CITATION: Charron v. Dumais, 2016 ONSC 7491
COURT FILE NO.: FC-00-902-1
DATE: 2016/12/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANNE CHARRON, Applicant/Responding Party
AND
JEAN-CLAUDE DUMAIS, Respondent/Moving Party
BEFORE: Justice Stanley Kershman
COUNSEL: Ron Paritzky, for the Applicant
Any Mayer, for the Respondent
HEARD: March 3, 2016 and September 15, 2016
REASONS FOR DECISION
Introduction
[1] Mr. Dumais, the Moving Party (“Father”), has brought a motion to change the child support provisions of J. MacKinnon J., dated October 24, 2001, on the basis of material changes in circumstances.
[2] Ms. Charron, the Responding Party (“Mother”), has brought a cross-motion seeking retroactive child support, including the Father’s share of s. 7 expenses incurred on behalf of the three children, retroactive to 2001 or such other date as the Court deems just.
Factual Background
[3] The parties were married on November 1, 1986. They separated on January 1, 2000 and were divorced in 2004.
[4] There are three children of the marriage, namely, Stephanie Dumais, born December 28, 1988 (age 27); David Dumais, born August 5, 1990 (age 25); and Cedric Dumais, born September 25, 1993 (age 22).
[5] The Father is 54 years old. He was a federal government employee with the International Research Center from September 1986 to May 2015. He retired in May 2015 as a result of a restructuring, wherein the federal government terminated his position. His 2014 income was $90,505. The Father estimates his 2015 income at $86,911.
[6] The Mother is 52 years of age. She is employed as an administrative assistant at St. Paul University. Her income in 2014 was $51,000, and her income in 2015 was $57,500.
October 24, 2001 Order
[7] On October 10, 2001, the parties signed Final Minutes of Settlement. The terms of the Minutes of Settlement were confirmed in a Final Order of J. MacKinnon J. dated October 24, 2001 (“Order”). The relevant provisions of the Order are as follows:
• Joint custody of the children to both parents with primary residence to the Mother;
• Access to the Father on alternating weekends, plus overnight access every Wednesday; and
• Equal time sharing of holidays and March break and generous access to the Father during summertime.
• Pursuant to the Order, the Father was to pay $950 per month in child support for three children from November 1, 2001, plus 82% of extraordinary expenses until the Mother obtained employment, at which time the percentage would be reviewed in accordance with their incomes.
• The Father was also required to pay spousal support of $750 per month, based on his income of $52,600 and the Mother’s income of nil.
• Both parties agreed to provide annual disclosure through income tax returns. The order was silent as to the adjustment of child support on an annual basis.
• The parties agreed that s. 7 expenses would be contributed to proportionately based on consent, such consent not to be unreasonably withheld.
Father’s Issues on the Motion
[8] Should the Father’s child support obligation for Stephanie and David be terminated on an immediate and final basis?
[9] Should the Father’s child support obligation for Cedric be reduced to reflect the fact that he lives away during the school year?
[10] Should the Father’s obligation to support Cedric extend beyond a first degree of University?
[11] Should the joint RESP be applied towards Cedric’s remaining educational costs?
[12] Should the Mother be entitled to seek an adjustment of child support, including s. 7 expenses, retroactive to 2001?
[13] Should retroactive child support including s. 7 expenses be ordered for children who are no longer “children of the marriage” as defined under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)?
[14] Should the Mother’s interference in the Father’s relationship with his children, and the estranged relationship between the Father and the children, play a role in determining the outcome of the motions before the Court?
Mother’s Issues on the Cross-Motion
[15] Should the Father be permitted to avoid paying the correct amount of child support for the years in issue because of the passage of time and/or the eldest child’s being independent when the case began?
[16] Can the Father escape his obligations under the Order, the Divorce Act and the Federal Child Support Guidelines, S.O.R./97-175 (“CSGs”), by rejecting all requests for assistance?
[17] Should the Table amount of support for Cedric be reduced up to March 2014, a date selected by the Father, because Cedric was away at school six months a year?
[18] Should the child support for Cedric end on his graduation with a bachelor’s degree in mathematics?
[19] Is the Father intentionally unemployed? If so, what income, if any, should reasonably be imputed to him?
[20] Should the Father be permitted to divert David’s share of the RESP for his own purposes, knowing that David saved it to be applied towards his master’s degree program in place of his bachelor’s degree program?
Father’s Issues on the Motion to Change
i) Should the Father’s Child Support Obligation for Stephanie and David be Terminated on an Immediate and Final Basis?
[21] On consent, the parties agreed on a final basis that there was no longer any child support owing for either Stephanie or David.
ii) Should the Father’s Child Support Obligation for Cedric be Reduced to Reflect the Fact that He Lives Away during the School Year?
Father’s Position
[22] The Father argues that child support should only be paid while the children were at home during the summer. If the children were living out of town for the summer, no child support should be paid.
Mother’s Position
[23] The Mother argues that child support should be paid on a 12-month basis, whether the children were living with her at home or whether they were away at school. She relies on Birch v. Birch, 2010 ONSC 2915, at paras. 17 and 19.
[24] In the alternative, the Mother argues that if a summer schedule is used, the amount of time that the children were at home with the Mother was closer to five months instead of four months.
Analysis
[25] While the issue raised by the Father relates specifically to basic child support for Cedric, the Court will analyze the situation in relation to the three children, subject to a finding of how far back retroactive basic child support and s. 7 expenses should go.
[26] According to the evidence, each of the children went to university out of town:
Stephanie went to Queen’s University from September 2006 to April 2010. During the summers, she lived at home with her mother, except for one summer;
David went to the University of Ottawa from September 2008 to April 6, 2012. During the summers, he lived at home with his Mother.
Cedric went to Trent University for one semester from September to December 2011. From January 2012 to April 2012, he went to the University of Ottawa part time. From September 2012 to April 2016, he went to Laurentian University. During the summers, Cedric lived at home with his Mother.
[27] Section 3.2 of the CSGs establishes the principle that, for children eighteen years of age or older, the guideline amount of child support is to be paid unless the Court considers that approach to be inappropriate.
[28] The Mother relies on the case of Birch v. Birch, supra, at para. 19, wherein Leitch J. cites the following passage of Armaz v. van Erp (2000), 2000 22585 (ON SC), 7 R.F.L. (5th) 1 (Ont. S.C.), at para. 17, per Perkins J.:
One of the purposes of the child support in this case is to maintain the daughter’s permanent home and to cover the myriad of incidentals that the primary residence parent provides to a child, whether living at home that month or away at school—coverage on car insurance, clothing, spending money and the like. This is what the table amount is intended to fund.
[29] In the present case, the Court does not find that it is appropriate for the Table amount of child support to be paid for an adult child who is not living at home while attending school. Furthermore, the deviation from the Table amount is in the child’s best interest: Since s. 7 expenses have to be funded, the Court is satisfied that there is clear and compelling evidence to deviate from the CSGs.
[30] While the Court is sympathetic to the fact that a home must be maintained for the children while they are away at school, the Court does not find that, in the circumstances of this case, basic child support should be paid while the children are away at school.
[31] In this case, at one point in time all three children were away at university.
[32] Therefore, the Court does not find that the basic amount of child support should be paid for the time that the children are away at school.
[33] The Court finds that, for child support purposes, basic child support should be paid when the child or children were living at home during the summer only. This finding is made notwithstanding the fact that the Birch case indicates that child support should be paid whether the child is living at home or not.
[34] The Court finds that, during the time that the child was away at school, the child’s expenses are to be shared by the parents based on a proportionate sharing of s. 7 expenses and no basic child support should be paid during that time.
[35] As to the issue of how much time the children were living at home, whether it was four months or closer to five months, the Court finds that, notwithstanding the fact of Christmas Break, Spring Break, and other breaks, the children were living at home during the summertime and that basic child support is payable for each child while they are living with the Mother for four months of the year.
[36] Based on the evidence before the Court, not all of the children lived at home during the summer months. The parties have agreed as to when each child lived with the Mother during the summer months. Therefore, basic child support should be paid during the time that the children lived at home in the summer, being four months. This finding is made, subject to the finding of how far back retroactive child support and s. 7 expenses will be paid. That issue will be addressed later on in the decision.
iii) Should the Father’s Obligation to Support Cedric Extend Beyond the First University Degree?
Father’s Position
[37] The Father submits that his obligation to support Cedric including his contribution to expenses for his education and daily living should be terminated following the first post-secondary degree in April 2016.
[38] In support of that case he relies on section 3(2) of the CSGs, as well as the cases of Guhl v Guhl, 2008 SKQB 520, 61 R.F.L. (6th) 303, Chyzv v. Prystupa, 2008 SKQB 347, 321 Sask. R. 34, and Rebenchuk v. Rebenchuk, 2007 MBCA 22, 279 D.L.R. (4th) 448. The Father argues that there should be no obligation on him to support Cedric beyond the first university degree, which he would have acquired by April 2016.
Mother’s Position
[39] The Mother argues that the Father should pay child support and s. 7 expenses for Cedric while he is obtaining his second degree at the University of Ottawa, a master’s in mathematics to begin in January 2017. He will be living with the Mother while taking his second degree. Until then, he is taking online courses.
[40] She relies on the case of George v. Gayed, 2014 ONSC 5360, per Beaudoin J. In that case, both parties brought motions to change. The father sought to terminate child support for the two children and sought a retroactive adjustment of child support to the date when each of the daughters turned 18 (which in the case of one daughter was a ten-year period).
[41] The mother filed a cross-motion seeking retroactive adjustments to child support, as well as contribution toward the children’s post-secondary education. The Court held that the applicant’s conduct was shocking in that he had abandoned his daughters and burdened the respondent with the responsibility of providing for their support and university education. Beaudoin J. held that the father should not be able to rely on his own misconduct in order to defeat the mother’s claims. He went on to say that the daughters reasonably pursued post-secondary education just as their parents had done, contributing to the costs of their education to the extent that they could, which left one child in significant debt.
[42] The father was ordered to reimburse the mother for retroactive child support dating back to January 1, 2000, together with his share of costs incurred for the children’s post-secondary expenses.
[43] Here, the Mother argues that Cedric has been unable to withdraw from parental charge and, therefore, remains a child of the marriage and amenable to the support provisions of the Divorce Act (George, at para 73).
[44] The Mother also relies upon various principles taken from Holman v. Holman, 2013 ONSC 6988, with respect to the obligation of a parent to support their child past the first post-secondary degree (cited in George, at para. 74).
Analysis
[45] Section 3(2) of the CSGs reads as follows:
Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of an order for the support of a child is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.
[46] Cedric graduated from Laurentian University in April 2016 with a degree in mathematics. Since then, he has been living with the Mother and taking online courses, and will continue to do so until December 2016.
[47] In January 2017, Cedric will start a two year master’s degree in mathematics at the University of Ottawa and will be living with the Mother.
[48] The Mother seeks to have the Father pay child support and his proportionate share of s. 7 expenses for Cedric while he is at university taking his second degree.
[49] The Court is not aware of how many courses Cedric is taking online and the duration of those courses.
[50] In addition, the Court is not aware if Cedric is working between May and December 2016.
[51] The Divorce Act does not specifically mention post-secondary education as a “cause” for remaining a “child of the marriage”. The case law does deal with enrolment in some form of post-secondary education.
[52] The Courts are aware of the importance of post-secondary education, which should assist a child in becoming financially self-sufficient.
[53] In the case of Martell v. Height (1994), 1994 NSCA 65, 113 D.L.R. (4th) 54 (N.S.C.A.), Freeman J.A. of the Nova Scotia Court of Appeal said, at pp. 56–57:
As a general rule, parents of a bona fide student will remain responsible until the child has reached a level of education, commensurate with the abilities he or she has demonstrated, which fit the child for entry-level employment in an appropriate field.
[54] In the Ontario case of Menegaldo v. Menegaldo, 2012 ONSC 2915, at para. 157, Chappel J. set out a comprehensive list of factors identified in the case law as relevant to the eligibility for child support of adult children attending post-secondary education:
Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.
Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
The ability of the child to contribute to their own support through part time employment.
Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
The child's academic performance, and whether the child is demonstrating success in the chosen course of studies.
The age, qualifications and experience of the child.
The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
Whether the child is performing well in the chosen course of studies.
What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
The means, needs and other circumstances of the parents and the child.
The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.
[55] The following is an analysis of the Menegaldo factors as they relate to this case.
1. The Child’s Enrolment in a Full- or Part-Time Course of Study
[56] Between April and December 2016, Cedric is enrolled in online courses, which the Court understands to mean he is in part-time attendance at school.
[57] Commencing in January 2017, he will be in full-time attendance at school at a two-year course at the University of Ottawa. The Court is unaware as to whether the two-year course is a 24-month straight course or a two-year course with a break during the summer.
2. Bursaries, Scholarships, and Student Loans
[58] From May to December 2016, the Court is not aware of whether Cedric had any bursaries, scholarships, or student loans.
[59] The Court does not have any information as to whether the child has any bursaries, scholarships, or student loans for the commencement of his master’s degree.
3. Summer and Part-Time Employment
[60] It is common for Courts to conclude that a child should have summer employment to help contribute towards his education and upbringing: Rebenchuk v. Rebenchuk, supra, at paras. 53–54.
[61] The Court is not aware as to whether Cedric has any full-time or part-time employment during the period of May to December 2016.
[62] The court imputes to Cedric an amount that he should pay towards the first year of his master’s degree of $5,000 based on his only taking online courses from May to December of 2016.
4. Reasonableness of the Education Plans of the Child
[63] Cedric will complete a master’s program on a full-time basis, which should allow him to be in a position to enter the work force.
[64] The Court finds that it is reasonable for the child to attend this master’s program on the basis that it is being attended on a full-time basis and not a part-time basis.
5. The Nature and Quality of the Child’s Education Plan
[65] The plan is to complete the master’s program in two years. The Court finds this to be an appropriate time within which to complete the program.
6. Academic Performance
[66] There does not appear to be any concern with Cedric’s academic performance.
7. Aptitude, Abilities, Maturity, and Commitment
[67] The Court does not consider this to be a relevant factor as there do not appear to be any difficulties with Cedric attending this program.
8. Age of the Child
[68] Cedric is approximately 23 years of age, and should complete the master’s program by the time he is approximately 25 years of age.
9. Professional and Post-graduate Degrees
[69] The Court realizes that this is a post-graduate degree.
[70] The Court notes that all three children have completed first post-secondary degrees. The second child, David, has entered into a master’s program at Western University. Cedric is now entering into a master’s program in Mathematics.
[71] In terms of the education of the parents, the Father is bilingual, and has a bachelor’s degree in industrial relations, as well as a teaching certificate from Laval University in Quebec City.
[72] Therefore, the Father has two post-secondary degrees.
[73] As to the Mother’s education, the Court believes that she has at least one postgraduate degree.
[74] As to the means of the Mother, she earns approximately $57,000 per year as an administrator at Saint Paul’s University.
[75] The Father was, until recently, employed by the Government of Canada, earning a total income of approximately $86,000 per year. He was recently let go after a restructuring in the government and is looking for work.
[76] The issue of a graduate degree and child support were deal with in the case of Holman v. Holman, supra. In that case, André J. held that the CSGs did not support the payor father’s argument that his child support obligations automatically ceased after his 24-year-old twin daughters had obtained their first university degree.
[77] André J. stated, at para. 34:
Indeed, an undergraduate degree in these increasingly competitive times may merely be the first step in the journey to become sufficiently educated for the workplace.
[78] In the case of Albert v. Albert (2007), 2007 29972 (ON SC), 40 R.F.L. (6th) 203 (Ont. S.C.), Herman J. ordered support to continue for a 25-year-old daughter who was pursuing her third post-secondary program: a one year practically-oriented program at a community college.
[79] Herman J. observed that the first two degrees, which the parents had been prepared to support, had been more theoretical, but the practically-oriented third degree was one of a series of “reasonable steps towards financial independence” (at para. 54). For Herman J., it was “reasonable to conclude that Pamela will no longer be entitled to support beyond her current program” (at para. 56).
[80] In that case, the daughter would finish her program before she turned 26.
[81] On the particular facts of this case, the Court finds that it is reasonable for Cedric to pursue his master’s degree in mathematics. The degree should lead him to becoming financially self-sufficient.
10. Plans and Expectations of the Parents during Cohabitation
[82] In this particular case, the plans of the parents did include the children going to post-secondary education because they had set up RESP plans for all three children while they were still married.
[83] The Court finds that it is difficult to determine whether, in 2001 — when the parents divorced — there was an expectation that Cedric would take a second post-secondary degree. There was certainly an expectation that he would take a first post-secondary degree.
[84] The Court notes that, in 2001, Cedric would only have been approximately eight years of age.
11. Means and Circumstances of the Parents
[85] The Court has previously dealt with this item in one of the earlier factors.
12. The Child’s Relationship with the Payor Parent
[86] Specifically dealing with Cedric, he appears to have a relationship with the Father. It is not clear from the evidence how close that relationship is. The evidence of a relationship is the various text messages that were included as part of the evidence. The essence of the text messages between Cedric and the Father was positive.
[87] Notwithstanding the fact that the Father and Cedric may not have a close relationship, the Court finds that Cedric is still a child of the marriage and therefore the Father is required to pay child support and his share of s. 7 expenses. The Court does not find that the degree of closeness between Cedric and the Father disentitles Cedric from being a child of the marriage or from being disentitled to child support and s. 7 expenses.
Conclusion
[88] Therefore, based on the aforesaid analysis, the Court finds that:
(a) Cedric is still a child of the marriage; and
(b) He is entitled to child support and a proportionate share of s. 7 expenses from the Father. This will take into account any amounts received by Cedric by way of income, scholarship, bursary, and/or loan, including the $5,000 mentioned above under Factor #3 towards his master’s degree.
iv) Should the Joint RESP be Applied Towards Cedric’s Remaining Educational Costs?
Father’s Position
[89] The Father argues that the joint RESP should be applied towards Cedric’s remaining educational costs, whether it be for his first degree or his second degree, because the money is available and because it would reduce his liability for child support and s. 7 expenses.
Mother’s Position
[90] The Mother argues that the joint RESP should not be applied towards Cedric’s remaining educational costs because his portion of the RESP was already used by Cedric in obtaining his first degree. The Mother argues that the remaining RESP should be used by David who is attending a master’s program in music performance at Western University in London, Ontario.
[91] The Mother argues that David did not use his share of the RESP for the first degree, but wants to use it towards the second degree. The amount in the RESP is approximately $14,000.
Analysis
[92] The parents set up RESP plans for the three children with the expectation that each of them would get a post-secondary education. That was the plan, which was fulfilled when each of the three children attended post-secondary education and obtained a post-secondary degree.
[93] Based on the Father’s argument, Cedric should get the use of two of the three shares of the RESP, Stephanie having used her share, and David should not receive any share.
[94] Based on the Mother’s argument, each of the three children should be allowed to use their share of the RESP for whichever degree they choose. In this case, it would be David’s choosing to use it for his second degree and not his first degree.
[95] In the Court’s view, both parents understood that there would be RESP funds for each child.
[96] David has chosen to use his share of the RESP for his second degree instead of for his first degree. The Court does not find anything wrong with the RESP funds being used in that way. It is understood that David is not seeking child support or s. 7 expenses for his second degree. He only wants access to the RESP funds. The Court finds that the remaining share of the RESP shall be used by David towards his second degree and not by Cedric in relation to his second degree.
[97] In this way, each of the three children will have had equal access to the RESPs that were created by both parents for all three children.
v) Should the Mother be Entitled to Seek an Adjustment of Child Support, Including s. 7 Expenses, Retroactive to 2001?
Father’s Position
[98] The Father argues that neither party provided financial disclosure as was required by the October 2001 Order. He argues that the Mother was aware that the Father’s income would have increased annually since separation and that she never requested financial information and did not provide her financial disclosure and never requested a review/adjustment of the obligations or contributions from the Father until he wrote to her in 2013 seeking to end his child support obligations.
[99] The Father argues that the circumstances of the children do not warrant an order for retroactive child support because the children have not suffered as a result of not receiving additional support. The Father claims that there is no evidence to suggest that the children’s needs were not met. He argues that the children do not have extensive student loans. The Father also argues that a large retroactive order would cause him hardship due to the fact that he retired in May 2015 when his position was terminated and that his only source of income is his severance package which will last until September 2016, at which point in time he will have pension income.
[100] The Father relies on D.B.S. v. S.R.G., 2005 ABCA 2, 249 D.L.R. (4th) 72, as a leading case dealing with retroactive child support. He argues that each of the following four factors must be considered:
(a) reasonable excuse for why the support was not sought earlier;
(b) the conduct of the Payor parent;
(c) the circumstances of the child; and
(d) the hardship occasioned by the retroactive Order.
[101] The Father also relies on the case of Dagg v. Chenier, 2014 ONSC 336, where the Court found that it was not appropriate to grant the mother’s claim for an adjustment of retroactive support to 2007, after it was established that the Mother was aware of the Father’s increased income over the years and could not provide a reasonable excuse for the delay in bringing the claim for retroactive support.
[102] The Father also relies on the case of Poisson v. Allen, 2008 24226 (Ont. S.C.), where the Court said that a retroactive award of five years or more would be manifestly inequitable.
[103] According to the Father, the Courts have considered these factors in a holistic manner.
Mother’s Position
[104] The Mother agrees that the leading case in point is the case of D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231.
[105] She too argues that the aforesaid four factors that must be considered in a holistic matter.
[106] The Mother argues that the same criteria apply for retroactive s. 7 expenses as well as child support.
[107] The Mother relies on the framework set out in Diaz v. Pena, 2016 ONCJ 88, at para. 37, which identified the “framework principles” from D.B.S. for determining the proper start date for adjusting child support.
[108] The Mother also argues that, in the Diaz case, the Court, at paras. 54–59, provided a summary of useful considerations regarding blameworthy conduct of the payor.
[109] Lastly, the Mother argues that the principle that a child for whom the relief is being claimed retroactively must be a child when the application is commenced does not apply to variation applications under the Divorce Act or variation under the Family Law Act, R.S.O. 1990, c. F.3. She relies on George v. Gayed, supra; P.M.B. v. A.R.C.-A., 2015 ONCJ 720, 71 R.F.L. (7th) 474; Buckingham v. Buckingham, 2013 ABQB 155, 554 A.R. 256; Catena v. Catena, 2015 ONSC 3186, 61 R.F.L. (7th) 463; and Diaz v. Pena, supra.
Analysis
[110] The leading case in this matter is the Supreme Court of Canada’s decision in D.B.S. v. S.R.G. In that case, the Supreme Court held that a court must consider four factors in a holistic manner:
(a) reasonable excuse for why the support was not sought earlier;
(b) the conduct of the Payor parent;
(c) the circumstances of the child; and
(d) the hardship occasioned by the retroactive Order.
[111] Generally, child support extends three years back from the date that a request for adjustment was made in the absence of blameworthy conduct. The rationale for this rule comes from the provisions of the CSGs, which limit a request for historical income information to the previous three years. In this case, the Mother made a written request for income information in October 2010. Therefore, the Court is able to go back to October 2010 to allow for payment of child support and s. 7 expenses.
(a) Reasonable Excuse for Why the Support Was Not Sought Earlier
Father’s Position
[112] The Father argues that there was no reasonable excuse why the support was not sought earlier even though the Mother knew there was an obligation to exchange income tax information. The Father argues that the Mother has not provided a justifiable reason for the delay in requesting the adjustment. He argues that the Mother did not seek consent in order to incur share s. 7 expenses.
[113] The Father says that the children did not ask him for money for s. 7 expenses.
[114] On cross-examination, the Mother acknowledged that the Father worked in the same job and that he would have steady increases over the year, but never asked for disclosure or review.
Mother’s Position
[115] The Mother argues that she did request the payment of s. 7 expenses after the date of the Order, but that the Father’s response all along was “no”, that the Mother was getting child support, and that was sufficient.
Analysis
[116] The parties’ position on this point is diametrically opposed. The Father says that no request was made for s. 7 expenses, while the Mother says that she did request them.
[117] The tipping point in this case is the evidence of the three children, all of whom signed affidavits in relation to this issue.
[118] All three children said that they had personally asked their father for monies for extra-curricular activities and the answer was always the same: “No”.
[119] After a while the Mother and the children stopped asking.
[120] The Court appreciates that, after a certain number of negative responses to a request for financial assistance, the requests stopped.
[121] The Court finds that the Mother and the children did request payment for s. 7 expenses, which was refused by the Father.
(b) The Conduct of the Payor Parent
Father’s Position
[122] In terms of the second factor, the conduct of the payor Father, his evidence is that he cannot recall being asked for any money for s. 7 expenses, although at some point in time he did acknowledge that Cedric asked for some help concerning his computer.
[123] The Father argues that there is no reprehensible conduct on his part or disclosure of information and furthermore that no one asked him for money for s. 7 expenses.
Mother’s Position
[124] The Mother argues that both she and the children requested payment of s. 7 expenses from the date of the order, in 2001.
Analysis
[125] The Court has already found that both the Mother and the children had requested the Father to pay for s. 7 expenses and he refused.
(c) The Circumstances of the Child
Father’s Position
[126] In terms of the circumstances of the children, the Father argues that there is no evidence that their needs were not met. They all have first degrees, two of them have jobs, and they are all educated.
Mother’s Position
[127] The Mother argues that, while the needs of the children are met, they came at a cost, paid directly by the Mother only.
Analysis
[128] The Father argued that the children did not incur significant student loans to fund their education. He did not provide any evidence to back up this statement.
[129] The Mother on the other hand, swore under oath that:
Stephanie incurred OSAP loans of $40,000 and earned $30,000 from summer employment and assistance from the Mother;
David incurred OSAP loans of $13,561; and
Cedric incurred OSAP loans of $9,500 and borrowed $2,000 from his sister Stephanie. His Mother gave him $28,700 towards his education.
[130] The Court finds that the children have incurred significant student debt and have also received extensive financial assistance from the Mother.
[131] The Court does not sympathize with a parent who, when asked to pay for s. 7 expenses, consistently refuses to do so. Such behaviour is inappropriate and is unreasonable. It is not the role of the children to be placed in the middle of financial issues between the parents and to have to ask a parent to contribute their share of s. 7 expenses. Those financial conversations are to be between the parents alone. The Court finds that the circumstances of the children were met, but not by both parents. They were met by the Mother alone, paying for these expenses, which was unfair and unreasonable and which caused the Mother to use up her assets and go into debt.
(d) The Hardship Occasioned by the Retroactive Order
Father’s Position
[132] The Father argues that he is 55 years old, has been released from his position due to restructuring within the federal government, and has not been able to find suitable employment. His financial circumstances are such that, if a large retroactive award is made, it would provide a great hardship to him. He acknowledges that he received a $611,000 inheritance from his parents and, if that was deducted, the parties’ net worth would be approximately the same.
Mother’s Position
[133] The Mother argues that the cause of the arrears is the Father’s blameworthy conduct and that any hardship that is caused is his own doing.
[134] Furthermore, the Mother argues that the Father’s financial information is incorrect and that he has been able to acquire several income properties from 2003 to date, partly from an inheritance but partly from monies he saved from not paying the Mother the proper child support and s. 7 expenses.
[135] The Mother also argues that the Father’s net family property statement is incorrect in that he does not show the appraised values of the property, but only the values that he estimates the properties are worth.
Analysis
[136] The Court disagrees with the Father’s argument that the net worth of the parties is approximately the same. Based on the Father’s calculations of his net worth — being $983,720 as of March 1, 2016 — after subtracting the $611,000 inheritance that he received, he would be left with a net worth of approximately $372,000, while the net worth of the Mother is $214,000. According to the Court’s calculation, he has 63% net worth versus the Mother’s 36% net worth.
[137] In addition, the Court finds that the Father’s net worth calculations are flawed for the following reasons:
Values placed on his rental properties are strictly estimates — there are no appraisals to show the actual value;
The value of the properties listed in his two financial statements of 2014 and 2016 are both the same. The Court does not accept that the property values have not increased between 2014 and 2016;
The outstanding balances on the mortgages on all of the rental properties have not been reduced between 2014 and 2016 according to the Father’s financial statement, notwithstanding that Mr. Dumais swears under oath that the mortgages on these properties are up to date and in good standing and that the monthly mortgage payments are being made. Based on the monthly mortgage payments that are being made and the claim that the mortgages are up to date, the Father is paying approximately $1,043 per month on the mortgage payments, of which a certain amount of those payments must be a reduction in the principle amount of the mortgages.
[138] The Father is 55 years of age. He has been offered retraining through the government and he had a good job with a pension. Furthermore, he has investments in RESPs of approximately $500,000, plus the equity in the various properties he owns.
[139] The Court does not find that the Father will suffer a hardship if an order for retroactive child support and s. 7 expenses is made.
Date for Retroactive Child Support and s. 7 Expenses
Factors
In terms of determining how far back retroactive child support and s. 7 expenses should go, the Court in Diaz v Pena, supra, at para. 37, said the following:
Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility: D.B.S., para. 5; and,
Courts must be open to ordering retroactive support where fairness to children dictates it, but should also be mindful of the certainty of the fairness to payor parents often demands. It is only after a detailed examination of the facts in a particular case that the appropriateness of a retroactive award can be evaluated: D.B.S., para. 6.
[140] In this case, the Father was aware that the children would be participating in extra-curricular activities and would also be attending post-secondary education.
[141] The following are included in the Father’s acknowledgements/admissions given at his questioning:
(a) When the parties settled their affairs, the children were involved in a variety of extra-curricular activities (questions 91–99, transcript of questioning of the father, held February 11, 2016);
(b) The Father understood from the minutes of settlement that there were and would be extraordinary expenses or extra-curricular activities (question 180);
(c) These type of activities were good for the children and they were not free (questions 99 and 181–84);
(d) Cedric would like to continue his education beyond a bachelor’s degree and that was a worthy aspiration, one to be fostered; (questions 115 and 120);
(e) The Father was aware of Stephanie’s plans to attend Queen’s University in advance of her attending and this also applied to two of the other children (questions 121–22 and 124);
(f) With one exception, the Father did not contribute to the costs of the children’s non-medical expenses, including extra-curricular activities, educational programs, music lessons, and post-secondary expenses (questions 152–67).
[142] In terms of the post-secondary education, the parties set up an RESP for the three children, so it should come as no surprise to the Father that the children would be attending post-secondary education.
[143] Furthermore, as relates to basic child support, the Father knew that he was obligated to pay child support, based on the MacKinnon J. order, which he in fact did pay.
[144] The MacKinnon J. order provided for each party to independently disclose their income. That means that there was a positive duty on each of the two parties to disclose their incomes.
[145] Neither party satisfied that duty. Notwithstanding the non-disclosure of income, child support is an obligation that arises on the birth of a child. Furthermore it is the right of a child to have child support paid (Diaz v. Pena, supra, at para. 37).
[146] The Court does not find that it is appropriate for one party, in this case the Father, to shift part of the financial burden for the payment of child support and s. 7 expenses from himself and place it all or in part on the Mother.
[147] The issue of blame or the conduct was discussed in Diaz v. Pena, at paras. 54–59:
• The payor parent’s interest in certainly is least compelling where he engaged in blameworthy conduct: D.B.S., para. 105
• Courts should take an expansive view of what constitutes blameworthy conduct in this context: George v. Gayed, supra, 2014 (Ont. Sup. Ct.), para. 51.
• Blameworthy conduct is anything that privileges the payor parent’s own interests over his children’s right to an appropriate amount of support: D.B.S., para. 106.
• A payor parent should not be permitted to profit from his wrongdoing: D.B.S., para. 125
• A payor parent cannot hide his income increases from the recipient parent in the hopes of avoiding larger child support payments: D.B.S., para. 106
• No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his obligations, he might still be acting in a blameworthy manner if he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his support obligations to his children should not be allowed to profit from such conduct: D.B.S., para. 107.
[148] The Court finds that, on the facts of this case and the principles set out in D.B.S. and Pena, the Father’s conduct in relation to the payment of s. 7 was blameworthy. In addition, his non-disclosure of his increased income over the years was also blameworthy.
[149] The Court understands that the Mother found it difficult to deal with the Father after separation and after her requests for s. 7 expenses were continually refused by her.
[150] The Court appreciates that the Mother wanted to have less conflict between herself and the Father while raising the three children by herself, and also wanted to have less anxiety trying to deal with the Father in relation to s. 7 expenses.
[151] Having considered the conduct of the parties and taking a holistic approach to the four D.B.S. factors, the Court finds that basic child support and s. 7 expenses shall be retroactive to October 1, 2007. The Court is not prepared to make those items retroactive to 2001 as requested by the Mother. That would be unreasonable. The Mother should bear some responsibility for not bringing these issues to the Father until he sought the termination of child support in 2013.
vi) Should Retroactive Child Support, Including s. 7 Expenses, be Ordered for Children Who Are No Longer “children of the marriage” as Defined under the Divorce Act?
Father’s Position
[152] The Father argues that a retroactive child support award will generally only be available so long as the child in question is a child of the marriage when the application is made.
[153] He argues that, pursuant to the Divorce Act, a court cannot make a corollary relief order in respect of a child who is not a child of the marriage at the time of the proceedings.
[154] The Father relies on the case D.B.S., in which the Court makes it clear that, in order for courts to entertain an application for retroactive support, the child in question must be a child of the marriage as defined under the Divorce Act as of the date of the application, otherwise there is in effect no standing to the claim.
[155] He also relies on Stemmler v. May (2007), 2007 41281 (ON SC), 43 R.F.L. (6th) 218 (Ont. S.C.), in which the Court dismissed an application for retroactive child support in circumstances where the child in question had been independent for upward of two years at the time of the application.
Mother’s Position
[156] The Mother argues that the principle that the child for whom relief is being claimed retroactively must be a child of the marriage when the application is commenced does not apply to a variation application under s. 17 of the Divorce Act or a variation under the Family Law Act. The Mother relies on cases of George v. Gayed, Buckingham v. Buckingham, Catena v. Catena, and Diaz v. Patena.
Analysis
[157] Section 15.1(1) of the Divorce Act sets out the court’s authority to make a child support order and indicates that the order is to pay for the support of any or all children of the marriage. Section 2(1) defines “child of the marriage” as
a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
[158] In D.B.S., Bastarache J., writing for a majority of the Supreme Court of Canada, found that the words “material time” within the definition refers to the time of the application. Thus, on a strict reading of the Divorce Act, an adult child who is the subject of the child support claim has to be a child of the marriage at the time of the application. The Court noted, at para. 89, that “an adult…is not the type of person for whom Parliament envisioned child support orders being made. This is true, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children of the marriage, not adults who used to have that status.”
[159] However, D.B.S. was decided in the context of an originating application for child support. Since D.B.S., courts have been reluctant to apply this interpretation to variation applications brought pursuant to s. 17 of the Divorce Act.
[160] A more recent decision of the Ontario Superior Court of Justice, Catena v. Catena, supra, canvasses many of these decisions, including Lemay v. Longpré, 2014 ONSC 5107, which adopted the reasoning of the Alberta Court of Queen’s Bench in Buckingham v. Buckingham, supra, per Strekaf J. In her decision, Strekaf J. concluded, at para. 32, the following:
[The Supreme Court of Canada] did not intend to create a strict jurisdictional rule for variation orders under s. 17 of the Divorce Act. While courts might be jurisdictionally limited to granting “child support orders” under s. 15.1(1) of the Divorce Act only while the child is a “child of the marriage,” the same rule should not apply to “variation orders” for the following reasons: it does not accord with an ordinary interpretation of the statute; and in application, it will either create a framework that treats parents inequitably, or one that conflicts with the principles of child support as outlined in the DBS judgment.
[161] In Lemay, Labrosse J. relied on this reasoning to find that the “material time” criteria does not apply to a variation application under s. 17 and that he had the jurisdiction to proceed despite the children no longer being “children of the marriage” as at the date of the application (at para. 26). Henderson J. in Catena found the same.
[162] Following the reasoning in Catena and in Lemay, the Court finds that this Court has jurisdiction to deal with the matter notwithstanding that the children were no longer “children of the marriage” at the date of the application.
vii) Should the Mother’s Interference in the Father’s Relationship with His Children, and the Estranged Relationship between the Father and the Children, Play a Role in Determining the Outcome of the Motions Before this Honorable Court?
Father’s Position
[163] The Father argues that the absence of a relationship between himself and the children will not affect the fact that the parent has an obligation to contribute to the first post-secondary education degree. He argues that the absence of a relationship may play a role in the claims for support past the first post-secondary degree.
Mother’s Position
[164] The Mother argues that the Father should have to pay child support and s. 7 expenses for Cedric’s post-secondary degree, notwithstanding what type of relationship the Father had with the children. The Mother acknowledges that Stephanie, the eldest child, did not speak with the Father for the first four years after separation.
Analysis
[165] The issue of payment of child support and s. 7 expenses for Cedric, in relation to his second post-secondary degree, has been previously analyzed in this decision.
[166] The Court does not find that the Mother interfered in the Father’s relationship with the children. The evidence is that, in relation to David and Cedric, he would see them four to five times per year. In terms of Stephanie, the evidence is that she had a hard relationship with the father.
[167] The Court finds that the Father’s relationship with the children became estranged without any of the Mother’s interference.
[168] The evidence before the Court shows that Cedric does have a relationship with the Father.
[169] Therefore, the Court does not find that the estranged relationship between the Father and the children plays any role in determining the outcome of the motions before the Court.
Mother’s Issues on the Cross Motion
viii) Should the Father be Permitted to Avoid Paying the Correct Amount of Child Support for the Years in Issue because of the Passage of Time and/or the Eldest Child’s Being Independent when the Case Began?
Analysis
[170] The issue has been analyzed previously in this decision. No further analysis is necessary.
ix) Can the Father Escape his Obligations under the Consent Order, the Divorce Act and the CSGs by the Expedient of Rejecting All Requests for Assistance?
Analysis
[171] This is the issue has been analyzed previously in this decision. No further analysis is necessary.
x) Should the Table Support for Cedric be Reduced to March 2014, a Date Selected by the Father, because Cedric Was Away at School Six Months per Year?
Analysis
[172] This is the issue has been analyzed previously in this decision. No further analysis is necessary.
xi) Should the Child Support for Cedric End on His Graduation with a Bachelor’s Degree in Mathematics?
Analysis
[173] This is the issue has been analyzed previously in this decision. No further analysis is necessary.
xii) Is the Father Intentionally Unemployed and, if so, What Income Should Reasonably be Imputed to Him?
Mother’s Position
[174] The Mother argues that the Father is intentionally unemployed if he chooses to earn less than he is capable of earning. The Mother says that income imputation is one method which could give effect to the continuing obligation of the Father to support his children. She relies on the case of George v. Gayed, at para. 22, per Beaudoin J.
[175] In addition, Beaudoin J. refers, at para. 23, to a list of factors taken from Smith v. Smith, 2012 ONSC 1116, for determining whether to impute income.
Father’s Position
[176] The Father argues that income should not be imputed to him as his position has been terminated with the federal government and he has sought retraining. He claims that, until he regains employment, he will only have his pension and a negligible amount of rental income on which to live.
Analysis
[177] Paragraph 19(1)(a) of the CSGs permits a court to impute income to a spouse if it considers it appropriate in the circumstances, which circumstances include a spouse that is “intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.”
[178] The Ontario Court of Appeal, in Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 28, interpreted “intentionally” within s. 19(1)(a) to mean a voluntary act, requiring the parent to choose whether or not to work when he or she is capable of earning an income. However, the provisions do not contemplate situations in which, through no fault or act of a parent, he or she is laid off, terminated, or given reduced hours of work: Lukovnjak v. Weir, 2016 ONSC 6893, at para. 62.
[179] If a court finds intentional unemployment, the court must then determine whether that was or is required by virtue of the parent’s reasonable educational needs, the needs of a child, or reasonable health needs.
[180] If not required, the court moves on to determine the appropriate amount of income that should be imputed, such amount to be reasonable in the circumstances. To properly impute income, there must be a rational basis underlying the selection of a figure; the amount selected must be grounded in the evidence: Drygala, at para. 44.
[181] The appropriate and relevant factors to be considered when imputing income based on intentional underemployment or unemployment include the age, education, experience, skills, and health of the parent; the availability of job opportunities; the number of hours that could be worked in light of the parent’s overall obligations, including educational demands; and the hourly rate that the parent could reasonably be expected to obtain: Drygala, at para. 45.
[182] Once the trial judge decides the basis upon which income will be imputed to the spouse, he or she must determine an amount that is reasonable in the circumstances. The trial judge must give reasons for how he or she arrives at such a figure: Drygala, at para. 50.
[183] The Court in this case finds that the Father’s position had been terminated with the federal government through no fault of his own and that he took the benefits package that was available to him. The Court follows the reasoning in Lukovnjak v. Weir, supra, at para. 62.
[184] Therefore, the Court does not find that the Father is intentionally underemployed or intentionally unemployed.
[185] For those reasons, the Court declines to impute income to the Father.
xiii) Should the Father be Permitted to Divert David’s Share of the RESP for His Own Purposes, Knowing that David Saved it to be Applied towards his Master’s Degree Program in Place of his Bachelor’s Degree Program?
Analysis
[186] This is the issue has been analyzed previously in this decision. No further analysis is necessary.
Additional Issues
xiv) What is the quantum of retroactive basic child support that is payable for the period of time
Mother’s Position
[187] The Mother has provided an extensive calculation of child support arrears and has provided a number of scenarios with respect to the same.
Father’s Position
[188] The Father argues that he should not have to pay any further child support as he has been paying $950 a month in accordance with the order of MacKinnon J. and there are no longer any children in the need of support.
Analysis
[189] The Court has previously decided that retroactive child support is payable from October 1, 2007 at the Father’s actual income levels for those years. Based on this finding, the Court as prepared a chart to calculate the amount of child support from October 1, 2007 to December 1, 2016. Based on that chart, the Court finds that there has been an overpayment of child support by the Father in the amount of $26,833.00. This chart includes a calculation of Stephanie not being at home for one summer. The specific summer was never reflected.
Child Support Owing
Year
Paid
Payable
Owing
2007
$2,850.00
$3,849.00
$999.00
2008
$11,400.00
$16,068.00
$4,668.00
2009
$11,400.00
$11,356.00
($44.00)
2010
$11,400.00
$11,468.00
$68.00
2011
$11,400.00
$8,240.00
($3,160.00)
2012
$11,400.00
$8,728.00
($2,672.00)
2013
$11,400.00
$2,908.00
($8,492.00)
2014
$11,400.00
$3,572.00
($7,828.00)
2015
$11,400.00
$3,104.00
($8,296.00)
2015
$11,400.00
$9,324.00
($2,076.00)
TOTAL
$105,450.00
$ 78,617.00
($26,833.00)
xv) What is the Amount of Retroactive s. 7 Expenses that Are Payable for the Period of Time?
[190] The Mother has provided an extensive calculation of child support arrears and has provided a number of scenarios with respect to the same.
Father’s Position
[191] The Father argues that there should be no s. 7 expense arrears because the wife did not provide him with a s. 7 expense claim. Therefore, he should not have to make any s. 7 expenses to her.
Analysis
[192] The Court has previously found that s. 7 expenses should be retroactive to October 1, 2007. Based on this finding, the Court has prepared a chart to calculate the amount owing for s. 7 expenses from October 1, 2007 to December 31, 2009.
[193] At the hearing held on September 15, 2016, the Father put forward the amounts of s. 7 expenses that he calculated had been incurred for the period 2010 to 2015 for David and Cedric to be $58,686.00. At that hearing, Mr. Paritzky agreed that these amounts were acceptable to the Mother.
[194] The amounts are as set out below:
Year
Expenses claimed for Stephanie
Expenses claimed for David
Expenses claimed for Cedric
Total Expenses claimed for the year
Apportionment of expenses between parties
Portion of expenses payable by Mr. Dumais
Father
Mother
Oct–Dec 2007
$10,391.77
$2,911.00
$2,082.74
$15,385.51
57.7%
42.3%
$2,219.33
2008
$17,483.53
$12,519.60
$4,500.17
$34,503.30
50.5%
49.5%
$17,424.17
2009
$17,703.71
$14,911.56
$4,782.22
$37,397.49
45.1%
54.9%
$16,866.27
2010
$6,818.35
$9,537
$8,387.11
$24,742.46
47.3%
52.7%
$11,703.18
2011
$4,065.70
$8,387.11
$12,452.81
51.6%
48.4%
$6,425.65
2012
$3,839.84
$6,248.03
$10,087.87
46.7%
53.3%
$4,711.04
2013
$3,546.14
$3,546.14
56.5%
43.5%
$2,003.57
2014
$42,100.57
$42,100.57
49.6%
50.4%
$20,881.88
2015
$15,825
$15,825
81.9%
18.1%
$12,960.68
2016
Total
$95,195.77
[195] The Court finds that the Father’s share of s. 7 expenses for October 2007 to December 2015 is $95,195.77.
[196] The Court is aware that the Minutes of Settlement in the MacKinnon J. order set out that the parties were to agree to s. 7 expenses, and that the consent to the incurring of the s. 7 expenses would not be unreasonably withheld.
[197] It would have come as no surprise to the Father that each of the three children would be attending post-secondary education. One of the major indicators of this was that, while the parties were married, the parties had set up RESPs for the three children in anticipation of them attending post-secondary education.
[198] For a period of time, the Father was having meals with the two boys approximately four to five times a year. It is inconceivable that the Father would not have known that these boys were attending post-secondary education.
[199] In addition, the Father knew that the children had been involved in extracurricular activities. When the parties separated, Stephanie was approximately twelve years old, David approximately ten years old, and Cedric approximately seven years old. The evidence is that each of the children was in extracurricular activities at the time of separation.
[200] Notwithstanding the fact that the Father’s consent was required in accordance with the Court order, the Court finds that had the Father withheld his consent with respect to the post-secondary education and extracurricular s. 7 expenses and that he did so unreasonably.
[201] Therefore, the Court finds that the Father owes the Mother s. 7 expenses of $95,195.77 for the period October 2007 to December 2015, inclusive. In addition, the parties must share Cedric’s s. 7 expenses for 2016 until such time as he graduates in 2019, at which time the s. 7 expenses obligation will terminate.
[202] In terms of s. 7 expenses for 2016, Cedric remained in school from January to April 2016 when he graduated. He took online courses after that. No evidence was given as to what he was doing in the summer of 2016.
[203] The Court finds that the basic child support for January to April 2016 is not payable because Cedric was in school in Sudbury at the time. Basic child support is payable for May 1, 2016 to December 31, 2016 at the rate of $777 per month based on the father’s income of $86,911.58. Basic child support will be payable while Cedric is in school until he completes his degree but no later than April 30, 2019. In the event that he lives away from home while attending school, or working no basic child support would be paid for those periods of time.
[204] At the same time, s. 7 expenses from January to April 2016 are payable by the Father in proportion to the parties’ incomes.
[205] Interest will accrue on the amounts due in owing from this date to the date of payment in accordance with the appropriate provisions of the Courts of Justice Act, R.S.O. 1990, c C.43.
Conclusion as to Amounts Owed
[206] The following amount have been found by the Court to have been overpaid or underpaid:
The Father has overpaid child support by $26,833.00 from October 2007 to December 2015.
The Father has underpaid s. 7 expenses by $95,195.77 from October 2007 to December 2015.
Therefore, the Father owes the Mother the sum of $68,362.77 for this period of time.
Miscellaneous
[207] In the event that either party has any concerns with the mathematical calculations or the mechanics of this decision, they shall write to the Court within 15 days after the release of the decision setting out their concerns.
Costs
[208] The parties have submitted costs outline. The parties are encouraged to settle the issue of costs within the next ten days. If they are unable to do so within ten (10) days of the release of this decision, the parties shall contact the trial coordinator in Ottawa and arrange for a date at 9:30 a.m. to argue the issue of costs. Each party will have ten (10) minutes to argue their position.
[209] Order accordingly.
Justice Stanley Kershman
Date: December 1, 2016
CITATION: Charron v. Dumais, 2016 ONSC 7491
COURT FILE NO.: FC-00-902-1
DATE: 2016/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ANNE CHARRON
Applicant/Responding Party
AND
JEAN-CLAUDE DUMAIS
Respondent/Moving Party
BEFORE: Justice Stanley Kershman
COUNSEL: Ron Paritzky, for the Applicant
Any Mayer, for the Respondent/Moving Party
REASONS FOR DECISION
Justice Stanley Kershman
Released: December 1, 2016