OTTAWA COURT FILE NO.: FC-13-2873-1
DATE: 2015/12/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Brian Gilbert Thibert, Applicant
AND
Lise Michelle Pringle, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Thomas W. Curran for the Applicant
Alexei Durgali for the Respondent,
HEARD: August 12, 2015
ENDORSEMENT
Introduction
[1] The parties were married in 1993, separated in 2000, and divorced in 2007. They have three children: Andre Thibert (December 7, 1995), Patrick Thibert (September 6, 1997), and Eric Thibert (October 9, 1998). In 2010 the parties executed a document titled “Legal Custody Agreement” (“the Agreement). Neither of the parties was represented by counsel when the terms of the Agreement were negotiated. The terms of the agreement were negotiated directly between the parties.
[2] In August 2010 when the Agreement was executed, Andre was 14, Patrick was 12, and Eric was 11. The Agreement addresses custody of the boys, access, child support, extra-curricular activities (including expenses), health, medical, and dental expenses, and expenses for post-secondary education. In essence the Agreement provides for:
a) Child support to end at age 18, even if the child is continuing in school; and
b) The parties to contribute to the child’s post-secondary education expenses in lieu of paying child support.
[3] By way of a motion to change, the applicant father seeks an order amending the Agreement:
• So as to continue the payment of child support for a child at or over 18 years of age who is attending post-secondary education and continuing to live with one of the parties; and
• To include the particulars of the mechanism by which each parent’s contribution to expenses for post-secondary education will be determined each year (regardless of whether the child is living with one of the parties or is living away from home while pursuing post-secondary education).
[4] The respondent mother acknowledges that the Agreement requires the parties to contribute to the post-secondary education expenses of the children. She proposes amendments to the Agreement that she says would provide greater certainty for all concerned, including the children. The respondent emphasizes the need for greater certainty because of the manner in which the applicant handled the post-secondary education expenses to be incurred by Patrick for the 2015-16 academic year.
[5] The applicant’s position is that the parties agreed in principle at a case conference in April 2014 to amend the Agreement on the basis of the terms proposed by him. The respondent acknowledges that an agreement in principle was reached. However, she says:
a) The specific amendments were to be finalised on the basis of additional discussions;
b) There were no such discussions;
c) The applicant was prepared to agree only to the terms he proposed; and
d) As a result, no agreement was reached.
[6] The respondent brings a cross-motion to address what she alleges are arrears of child support owed as of the summer of 2015. In response, the applicant requested additional time to review and respond to the cross-motion. Counsel for the respondent agreed that the relief requested with respect to the alleged arrears of child support would be dealt with on another date.
[7] Therefore, the only matter addressed at this time is the amendment of the Agreement with respect to child support and post-secondary education expenses for a child at or over 18 years of age who is pursuing post-secondary education. That matter is dealt with in two parts:
Did the parties reach an agreement at the April 2014 case conference as to the wording of the amendments to the Agreement?
If no agreement was reached, on what basis:
a) Is paragraph 23, item b of the Agreement to be amended with respect to the payment of child support with respect to a child who pursues post-secondary education; and
b) Is one or more of paragraphs 34 through 37 of the Agreement to be amended with respect to the payment of the expenses incurred for post-secondary education?
Issue No. 1: Case Conference – Agreement Reached or Not?
[8] In support of his position that an agreement was reached at the April 2014 case conference, the applicant relies on an affidavit sworn by Heather Bolton in April 2015 (“the Bolton affidavit”). Ms. Bolton is the legal assistant to counsel for the applicant. Her affidavit is based entirely on information and belief. Mr. Curran, counsel for the applicant, is the sole source of the substantive content of the Bolton affidavit.
[9] Ms. Bolton states that “an agreement in principle” was reached by the parties at the case conference in April 2014. Attached as an exhibit to the Bolton affidavit is a copy of a letter dated July 24, 2014 sent by Mr. Curran to Ms. Cooligan (counsel for the respondent). The letter in its entirety reads as follows:
Please find enclosed a Consent and Final Order for your approval as to form and content. Please sign and return these documents to me for filing with the court.
Thank you for your attention to this matter.
[10] There is no reference in the letter to an agreement in principle, to any follow-up discussion in the eight or more weeks between the date of the case conference and the date of the letter, or to the terms of the amendment being finalized. The terms of the draft order included with Mr. Curran’s letter differ somewhat from the terms set out in the relief requested in the Form 15, motion to change, on the matter before me
[11] The respondent’s materials include an affidavit sworn by her on August 6, 2015. Her evidence as to the alleged agreement is as follows:
• At the case conference in April 2014 a “verbal agreement in principle was reached”, with the details of the agreement to be discussed, finalized, and reduced to writing subsequent to the date of the case conference.
• Mr. Curran did not communicate with Ms. Cooligan until he sent the July 24, 2014 letter quoted above.
• Mr. Curran indicated in communication with Ms. Cooligan that the applicant’s position was that no changes were to be made to the draft order provided under cover of the July 24, 2014 letter.
• As of July 2015 (i.e. two months after the Bolton affidavit was sworn), the applicant, in direct communication with the respondent, took the position that as of that date “there is no [amending] agreement signed.” That statement was made in an email dated July 17, 2015 from the applicant to the respondent, a copy of which is appended as exhibit “B” to the respondent’s affidavit.
[12] The respondent also relies on the affidavit of Katherine Eddy, a legal assistant at the firm representing the respondent. In her affidavit, Ms. Eddy confirms the second and third bullet points listed above. Those points, as they appear in the respondent’s affidavit are no doubt based on information and belief, although not identified as such. Ms. Eddy is, based on her review of the file and time dockets, in a position to give evidence with respect to the matters set out in the second and third bullet points.
[13] For a number of reasons, I accept the evidence of the respondent and Ms. Eddy.
[14] First, the Bolton evidence is based entirely on information and belief, with the source of the information being Mr. Curran. Whether or not an agreement in principle was reached at the April 2014 case conference is central to the outcome on the applicant’s motion. Mr. Curran is the source of the information upon which Ms. Bolton relies with respect to that central issue.
[15] Mr. Curran was not the affiant providing evidence on the central issue. He was therefore shielded from cross-examination. It was open to me to refuse to permit Mr. Curran to make submissions on the motion and to require that another lawyer attend on behalf of the applicant at the return of the motion. However, Mr. Curran was permitted to make submissions on the motion.
[16] Second, there is no reference whatsoever in Mr. Curran’s July 24, 2014 letter to Ms. Cooligan to an agreement having been reached at the April 2014 case conference.
[17] The evidence in the Bolton affidavit is hearsay and, as such, inadmissible unless it is found to be necessary and reliable. The evidence is necessary in support of the applicant’s position on the motion. However, in the circumstances I find the evidence to be unreliable. As a result, the evidence of Ms. Bolton is not admitted on the motion or on the cross-motion, the latter as it relates to the matter addressed in this endorsement.
[18] In summary, there is no evidence to contradict that of the respondent and Ms. Eddy. I find that at the April 2014 case conference the parties did not reach an agreement as to the specific terms pursuant to which the Agreement would be amended to deal with child support and/or expenses for a child at or over 18 years of age who is pursuing post-secondary education.
Issue No. 2: Amendment of the Agreement
[19] The provisions of the Agreement relevant to child support and post-secondary education expenses are paragraphs 22 to 27 and 31 to 34. Those paragraphs provide as follows:
Beginning on September 1st 2010 child support will be payable based upon the “subtractive method.”
Father gross annual income for 2009 was $55,431.00. Mother gross annual income for 2009 was $67,812.00. Based upon the parties respective incomes combined with the choice of residence of the Children, they agree that child support to the other will be paid by following the provincial tables established by The Department of Justice Canada. As follows:
a) If Father has all three Children in his care – Mother will pay child support in the sum of $1320.00 per month.
b) If Father has two children in his care, Mother has one in her care – Mother will pay child support in the sum of $499.00 per month.
c) If Mother has two children in her care, Father has one in his care – Father will pay child support in the sum of $206.00 per month.
d) If Mother has all three Children in her care – Father will pay child support in the sum of $1089.00 per month.
Parties agree that at the time of signing this agreement, option c will be adhered to and the father will provide the mother with post-dated cheques dated for the 1st of the month starting September 1st 2010. Any future changes to the living arrangement will result in an automatic modification of the child support payments as per the provincial tables.
The party paying child support will continue to pay child support pursuant to the subtractive method provisions of the Federal Child Support Guidelines until one of the following:
a. The child ceases to reside full time with the parties;
b. The child becomes 18 years of age;
c. The child marries;
d. The child dies; or
e. One of the parties dies, provided the life insurance provisions of $100,000 are in place.
The Parties shall provide proof of their income on an annual basis by providing to the other a copy of his/her income tax return, together with Notice of Assessment attachments no later than June 1st of each year.
The parents shall only be entitled to claim the Children of which they have full time care for income tax purposes and applicable tax credit. At the time of this agreement, the Father will claim Andre and the Mother will claim Patrick and Eric for the year 2010.
The parents shall be entitled to receive the child tax benefit and other provincial or federal tax benefit for the child(ren) in their full-time care.
Each parent with children in their care full time will be responsible for all expenses of this said Child including but not limited to clothing, outerwear, school supplies, and school activities. Each parent will provide clothes to be shared with the other party during visitation. It will be unnecessary to obtain double wardrobes for all three children.
Post-Secondary Education
Father and Mother acknowledge that it is in the best interests of the Children to pursue post-secondary education to the fullest extent that the abilities of the Children permit. Accordingly, the Father and Mother will encourage the Children to pursue a post-secondary education.
The Father and Mother will encourage the Children to obtain summer employment as a method of earning income so as to enable them to contribute to the cost of their own post-secondary education and will also encourage the Children to make applications for such bursaries and scholarships of a type to which the Children may be entitled.
For the purposes of this section, post-secondary educational expenses shall include but not be limited to tuition fees; residence fees or room and board; reasonable travel expenses to and from home and school; books, school supplies, laboratory, athletic and similar costs or fees.
Both Parents shall contribute to the post-secondary education of each child in lieu of support. Financial arrangements will be made directly between the child and each parent.
The Positions of the Parties
a) The Applicant
[20] In his supporting affidavit sworn in February 2014, the respondent says:
At the time this Legal Custody Agreement was drawn up the issue of any of the children attending at post-secondary educational facility was not addressed. It provides that child support terminates once any one of several events occurs. It does not provide for support for a child over 18, and unable to be independent because of attendance at school.
As it happens, our oldest child decided to come live with me. He is now in attendance at college. The Respondent has taken the position that she has no obligation to assist in his post-secondary expenses, or provide any child support for him, because the Agreement does not contain any provision for that eventuality.
[21] The applicant says that in bringing the motion, his wish is to have in place a provision which requires both parties “to [deal] with the financial responsibilities arising from the children attending post-secondary education.” He concludes his affidavit by stating that the amendments he is proposing will be of benefit to Patrick and Eric, who are both residing with the respondent.
[22] On the return of the motion before me the submissions made on behalf of the applicant were:
• The amendments which the applicant proposes bring the child support provisions of the Agreement in line with the definition of “child of the marriage” in s. 2(1), item b of the Divorce Act, R.S.C. 1985, c. 3.
• It is not possible for the parties to bargain away child support to which their children are entitled, as a result of which the Agreement requires amending. The first sentence of paragraph 34 of the Agreement is therefore unenforceable.
Counsel for the applicant submits that if the amendments to the Agreement proposed by the applicant are made, “everything will be resolved”.
b) The Respondent
[23] The position of the respondent is that when the terms of the Agreement were negotiated, the parties turned their minds specifically to the duration of child support payments and how expenses for post-secondary education would be paid as between them. At paragraphs 10 to 12 of her affidavit, the respondent says:
In accordance with clause 34 of the agreement, both parents would contribute to the post-secondary education of each adult child in lieu of child support and make financial arrangements directly with the child.
At the time of signing the agreement, the children were 11, 12, and 14. We anticipated that at some point in a few years all three children will be attending university and the cumulative post-secondary expenses will be significant. These provisions were specifically negotiated and included to ensure that we both can afford these expenses.
The agreement is valid and enforceable. In particular, the provisions with respect to the post-secondary expenses were negotiated as part of a global settlement.
[24] The respondent identifies that as of the summer of 2015:
• Andre had been living with his father and attending the University of Ottawa (the latter since September 2013);
• Patrick was living with the respondent and would begin attending Bishop’s University in September 2015; and
• Eric was living with the respondent and would be continuing to attend high school in September 2015.
[25] The amending terms which the respondent proposes are set out in her notice of motion (i.e. the cross-motion with respect to arrears of child support.) The terms which the respondent proposes differ slightly from those proposed originally by the applicant (in his motion to change) and proposed in July 2014 following the April 2014 case conference.
Discussion
a) Child Support
[26] Both parties propose that paragraph 23 of the Agreement be amended to provide for the payment of child support while a child at or over the age of 18 years is pursuing post-secondary education. To date, the parties have between them proposed three different versions of an amendment to paragraph 23 of the Agreement. The amendments proposed to paragraph 23 of the Agreement are set out below, highlighted in bold and italic font.
[27] In the motion to change and change information form pursuant to which he initiated this proceeding, the applicant requests that paragraph 23, item b of the Agreement be amended to read as follows:
The party paying child support will continue to pay child support until one of the following …
b. The child becomes 18 years of age and is no longer attending school including a post-secondary institution on a full or part-time basis.
[28] Following the April 20, 2014 case conference the applicant’s position was set out in the draft order enclosed with the July 24, 2014 letter sent by Mr. Curran to Ms. Cooligan. At that time, the applicant’s position was that paragraph 23, item b of the Agreement be amended to read as follows:
The party paying child support will continue to pay child support until one of the following …
b. The child becomes 18 years of age and is no longer attending school including a post-secondary institution on a full or part-time basis, but in any event after successful completion of a first-level degree or diploma.
[29] In her notice of motion (on the cross-motion) dated August 6, 2015 the respondent requests that paragraph 23, item b be amended to read as follows:
The party paying child support will continue to pay child support until one of the following …
b. The child becomes 18 years of age and is no longer attending school including a post-secondary institution on a full-time basis.
[30] Counsel for the respondent highlights that for his client it is important that part-time and full-time attendance at a post-secondary institution be treated differently: in particular, limiting the payment of child support to a child who is in attendance at a post-secondary institution on a full-time basis only.
[31] As the motion was scheduled for less than an hour no facta were required. No facta were delivered and counsel did not, on the return of the motion, file or rely upon any case law. In making my determination on the motion, I note the following. Pursuant to section 31(1) of the Family Law Act, R.S.O. 1990, c. F.8, the obligation of a parent to provide support to a child who is enrolled in an educational program is limited to enrolment in a full-time education program.
[32] The case law decided with respect to that provision makes it clear that there is some flexibility to the definition of “full-time program”. When considering whether a child is attending school, college, or university on a full-time basis, it is important that the child’s participation is meaningful and consistent with the program’s purposes and objectives. See: Vohra v. Vohra, 2009 ONCJ 135, 66 R.F.L. (6th) 216 (Ont. C.J.); and Giess v. Upper (1996) 1996 8102 (ON SC), 28 R.F.L. (4th) 460 (Ont. Ct. (Gen. Div.)).
[33] I therefore find that limiting the payment of child support with respect to a child attending school, college, or university on a full-time basis is reasonable. The certainty which the parties both seek is achieved if paragraph 23, item b is amended as proposed by the respondent and set out in paragraph 29 above.
[34] If special circumstances arise with respect to a child pursuing post-secondary education on a part-time basis, the parties are in a position to resolve the matter through negotiations or, if necessary, by returning to the Court for relief specific to those special circumstances. For example, “special circumstances” might include a child who is, for medical or health reasons, required to reduce his course load to part-time status.
[35] Section 31 of the Family Law Act is not intended to require parents to finance what might be described as a ‘professional student’ (an individual whose educational path appears to be unending). That does not mean, however, that it is not reasonable under any circumstances to pay child support for a child pursuing a graduate or a second degree.
[36] It is clear from paragraph 31 of the Agreement that the parties recognize the benefits for their children of the pursuit of post-secondary education. That paragraph provides:
Father and Mother acknowledge that it is in the best interests of the Children to pursue post-secondary education to the fullest extent that the abilities of the Children permit. Accordingly, the Father and Mother will encourage the Children to pursue a post-secondary education.
[37] In relation to the proportionate sharing of the post-secondary education expenses there is nothing in the Agreement to indicate that the parties intended to limit their financial support in that regard to a single post-secondary certificate, diploma, or degree. It is, in keeping with section 31 of the Family Law Act, reasonable to place some limitation on the obligation to pay child support with respect to a child over the age of 18 years who pursues post-secondary education.
[38] In the draft order prepared by Mr. Curran on behalf of the applicant and included with Mr. Curran’s July 24, 2014 letter the relevant term limits the payment of child support to the completion of a first degree or diploma. There is no explanation in the cover letter or in the motion materials anywhere as to the basis for the proposed limitation in that regard.
[39] To strike a balance between encouraging the pursuit of post-secondary education and discouraging the children from adopting the life of a ‘professional student’, it is reasonable to establish an age-related limitation on the payment of child support for a child who pursues post-secondary education on a full-time basis. I find that it is reasonable to limit the payment of child support to a child up to age 25 who: a) is pursuing post-secondary education; and b) remains at home. If still pursuing post-secondary education by that age the child will likely have completed his first certificate, diploma, or degree and may possibly be pursuing a second diploma or degree. The path of some children to the completion of a first certificate, diploma, or degree is not always direct or continuous. The age-related limitation: a) recognizes that possibility; and b) is in keeping with the support which the parties clearly intend to provide to their children while they “pursue post-secondary education to the fullest extent that the abilities of the children permit”.
Summary
[40] In summary, the paragraph 23 is amended to read as follows:
The party paying child support will continue to pay child support pursuant to the subtractive method provisions of the Federal Child Support Guidelines until one of the following:
a. The child ceases to reside full time with the parties;
b. The child becomes 18 years of age and is no longer attending school including a post-secondary institution on a full-time basis.
c. The child reaches age 25;
d. The child marries;
e. The child dies; or
f. One of the parties dies, provided the life insurance provisions of $100,000 are in place.
[41] The amendments to paragraph 23 do not eliminate the pre-requisite for payment of child support set out in the introductory sections of paragraph 23 – namely that the child for whom child support is to be paid must be living with one of the parties. That provision applies equally to a child who is attending post-secondary education on a full-time basis, to age 25, as it does to a child under the age of 18 years.
[42] The obligation to pay child support only arises with respect to a child pursuing post-secondary education who is, while doing so and while still under the age of 25, living with one of the parties. It is reasonable to require that the parent with whom the child is not living pay child support towards the living expenses for that child. The living expenses of a child who is not living with either of the parties while pursuing post-secondary education will form part of the expenses for post-secondary education. Those expenses are and will continue to be apportioned between the child and each of the parties.
[43] For the sake of clarity, the amendments to paragraph 23 in no way affect the application of the ‘set-off’ method when calculating the amount of child support payment. The ‘set-off’ method described in paragraph 23 of the Agreement continues to apply including with respect to the circumstance of more than one of the children living with one of the parents while the children are attending post-secondary education on a full-time basis.
b) Post-Secondary Education Expenses
[44] The amendments proposed by each of the applicant and the respondent are directed towards achieving certainty including:
• The timing for and completion of an agreement upon a budget for the impending academic year;
• The child’s contribution towards his educational expenses;
• The timing and nature of payments to be made by each of the parties towards the child’s educational expenses; and
• Planning for the months of May through August when the child may be living with one of the parties (i.e. having lived away from home during the academic year).
[45] Providing certainty is clearly of benefit to all concerned, including each child pursuing or who, in the future, pursues post-secondary education.
[46] The certainty that the applicant seeks is primarily with respect to the process by which the parties and the child attending post-secondary education are to agree on their respective contributions to the expenses. In his motion to change, the applicant sets out the timelines he proposes for the ‘budgeting process’. The process starts with the presentation by the child of his budget for the upcoming academic year and the completion thereafter of the discussion between the child and the parties to finalize the budget.
[47] The respondent seeks certainty with respect to:
a) The percentage of the total expenses for an academic year to be paid by the child pursuing post-secondary education – at a minimum of one-third and a maximum of two-thirds;
b) Payment of the balance by the parties proportionately on a monthly basis; and
c) For the months during which the child is not in school (April through August), either:
i) Payment of child support if the child is living with one of the parties; or
ii) Contribution by the child and the parties to the child’s living expenses on the same basis as they are paid during the academic year.
[48] There is no comparison to be drawn between the approach proposed by the applicant and the approach proposed by the respondent. Such an exercise would amount to an ‘apples to oranges’ comparison. Neither party responded directly to the other’s proposed approach with respect to post-secondary education expenses. In their respective submissions, counsel for the parties did not with any specificity address the proposed approaches to the budgeting process. There is nothing in the record before me to indicate that the applicant disagrees with the respondent’s approach and vice versa.
[49] The only disagreement between the parties that I am able to identify is very minor. The applicant proposes lump sum payments as may be required at the beginning of the school year or term and periodic payments for the balance of the expenses. The respondent proposes that all payments towards post-secondary education be on a monthly basis.
[50] In that regard, I find that the applicant’s approach is the more reasonable of the two approaches proposed. The applicant’s approach addresses the requirements which may exist from time-to-time with respect to tuition, residence fees, etc. Otherwise, the burden falls to the child to have in place sufficient funds from which to pay lump sums and be reimbursed by the parties over time. It is reasonable to require the parties to ‘budget’ their respective finances so that they are in a position to make the lump sum contributions required at the start of the school year and/or terms.
[51] The exhibits appended to the affidavits include the prolific e-mail and/or text communication between the parties, Andre, and Patrick with respect to the 2013-14 academic years forward. The communication is evidence of the strain which the process has, to date, placed on the children and the parties.
[52] The pursuit and financing of post-secondary education is onerous in and of itself for student and their parents. To bring certainty to the budgeting process will hopefully eliminate the additional stress, in particular for Andre, Patrick, and in due course, Eric, with respect to the financial aspect of the pursuit of post-secondary education.
[53] For the reasons set out above, I order that the following amendments be made to paragraph 34 of the Agreement.
• Paragraph 34 of the Agreement is deleted and replaced by the following:
Both parents shall contribute to the post-secondary education of each child enrolled in a post-secondary education program on a full-time basis. The contribution of the parents shall be proportionate to their respective incomes and calculated as set out in paragraph 34A below.
• Paragraph 34A is added to the Agreement as follows:
The process by which the child and the parents shall determine their respective contribution to the post-secondary education expenses of the child is as follows:
a) At least two full months before the commencement of any term in which the child is enrolled in school on a full-time basis, the child shall produce and submit to the parents a budget indicating his anticipated costs of education, including tuition, books and equipment, housing and food costs, transportation, and spending money; and his anticipated contribution available from employment, scholarships and bursaries, loans, gifts and inheritances:
i) Within 15 days of receipt of this budget the parents will provide their approval for the budget or alternatively any changes they wish to propose.
ii) Within 15 days thereafter the parents and the child will discuss and finalize the budget, including dates for payment of support amounts, which will be allocated between the parents in proportion to their respective incomes.
b) Payment dates will be arranged to ensure that payments required at the start of each school term are met through provision of lump-sum amounts, and the balance of the payments shall be made no later than the 15th of each month during the academic year or term(s).
c) Each child shall be responsible for the payments towards a minimum of one-third of the child’s post-secondary education expenses and a maximum of two-thirds of the child’s post-secondary education expenses for the academic year or terms. The balance of the payments shall be shared by the parents, in proportion to their respective incomes, and shall be paid in accordance with paragraph (b) above;
d) No later than two months prior to the end of the academic year or term in which the child is enrolled in school, the child will confirm whether he:
i) Intends to reside with one of the parents during the non-academic months; and
ii) If the child intends to reside other than with one of his parents during the non-academic months, his budget for the months between academic years or terms (“the non-academic months”) including housing and food costs, transportation, and spending money; and his anticipated contribution available from employment:
Within 15 days of receipt of the budget for the non-academic months the parents will provide their approval for the budget or alternatively any changes they wish to propose.
Within 15 days thereafter the parents and the child will discuss and finalize the budget for the non-academic months, including dates for payment of the parents’ respective contributions, if any, to the child’s expenses for those months.
The child will be responsible for the payment of a minimum of one-third and a maximum of two-thirds of the expenses. The balance of the expenses shall be shared between the parents in proportion to their respective incomes.
e) If the child resides with one of the parents during the non-academic months, the table amount of support shall, for those months, be paid to the recipient parent for that child in accordance with paragraph 23 above.
f) The parents recognize that it will not always be possible for a child, despite his best efforts, to secure gainful employment for the non-academic months. For a child who is unable, despite his reasonable efforts to secure gainful employment, to do so for the non-academic months and, as a result, chooses to reside with one of the parents notwithstanding a prior stated intention to reside other than with one of the parents, then the table amount of support shall, for those months, be paid to the recipient parent for that child in accordance with paragraph 23 above.
[52] There is nothing in any of the materials before me to suggest that either party is, at this time, seeking to impose a limit of any kind – age-related or degree-related - on the contribution of the parents to post-secondary education expenses incurred by the children. As a result, I have not included any provision of that kind in the amendments to paragraph 34 or in paragraph 34A.
Costs
[53] There has been mixed success on the motion with the order as to the amendments to be made to the Agreement reflecting terms proposed by both parties and concerns expressed by them individually. The examples provided of the email and/or text communication with Andre and Patrick demonstrate that these two young men are respectful of their parents and conduct themselves admirably in what must be a difficult situation – negotiating with a set of parents who do not readily agree on matters. That the parents were unable to resolve the matter of the budgeting process for, and their respective contributions to, their children’s post-secondary education expenses is regrettable.
[54] I encourage the parents to reach agreements where required and to regard the Court process as one of last resort when it comes to the day-to-day and year-to-year issues arising with respect to the post-secondary education of their children.
[55] Given the mixed success of the parties and the difficult position in which they placed their children, there shall be no order as to costs on this motion.
[56] The matter of the costs of the respondent’s cross-motion (with respect to the arrears of child support) remains to be addressed when the cross-motion is determined or as may otherwise be agreed upon between the parties.
Date: December 14, 2015
Justice S. Corthorn
OTTAWA COURT FILE NO.: FC-13-2873-1
DATE: 2015/12/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Brian Gilbert Thibert, Applicant
AND
Lise Michelle Pringle, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Thomas W. Curran for the Applicant
Alexei Durgali for the Respondent
ENDORSEMENT
Justice S. Corthorn
Released: December 21, 2015