Court File and Parties
COURT FILE NO.: FS-06-58664-01 DATE: 2016-04-29 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MAUREEN DORSETT Self-represented Applicant
- and -
BYRON LEVY Self-represented Respondent
HEARD: April 28, 2016, at Brampton, Ontario Justice David Price
Reasons For Decision
[1] These reasons are further to those released January 14, 2016, and concern the issues that remained from the court’s initial hearing of Byron Levy’s application, which dealt with his request to terminate his obligation pursuant to Justice Kruzick’s order dated February 11, 2009, to pay child support for his eldest daughter, Letysha Levy, on the ground that she had finished college and secured full-time employment. There remained from that hearing Mr. Levy’s request for reimbursement of the contributions he had made, pursuant to the same court order, for the payment of Letysha’s college tuition, on the ground that Letysha’s mother failed to use those funds for Letysha’s tuition, or to re-pay the student loans that Letysha obtained to finance her tuition. These reasons, then, should be read with the reasons released January 14, 2016, which supply the background facts.
Background Facts
[2] As noted in the reasons released January 14, 2016, Justice Kruzick’s order required Mr. Levy to contribute his proportional share to the payment of the children’s special and extraordinary expenses pursuant to section 7 of the Guidelines. At the time of the order, Mr. Levy’s share was 70%, based on his then income of $64,728 and Ms. Dorsett’s income of $28,453.
[3] In his present application, Mr. Levy seeks reimbursement of contributions he made to the payment of Letysha’s college tuition. His contributions to this expense were garnished from his wages pursuant to Justice Kruzick’s order, which required him, pursuant to section 7 of the Guidelines, to contribute 70% to the children’s special and extraordinary expenses. Mr. Levy asserts that Ms. Dorsett did not use the funds to pay Letysha’s tuition, or to repay the loan that Letysha received from the National Student Loans Service Centre (NSLSC) for grants or loans through the Canada-Ontario Integrated Student Loan program, for the payment of her own tuition.
Positions of the Parties
[4] Mr. Levy argues that the amounts garnished from his wages for his contribution to Letysha’s college tuition should be reimbursed to him for the following reasons:
a) Ms. Dorsett never used the funds she received to pay Letysha’s tuition, or the loans Letysha obtained from the NSLSC in order to pay her tuition herself, which loans are still outstanding; and b) Letysha is no longer in school, so the purpose of the payments no longer exists.
[5] Ms. Dorsett acknowledges that she used the amounts she received from Mr. Levy to pay her rent and not for the payment of Letysha’s tuition, as contemplated by Justice Kruzick’s order. She disputes the amounts that were garnished from Mr. Levy and the amount of Letysha’s school expenses.
Background Facts Relevant to the Issue to be Addressed
a) The Court’s findings on January 14, 2016
[6] For reasons given on January 14, 2016, the court found that Mr. Levy’s contribution to Letysha’s s. 7 expenses, which the Family Responsibility Office (“FRO”) had garnished from his wages and paid to Ms. Dorsett, were impressed with a trust for the benefit of Letysha, and that Ms. Dorsett had breached that trust by failing to use the funds for their intended purpose.
[7] On the evidence tendered by Mr. Levy, $1,263.85 and $2,247.70 were garnished from his wages on December 22 and December 29, 2010, respectively, to satisfy his obligation, pursuant to Justice Kruzick’s February 11, 2009, order requiring him to contribute to the payment of Letysha’s tuition.
[8] Mr. Levy’s evidence, which was undisputed, was that Ms. Dorsett had not used the funds which FRO had remitted to her as Mr. Levy’s contribution to Letysha’s tuition for that purpose. Letysha had informed him that Ms. Dorsett did not pay her tuition, or pay the funds to Letysha, or to the NSLSC, and that the loan which Letysha obtained from the NSLSC to finance her payment of her own tuition was still outstanding. I inferred from this evidence that Mr. Dorsett, who had not responded to Mr. Levy’s motion, had breached the terms of the trust upon which she received the funds.
[9] Mr. Levy did not dispute that he was ordered to pay the amounts that were garnished from his wages, or that Letysha incurred the tuition expense that the amounts garnished from him were intended to pay. Letysha had attended the “Community and Justice” program at Sheridan College, and had incurred the expense of tuition costs for that program. Based on Mr. Levy’s evidence, Ms. Dorsett had not used the s. 7 funds which she had received to pay Letysha’s tuition. The loan which Letysha had obtained from the NSLSC to finance her studies was apparently still outstanding. The purpose of the trust materialized, and Ms. Dorsett had apparently breached the trust by failing to pay the funds she had received for their intended purpose.
[10] The court held that Letysha was the intended beneficiary of the trust which Justice Kruzick’s order had created and which the amounts garnished from Mr. Levy for her school expenses had been intended to satisfy, and that Letysha was entitled to apply for a remedy for her mother’s breach of the trust if she wished to do so, since the funds were to have been paid to her.
b) The order made by the court on January 14, 2016
[11] The court ordered Mr. Levy to serve its order and reasons on Ms. Dorsett and on Letysha Dorsett Levy, so that Letysha would be aware of the remedy available to her and could apply for it, if she wished. The court adjourned that aspect of the motion to March 8, 2016, when it was contemplated that Letysha could attend, if she wished.
[12] On March 8, 2016, Ms. Dorsett attended court. She advised the court that Letysha had been unable to attend court that day due to her employment obligations. She further stated that she had the records of Letysha’s enrollment in school, of the expenses she had incurred for her education, of the amounts that were paid toward those expenses, and the amounts that were still owing, either to the schools (Humber College and Sheridan College) or to the Ontario Student Assistance Program (OSAP), but needed further time to prepare an affidavit setting out the facts and attaching copies of the records. The motion was adjourned to April 28, 2016, to give her the opportunity to do so.
[13] The court ordered Ms. Dorsett, by March 11, 2016, to serve an affidavit of service on Mr. Levy, attesting to the fact that she had given the court’s reasons dated January 14, 2016, and its endorsement dated March 8, 2016, to Letysha. It further ordered her, by April 20, 2016, to serve on Mr. Levy and on Letysha, and file with the court her affidavit setting out the expenses Letysha had incurred for her schooling from February 11, 2009, to the present, the contributions Ms. Dorsett had received from Mr. Levy for those expenses, and what payments she had made toward the payment of those expenses, what grants and loans Letysha had secured from the NSLSC, and what amounts were still owing to the schools and to the NSLSC.
[14] The court further ordered St. Joseph’s Roman Catholic Secondary School, which the parties’ youngest daughter, Shyan attends, to produce to Mr. Levy all information and records he requested concerning Shyan’s education.
c) The Evidence Produced by Ms. Dorsett
[15] Ms. Dorsett filed an affidavit of service sworn March 9, 2016, attesting to the fact that on March 8, 2016, she had served Letysha Dorsett Levy with the court’s reasons, judgment, and endorsement at her residence. She attached Letysha’s signed acknowledgment that she had received the documents. Additionally, she filed an affidavit of service sworn April 13, 2016, attesting to the fact that she had served her affidavit sworn April 7, 2016, on Mr. Levy and on Letysha Dorsett Levy on April 12 and 13, 2016, respectively. Letysha did not attend the hearing on April 28, 2016. Neither party obtained further information from her to be considered in the motion.
[16] Ms. Dorsett submitted the following records:
a) A record from the Office of the Registrar of Sheridan College dated January 29, 2016, confirming Letysha’s enrollment at the College from the Fall 2009 term to the Winter 2012 term, setting out the charges and payments in connection with her attendance; b) A transcript dated January 12, 2016, of Letysha’s credits and grades earned at Humber College during the Fall 2014 and the Winter 2015 terms; c) Letysha’s General Student Record from Humber College for the Fall 2014 and the Winter 2015 terms, setting out the charges and payments in connection with her attendance. d) Disbursement History and Disbursement Details from the NSLSC setting out the grants and loans made to Letysha under her Canada-Ontario Integrated Student Loan, which sets out the amounts paid and the manner of payment – that is, whether the payments were made directly to the school or to Letysha.
d) The Financial Account dated March 16, 2016, from the Family Responsibility Office for the period June 23, 2010, to March 15, 2016, listing amounts collected from Mr. Levy and amounts paid to Ms. Dorsett.
[17] The foregoing records disclose the following facts:
a) Letysha was enrolled at Sheridan College, in the Community and Justice Studies Program, from the Fall 2009 term to the Winter 2012 term. The following amounts were charged by the College and paid by Letysha during that period:
i) In the Fall 2009 term, she incurred expenses of $1,784.50, which was paid in full. The NSLSC paid a grant of $960 directly to the College on September 8, 2009, and a loan of $691 directly to the College on the same date, leaving a deficit of $133.50 from the expenses incurred at the College and paid in full. A further loan of $768 was deposited into an account at the Bank of Nova Scotia, which Ms. Dorsett stated in court was Letysha’s account. The deficit in the amount that the NSLSC paid directly to the College may have been paid by Letysha from this deposit to her account, which would have left a balance of $634.50 that was loaned to Letysha to defray her personal expenses during that term.
ii) In the Winter 2010 term (from January 2 to 21, 2010), she incurred expenses of $1,426.50, which was paid in full. The NSLSC paid a grant of $959 directly to the College on January 12, 2010 and a loan of $467.50 directly to the College on January 13, 2010. These payments, collectively, fully paid the $1,426.50 charged by the College. A further loan of $79.50 was deposited directly to Letysha’s account and the Bank of Nova Scotia on January 13, 2010.
iii) In the Fall 2010 term (that is, from August 18 to October 21, 2010), she incurred expenses of $1,805.50 (including $1,154 for tuition and the balance of related fees and charges), which was paid in full. The NSLSC paid a grant of $960 directly to the College on October 15, 2010, and paid a loan of $845.50 directly to the College on the same date. These payments, collectively, fully paid the amount of $1,805.50 charged by the College. The NSLSC additionally paid loans of $381.50 on October 15, 2010, and $767 on October 18, 2010, directly into Letysha’s bank account at the Bank of Nova Scotia.
iv) In the Winter 2011 term (recorded as charged on September 26, 2011, but paid on February 3 and 4, 2011) Letysha incurred expenses of $1,475.50, of which $1,135.00 was paid. The NSLSC paid a grant of $959 directly to the College on January 26, 2011, and paid a loan of $176 directly to the College on January 27, 2011, which accounts fully for the $1,135 that was paid for that term, but which left an amount of $340.50 unpaid and, apparently, still owing.
v) In the Fall 2011 term (that is, from September 8 to December 12, 2011), Letysha incurred expenses of $1,805, and paid $2,145.50. The over-payment of $340.50 was refunded to her. The NSLSC paid a grant of $960 on November 25, 2011, directly to the College, and a loan of $845 directly to the College on the same date, which fully paid the $1,805 that the College charged. The NSLSC paid additional loans into Letysha’s account, in the amounts of $592 on November 25, 2011, and $513 on March 22, 2012.
[18] I note that while the records of Sheridan College state that Letysha was enrolled there from the Fall 2009 term to the Winter 2012 term, Ms. Dorsett has not submitted any Account Summery or Details for the Winter 2012 term, and no payments appear to have been made by the NSLSC for that term, although a loan of $513 was deposited to Letysha’s account on March 22, 2012, as noted above.
[19] Letysha was enrolled in the Police Foundations Program in the Department of Social and Community Studies at Humber College in the Fall 2014 and the Winter 2015 terms. Her Transcript and Account Summary disclose the following:
a) In the Fall 2014 term, Letysha completed 5 courses (13 credit hours), earning a Grade Point Average of 71.75. The College charged Letysha a total of $3,568.32 (including $1,181.70 “domestic tuition”), of which $1,787.28 was recorded as having been paid by Canada Student Loans, leaving an amount of $1,781.04 apparently unpaid. The NSLSC paid a grant of $989 directly to the College on October 14, 2014, and a loan of $397.00 directly to the College on the same date. It paid a further loan of $401.28 directly to the College on October 15, 2014, for a total of $1,787.28, corresponding to the amount that the College shows as having been paid by Canada Student Loans. Additionally, the NSLSC deposited a loan of $654.72 into Letysha’s account on October 15, 2014.
b) In the Winter 2015 term, Letysha completed 5 courses (15 credit hours) in the Winter 2015 term, earning a Grade Point Average of 68.80 that term, and an overall Grade Point Average of 70.11 for the program. The College’s Account Summary shows $3,582.28 as “term charges” (including $1,334 “domestic tuition”), of which $1,616.04 is noted as having been paid by Canada Student Loans, which would leave a balance of $1,966.24. The Account Summary shows total “term credits and payments” of $3,376.04 and a term balance of nil, suggesting that the balance of $1,966.24 was paid but it is unclear how. The NSLSC paid a grant of $1,046 directly to the College on January 15, 2015, and a loan of $570.04 directly to the College on January 16, 2015, for a total of $1,616.04, corresponding to the amount shown by the College as having been paid by Canada Student Loans. Additionally, the NSLSC paid $490.96 directly into Letysha’s account that term for school related living expenses.
[20] Summarizing the above, the records tendered by Ms. Dorsett disclose that during the period from the Fall of 2009 to the Winter, or early months, of 2015, Letysha incurred tuition and related charges of $15,447.60, consisting of charges of $8,297 at Sheridan College and $7,150.60 at Humber College. Of these expenses, the NSLSC paid $6,833 directly to the Colleges in the form of grants. It paid a further $4,906.32 directly to the College in the form of loans. This left a balance of $3,908.28 to be paid. The NSLSC paid loans of $4,727.18 directly into Letysha’s account during the period of her attendance at Sheridan and Humber Colleges, being $818.90 more than was required to pay the balance owing to the Colleges.
[21] Ms. Dorsett acknowledged at the hearing on April 28, 2016, that according to her understanding, $1,000 of Letysha’s school expenses is still owing to Sheridan College. She also acknowledged that she did not pay the amounts she received from the Family Responsibility Office, derived from amounts garnished from Mr. Levy for his contributions to Letysha’s school expenses, for their intended purpose, but spent the money for rent. Although Ms. Dorsett sought to justify doing so by reference to the delay between having to pay child-related expenses for the children, including expenses that would qualify as special and extraordinary expenses pursuant to s. 7 of the Child Support Guidelines, and such reimbursements as she later received for those expenses, these explanations do not amount to a lawful justification for breaching the trust which the payment of Mr. Levy’s contributions imposed on her to pay those funds to the Colleges Letysha was attending, or to the NSLSC in reduction of Letysha’s indebtedness for the student loans she received.
[22] The issue of exactly what amounts were garnished from Mr. Levy and paid to Ms. Dorsett for Letysha’s tuition expenses is still in dispute between the parties. Mr. Levy initially asserted that $1,263.85, garnished from his wages on December 22, 2010, and $2,247.10, garnished from his wages on December 29, 2010, for a total of $3,510.95, were garnished to satisfy his obligation to contribute 70% to the payment of Letysha’s tuition expenses. Based on his evidence alone, I made this finding at paragraph 32 of my reasons dated January 14, 2016.
[23] As is often the case, the facts appear simpler when only one litigant has provided evidence than when both litigants have done so. The FRO financial account dated March 16, 2016, covering the period from June 23, 2010, to March 15, 2016, shows that $2,527.35 was debited to Mr. Levy’s account, consisting of the following:
a) $1,263.85 debited on December 22, 2010, described as “SR SOA 161210 Tuition 211010”; and b) $1,263.50 debited on January 25, 2012, described as “SRSOA131211-Tuition Fees”.
[24] Because the foregoing amounts are clearly referable to tuition, and Ms. Dorsett acknowledges that they were not used for this purpose, she will be ordered to pay that amount to Sheridan and/or Humber Colleges, to the extent that amounts are still owing to them for Letysha’s studies. If there are no amounts owing to the Colleges, or less than the $2,527.35 holds in trust for Letysha’s tuition expenses, Ms. Dorsett shall pay the balance to the NSLSC in reduction of Letysha’s indebtedness to that agency.
[25] The other debits that appear on the FRO financial account which may be attributable to tuition expenses, as they are not clearly described as support, are the following:
a) $2,247.70 debited on December 29, 2010, described as “SR SOA0911210 250609-210110” b) $1,078.00 debited on December 15, 2011, described as “SR 241011 SOA SP EXP”
[26] FRO appears to have collected these amounts based, in part, on information or records it received from Ms. Dorsett. Because Ms. Dorsett mis-applied some of the amounts she received, an order will be made requiring her to obtain from FRO copies of the documents which formed the basis of their collection of the unidentified amounts from Mr. Levy, and to provide this evidence to Mr. Levy and to the court.
[27] Ms. Dorsett has tendered evidence of other expenses that she incurred for the parties’ youngest daughter, Shyan, which she asks the court to characterize as s. 7 expenses. From my review of the evidence she has submitted, these consist of the following:
a) YMCA sports camp: i) Jan. 1 and Feb. 2/10 to July 30/10: $ 557.28 ii) Nov 12/09 to Feb 13/12: $1,080.27 b) Springers Gym Club: i) July to Aug/10: $ 286.00 ii) Jan – June/11: $ 297.10 iii) 2013/14 (Winter 2014): $ 171.75 iv) Dec 3/15 – Dec 2/16: $ 18.33 c) School Trip to Ottawa (May 20-22/15) $ 517.00 d) Graduation Dress (June 13/15): $ 113.00 School Uniform (Aug 28/15): $ 80.02 (of a total of 121.89) e) Lap Top Computer (Dec 8/15): $ 372.90
[28] The court will address these claims at the parties’ next court appearance. Additionally, the court will conduct a final accounting at that time of Letysha’s education expenses. From the records reviewed above, it appears that the total amount of Letysha’s tuition expenses not covered by grants from the NSLSC was $8,614.60 ($15,447.60 in total charges from the Colleges less $6,833 that the NSLSC paid directly to the Colleges in the form of grants). This payment of this balance of s. 7 expenses, in the amount of $8,614.60, is the responsibility of Mr. Levy and Ms. Dorsett, in proportion to their respective incomes.
[29] The allocation of s. 7 expenses between the parties has been determined to be 70% from Mr. Levy and 30% from Ms. Dorsett. Mr. Levy’s 70% of the $8,614.60 balance amounts to $6,030.22, of which Mr. Levy is entitled to a credit of $2,527.35 for the amount that FRO has already collected from him, leaving a balance of $3,502.87 owed by him. Ms. Dorsett’s 30% of the $8,614.60 balance amounts to $2,584.38, still owed by her.
[30] Subject to further evidence from the parties, then, it would appear, at this point, that Mr. Levy still owes $3,502.87 (that is, $6,030.22 less the $2,527.35 that was already collected from him) and that Ms. Dorsett, besides the $2,527.35 that she has received from Mr. Levy and must pay to the Colleges or to the NSLSC, owes a further $2,584.38. At the parties’ next appearance in court, the court will, after reviewing any further evidence from the parties and from FRO, confirm the amount of the parties’ obligations to repay Letysha’s debt to the NSLSC and establish a timetable for their doing so.
Conclusion and Order
[31] For the foregoing reasons, it is ordered that:
The motion is adjourned to May 27, 2016, at 9 a.m. before me.
Ms. Dorsett shall, by May 23, 2016, pay $2,527.52 to Sheridan and/or Humber College for any amounts currently owing to them for Letysha’s tuition and other fees and charges and produce to Mr. Levy and file with the court evidence that she has done so, and file with the court evidence that she has done so, and showing the current amount owed by Letysha to Sheridan and Humber College.
If there are no amounts owing by Letysha to Sheridan or Humber College, Ms. Dorsett shall pay the $2,527.52 to the National Student Loans Service Centre (NSLSC) on Letysha’s account and produce proof of same to Mr. Levy and file it with the court by May 23, 2016, with a statement as to Letysha’s current debt to the NSLSC.
Ms. Dorsett shall, by May 23, 2016, produce to Mr. Levy and file with the court the records of the Family Responsibility Office as to the expenses for which the following amounts were garnished from Mr. Levy and showing proof that the expenses were paid:
(a) $2,247.70 debited to Mr. Levy’s account on Dec. 29, 2010; (b) $1,078.000 debited to Mr. Levy’s account on December 5, 2011.
- Sheridan College, Humber College, and the NSLSC shall produce to Ms. Dorsett and to Mr. Levy, upon requests by them and upon their paying the normal charges for photocopying, such records as they request concerning the accounts of Letysha Dorsett Levy’s educational expenses, the payment of them, and the grants and loans received by her for her studies.
Justice David Price Released: April 29, 2016
COURT FILE NO.: FS-06-58664-01 DATE: 2016-04-29 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MAUREEN DORSETT Applicant - and – BYRON LEVY Respondent REASONS FOR DECISION Price, J. Released: April 29, 2016