Hyde v. Hyde, 2016 ONSC 7788

CITATION: Hyde v. Hyde 2016 ONSC 7788

COURT FILE NO.: 22409/03

DATE: 2016-12-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT ALLAN HYDE

Applicant

– and –

LENA MARIE HYDE aka LENA MARIE MEDAGLIA

Respondent

Self-Represented

Self-Represented

HEARD: November 25, 2016

VARPIO J.

rEASONS on motion FOR FINAL ORDER

1This is a motion brought by the Applicant, Mr. Robert Allen Hyde, (hereinafter the “Father”) for an order terminating child support. The motion is opposed by the Respondent, Ms. Lena Marie Hyde (now Sarno - hereinafter the “Mother”) who in turn seeks an increase in child support and the payment of arrears.

2The parties seek to resolve this dispute by way of motion as opposed to trial. Both parties indicated that the emotional wear and tear of a prolonged trial would be quite difficult. Furthermore, both indicated that the financial realities of running said trial would also be very difficult. I explained to the parties that it can be difficult to make decisions based upon only affidavit evidence given the limitations of evidence in writing. Both parties understood this fact and indicated that they nonetheless wished to proceed with the motion seeking a final order. I indicated to them that if I felt it were necessary, I would order that the matter be converted to a trial. With that being said, I do not believe that I need to have a trial in order to make this decision.

THE FACTS

3The parties were married from 1991 until 1999. They had a child, Alexander James Hyde (dob: 18 April, 1996). Alexander is currently 20 years old and is pursuing his first year of nursing at Sault College. The parties previously attended court before my colleague Ellies J. who, on January 10, 2011, ordered as follows:

a) Mr. Hyde shall pay the sum of $7000.00 with respect to arrears of child support within 60 days, payment is to be made to the counsel for Ms. Sarno.

b) Mr. Hyde shall pay monthly child support for the child Alexander James Hyde-Sarno, born April 18, 1996 in the amount of $539.00 per month based on income of $58,147.00 per annum commencing February 1, 2011 and payable on the first day of each month thereafter.

c) Mr. Hyde shall pay the sum of $700.00 per annum to Ms. Sarno for section 7 expenses that she can use for any extracurricular activities there may be, payable $350.00 by September 30 and the balance by December 31 of each year, to be paid by cheque via mail to Ms. Sarno.

4No order was made for the exchange of financial information or for changing support based upon different incomes.

5Upon graduating from high school two years ago, Alex decided to pursue a diploma in engineering at Sault College. Part way through the school year, Alex realized that engineering was not for him. The next year, Alex completed “premedical” year at Sault College which readied him for the nursing program. Alex began the nursing program this past September.

6The Father comes to court asking that his child support be terminated. The Father argues that:

a) Alex is old enough to provide for himself;

b) The Father has a 16-year-old daughter for whose education he would like to begin saving; and

c) Given his financial situation, continued payment of table child support would constitute an undue hardship.

7The Mother suggests that she ought to continue receiving support from the Father since the child remains a child of the marriage and Alex ought to have the opportunity to attend post-secondary education.

8The Father has paid child support since January 2011. The Mother calculates that the Father is $3582.32 in arrears for child support. She comes to this conclusion by indicating that the Father’s income in 2012 was $62,571, in 2013 $62,738, 2014 $72,332, and in 2015 was $71,646. Child support, she submits, ought to have reflected that increased income. The difference between the amount paid in the order and the table amount based upon said incomes totals $3588.32. There is also an alleged balance of $2013.76 payable from the outstanding 2011 order of Ellies J. for section 7 expenses.

9Mr. Hyde anticipates that, given the current economic climate in Sault Ste. Marie, he will earn approximately $40,000 in 2016. Furthermore, his current spouse earns approximately $13,000 per annum. The pair have a 16-year-old daughter who is currently thinking of college or university. She would like to be a CSI detective and would need to go to Ottawa, Ontario in order to pursue that goal.

10The Mother earns approximately $40,000 per annum. The Mother has saved for an RESP for her son. She had hoped that the son would be able to leave school without any debt but she acknowledges that that is not a realistic aspiration. The RESP currently has approximately $17,000 in available funds. I note that the mother has a rental income property. The Mother is currently involved with another person who earns approximately $40,000 per annum. That person has two children, a 15-year-old son who resides with the couple, and a 12-year-old daughter that resides with the daughter’s mother.

11Alex’ first two years of post-secondary education have cost $8,214.20. The nursing program, based upon the evidence filed, appears to cost approximately $7,360.10 per annum. There would be a further charge for books of approximately $600 per annum. Alex has a part time job working at a local store. Furthermore, it appears as though Alex is eligible for OSAP in the total amount of $6,222 per annum.

12Finally, Alex has an automobile that he takes to and from school as well as to and from work. Again, none of the parties involved in the situation appear to be living beyond their means.

13The Father has no relationship with his son. It is unclear from the evidence who is to blame for this. The Father indicates that it was potentially the Mother’s intervention that soured the relationship, whereas the Mother indicates that the Father’s actions spoiled same. What is clear however, is that the relationship between Father and son has been bad for at least four or five years, as evidenced by the letter written by the Father’s sister-in-law, Ms. Melanie Hyde.

THE LAW

14The Federal Child Support Guidelines deal with situations involving children of the marriage over the age of majority. Specifically, the Federal Child Support Guidelines state:

2. DEFINITIONS – (1) The definitions in this subsection apply in these Guidelines.

“child” means a child of the marriage.

3. PRESUMPTIVE RULE – (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

a) The amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

b) The amount, if any, determined under section 7.

(2) CHILD THE AGE OF MAJORITY OR OVER – 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 the child support order 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 spouse to contribute to the support of the child.

7. SPECIAL OR EXTRAORDINARY EXPENSES – (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expense may be estimated, taking into account the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

e) expenses for post-secondary education

(1.1) DEFINITION OF “EXTRAORDINARY EXPENSES” – For the purposes of paragraph (1)(d) and (f), the term “extraordinary expenses” means

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

i. the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

ii. the nature and number of the educational programs and extracurricular activities,

iii. any special needs and talents of the child or children,

iv. the overall cost of the programs and activities, and

v. any other similar factor that the court considers relevant.

(2) SHARING OF EXPENES – The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

(3) SUBSIDES, TAX DEDUCTIONS, ETC. – Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim subsidy, benefit or income tax deduction or credit relating to the expense.

15It is therefore clear that the presumption under s. 3(2)(a) and (b) of the Child Support Guidelines is that the payor spouse will continue to pay table support for as long as a child (over the age of majority) remains a child of the marriage. When determining whether someone is a “child of the marriage”, the court looks to a variety of factors including those described in Darlington v. Darlington, 1997 CanLII 3893 (BC CA), [1997] BCJ No. 2534 (BCCA), (Rosenberg v. Rosenburg, 2003 CanLII 2227 (ON SC), [2003] OJ No 2962, and Turner v. Ansell, [2012] OJ 1987 (ONT. S.J.)). According to Darlington, supra, I ought to consider the following in this case:

a) Whether the child is enrolled in a course of study and whether it is full time or part time;

b) Whether or not the child has applied for and is eligible for student loans or other financial assistance;

c) The career plans of the child;

d) The ability of the child to contribute for his own support through part time employment;

e) The age of the child;

f) The child’s past academic performance;

g) What plans the parents made for education of the children; and

h) Whether or not the child has unilaterally terminated the relationship with the parent from whom support is sought.

16It is also clear that there is a high evidentiary threshold to determine that the child has unilaterally withdrawn from the relationship with the payor parent as per Turner v. Ansell.

17The Ontario Court of Appeal in Lewi v. Lewi, 2006 CanLII 15446 (ON CA), [2006] OJ No. 1847 looked at a decision wherein a motion judge had to decide whether support should be paid by a payor father for two children who were attending university. One child lived at home and went to school locally while the other child went away to school. The trial judge decided that, for the child living at home (“Darren”), section 3(1)(a) of the Child Support Guidelines was applicable and that a section 7 analysis would have to be undertaken. In light of the assets available to Darren to pay for school, no s. 7 order was made. In supporting that view, Juriansz JJA (for the majority of the court) stated:

126Section 3(1) provides that the "amount of a child support order" for a minor child is composed of two components: the amount set out in the applicable table and the amount, if any, under s. 7. The tables referred to in s. 3(1)(a) are the Federal Child Support Tables set out in Schedule I of the Guidelines. Section 7 allows a court to provide for an amount to cover all or any portion of special or extraordinary expenses. As I reads. 3(1), expenses ordered under s. 7 are not added to the amount of a child support order, but are part of it. I understand Laskin J.A.'s comment at para. 25 of Andrews v. Andrews (1999), 1999 CanLII 3781 (ON CA), 45 O.R. (3d) 577, [1999] O.J. No. 3578 (C.A.) to describe an expense under s. 7 as an "add-on" to the table amount. While the application of s. 3(1) is subject to the exception "[u]nless otherwise provided under these Guidelines", there is a presumption in favour of the amount determined by s. 3(1): Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250, [1999] S.C.J. No. 52, at para. 42.

127Section 3(2) provides two ways of determining the amount of child support for a child of majority age. Under s. 3(2)(a), the amount of support for a child over the age of majority is calculated in exactly the same way as that for a minor child. The opening words of s. 3(2)(b) indicate that the amount determined by applying s. 3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency and efficiency in the resolution of disputes concerning the amount of support for children of majority age.

128Section 3(2)(b) only comes into play "if the court considers that approach to be inappropriate". It is apparent that the word "approach" was chosen with care, as the word "amount" is used six times in the section. In this way, s. 3(2)(b) differs from s. 4, which provides the court with discretion to depart from the "amount" determined under s. 3 where it considers that amount to be inappropriate. The words "that approach" refer to the technique dictated by s. 3(2) (a) -- namely applying the Guidelines "as if the child were under the age of majority". I will refer to that technique as the "standard Guidelines approach". Before resorting to its discretion under s. 3(2)(b), the court must conclude that it is inappropriate to apply the Guidelines as if the child who is actually of majority age were a minor.

129The word "approach" makes it clear that the court cannot depart from the application of the Guidelines simply because it considers the "amount" determined under s. 3(2)(a), i.e., the table amount or additional expenses under s. 7, to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate; clearly an exceptional situation rather than the rule. This further promotes predictability, consistency and efficiency in family law litigation.

135In her reasons, the motion judge stated that, "Darren has chosen to remain at home. His undergraduate university expenses are therefore moderate and his living expenses are addressed through table Guideline support." This indicates that she was not persuaded that it was inappropriate to apply the Guidelines as if Darren were a minor and proceeded to determine child support for him under s. 3(2)(a).

136I see no basis to interfere with the motion judge's approaching Darren's support as if he were a child under the age of majority and concluding his living expenses were to be addressed through table Guideline support.

ANALYSIS

18I first wish to state that both parties appear to have taken reasonable positions in this matter. The Father has paid for two years’ worth of support, albeit it with some alleged shortfall, after Alex attained the age of 18. Equally, the Mother has attempted to ensure the best possible result for her child in light of a difficult situation.

19With respect to whether or not Alex remains a child of the marriage, I find that he does. He has attempted to pursue a reasonable post-secondary academic career. In today’s day and age, if a young person wishes to move forward in any reasonable career, some form of post-secondary education is likely necessary. I also do not fault Alex for determining that mechanical engineering is not for him. He is a young man and choosing a career is difficult. Nonetheless, as an adult, there may be consequences for making a poor choice. Such a consequence, however, does not necessarily mean that Alex ceases to be a child of the marriage. Instead, as evidenced by the Mother’s foresight (she saved for an RESP), it was always clear that Alex would go on to some form of post-secondary education. The Father does not appear to dispute this fact as he paid for two years of post-secondary education.

20A follow-up question must therefore be posed: How long does Alex remain a child of the marriage? It appears clear to me that, based upon the amount of the Mother’s savings, and the fact that mechanical engineering is a four-year program (a fact not disputed by the Father), it was foreseen that Alex would attend a four-year post-secondary program. Accordingly, I am content that Alex will remain a child of the marriage until at least April of 2018. The Father will continue to pay child support for Alex until April 30, 2018 at which time the Father will have an opportunity to come back before the court to seek a variation if he so chooses. Such a timeframe recognizes that:

a) The Father’s daughter will start college around that time; and

b) Alex had anticipated enrolling in a four year program.

21By May 2018, the Father will have paid child support for a period of four years beyond Alex’ secondary school graduation. It would therefore seem to me that May of 2018 is the appropriate time to determine what consequence (ie. termination of support), if any, Alex should face for his failed attempt at mechanical engineering.

22With respect to the amount of support to be paid, I look at paragraph 3(2)(a) of the Federal Support Guidelines and I note that it is the presumptive section to be applied. I also note that, the Ontario Court of Appeal has approved the continued use of that section in circumstances where a young adult stays home to pursue post-secondary education. I see no reason to deviate from that position as per s. 3(2)(b) of the Federal Support Guidelines. The Father has not satisfied me that his financial situation is untenable or that he is suffering from undue hardship in so far as both parties appear to be living comparable lifestyle.

23Accordingly, I order that the Father pay table support to the Mother. This order is reviewable in May of 2018 as previously discussed. Based on the Father’s 2015 income of $71,646, the Father’s support obligation amount is $653/month for 2016. With respect to child support arrears, I accept the Mother’s calculations and hereby order that the Father pay $3580.32 to the Mother in 18 equal installments of $198.91. I also order that the parties exchange relevant financial information (ie. T-4’s, information regarding major asset purchases, etc.) by June 1^st of each year.

24With respect to section 7 expenses, however, I note that Lewi v. Lewi at paragraphs 167 to 168 indicates that the court was obligated to look at a child’s ability to contribute to his or her own post-secondary education. Given the RESP’s that have been saved for the child, the child’s part-time employment, as well as the OSAP for which the child is eligible, it occurs to me that Alex ought to be able to pay for his own college. As such, I am content that the Father’s table contributions are sufficient in the circumstances and that he ought not contribute towards any alleged section 7 arrears or future section 7 expenses. In other words, the Father only owes table support.

25Finally, in light of the fact that this is a split result, I order no costs in the circumstances.

Varpio J.