melodie, both of whom are now independent. For a number of years Melodie lived with her father and Erika with her mother. Both parents supported both children and a set-off amount of child support was in force. Both daughters were in full-time studies at the University of Ottawa until 2012, when Melodie moved out on her own. She also began to pursue her University studies on a part-time basis. It was not disputed between the parties that Melodie ceased being a child of the marriage in June of 2012, when support for her ceased.
[11] Erika continued to live with her mother and continued to pursue full-time University studies until she graduated from University in the spring of 2015. Upon Erika’s graduation from University support for her ceased.
[12] During her last two years of University, there is no question that Erika earned what can be called a “substantial” income while she continued to pursue full-time University studies. Her income was almost double that of her previous two years. The evidence showed that Erika earned from her employment in the year 2013, $24,315 and in the year 2014, $23,833.
[13] It is the position of the Respondent that a further $1,600 per annum should be imputed to Erika for sundry items such as HST, gifts etc. I reject this submission and see no basis for this other than speculation.
[14] With those earnings, there is no question that Erika, as an adult child, was quite able to meet her post-secondary expenses for her last two years of University, through her own resources. On these facts what assistance she receives from each of her parents for those last two years of University studies ought to be the subject of discussion and agreement between Erika and each of her parents in the full light of her own resources. Both parents take a different view of who had the responsibility to fully disclose Erika’s own income for those years. I see no reason to resolve this issue for the determination of the Applicant’s motion.
[15] For these reasons the motion brought by the Applicant is dismissed.
[16] With respect to whether Erika continued to be a child of the marriage during her last two years of University studies, I agree with the submissions of the Applicant on this point. Despite being twins, each child’s circumstances must be dealt with separately. Erika’s status as a child of the marriage cannot be determined by the actions of her sister choosing to withdraw from the charge of her father and pursuing her University studies only on a part-time basis.
[17] Erika continued to remain in her mother’s home. The Applicant continued to provide accommodation and other expenses for her daughter. While Erika was earning substantially during those years and can be expected to cover all of her s. 7 expenses on her own, it does not take away from the fact that she remained dependent on both her parents for financial support while she continued with her full-time University studies. For this reason, I find that Erika continued to be a “child of the marriage” and subject to child support from both her parents until she graduated from University in the spring of 2015. As a result, this part of the Respondent’s motion is dismissed.
[18] With respect to the Respondent’s demand for the retroactive recalculation of certain s. 7 expenses for Melodie in the amount of $435.05, I have examined all of the Respondent’s supporting material on this point, the numerous affidavits, and the multiple e-mails sent between the parties. I cannot conclude that the claim has any merit. It appears that all of these issues were dealt with by the Divisional Court in its order dated May 11, 2012. This part of the Respondent’s motion is dismissed.
[19] Finally, I also dismiss the Respondent’s request for a share in the Applicant’s child tax credit. The amount of any such share is unclear on the evidence presented to the Court and would also appear to be of a de minimus amount and claim. In the long and sorry history of this matrimonial dispute, which appears to have ended by involving at least one of the children in the parent’s conflict, I cannot conclude that there would be an injustice in the dismissal of this claim.
[20] With respect to the outstanding costs of $770.70 owed by the Respondent to the Applicant, the Respondent acknowledges this debt and indicates he has the funds to pay it. He is, therefore, ordered to pay this amount to the Applicant forthwith.
[21] The last issue is costs. The Applicant shall have two weeks from the date of the release of this endorsement to serve and file her written submissions on costs. The Respondent shall have two weeks from that date to serve and file his written submissions on costs. The Applicant shall then have one week from that date to serve and file a reply, if her counsel deems it necessary. I request that the parties limit their submissions on costs to 10 pages or less.
M. Linhares de Sousa J.
Released: December 10, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: GUYLENE TERRACOL, Applicant
AND
THIERRY TERRACOL, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL: Steven Fried, counsel for the Applicant
Thierry Terracol, Self-Represented
ENDORSEMENT
M. Linhares de Sousa J.
Released: December 10, 2015