Court File and Parties
COURT FILE NO.: FS-99-39439-02 DATE: 2016 05 16
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Stewart Voth In Person Applicant
- and -
Farah Voth In Person Respondent
HEARD: February 8, 9 and 23, 2016
Reasons for Judgment
Justice M.G. Emery
[1] The applicant father Stewart Voth brings this motion to change the final order made by Justice Lemon on December 3, 2010. In particular, he seeks an order to reduce the child support he is to pay for the child Roxanne Bettina Voth, born on February 24, 1995 and to vary his obligation to pay towards the section 7 expenses for her post-secondary education on the basis that:
a) He now earns substantially less each year than the $78,500 annual income on which Justice Lemon’s order was based; and
b) Roxanne, being a person older than 18 years of age, has failed to provide sufficient evidence that she has been enrolled or attended at an institution for post-secondary education continuously since September 2013.
[2] Farah Voth opposes the motion to change. Farah maintains that Roxanne has attended school for her post-secondary education on a continuous basis between September and April each year commencing September 2013. Farah also disputes Steward’s evidence that his income has declined as he claims.
[3] The parties agree that Justice Lemon’s order shall be varied on consent to exclude any requirement that Stewart pay support for his oldest daughter, Chantelle Fatima Voth, who is now 24 years of age and lives independently of both her parents.
Relevant background
[4] Stewart and Farah were divorced on July 4, 1997. They have two daughters, Chantelle Voth, born on April 30, 1992, and Roxanne Voth, born on February 24, 1995. Roxanne turned 18 years of age on February 24, 2013.
[5] The parties agreed to a final order made by Justice G.D. Lemon on December 3, 2010 by entering minutes of settlement. The final order required Stewart to pay the following child support for the two children, based on his annual income at the time of $78,500:
- Commencing December 1, 2010, the Applicant shall pay to the Respondent the total amount of one thousand and four hundred and seventy-one dollars ($1,471.00) for the children, namely Chantelle Voth, both April 30, 1992, and Roxanne Voth, both February 24, 1995, which is comprised of the following:
a. The amount of one thousand and one hundred and forty-one dollars ($1,140.00), which is the Guideline amount for two children based on the Applicant’s annual income of $78,500.00; plus
b. The amount of twenty dollars ($20.00) per month, being the Applicant’s proportional share (66.2 per cent) of Roxanne’s gym membership; plus
c. The amount of three hundred and ten dollars ($310.00) as payment of any and all arrears of periodic monthly child support and section 7 expenses, including interest;
d. The payment in paragraph 2.c. above shall terminate following the 12th such payment which is payable on November 1, 2011;
[6] Stewart and Farah further agreed in the minutes of settlement that Stewart would contribution to the future section 7 expenses of the children based on his proportionate share of 66.2 percent as follows:
- The Applicant shall contribute his proportional share (currently 66.2 per cent) of the children’s future section 7 expenses, which shall include but not be limited to the following:
a. The costs of the children’s post-secondary education;
b. The cost of future school trips;
c. The cost of future regular dental care and vaccinations that is not covered by the Respondent’s extended health coverage;
d. The cost of future music lessons;
e. The cost of future gym memberships for Chantelle and gymnastics for Roxanne;
f. The cost of Chantelle’s crowns and Roxanne’s orthodontics. The Applicant shall provide the Respondent with a second opinion regarding Chantelle’s crowns but Chantelle in consultation with the Respondent shall have the final determination as to where to go for this procedure;
g. The costs of Roxanne’s driving school;
[7] After Stewart brought his motion to change on May 21, 2013, I made a final and temporary order on March 19, 2014 that:
The Applicant, Stewart Voth shall pay to the Respondent, Farah Voth child support for the child: Roxanne Voth born 24 Feb 95 in the support table and section 7 in the amount of $1100.00 per month, commencing on the 1st day of April, 2014 and continuing on the 1st day of every month thereafter.
This arrangement shall be reviewed in August 2014, but this amount shall continue to be paid until varied by court order.
The said support being based on 1 child being supported under the applicant’s annual income of $120,000.00.
The Respondent Farah Voth shall serve and file her 2013 Tax Return and Notice of Assessment and documents supporting her claim for special expenses for Roxanne if available or as soon thereafter as received by 14 Aug 2014.
[8] There followed efforts by Stewart to obtain proof of Roxanne’s attendance for post-secondary education in 2014. Justice Barnes made a handwritten endorsement on February 24, 2015 that read:
The Applicant seeks to terminate child support for the 20 year old child of the marriage on the basis that she is not attending school.
Matter adjourned for Respondent to provide the Applicant with Roxanne Voth’s (transcripts for the) university 2013/14 and 2014/15 school year by April 7, 2015. Applicant’s motion shall be heard on April 14, 2015 at 10:00 a.m. (words added based on context).
Respondent cautioned that failure to provide these university transcripts may, at the Court’s discretion, result in termination of child support for Roxanne Voth.
[9] On May 12, 2015 Justice Andre wrote the following endorsement:
Mrs. Voth was cautioned on February 24, 2015, that failure to provide the Applicant with her daughter’s university transcripts may result in the termination of child support for the child, Roxanne Voth.
She has failed to provide the transcripts. Mr. Voth’s motion is adjourned to June 2, 2015, 10:00 a.m. If Mrs. Voth fails to obtain the outstanding transcripts, the court may consider hearing Mr. Voth’s motion to terminate child support for Roxanne.
[10] On June 23, 2015, Roxanne appeared in motions court, at which time she advised Justice Bielby she had provided the transcript for the 2014/2015 school year to her parents. However, she explained to Justice Bielby that her transcript for the 2013/ 2014 academic year could not be obtained from the University of Toronto because she owes money to the University. Justice Bielby advised Roxanne to gather together any and all information in her possession to prove that she had registered and attended the University of Toronto on a full-time basis for that academic year.
[11] Roxanne attended when Farah and Stewart were next before me in motions court on July 14, 2015. Roxanne produced a red colored binder that, according to her representations, contained evidence of her attendance at the University of Toronto during the 2013/ 2014 school year. I gave directions at that time to allow Stewart to take copies of any documents in Roxanne’s red binder for use as evidence on this motion to change.
[12] On August 11, 2015, Justice Baltman issued the sternest warning yet when the parties appeared before her in motions court. Justice Baltman endorsed the record after hearing from the parties as follows:
See previous endorsements. Mom did provide her binder to Dad and he made certain photocopies.
However, what Mom has not yet done and what she must do is prepare a copy of any documents she is relying upon along with a supporting affidavit referring to and explaining how those documents help to provide that Roxanne was in fact attending U of T during the 2013–14 academic year, and completed the academic year there.
That binder and supporting affidavit should be filed with the court in advance of the return date of Tuesday, August 25, 2015. This will allow the court to review the “evidence” mom is apparently relying upon, in advance of her reattendance.
Unless Mom is adding new documents to the material Dad already had the opportunity to photocopy, she need not re-serve him with documents but shall serve him with the affidavit.
[13] Farah did not serve and file an affidavit to provide the evidence directed by Justice Baltman for the purpose of the motion to change. However, Roxanne swore an affidavit on August 21, 2015 in which she refers to the binder, which I take to be the red binder assembled for the attendance in motions court on July 14, 2015, without attaching specific pages as exhibits. Roxanne refers to page 18 of the binder, which is a Student Accounts Invoice of the Winter Term expenses and other charges Roxanne was billed by the University of Toronto in 2014. This Invoice was printed on February 11, 2015 and shows an invoice total owing of $2,204.95. The rest of the affidavit is a two page block of narrative with respect to Roxanne’s view of what her father should know about her school attendance and their relationship. There were no exhibits attached to this affidavit. Notably, there were no transcripts attached to the affidavit from Roxanne’s year at the University of Toronto.
[14] Stewart is up-to-date on all support and section 7 payments he has been ordered to make.
Analysis
[15] Farah and Stewart have now been divorced for more than 19 years. Stewart remarried several years ago.
[16] Stewart is essentially self-employed. He is the owner and operator of his own company, Adanac Electric Ltd.
[17] Farah has been employed by Royal Bank of Canada for approximately 25 years. She has been an expert client advisor at the bank for approximately 18 months, and served customers of the bank as a customer assistance officer before filling that new position.
[18] Farah and Stewart do not get along well. Stewart’s support obligations are, and likely always have been, a source of contention between them. From Roxanne’s emotional outbursts while other witnesses were testifying during the trial, and from her own evidence given as part of Farah’s case, I conclude that Roxanne has strong feelings of resentment towards her father.
[19] Stewart gave evidence that he is currently paying $400 a month for child support to Farah, and $760 a month for section 7 expenses towards Roxanne’s post-secondary education. He states that he has been paying these amounts since September 2013 when Roxanne enrolled as a full-time student at the University of Toronto.
[20] While Stewart has made these payments under the final order granted by Justice Lemon on December 3, 2010, those payments were continued under my final and temporary order made on March 19, 2014 in the amount of $1,100 a month. That order was made on consent, and recites that it is based on Stewart’s annual income of $120,000 a year. This income is inconsistent with the evidence Stewart gave at trial of his annual income over the last five years.
[21] Stewart gave evidence that his personal income for the years 2011 to 2015 immediately preceding the trial has been:
2011 $35,344.73 2012 $63,258.00 2013 $64,296.00 2014 $50,000.00 2015 $37,800.00
[22] Stewart raises the issue of whether Roxanne attended the University of Toronto on full-time basis for the 2013/2014 school year for the court to determine if he should receive the return of the section 7 expenses he paid for that year, and to determine his obligation to contribute going forward. In this trial, evidence that Roxanne has been enrolled in, and has attended school on a full time basis for her post-secondary education is key to Stewart’s obligation to pay ongoing child support and section 7 expenses to Farah. Stewart does not dispute that Roxanne enrolled in, and started attending the University of Toronto in September 2013.
[23] Stewart disputes that Roxanne completed the academic year she started at the University of Toronto in September, 2013. He questions why neither Farah nor Roxanne can produce the transcripts for that academic school year to prove Roxanne’s full-time attendance as ordered by this court. Stewart contends that it is no excuse that Roxanne cannot obtain those transcripts from the University of Toronto because she owes the money to the University for tuition. Stewart cannot understand how Roxanne can owe money to the University of Toronto since he has paid child support for Roxanne, and paid his share of section 7 expenses to Farah for Roxanne’s post-secondary education.
[24] Stewart also questions whether Roxanne attended school for post-secondary education on a full-time basis between September 2014 and April 2015. Stewart therefore seeks a change to Justice Lemon’s order with respect to the child support and section 7 expenses he has paid Farah between September 2013 and April 2015, and seeks an adjustment or reimbursement for those payments. He argues that a material change in circumstances has occurred if Roxanne was not enrolled in school on a full-time basis during those years. He submits that this material change should entitle him to a refund of those payments he has made under paragraph 3 (a) of Justice Lemon’s order for his share of those expenses.
[25] Stewart also seeks a change to Justice Lemon’s order that he pay $1,141 for two children based on his annual income of $78,500 in 2010. Stewart gave evidence at trial that he now makes only $37,800 a year from his company. He also seeks a change to the proportionate share he should pay towards Roxanne’s education based on his change of income, and the undisputed fact that Farah’s income has increased from $43,000 to $45,000 a year.
Stewart’s claim that his income has changed
[26] Neither party provided the court with authorities setting out the requirements or the test on a motion to change. For the benefit of all concerned, I shall take the opportunity now to set out the essential elements.
[27] A motion to change a final order in Ontario is brought under Family Law Rule 15. The basis for bringing a motion to change a final order for child support and section 7 expenses is found in section 17 of The Divorce Act if the final order was made in a divorce proceeding under that Act. Family Law Rule 15 itself does not contain the test for the court to apply if there are grounds supported by evidence filed on the motion to change. The test on a motion to change is found in the case law, depending on the nature of the final order and the relief requested on the motion to change.
[28] The seminal case setting out a test for a variation of a final order, for which a motion to change is brought, is that of the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27. In Gordon v. Goertz, the court was dealing with the merits of an application to vary a custody and access order. The court stated that those merits may be considered only where the reviewing court is first satisfied that a material change in circumstances has occurred since the date the final order was made. The onus of proof is on the moving party, in this case Stewart, to prove that a material change of circumstance has occurred, and the standard of that proof is on the balance of probabilities: Willick v. Willick, [1994] S.C.J. No. 94 (S.C.C.).
[29] The Court of Appeal in Persaud v. Garcia-Persaud, 2009 ONCA 782, discussed that the grounds and the evidence to support those grounds are not only necessary to change a final order under Family Law Rule 15, but for the court to find jurisdiction to make any order at all.
[30] The Persaud case also confirms that the onus is on the moving party on a motion to change to satisfy the court that a material change of circumstances has occurred since the date the final order was made and that, had those new circumstances constituted the evidence before the judge who made the final order, a different order would have been made based on those circumstances. This includes a consideration of whether, on the evidence, Stewart as the moving party seeking a change to the final order to pay child support is intentionally underemployed, or has unreasonably deducted expenses from income, or for any other reason under section 19 of the Child Support Guidelines should have income imputed to him greater than the amount he claims to earn.
[31] For there to be a change in circumstances, it has been held there must be a measure of continuity of those changed circumstances: Marinangeli v. Marinangeli, [2003] O.J. No. 2819 (Ont. C.A.).
[32] The onus is therefore on Stewart to establish that his income has changed since Justice Lemon granted the final order on December 3, 2010, and that this change in income constitutes a material change in circumstances. Stewart gave evidence in court during the trial, and was subject to cross-examination by Farah. Farah also had the opportunity to oppose the motion to change by calling evidence to contradict Stewart’s evidence as the responding party.
[33] Justice Lemon’s final order required Stewart to pay $1,140 as the guideline amount for the two children, Chantelle and Roxanne, at the time, based on his annual income of $78,500. His income of $78,500 was also relevant to the proportional share of the children’s future Section 7 expenses, which specifically included but not be limited to the cost of the children’s post-secondary education under paragraph 3 of the order.
[34] The question becomes whether Stewart’s income has declined sufficiently to constitute a material change in circumstances. If it has, I must determine what that income is now in order to determine the child support he should pay for Roxanne, and his proportional share of her Section 7 expenses relating to the cost of her post-secondary education.
[35] Stewart has given evidence that his Line 150 income for 2015 was $37,500. This is approximately one-half the income on which Justice Lemon’s final order for Stewart to pay child support and his proportional share of Roxanne’s post-secondary education expenses was based. Stewart filed his Notice of Assessment for 2015 showing his Line 150 income as $37,800 as an exhibit as part of his evidence.
[36] Stewart’s company is an electrical contractor that supplies services to others. According to Stewart’s evidence, Adanac subcontracts certain tradesmen or other electrical contractors and suppliers to perform that work.
[37] Stewart explained that Adanac suffered a loss of gross sales from 2013 of $442,126, to $371,422 in 2014. As a result of this loss in sales, he took a pay cut. He also explained that the expenses for Adanac were up because of increased wages to Mark Willis, the proprietor of Oakwood Electric. Oakwood Electric provides subcontractor services to Adanac. Stewart explained that Adanac had to pay increased rates to Oakwood Electric to retain their services as an electrical contractor to Candu. The financial statements from Adanac for the year ending September 30, 2014 showed sales and expenses consistent with the increased expenses claimed.
[38] Farah did not provide any evidence to contradict Stewart’s evidence that gross sales for Adanac had declined between 2013 and 2014. Nor did Farah provide evidence to the contrary that Adanac’s expenses increased because of increased rates it felt compelled to pay Oakwood Electric to retain its services to service an important contract.
[39] In Stewart’s cross-examination, Farah asked about an income-producing house that he had purchased with his mother. This cross-examination was intended to establish that Stewart benefitted from an income stream generated from that property for rentals to tenants. Stewart testified under cross-examination that he had purchased the property with his mother for her to live in with her sister, Stewart’s aunt Joan. Stewart testified that the rental from the property produced a loss of $100 to $200 a month after Aunt Joan moved out. Subsequently, Stewart and his mother sold that property for a $35,000 loss.
[40] Farah gave no evidence to contradict the evidence given by Stewart with respect to the rental income from the house, or the loss sustained when the house was sold. I therefore do not attribute any income from this rental property for any year to Stewart.
[41] Farah also tested Stewart on personal expenses that Stewart and his current wife may have Adanac pay on their behalf. Stewart testified under cross-examination that he and his wife pay all of their personal expenses and incur personal debt, and that doing so does not involve the company. He testified that the company is separate. In fact, Stewart gave evidence that he has used personal funds to prop up Adanac and has taken advances in the recent past from the personal line of credit he has with his wife to inject capital into the company. When asked about how he could afford to take a Caribbean vacation, Stewart testified that the vacation was paid by credit card points and $500 of his personal funds.
[42] Farah called Roxanne as a witness. Roxanne did not have any evidence to give with respect to Stewart’s current income. She attempted to give second hand evidence by recounting a statement made by Stewart’s current wife to convey the impression she pays groceries from Adanac’s corporate account. However, that statement was hearsay and I consider it to be inadmissible evidence to consider on this motion to change.
[43] In view of Stewart’s evidence that his income is dependent on the sales and expenses of Adanac Electric, and that Adanac Electric has suffered a decline in sales and an increase in expenses, I accept that Stewart’s personal income has declined from $78,000 to $37,800 a year. I further conclude on the evidence given that this will continue to be his annual income for the foreseeable future. I consider this to be a material change in circumstances. Farah introduced no evidence to the contrary that these circumstances are not what they appear to be. I was given no reason by Farah to apply the criteria under Section 9 of the Child Support Guidelines that Stewart is intentionally under-employed, or that he is incorrectly claiming expenses that he should not claim.
[44] I therefore conclude that Stewart should succeed on his motion to change the current amount of child support and section 7 expenses he pays to Farah each month for Roxanne while she remains a full-time student at a post-secondary institution. Based on the Child Support Guidelines, Stewart’s child support for Roxanne is reduced to $330 a month, effective June 1, 2016. Stewart shall pay this amount each month to Farah until Roxanne either withdraws from full time enrollment in a post-secondary institution or sufficient evidence is given that she no longer attends school on a full-time basis, or when she graduates from Ryerson University in April 2018.
If and when Roxanne was enrolled fulltime in school
[45] Stewart takes issue with the lack of evidence that Farah has provided to prove that Roxanne has been enrolled full-time at a post-secondary school since October 2013. He maintains that he is entitled to this evidence on the motion to change the final order for ongoing child support since Roxanne is over 18 years of age, and to a proportionate share of her Section 7 expenses for post-secondary education.
[46] Stewart accepts that Roxanne has been enrolled on a full-time basis at Ryerson University since September 2014. He therefore accepts as a fact that his daughter has been a full-time student for the 2014-15 and the 2015-16 academic years. However, he seeks an adjustment to the full contribution he made to the 2013-14 school year at the University of Toronto that Roxanne candidly admits that she lost interest in attending after finding out that the University of Toronto was not for her in the fall of 2013.
[47] The difficulty with this request for an adjustment is that it is not necessarily a subject for a motion to change. In Cunningham v. Moran, [2011] O.J. 2880, 2011 ONCA 476, the Court of Appeal stated that where an adjustment is claimed with respect to amounts that were or should have been paid for previous periods of time, the proper remedy is for the applicant to apply for an adjustment under the applicable legislation. Absent such a determination, the law that governs a motion to change does not recognize an entitlement to either a refund for past payments, or to compensate a party for those payments.
[48] Stewart relies upon the various endorsements made by Justice Barnes of February 24, 2015, Justice André on May 12, 2015, and Justice Baltman on August 11, 2015. His evidence that neither Farah nor Roxanne has provided him with Roxanne’s transcripts for her year at the University of Toronto between September 2013 and April 2014 is not refuted or denied. In fact, both Farah and Roxanne gave evidence that the University of Toronto has advised Roxanne that they will not release her transcript until she pays the arrears $2,200 for tuition that has been outstanding since October 2013.
[49] Stewart testified that he cannot understand how Farah and Roxanne have allowed this default to the University of Toronto to continue. Stewart paid a $10,000 payment to catch up on all support obligations at one point, and Roxanne received a student loan from National Student Loan Service Canada in the amount of $7,512 in September, 2013. Despite receipt of these funds, either Farah did not provide Roxanne with funds from Stewart intended for her post-secondary education or Roxanne did not use those funds to pay her tuition owing to the University of Toronto.
[50] Stewart also testified that even though he has made full and punctual payments towards his obligations for ongoing child support and section 7 expenses for Roxanne since then, none of that money has been used to satisfy Roxanne’s obligations for her outstanding tuition. The failure to use those funds for their intended purpose is unacceptable to Stewart, and gives rise to his suspicion that Roxanne did not attend school for that year beyond October 2013.
[51] Stewart’s belief is fortified by the rent cheque produced by Farah for Roxanne’s first month of rent to C.H. Lee in the amount of $450 dated August 26, 2013, and a second cheque from Farah to C.H. Lee for $450 dated September 1, 2013 for Roxanne’s last month’s rent. Although Farah has provided receipts for Roxanne’s rent paid to C.H. Lee for monthly rents from October 2013 to February 2014, there is no other evidence that Roxanne was enrolled in school while living in premises rented from C.H. Lee. Even Roxanne’s notes from her classes in Spanish and in film studies do not extend beyond October 2013.
[52] I do not accept bank statements showing that Roxanne purchased a Metro Pass for any month between January 2014 and April 2014 as proof of her full-time attendance at a post-secondary institution. Neither Farah nor Roxanne have provided any confirmation letter from the University of Toronto such as the letter dated April 2, 2015 confirming her enrollment at Ryerson University confirming her enrollment in the criminology program for the 2014/2015 academic year. The letter from Ryerson University was marked as exhibit 26 at the trial.
[53] I also find it interesting that the letter from Ryerson University also states that “Roxanne is unable to get a transcript at this point due to a financial hold on her account.”
[54] Farah testified that Roxanne left the room she rented from C.H. Lee in April 2014, and conceded there is no other proof of any place Roxanne was living until she took up residence at the Alexandra Hotel for the school year that commenced in September 2015. Roxanne has testified that she lived at 2088 Eglinton Avenue East before that time when she attended Ryerson University. Since Stewart accepts Roxanne’s word that she has been attending school on a full-time basis since September 2014, I am not prepared to make any adjustment or order any reimbursement of section 7 expenses paid by Stewart for those school years.
[55] In view of the allocation to section 7 expenses in the amount of $760 a month that Stewart paid for Roxanne’s section 7 expenses in 2013 and 2014, together with the lack of evidence that Roxanne was enrolled full-time at the University of Toronto beyond October 2013, I consider that an adjustment to Stewart’s support for section 7 expenses is justified. In my view, an adjustment to those section 7 expenses falls outside of the principles set out in Cunningham v. Moran.
[56] In Cunningham v. Moore, it was held that the motion to change procedure was not available for a retroactive adjustment or claim for the reimbursement of support paid under a previous order. Instead, relief should be pursued under the appropriate legal regime for family law. I consider the law of unjust enrichment to be part of the law in Ontario. The law of unjust enrichment provides the basis for Stewart to pursue a claim if he can satisfy the court on the evidence that Farah has been unjustly enriched at his expense, and without any juristic reason: Kerr v. Baranow, [2011] S.C.J. No. 10 (S.C.C.), 2011 SCC 10.
[57] Based on the lack of evidence that Roxanne was enrolled and attending the University of Toronto on a full-time basis for her post-secondary education after October 2013 for the rest of that academic year, I find that Farah has been unjustly enriched by Stewart’s contribution towards Roxanne’s section 7 expenses for that year. Generally, where one party has been unjustly enriched by the payment of money by the other party through misrepresentation or under a false impression that undermines the obligation to pay, the court should consider that the other party has been deprived of the amount paid. There was no evidence of any juristic reason to justify Stewart’s payment of the child support and section 7 expenses for that school year. Farah and Roxanne have failed to make the necessary disclosure despite numerous court orders, either on the dates ordered for them to do so or at all.
[58] In my view, Farah had the organizational skills as a person with extensive background in banking to obtain, assemble and provide all available evidence required for this case. When this evidence was not given at trial, particularly the transcript of Roxanne’s marks for her year at the University of Toronto between September 2013 and April 2014, I can only conclude that Roxanne did not pay her tuition because she did not complete that academic year, or that the transcript will contain evidence that is otherwise not favorable to Farah’s case.
[59] I therefore order Farah to repay Stewart the section 7 expenses he was paying towards Roxanne’s postsecondary education between November 2013 to April 2014 in the amount of $760 per month for those six months, totalling $4,560 on the basis of unjust enrichment. However, I further order that Stewart is not entitled to set-off this amount against the ongoing support and proportionate share of the section 7 expenses he is to pay Farah for Roxanne’s education at Ryerson University as that would not be in Roxanne’s best interests. To do so would cause her undue financial hardship and likely disrupt her current studies.
[60] I further find that Stewart’s income requires an adjustment to the proportionate share he pays towards Roxanne’s ongoing section 7 expenses for pursuing her post-secondary education. I am capping those section 7 expenses for the purposes of calculating Stewart’s contribution towards those education costs at $1,000 a month during the school year. Stewart is now ordered to pay 46 per cent of those expenses based on his annual income of $37,800, with Farah paying 54 per cent of those expenses based on her annual income of $45,000. Stewart is therefore ordered to pay $460 monthly from September 2016 until April 2018 for those months that Roxanne is registered in and attends school on a full-time basis for her postsecondary education, or until she ceases to be a full-time student.
[61] In view of the difficulty that Farah and Roxanne have encountered with payment of tuition to the applicable institution where Roxanne is seeking her post-secondary education, I further direct Farah to ensure that Stewart’s payments under section 7 are applied directly to the tuition invoiced by the applicable school where Roxanne is attending until that tuition is paid for that academic year in full. This will ensure accountability in the future, as well as to enable Roxanne to obtain a transcript of her marks when she graduates.
Conclusion
[62] I therefore reduce Stewart’s ongoing child support for Roxanne to $330 per month, effective June 1, 2016 and ending on the earlier of the first day of the month Roxanne withdraws from her current program at Ryerson University or April 30, 2018.
[63] Stewart’s contribution to section 7 expenses towards Roxanne’s post-secondary education for those months in which she is registered and attends school for post-secondary education as a full time student between September 2016 and April 2018 is reduced to $460 for each of those months.
[64] I further order Farah to return $4,560 to Stewart for six months of section 7 expenses he paid for Roxanne from November 2013 to April 2014 for which insufficient proof has been provided that she was enrolled full-time for post-secondary education. These were payments Stewart should not have been required to pay pursuant to the final order made by Justice Lemon on December 3, 2010.
[65] Stewart has been the successful party on this motion. The presumption that he is entitled to the costs of the motion as the successful party under Family Law Rule 24(1) operates in his favour. Stewart is therefore invited to file written submissions on any costs he is seeking for the motion by May 27 2016. Farah shall then have until June 10, 2016 to file responding submissions in writing. All submissions must be no more than two pages in length, and may be filed by fax and addressed my judicial assistant, Mr. Christopher Charles, at 905-456-4834.
[66] A new Support Deduction Order shall issue accordingly.
Justice Emery Released: May 16, 2016