CITATION: Naveed v. Nasir2016 ONSC 7878
COURT FILE NO.: FS-16-21124
DATE: 20161220
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Saima Naveed, Applicant
AND:
Naveed Nasir, Respondent
BEFORE: Kiteley J.
COUNSEL: self-represented Applicant
Kristin Hillenbrand, Friend of the Court for inter-jurisdictional matters and inter jurisdictional process from the Ministry of Justice and Solicitor General, Alberta
Ryan Zigler, counsel for the Respondent
HEARD: October 18 and November 10, 2016
ENDORSEMENT ON MOTION TO CHANGE FINAL ORDER
[1] The patties married in 1994 and their daughter lshmal was born January 10, 1996 and their son Faizan was born November 24, 1998. The parents separated in September 2011 and entered into Minutes of Settlement that were incorporated into a final order dated October 24, 2012 by Justice Snowie of the Ontario Superior Court. In 2015, Ishmal was accepted at Concordia University of Edmonton and, instead of Islm1alliving in residence, the Applicant and both children moved to Edmonton. Ishmal slatted university in September 2015 and Faizan started in September 2016. The Respondent continues to live in Toronto. This Motion to Change pursuant to s. 17 and 17.1 of the Divorce Act is primarily to obtain an order requiring the Respondent to contribute to the post-secondary education costs.
[2] The hearing of the Applicant's motion to change started on October 18, 2016 and led to an endorsement dated October 20 [2016 ONSC 6518]. The hearing concluded on November 10, 2016. The patties largely complied with paragraphs 16 to 21 of the earlier endorsement, the exception being paragraph17(a) with respect to the student loans obtained by Islm1al. At the conclusion of the hearing on November 10, I directed the Applicant to provide a brief affidavit on or after November 30 that was the date that Ishmal expected to have a response to her re application for student loan. Ms. Hillenbrand did send documentation but without an affidavit. Mr. Zigler volunteered to provide an affidavit of his assistant sworn and filed December 15. His assistant has attached a copy of a document from Alberta Student Aid to which I will refer below.
[3] Pursuant to paragraph 20 of the earlier endorsement, the Applicant had served and filed her proposed draft order. At the outset of the continuation of the hearing on November I 0, Mr. Zigler indicated that his client agreed with paragraph 2 which provided for the variation of paragraph 8 of the final order namely that, commencing May I, 2016, the Respondent would increase the table amount of child support from $1,066 (total $12,792) on a Line 150 income of $73,156 to $1,105 per month (total $13,260 per year) based on his gross annual income of $75,000.
[4] Mr. Zigler also indicated that his client agreed with paragraph 4 of the draft order which provided for the variation of paragraph 10 of the final order to clarify that the Respondent's obligation to pay table amount of child support continued beyond age 22. In the proposed draft order the Applicant asks that the Respondent's child support obligation to pay table amount of child support continue up to and including April of the year that each child completes her or his first undergraduate degree. Mr. Zigler's position was that his client would not agree to "completion of a degree" but would agree to extending beyond age 22 in the case of lshmal up to and including April I, 2019. He pointed out that it was expected that Faizan would likely complete his degree before he was 22 years old in any event.
[5] In paragraph 10 of the final order the Respondent is required to pay support "so long as they continue to be children of the marriage within the meaning of the Divorce Act". There is no reason to terminate upon the child attaining the age of 22 years, particularly if, as will be the case here, Islm1al will not complete her degree before January 10, 2018. I agree that the language proposed by the Applicant should be adopted.
[6] Paragraph 4 of the proposed draft order also indicates that once Ishmal completes her degree, expected to be April 2019, only s. 3 child support for Faizan would be payable on the basis of the Respondent's current income. During the hearing on November 10 I did not notice that it was described as his "current income". For consistency, it should be as reflected in paragraph 8 of the final order, namely "gross annual income".
[7] During submissions, Mr. Zigler indicated that his client would include the payment to and including the month of May of the finishing year and not stop with the payment in April as was reflected in the proposed draft order.
[8] Both children live with the Applicant and the Respondent has not challenged the table an1ount of child support so s. 3(2)(b) of the Child Support Guidelines does not apply. The Respondent does not dispute the reasonableness of the education expenses up to this point. To resolve this Motion to Change, the three issues are as follows: the contribution by the children; whether to impute income to the Applicant; and whether the Respondent should be required to pay anything in addition to the table amount currently of $1,105.
Education expenses of lshmal
[9] Ishmal started her arts program at Concordia University in September 2015 when she was 19 years old. She expects to complete the course requirements in April or May 2019.
[10] For the academic year September 2015 to April 2016, the evidence of the expenses for tuition, books, student fees, bus pass, application fees and flight from Ontario to Alberta for
Concordia University orientation totals $9,284. Mr. Zigler questioned the bus pass as a duplicate but on the evidence I find that it was the cost allocated to each term. I am also satisfied that the transportation expenses for Ishmal to attend the mandatory orientation program are appropriate expenses. From that the Applicant makes the following calculation:
total expenses 2015-2016
$9,284
less RESP
$6,139
balance
$4,678
[11] Ishmal did not apply for or receive student loans for that academic year. Her T4 for 2015 indicates that earned $6,524 from a part time job. In 2016, she continued to work at Tim Horton's throughout the summer and most Saturdays and Sundays each for 8 hours during the school term. At the time of the hearing she was paid $13.80 per hour. The Applicant estimated Ishmal's total income for 2016 would be $13,000.
[12] The Applicant takes the position that the Respondent should pay 80% of the balance or $3,742; she should pay 15% or $701 and Islm1al should pay 5% or $233.
[13] For the academic year 2016-2017, the Applicant makes the following calculation:
total expenses 2016-2017
$9,284
less RESP
$1,700
Balance
$7,584
[14] At the conclusion of the hearing in November, the Applicant took the position that the Respondent should pay 70% or $5,309, she should pay 15% or $1,137 and Ishmal should pay 15% or $1,137.
[15] Ishmal had applied for a student loan for the 2016-2017 academic year. The form contained a mandatory section in which the student was required to indicate the support that she expected from each of her parents. When she originally submitted the application, she left it blank because her father had not committed to contribute any amount and her application was refused. Perhaps as a result of the insistence on the part of the Respondent, Ishmal re-submitted her application. At the hearing on November 10, 2016, the Applicant expected that she would hear the results by November 30. As indicated above, I received the affidavit of Mr. Zigler's assistant sworn December 15, 2016 which indicated that as of November 17, 2016 Ishmal had been awarded a Canada student loan of $2,210, an Alberta student loan of $790, and a federal low income grant of $3,000 for a total of $6,000. The grant portion is not repayable. The payments were to be made as follows: $2,290 on November 18 and $3,710 on January 1, 2017.
[16] For the academic years 2017-2018 and 2018-2019, the Applicant asks for an order that the Respondent pay 70% of the total cost of tuition, books, student fees and bus passes after deduction for the RESP in the amount of $1,700 and after a deduction for any scholarship/bursaries received.
[17] I agree with the submission of the Applicant that it is desirable that the court establish a formula so as to achieve as much certainty as possible so that the Alberta Maintenance Enforcement (ABMEP) can easily make the calculation and the payment would be enforced through the Family Responsibility Office in Ontario.
Education expenses of Faizan
[18] Faizan was born November 24, 1998. In September 2016 when he was still17 years old he started an engineering program at the University of Alberta. There is certainty about his first year but less certainty about the remaining four years.
[19] For the academic year 2016-2017, the evidence of the expenses for tuition, books, student fees, and bus pass totals $9,441. From that the Applicant makes the following calculation:
total expenses 2016-2017
$9,441
less RESP
$6,918
balance
$2,253
[20] Faizan worked part time at Tim Hortons during his final year of high school. He quit at the end of April 2016 in order to focus on his exams in June. His total earnings for 2015 were $4,072 and for 2016 were modest. He did not try to get a job for the summer because, according to the Applicant, he thought it unlikely he would get a job when he was returning to school. He has not worked and does not intend to get a job during this academic year. He did not apply for a student loan for this academic year.
[21] The Applicant takes the position that the Respondent should pay 80% or $2,018, she should pay 15% or $378 and Faizan should pay 5% or $126.
[22] In this engineering program, Faizan may be eligible for the co-op program. According to the Applicant, he would have to maintain his grades at a certain level to qualify. She did not know whether he would be paid during the co-op part of the program and if so, at what rate.
[23] In his affidavit, the Respondent provided information he had obtained from the university that indicates that the student pays a tuition fee of approximately $900 per 4 month work term. Based on historical information from work term students, the average wage per month of work term ranged from $3,402 in the first work term to $4,647 for the fifth work term and an overall average of $3,870. As I understand it, if the placement is not in Edmonton, Faizan would be required to pay accommodation and other living expenses.
At this point, I can only conjecture whether Faizan will be accepted for some or all work terms for which he applies, whether he would be assigned in or away from Edmonton, what earnings he would have, what student loans, grants, bursaries or scholarships he might receive. I do agree with the Applicant that it is wise to try to establish a formula that would assist the parents in avoiding another Motion to Change.
Circumstances of the Applicant
[24] Pursuant to the Minutes of Settlement in 2012, the Applicant received her half of the net proceeds of sale of the former matrimonial home as well as $15,000 as lump sum spousal support. When she moved to Edmonton the Applicant purchased a home for $360,000 and in her July 26, 2016 financial statement Form 13, she indicated that the value was $360,000 with a mortgage in the amount of $282,000 for a total equity of approximately $78,000. She said that she had sold her jewelry to assist in purchasing the home. She had bank account balances of approximately $6,000 and credit card indebtedness in the amount of approximately $16,500.
[25] The Applicant's line 150 income has been as follows:
2011
$2,441
2012
$4,660
2013
$ 1,058
2014
$ 5,999
2015
$12,933
[26] After moving to Edmonton, the Applicant was hired as a school bus driver working part time during the school year. For the calendar year 2016, she estimated her earnings at $13,260.
[27] The Respondent takes the position that the Applicant is an educated person who is underemployed.
[28] I do not have evidence as to her education. I note that the parties separated in September 20 II and her total earnings for the year were $2,441.The Applicant is now 47 year old and takes the position that her various medical conditions mean that she is as employed as she can tolerate. She has provided medical information but it does not support her evidence that she is doing as much as she could or should do in order to contribute to the support of both of the children. I agree that, effective in the academic year 2016-2017 a higher income ought to be imputed to her but I do not accept the Respondent's allocation of $30,000.
[29] Ishmal is currently earning $13.80 per hour which I consider to be a reasonable comparator. As indicated below I will impute income to the Applicant at the same rate calculated as follows: $13.80 x 35 hours = $483/week x 50 weeks = $24,150 annually.
[30] The Respondent asks that I impute income to the Applicant for two other reasons. The first is that she lives in a 5 bedroom house in Edmonton that has a finished basement with a kitchen and a bathroom and bedrooms and that rental income should be imputed to her. According to his evidence, the Respondent asked through his counsel for an opportunity to have a rental agent inspect the property and give expert evidence as to the range of rental income. The Applicant declined to permit the rental agent access to the property.
[31] I will not impute rental income to the Applicant. I accept her evidence that the house is of modest dimensions and all of the space is needed for three adults as well as occasional guests.
[32] The Respondent wants to impute income to her with respect to a house in Pakistan that contains two rental units. The Respondent raised this issue several months ago and both parties have provided documentation that appears to support the position that each takes. The Applicant asserts that she did not inherit property from her father and the Respondent asserts that she did. The documentation provided by counsel on behalf of the Respondent included an acknowledgement of Expert's Duty by the lawyer in Pakistan who gave opinion evidence on behalf of the Respondent about ownership of the property.
[33] On the record before me I cannot conclude on a balance of probabilities that (a) she is an owner; (b) there are two units with rental potential; (c) the amount of gross rent she could collect; (d) the expenses associated with the property which would be deducted limn the gross rental income. I decline to impute income to the Applicant.
[34] I note that paragraph 9 of the final order dated October 24, 2012 indicates that their contributions were in proportion to their respective gross annual incomes, not in relation to assets or income imputed to such assets in which case whether she owns such property may not be relevant.
Circumstances of the Respondent
[35] The Respondent had received his half of the net proceeds of sale of the former matrimonial home less the $15,000 he paid as lump sum spousal support. He owns a one bedroom 670 square feet condominium in Toronto that he says is valued at $220,000 leaving equity of about $58,000 after deducting the mortgage in the amount of $162,000. His bank account balance is shown at $4,000 and he has TSA and RSP that total $78,000. At age 50, he does not have a private pension plan. In September 2016 he remarried. His budget on his August 25, 2016 financial statement Form 13 (which pre-dated his marriage) indicates that including child support, he spends about $200 more per month than he earns. He pointed out that his wife does not have a work permit and therefor will not be contributing to the household. He takes the position that if he is ordered to pay s. 7 expenses, it will have to be paid out of capital, not income.
[36] The Respondent's income has been as follows:
2012 gross annual income
$72,000
2013 line 150
$74,664
2014 line 150
$77,967
2015 line 150
$73,156
[37] As indicated, the income of the Respondent was higher and then was reduced. The Respondent was involved in a motor vehicle accident in each of 2013 and 2015. As a result of the 2015 accident, he missed 9 weeks of work and he experienced physical and psychological challenges. He said that he had been demoted by his employer of 14 years by being shifted to a new position because staff had found him difficult to deal with. He has provided significant medical reports and information as to his current status that appears to confirm his evidence.
[38] In his affidavit, the Respondent deposed that he came from a middle-class family by Pakistani standards. He had attended university away from his home town and had obtained a degree in engineering. He said he fully funded his tuition and living expenses and worked as a tutor and as a waiter and as a result his work/school hours were about 60 hours per week. He and the Applicant came to Canada to escape religious discrimination and he was unable to obtain the requisite approval of his professional qualifications and to work in his field. He said it was his expectation during the marriage, consistent with his own experience and with what he believes is in the long term best interests of the children that they pay their tuition fees and expenses, either through money earned through work or if necessary by loans, and that he and the Applicant would assist only if they could not manage on their own. He described the family income as modest and asserted that it is not reasonable for the children to have expected that their parents would fund most of their tuition fees as well as support them through school which he says is corroborated by a letter from his lawyer to his former wife's lawyer at the time the Minutes of Settlement were negotiated. Prior to separation the Applicant and Respondent had funded RESP's for the children that appear to have totaled about $25,000.
[39] I appreciate the Respondent's circumstances, particularly in view of his recent marriage. However, as the above indicates, the Applicant and Respondent are similarly situated in that the equity each has in their residence is modest. Indeed, the Respondent has managed to accumulate considerably more capital than has the Applicant. I expect that this order will require him to use his capital to fulfill his obligations to his children. However, that would likely have been the case had the parents not separated. It is unfortunate that the Applicant and children moved so far away because of the interruption in the relationship between the children and their father. There is no money in either parent's budget for children to visit their father or the Respondent to visit the children. In the end result, these parents should both be proud of the success that Ishmal and Faizan are demonstrating.
Child Support Guidelines
[40] Pursuant to s. 3(2)(a) of the Child Support Guidelines, child support for children over the age of majority is the amount determined by applying the Guidelines as if the child were under the age of majority. The Respondent does not take the position that the Guideline amount is "inappropriate" pursuant to s. 3(2)(b) and he has agreed to increase the current payment to reflect an increase in his income to $75,000.
[41] Section 7 of the Child Support Guidelines provides that a parent may be required to provide for an amount to cover post-secondary education expenses taking into account the necessity of the expense in relation to the child's best interests 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. As indicated above, the Respondent accepts the reasonableness of the expenses and by inference, he accepts the necessity of the expenses. There is no question that the expenses of both Ishmal and Faizan fall within the meaning of "special or extraordinary expenses" as contemplated ins. 7(1)(d).
[42] Pursuant to s. 7(2) the "guiding principle" in determining the amount of a special or extraordinary expense is that it be shared by the parents "in proportion to their respective incomes after deducting from the expense, the contribution, if any from the child".
[43] Paragraph 9 of the final order provides that each parent shall contribute toward the child's post-secondary education expenses in proportion to their respective gross annual incomes in accordance with the Child Support Guidelines. Although the final order makes no specific mention of the contribution of the child, both parents assume that to be the case, although they differ on what the contribution should be.
[44] Counsel for the Respondent argues that when the means of each child and of the parents are taken into consideration, including that the Respondent is paying full table child support in the amount currently of $13,260 annually, the Respondent should not be required to make a payment toward those s.7 expenses.
[45] At paragraph 41 of Aubert v. Cipriani [2015] ONSC 6103, Justice D.L. Chappel identified the relevant factors based on her review of the authorities including:
(a) the extent to which a child will be expected to contribute to their post-secondary education costs depends on the particular facts and dynamics of the case;
(b) the duty to contribute does not necessarily require that the child devote their entire earnings to their educational expenses;
(c) if possible, children should be allowed to enjoy some of the fruits of their labour; where the means of the parents and the children are limited, the contribution expected from the child may very well increase;
(d) the question of whether the availability of student loans should be taken into account in determining the child's ability to contribute is a discretionary matter for the trial judge and must be determined on a case by case basis taking into consideration the particular facts and dynamics of each case;
(e) typically the courts will only require a child to contribute by taking out and assuming responsibility for student loans as a last resort, where the means of the child and those of the parents are insufficient to cover the child's education and living expenses.
[46] In this case, the family members collectively have insufficient means to cover the post secondary education expenses of the children and consequently both Ishmal and Faizan are required to apply for students loans and grants, as well as whatever scholarships or bursaries might be available.
[47] To reflect the student loan and grant information provided after the hearing concluded, I revise the calculation made by the Applicant with respect to Ishmal for the academic year 2016- 2017 as follows:
total expenses 2016-2017
$9,284
less RESP
$1,700
less student grant
$3,000
balance
$4,584
Income of the Applicant and the Respondent
[48] In the 2015-2016 academic year, the Applicant's contribution based on employment income of about $13,000 is reasonable given that it was a year of transition from Ontario to Alberta. For the 2016-2017 academic year, the Applicant's contribution based on employment income of about $13,000 is not reasonable as explained in paragraphs 28 and 29 above. I will impute employment income to her in the amount of $24,150 for the current year. For the remaining years of post-secondary education for both children, the Applicant's income will be the greater of her actual Line 150 income and $24,150.
[49] As for the Respondent's income, his counsel emphasizes that he will be paying the full amount of table support which annualizes at $13,260. Where the collective means of the family are modest, it is not fair to use an income amount to establish the ratio without adjusting for that expenditure, otherwise he will be paying a proportion of the s. 7 expenses on income that includes the amount allocated for table support. I will deduct the current amount of table support to avoid that unfairness and I find that his income for purposes of the ratio is $61,740.
[50] I do not add that same amount as income to the Applicant because it would be equally unfair to use an income amount to establish the ratio for her to contribute to s. 7 expenses including the table amount designed for basic living expenses.
[51] For the 2015-2016 academic year, I find the ratio was as follows:
income of the Applicant
$13,000
approx. 18% of the total
income of the Respondent: $73,156 minus $12,792
$60,364
approx. 82% of the total
total income
$73,364
[52] For the 2016-2017 academic year, I find the ratio is as follows:
income of the Applicant
$24,150
approx. 29% of the total
income of the Respondent: $75,000 minus $13,260
$61,740
approx. 71% of the total
total income
$85,890
[53] In paragraphs 12, 14 and 21 above, I have set out the formula relied on by the Applicant which is to take an amount owed and divide it by the respective contributions. That is not what is envisaged by s. 7(2) of the Guidelines which anticipates the following hypothetical analysis:
total s. 7 expenses
$100
less student loans, grants, bursaries, scholarships
$ 15
balance of s.7 expenses
$ 85
contribution of child e.g. 20%
$ 17
remainder outstanding
$ 65
Applicant pays 29%
$ 19
Respondent pays 71%
$ 46
Ishmal
[54] I accept that Ishmal did not apply for student loans in her first year, partly because of the uncertainty as to whether her father would contribute. However, as indicated above, based on the modest financial circumstances of this family, I agree with the Respondent that for the balance of her post-secondary education, Ishmal should apply for student loans and grants.
[55] I also agree with the Respondent that it is reasonable that Ishmal have employment throughout the four sunm1er months and if possible during the school year although I observe that 16 hours over every Saturday and Sunday leaves her little weekend time for her studies. I also accept the Applicant's evidence that Ishmal is involved in a choir and is focused on raising the $4,000 required so that she can travel to participate in a performance tour. That is the sort of extra-curricular activity that is to be encouraged with university level students and some of her earnings should be allocated to that expense.
[56] In the 2015-2016 academic year Ishmal received a significant RESP contribution which meant that the balance was only $4,678. Ishmal did work and was able to earn significant income during that academic year. On that basis, I fix Ishmal's contribution at 20% of $4,678 or $935 leaving the remainder to be shared by the parents of $3,743.
[57] In the 2015-2016 academic year, the ratio of incomes for the parents is 18/82 at1d as a result, the Applicant shall pay 18% of $3,743 namely $673 and the Respondent shall pay 82% of $3,743 namely $3,069 less credit for payments in the amount of $1,100 leaving $1,969 owing.
[58] In the 2016-2017 academic year Ishmal continues to earn income and now knows that she has been awarded a non-repayable grant in the amount of $3,000 and a modest RESP contribution leaving the balance about the same as in 2015-2016 as indicated in paragraph 47 above. This is a year of transition because she was not informed until the middle of November that she had been awarded both loan and grant. Having reduced the expenses of the balance of $4,584 by taking the grant portion into consideration, I will increase her contribution to 40% to reflect an amount related to the loan portion of the advance. Accordingly at 40% of the balance of $4,584, Ishmal's contribution is $1,833 leaving the remainder to be shared by the parents of $2,751.
[59] For the 2016-2017 academic year the ratio of incomes for the parents is 29/71 and as a result, the Applicant shall pay 29% of the remainder of $2,571 namely $745 and the Respondent shall pay 71% of $2,571 namely $1,825.
[60] For the 2017-2018 and 2018-2019 academic years 100% of the students loans and grants will be deducted, and Ishmal’s contribution will be for 40% of the balance. And the remainder will be shared by the parents in the ratio of incomes.
[61] Ishmal has only two years remaining during which time I doubt that the income of the Applicant and the income of the Respondent will change materially. While each parent will be required to provide disclosure, I encourage the parents to consider continuing to apply the 29/71 ratio to avoid the undoubted annoyance of being more precise. I have however indicated at paragraph 48 that the Applicant's income will be the greater of her actual Line 150 income and $24,150.
[62] In view of the loan and grant approval, the immediate financial pressures the Applicant had described in her evidence will be alleviated which will allow the Respondent additional time to pay the arrears arising from the increase in the table amount of support and the amounts he owes for 2015-2016 and 2016-2017.
Faizan
[63] In the 2016-2017 academic year, Faizan received a significant RESP contribution which meant that the balance was only $2,253. Faizan was not yet 18 when he slatted university and on that basis it is reasonable for him not to have a part time job during this school year. I accept the Applicant's evidence that the strength of his marks will inform whether he is eligible for work placements which would be desirable. As was the same with Ishmal, it was reasonable that he did not apply for student loans because he could not complete the part of the form that required the contribution of his parents. For his first academic year, I fix Faizan's contribution as nominal at 5% of $2,253, namely $112, leaving the remainder of $2,141 to be shared by the parents.
[64] For the 2016-2017 academic year the ratio of incomes for the parents is 29171 and as a result, the Applicant shall pay 29% of $2,141 namely $620 and the Respondent shall pay 71% of $2,141, namely $1,520.
[65] In future years, there is uncertainty as to whether he will receive student loans or grants, and whether he will qualify for work placement, and if so, what income he will receive and where he will live which has a significant impact on his expenses. If he does qualify for work placement, the range of income provided by the Respondent indicates that he will have modest tuition of $900 per 4 month work term, unknown tuition for the study terms, and sufficient income for him to save money from the work term to pay for some expenses during the non-work term. If he does not qualify for work placement, it will be reasonable to expect he will have employment during the 4 summer months and part time during the year.
[66] As indicated below, I have established a framework within which the parents ought to be able to agree on their contributions if he does qualify for work placement or co-op. The important factor is the ongoing contribution of Faizan of no less than 40% consistent with his sister.
Costs
[67] As indicated in the earlier endorsement, the approach taken in this case to focus on the Motion to Change in which the Applicant participated remotely rather than the provisional hearing process has resulted in a more expeditious hearing, although, in the case of a Motion to Change focused on s. 7 expenses for post-secondary education, it should ideally be even faster. As far as I know, the Applicant has not had counsel. She has had the benefit of the participation of Ms. Hillenbrand, the "Friend of the Court". Indeed, the approach taken here was made considerably easier because of Ms. Hillenbrand's participation. The Respondent has been represented throughout and has incurred legal expenses. Mr. Zigler's role was equally as significant in managing this unique process and his and his client's willingness to bring the matter to an early conclusion and, in the case of the student loan information, providing an affidavit of his legal assistant and having it filed.
[68] I will create an opportunity for the patties to make written submissions as to costs including any offers to settle that were served. However, I encourage the parties to resolve the issue of costs without that step. If they do and if an order is required, Mr. Zigler should forward a form 14B motion to my attention through the Trial Co-ordinator.
ORDER TO GO AS FOLLOWS:
[69] Except as amended by this order, the final order of Snowie J. dated October 24, 2012 remains in full force and effect.
[70] Paragraph 8 of the final order is varied to order that the Respondent, Naveed Nasir shall pay to the Applicant, Saima Naveed, Guideline support for the children, namely Ishmal Naveed, born January 10, 1996 and Mohammad Faizan Nasir, born November 24 1998, in the amount of $1,105 per month, commencing May 1, 2016 based on his gross annual income of$75,000.
[71] For purposes of this order, s. 7 expenses are defined as tuition, books, student fees and bus passes.
[72] Paragraph 9 of the final order is varied to order that the Respondent, Naveed Nasir shall pay to the Applicant Saima Naveed, s. 7 expenses for Ishmal for academic years 2015-2016 and 2016-2017 calculated in accordance with paragraphs 57 and 59 above, natne1y:
(a)
academic year 2015-2016
$1,969
(b)
academic year 2016-2017
$1,825
total
$3,794.
[73] Paragraph 9 of the final order is varied to provide that with respect to Ishmal's s. 7 expenses for the academic years 2017-2018 and 2018-2019, the following formula applies:
(a) Ishmal's s. 7 expenses are defined as tuition, books, student fees, and bus passes;
(b) from that will be subtracted the amount of any RESP, student loan, grants, scholarships, and bursaries leaving the balance of expenses;
(c) from that balance, Ishmal’s contribution will be 40%;
(d) of the remainder, the Applicant shall pay 29% and the Respondent shall pay 71% subject to the disclosure referred to below and provided that the income of the Applicant will be the greater of her actual Line 150 income and $24,150.
[74] Paragraph 9 of the final order is varied to provide that the Respondent, Naveed Nasir shall pay to the Applicant s. 7 expenses for Faizan for the academic year 2016 calculated in paragraph 64 in the amount of $1,520.
[75] Paragraph 9 of the final order is varied to provide that, with respect to Faizan's s.7 expenses for the academic years in which he does not have a work placement or co-op program:
(a) Faizan's expenses are defined as tuition, books, student fees, and bus passes;
(b) from that will be subtracted the amount of any RESP, student loan, grants, scholarships and bursaries leaving the balance of expenses;
(c) From that balance, Faizan's contribution will be 40%;
(d) Of the remainder, the Applicant shall pay 29% and the Respondent shall pay 71% subject to disclosure referred to below and provided that the income of the Applicant will be the greater of her actual Line 150 income and $24,150.
[76] Paragraph 9 of the final order is varied to provide that with respect to Faizan's s. 7 expenses for the academic years in which he does have a work placement or co-op program, the parties shall apply the formula described in paragraph 75 and modify it to the extent required, and provided that Faisan's contribution will be no less than 40%.
[77] The Respondent shall pay the arrears pursuant to paragraphs 70, 72 and 74 no later than January 31, 2017.
[78] As soon as available for each future academic year, the Applicant shall provide documentation to the Respondent as to the expenses and any scholarships, bursaries, student loans and grants.
[79] The Respondent shall pay the amounts required pursuant to paragraphs 73, 75 and 76 in 3 equal installments paid 30 days, 60 days and 90 days after the amounts have been calculated.
[80] Paragraph 10 of the final order is varied in that the Respondent shall pay s. 3 child support for the children of the marriage up to and including the month of May of the year that each child completes the requirements for her or his undergraduate degree.
[81] Upon Ishmal completing the requirements for her undergraduate degree expected to be in April or May 2019, the Respondent shall pays. 3 child support for Faizan in accordance with his gross annual income, provided that during the months in which Faizan has a work placement or co-op program, the Respondent shall not pay the table amount of support attributable to Faizan.
[82] The Respondent shall pay all amounts owing pursuant to this order through the Family Responsibility Office (FRO) to Alberta Maintenance Enforcement (ABMEP) by the dates indicated above. Support Deduction Order to issue.
[83] On or before June 30 of each year so long as the Respondent has an obligation to pay child support, each party shall provide the other party with a complete copy of his or her income tax return and any notices of assessment and reassessment issued to him or her by the Canada Revenue Agency on an annual basis. If a party has not filed an income tax return for the previous year, he or she shall provide the other party with copies of his or her T4, T4A and all other relevant tax slips and statements disclosing any and all sources of income, including self- employment income.
[84] If by January 3, 2017 the patties are unable to agree as to costs of this Motion to Change then each shall serve and file with the Trial Co-ordinator written submissions not exceeding 3 pages together with offers to settle and costs outline on this timetable:
the Applicant January 17, 2017 the Respondent January 31, 2017.
[85] Either party may forward through the Trial Co-ordinator an approved draft order to my attention for signing.
Kiteley J.
Date: December 20
2016