SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 640/06 (Guelph)
DATE: 2015-12-29
RE: DAVID GEORGE GARDNER
v.
MARY LU ANNE GARDNER
BEFORE: EMERY J.
COUNSEL:
Colin Thurston, for the Applicant
Mary Lu Anne Gardner, in person, for the Respondent
HEARD: December 4, 2015
ENDORSEMENT
Justice Emery
[1] The applicant father (Thomas John Gardner) and the respondent mother (Mary Lu Anne Gardner) have each brought a motion related to the final order made by Justice Herold on January 6, 2012. Mrs. Gardner brings a motion to change that does not, by her own concession, seek a change but rather an order to enforce Justice Herold’s order to collect Mr. Gardner’s proportionate share of section 7 expenses incurred in the course of the post-secondary education of their daughter, Katherine Victoria Gardner. Mrs. Gardner seeks an order quantifying the proportionate contribution Mr. Gardner should pay for those expenses under Justice Herold’s order so that it may be enforced by the Family Responsibility Office.
[2] Mr. Gardner brings a motion to change for two reasons. First, he seeks an order to compel Mrs. Gardner to pay her proportionate share of expenses that he has incurred towards Katherine’s post-secondary education. In the second part of his motion, Mr. Gardner seeks an order to terminate or vary the amount of child support under Justice Herold’s order that Mr. Gardner is to pay for their son Andrew.
Relevant Background
[3] Mr. Gardner and Mrs. Gardner were married on September 10, 1988. They had two children, Katherine Victoria Gardner, born on March 27, 1994, and Andrew Charles Arthur Gardner, born October 6, 1999. Katherine is now 21 years old and no longer attends a post-secondary institution. Andrew is 16 years old and resides primarily with Mrs. Gardner.
[4] On consent, Justice Herold made a divorce order dated January 6, 2012. The divorce order provided that the parties had joint custody of the children Katherine and Andrew. The order further provided that the children would reside primarily with Mrs. Gardner, but that they would reside with Mr. Gardner according to the schedule set out in the order, namely, on Monday and Tuesday overnight, and on alternate weekends from Friday evening to Sunday evening. Holidays and special days with the children are to be shared equally between the parties.
[5] Paragraphs 6 and 7 of the divorce order made by Justice Herold also sets out the following order for child support, as well as the provisions each party agreed to pay for the children’s extraordinary expenses as defined in section 7 of the Child Support Guidelines:
- The Applicant husband shall pay to the Respondent wife, child support in the sum of $500.00 per month. The quantum of child support takes into account the following:
(a) The parties have roughly the same incomes;
(b) Although the children primarily reside with the wife, they spend a considerable amount of time with the husband, resulting in a shared custody arrangement as defined in Section 9 of the Child Support Guidelines.
- The parties shall each pay 50% of the children’s extraordinary expenses as defined in Section 7 of the Child Support Guidelines, including but not limited:
(a) summer camp up to a maximum of $1,000.00 per year (with each parties’ share to be up to a maximum of $500.00 per year);
(b) post-secondary education expenses not covered by the Children’s Scholarship Fund and expenses that the child is unable to reasonably cover him or herself;
(c) orthodontics and other health and dental expenses not covered by an extended health and dental plan;
(d) agreed upon school trips over $200.00; and
(e) such other expenses the parties agree upon, such agreement not to be unreasonably withheld.
[6] There is no dispute that Mr. Gardner has paid the child support required under paragraph 6 of Justice Herold’s order since that order was made. Mr. Gardner has paid the child support ordered since that date even though Katherine turned 18 years old less than three months after the order was made. This is likely because she was still in high school or intended to pursue post-secondary education starting in September 2013.
[7] Katherine attended the University of British Columbia in Kelowna, B.C. for two years, from September 2013 to April 2014, and from September 2014 to April 2015. These are the two years of post-secondary education at issue for the quantification of Katherine’s post-secondary education expenses.
[8] Mr. Gardner seeks a variation order of the support he is to pay for Andrew in his response to the motion to change. Mr. Gardner relies on three facts that he asserts are each a material change in circumstances:
Katherine is no longer a child of the marriage;
Mrs. Gardner’s income now exceeds his own; and
Andrew spends an equal amount of time residing with him.
Analysis
[9] It will quickly become apparent to the parties that much of my decision is based on the current and binding terms of Justice Herold’s order and by exercising good old fashion common sense on how it applies to the parties.
Motion to change by Mrs. Gardner
[10] Mrs. Gardner has provided evidence that Katherine’s two years of post-secondary education at the University of British Columbia was funded from three sources: the Heritage Education Scholarship Fund, financial contributions from Katherine herself and from the parties. The Heritage Fund paid $22,885.79 over those two years. Katherine herself contributed $12,868.79 over the two years. This amount included the $5,000 contribution or gift made by Mr. Gardner’s mother to Katherine. Mrs. Gardner states in evidence that she made contributions in the amount of $15,081.57 over the two years toward the balance of the expenses at issue, but she can only document $14,583.82 of that amount. She therefore seeks reimbursement for 50 per cent of that sum from Mr. Gardner in the amount of $7,291.50.
[11] Mrs. Gardner has given evidence that Mr. Gardner accepted that certain expenses in Katherine’s first year of post-secondary education were university related and therefore legitimate as expenses for her post-secondary education. However, Mr. Gardner disputes that expenses of a similar nature and amount that Katherine incurred while attending university in her second year are legitimate post-secondary education expenses. Those second year expenses that Mr. Gardner disputes are:
Expense Amount Mrs. Gardner’s Comments
Housing and Utilities $4,670.00 included in Year 1 residency
Cell phone $ 669.34 to maintain contact with Katherine
Furniture $ 350.87 minimum needs for Katherine
Internet/cable $ 313.47 included in Year 1 residency
Groceries $ 273.92 after Katherine ran out of money
Anti-virus protection $ 39.98 needed to protect her laptop
Toiletries $ 82.14 after Katherine ran out of money
Clothes $ 50.97 after Katherine ran out of money
Overdraft fees $ 17.74 after Katherine ran out of money
Cigarettes $ 11.20 included to show transparency of data
Alcohol $ 67.49 included to show transparency of data
Total: $6,697.12
[12] I consider all of the expenses listed above for Katherine’s second year are expenses related to her post-secondary education except for the amounts claimed to cover her overdraft fees and to purchase furniture, cigarettes and alcohol. This amount totals $447. The court cannot condone financial mismanagement and any connection between the purchase of alcohol and tobacco with proper expenditures for post-secondary education. I do not accept the amounts claimed for furniture as a proper claim for Mr. Gardner to reimburse as the furniture Katherine may have acquired in or after first year should have sufficed in her second year at UBC. Alternatively, it was furniture that was inexpensive enough to re-sell before she returned to Ontario.
[13] The deficits funded by Mrs. Gardner for Katherine’s first year of $5,113 and for her second year of $6,250 total $11,363. When $310 is added as extra expense incurred by Katherine waiting in or around the Vancouver Airport when her trip home at Christmas 2013 was delayed for four days, the deficit cost for her two years of university increases to $11,673, which I find to be legitimate.
[14] Mrs. Gardner also claims various expenses for sending registered mail to the Heritage Fund, mail expense related to Erin Nevison, who collected the rental unit’s damage deposit and utilities for Katherine, bank charges incurred by Mrs. Gardner to stop payments on Katherine’s account and other sundry expenses which I find to be legitimate. These further amounts total $251. I do not find the cash transfers Mrs. Gardner made to Katherine when she ran out of money to be legitimate claims for Mr. Gardner to reimburse as those advances are between mother and daughter.
[15] Mrs. Gardner further claims $1,869 to cover the expense of her new husband for his airfare, car rental, hotel and parking at Pearson when he travelled to Kelowna in an attempt to assist Katherine with salvaging credits earned during her second year. I do not consider this trip to be an extraordinary expense or an expense incurred for Katherine’s education under Justice Herold’s order. Therefore, the expenses paid by Mrs. Gardner that I allow for the purposes of her claim against Mr. Gardner for reimbursement total $11,924, and not the $14,583.82 claimed.
[16] I therefore quantify Mrs. Gardner’s claim for 50 per cent of the amount she incurred for Katherine’s post-secondary education expenses under paragraph 7(b) of Justice Herold’s order to be $5,962.
Motion to Change by Mr. Gardner
[17] Mr. Gardner makes two claims in his motion to change. He first seeks reimbursement of 50 per cent of the expense he incurred for Katherine’s post-secondary education under paragraph 7 of Justice Herold’s order. In addition, he seeks a variation of the child support he is to pay for Andrew under paragraph 6 of the order on the basis that there has been a material change in circumstances since the order was made. He makes these claims in his response to Mrs. Gardner’s motion to change, arguing that she initiated the motion to change process and that his claims for a change of the order in the response are appropriate.
[18] Mr. Gardner seeks 50 per cent of the post-secondary education expenses he says he incurred as extraordinary expenses. Those expenses are as follows:
October 9, 2013 Christmas flight purchase $ 849.61
October 28, 2013 Christmas flight purchase $ 325.50
August 18, 2014 Payment to Katherine for tuition $5,000.00
April 20, 2015 Flight home $ 245.83
Total $6,420.94
[19] Mr. Gardner seeks an order from this court in proportion to their respective incomes under Section 7(2) of the Federal Child Support Guidelines. Mrs. Gardner is a teacher by profession, and a salaried employee of the Upper Grand District School Board. Mrs. Gardner has earned the following income for the last three years:
2012: $94,685.25
2013: $94,767.00
2014: $95,142.71
[20] Mr. Gardner is a teacher and a salaried employee of the Waterloo Region District School Board. Mr. Gardner has earned the following income for the last three years:
2012: $79,981
2013: $79,568
2014: $80,388
[21] These salaries are set according to a salary grid. It is conceded by both parties that any increases proceed in lockstep with each other.
[22] Mr. Gardner argues that according to their respective salaries, Mrs. Gardner should pay 54 per cent of the extraordinary expenses for Katherine’s post-secondary education and that he should pay 46 per cent.
[23] Justice Herold incorporated the minutes of settlement into paragraph 7 of his order where the parties agreed to each pay 50 per cent of the children’s extraordinary expenses as defined in Section 7 of the Child Support Guidelines, including but not limited to (b) post-secondary education expenses not covered by the children’s scholarship fund and expenses that the child is unable to reasonably cover him or herself.
[24] A consent order or judgment is considered at law to be a contract between the parties: Teitelbaum v. Dyson (2000), 7 C.P.C. (5th) 356. I can only conclude that the applicant father and the respondent mother agreed to share these expenses equally no matter which one of them advanced the money to pay the extraordinary expense to the child or paid for that expense directly. It is my view that the agreement made by the parties and formalized in an order supplanted any reliance on section 7 either of them may have had to define their proportionate shares of extraordinary expenses geared to their respective incomes.
[25] Mr. Gardner claims that the $5,000 his mother paid to Katherine for her education is a payment that should be credited to him. I find that the $5,000 paid by Mr. Gardner’s mother to Katherine to be a gift or contribution towards her education. It was not a payment made on behalf of Mr. Gardner. Those funds cannot be counted by him as an expense by him toward Katherine’s post-secondary education. There was no evidence before me that Mr. Gardner’s mother acted as his agent or made it a condition that the $5,000 was to be considered a payment made to Katherine on his behalf. These are funds that were Katherine’s property upon receiving them as a gift, and the funds she used as part of the contribution she made towards her own education: see section 3(2) of the Federal Child Support Guidelines and Lewi v. Lewi, 2006 15446 (ON CA), 2006 CarswellOnt 2892 (Ont. C.A.).
[26] Mr. Gardner also claims that $250 of the $500 a month he was paying for both children under paragraph 6 of Justice Herold’s order should be treated as a credit against his obligations to contribute toward Katherine’s post-secondary education expenses. I disagree. From a plain reading of Justice Herold’s order, Mr. Gardner was ordered to make payments of two kinds. The first is for child support in the amount of $500 per month under paragraph 6. The second is a different kind of child support for extraordinary expenses, including post-secondary education expenses under Section 7. They are separate and distinct obligations.
[27] I therefore find that Mr. Gardner’s payment of Katherine’s post-secondary expenses total $1,420.94, and not the $6,420.94 claimed. Mrs. Gardner shall pay 50 per cent of the allowable expenses in the amount of $710.
[28] Mr. Gardner also seeks a variation of the child support he is to pay under Justice Herold’s order in the amount of $500 per month for both children. He seeks to have that amount replaced with an order under Section 9 of the Child Support Guidelines based on their proportionate incomes.
[29] Justice Herold incorporated the minutes of settlement filed by the parties into his order. The minutes clearly show that Mr. Gardner agreed to pay Mrs. Gardner child support in the amount of $500 per month, taking into account the following facts:
a) The parties have roughly equal incomes;
b) Although the children primarily reside with the wife, they spend a considerable amount of time with the husband, resulting in a shared custody arrangement as defined in Section 9 of the Child Support Guidelines.
[30] I do not consider the fact that Andrew spends roughly the same amount of time with each parent as a reason to apply Section 9 of the Child Support Guidelines because that fact was recognized in paragraph 6 of Justice Herold’s order to begin with. The order was made with section 9 considerations built in.
[31] I find that the only change in circumstance since January 2012 is that Katherine is no longer considered to be a “child of the marriage” since she ceased her attendance at a post-secondary institution. I do not consider Mr. Gardner’s argument that he has only recently discovered that Mrs. Gardner earns more income then he does to constitute a change in circumstance. Their incomes were known or should have been known to each other at the time the final order was made by Justice Herold. The evidence shows that those incomes have proceeded in lockstep fashion with each other ever since.
[32] Under all of the circumstances, I find it just that paragraph 6 of Justice Herold’s order be varied to provide that Mr. Gardner shall pay only $250 a month in child support for Andrew while he remains a child of the marriage. This amount of child support is effective May 1, 2015, when Katherine was no longer enrolled at the University of British Columbia. Therefore, Mr. Gardner is entitled to a credit of $250 a month he has paid for Katherine since May 1, 2015, for a total of $2,000.
Orders
[33] Mr. Gardner is ordered to pay Mrs. Gardner $5,962 for his 50 per cent of Katherine’s extraordinary expenses, less $710 that he is entitled to be reimbursed by Mrs. Gardner. The net amount payable by Mr. Gardner under paragraph 7 of Justice Herold’s order to Mrs. Gardner is therefore $5,252.
[34] It is further ordered that paragraph 6 of Justice Herold’s order is varied so that Mr. Gardner shall pay $250 a month in child support to Mrs. Gardner for Andrew while he remains a child of the marriage, effective May 1, 2015. Since Mr. Gardner has made all payments for both Andrew and Katherine in the amount of $500 through the Family Responsibility Office up to and including December 1, 2015, he is entitled to a credit of $2,000 for the amounts he has overpaid since May 1, 2015. That credit may be applied to the balance payable to Mrs. Gardner under paragraph 7 of Justice Herold’s order.
[35] The net amount of $3,252 that Mr. Gardner is to pay Mrs. Gardner may be paid in equal amounts of $300 on the first day of each and every month commencing on February 1, 2016.
[36] A Support Deduction Order shall issue accordingly.
[37] I further order, on consent, that Mrs. Gardner shall contact Mr. Thurston’s office to make immediate arrangements to remove her automobile and related parts from its present location in a garage on Mr. Gardner’s property by January 9, 2016. Mr. Gardner shall ensure that there is no impediment to the removal of the automobile when the automobile is removed.
[38] If either party seeks costs of these motions, they may file written submissions consisting of no more than three pages by January 11, 2016, by fax to my judicial assistant, Mr. Christopher Charles, at 905-456-4835.
Justice Emery
Released: December 29, 2015
COURT FILE NO.: 640/06 (Guelph)
DATE: 2015-12-29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DAVID GEORGE GARDNER
v.
MARY LU ANNE GARDNER
BEFORE: EMERY J.
COUNSEL: Colin Thurston, for the Applicant
Mary Lu Anne Gardner,
in person, for the Respondent
ENDORSEMENT
EMERY J
Released: December 29, 2015