Cormier v Duesling, 2017 ONSC 1169

Court File and Parties

COURT FILE NO.: FS-840-15 DATE: 2017-02-17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrea Cormier, Applicant AND: Daniel John Duesling, Respondent

BEFORE: The Honourable Mr. Justice G.A. Campbell

COUNSEL: Alex Toolsie, Counsel for the Mother/Applicant Brent Balmer, Counsel for the Father/Respondent/Moving Party

HEARD: February 13, 2017

ENDORSEMENT

1The Respondent Father brought a Notice of Motion to change his child support for two now adult children, Jamie Lee Duesling and Damya Skye Duesling, as ordered by Turnbull J. on June 3, 2008. At the outset of the argument, some time was invested firstly regarding the need for and/or the efficacy of Mr. Toolsie’s two responding motions brought for the Applicant Mother and whether the rules allowed him to do so and secondly that a unilateral action by the Family Responsibility Office in October-December 2015, (unauthorized by its legislation) caused confusion of the parties and exacerbated an already difficult set of circumstances faced by the litigants (i.e. whether the Respondent Father had complied with the annual disclosure term imposed at para. 4 of Turnbull J.’s Order).

2I offered some verbal observations in court regarding the legally non-compliant Family Responsibility Office actions and no time was spent on Mr. Toolsie’s cross-motions. I do not intend to address those two issues herein other than by dismissing both of those motions (referred to as 2 and 3 in my February 8, 2017 endorsement) without costs.

3Jamie Lee Duesling is now almost 24 years old and Damya Skye Duesling is age 20. After high school, Jamie Lee Duesling attended post-secondary education and graduated April 30, 2013. Damya Skye Duesling has now completed her make-up year at Georgian College (between May to August 2016) and is attending her first year at University of Guelph, full-time.

4At the time of the Turnbull J. Order in June 2008, the Respondent Father was earning $26,000 yearly. Since then, his income has increased to $70,855 in 2015. Counsel agree that the court should use that amount as representing the Respondent Father’s 2016 income as well. The Respondent Father avers that he disclosed his Notices of Assessment for all his income increases in 2011 and again in 2016. He says that the Applicant Mother knew of his increased income but did nothing about it. On the other hand, the Applicant Mother avers that she did ask for increased child support over the years and specifically asked for “help” with Jamie Lee Duesling’s s.7 College expenses. She says the Respondent Father refused her requests. To date, the Respondent Father has paid nothing at all for either Jamie Lee Duesling or Damya Skye Duesling’s s. 7 post-secondary expenses.

5It is agreed that over the years, despite an ever-increasing income, the Respondent Father religiously adhered to the 2008 Order to pay $389 per month for both girls (plus $200 per month on arrears which, at the time of the order were set at $30,598.41 - even though the Family Responsibility Office Statement of Arrears in 2008 showed arrears accrued of $44,440.

6In any event, both counsel have agreed that the D.B.S. guideline of 3 years should not be applied in this case (to avoid a lengthy trial hearing on how/why/when the disclosure was/was not made, etc.).

7Accordingly counsel urge the court to accept the following evidence and to ignore the Family Responsibility Office’s confusion of the file.

Year Husband’s Actual Yearly Income Child Support Based Thereon Number of Children Eligible Guideline Used 2009 $29,643 $439/month 2 2006 2010 $38,152 $570/month 2 2006 2011 $40,346 $606/month 2 2006 2012 $39,836 $576/month 2 2011 2013 $39,515 $571/month 2 2011 $354/month 1 from July 1, 2013 2014 $45,261 $408/month 1 2011 2015 $70,855 $646/month 1 to May 1, 2015 Current Guideline 2016 $70,855 $646/month 1 to May 1, 2016 Current Guideline

8The Applicant Mother has tendered evidence of the girls’ s.7 education-related expenses (what she now has been able to find). She avers that Jamie Lee Duesling’s expenses were at least $9,000.00, but can only produce corroborating evidence of $7,553.70. For Damya Skye Duesling’s s.7 Georgian College related expenses, she tenders evidence of $6,283.92 and for the University of Guelph expenses to date of $4,045 plus monthly rent of $425 (for 5 months – September 2016 – January 2017) and a bookstore expense of $400 for a present rough total of $6,650.00.

9Both girls took on a line-of-credit-loan expense to fund their post-secondary education: Jamie Lee Duesling had a loan of $15,000 for her 2 years at Georgian College and Damya Skye Duesling has a loan (so far) of $7,000.00

10Both girls lived at home in Angus while attending Georgian. Damya Skye Duesling is obviously staying in Guelph while school is in session. The Applicant Mother seeks only a 1/3 contribution from the Respondent Father towards all of those s.7 expenses. On the evidence, I would have ordered a larger contribution.

11Counsel for the Respondent Father argues that the court does not have enough evidence of exactly when the girls were in school (after age 18) and not enough evidence of whether the girls worked during the post-secondary education periods and what was the “true” net expenses of their education after deducting any bursaries, scholarships, OSAP or other loans or what the girls “contributed” themselves from any income that they earned over the summers or while school was in session.

12I am unpersuaded to adjourn the Respondent Father’s Notice of Motion to change as sought by him, since to accede to such would further delay a final determination of his obvious obligation to his daughters, which he has evaded for years, allowing him to pay only the $389/month set in 2008 on a $26,000/year income plus reducing his “old arrears” at a rate of a mere $200/month for the past 8 years.

13While I agree with Mr. Balmer that the quality and extent of the evidence now available and upon which the court must rely could be expanded and improved, I find that by inference and extrapolation, the court has enough upon which it can base a reasonably cogent conclusion and decision.

14First, in light of the agreed fact that Jamie Lee Duesling graduated from Georgian College on April 30, 2013 and that she borrowed $15,000 ($7,500/year) for 2 years at that institution, I can conclude (and do so) that she started in/about April 2011, just when she turned 18. The Applicant Mother’s evidence was that Jamie Lee actually started in September 2011. Regardless of that, guideline child support was owing for Jamie Lee plus a reasonable pro-rata share (divided among Mother/Father and Jamie Lee Duesling) of her s.7 expenses, which for those 2 years total ($7,553.70 + $15,000) = $22,553.70.

15I would also allow that a short “post-graduation hiatus” after April 30, 2013 to allow Jamie Lee some time to find work of two (2) months during which child support for 2 children should continue (i.e. to June 30, 2013).

16Damya Skye Duesling, turned age 18 on February 10, 2015 and started Georgian College in May 2016. The Applicant Mother’s evidence does not address that “gap” between Damya Skye Duesling turning 18 (February 2015) and her attending Georgian College in May 2016. Accordingly, there is no evidence that she was still in high school during that period. Damya Skye Duesling must have either been working then or not, neither of which allows the court to find her legally “dependant” during that time. I will allow the same “post-age-eighteen hiatus” of 2 months after February 2015 so that she could have found work.

17It is also relevant when determining the s.7 expenses to ascertain the Applicant Mother’s income for comparison purposes. I accept that the Applicant Mother is needed to assist her disabled other daughter at home and hence only works part-time. I find that she earns only an income of a maximum of $18,800 per annum.

Arrears

18It was entirely unhelpful to anyone that, if the parties are to be believed (and I do) the Family Responsibility Office went on “a frolic” of its own in late 2015 and drastically altered its records as it relates to the actual arrears that were/are now owing and the ongoing guideline monthly child support.

19In any event, in order to assist counsel to arrive at a final determination of what the Respondent Father owes in arrears of guideline child support, I make the following findings:

(a) child support is owing for both girls until and including June 2013 based upon the page 3 chart of income/actual yearly guideline support owing to that date; (b) thereafter guideline child support is owing for one child, Damya Skye Duesling until April 30, 2015 (at 18 + 2 months), after which no guideline child support is owing until May 1, 2016, when it is reinstated (as is allowed by law) to date, based upon $70,855/year; (c) despite the ruling in Park v. Thompson, [2005] O.J. No. 1695 (OCA), I decline to adjust the basic guideline support amount since the Respondent Father has had a significant “support holiday” for years and because the girls and their mother (and stepdad) have taken on the line-of-credit-loans and interest and have funded the purchase of a vehicle for each girl, reimbursement for which the guidelines arguably do not provide; (d) in addition to those guideline child support amounts owing I direct that the Respondent Father shall pay to the Applicant Mother 1/3 of each of: (i) Jamie Lee Duesling’s s.7 education expenses for 2 years totalling $22,553.70; namely $7,517.90 which amount is payable forthwith; and (ii) Damya Skye Duesling’s presently accumulated s.7 education expenses for both Georgian College and University of Guelph and her loan of $7,000, totalling ($6,283.92 + $6,650 + $7,000) $19,933.92; namely $6,644.64 which is also payable forthwith; (e) ongoing guideline child support from and including February 1, 2017 for Damya Skye Duesling shall continue at $646/month until further agreement or court order, based upon the Respondent Father’s actual disclosed income for 2016 (by June 1, 2017) and annually henceforth as per the terms as set out in para. 4 of Turnbull J.’s June 3, 2008 Order. I make this order despite the rationale found in the Park v. Thompson decision (see paras. 28 and 29) for the reasons set out supra. (f) of course, the Respondent Father shall be credited as against the above guideline support and s.7 obligations that I have found from January 1, 2009 (as per the chart and the findings regarding the timing of when Jamie Lee Duesling and Damya Skye Duesling were/were no longer/were reinstated as dependants) for every monthly payment of $389 (or part thereof) made as per the Family Responsibility Office Schedule A statement filed at Tab D of the Applicant Mother’s Affidavit at Tab 13 of the Continuing Record. He is also to be credited against the arrears set by Turnbull J. in the June 3, 2008 Order of $30,598.41 every payment of $200 or part thereof as set out in the Family Responsibility Office statement (Schedule A) from January 1, 2009.

20Inexplicable unilateral “Adjustments” by Family Responsibility Office (e.g. July 23, 2009 of $13,641.59) may be ignored as can the running “Case Balance” on said Schedule “A” as not accurately setting out anything meaningful. Counsel may also ignore the “ADJ Terminated” amount of $12,059.00 credited against the running balance shown on November 26, 2015.

21The Respondent Father shall be credited as against arrears of guideline and old arrears not yet discharged, the $6,139.61 that he paid on January 21, 2016.

22Counsel shall collaborate to embody these findings with the chart and the guideline/Turnbull J.’s arrears outstanding to come to a new arrears balance for past and ongoing (for Damya Skye Duesling) child support. They shall prepare and file an approved draft order setting out the three amounts in three terms:

1. ongoing child support;
2. outstanding arrears of guideline and Turnbull J.’s arrears left owing, and
3. the total 1/3 s.7 educational expenses for both Jamie Lee Duesling and Damya Skye Duesling, owing by the Respondent Father, which are payable forthwith.

23Counsel shall also agree on a monthly repayment regime for 2 above.

24If counsel cannot agree on the amounts in 2 And 3 above, Mr. Toolsie shall arrange a telephone conference call with Mr. Balmer and the Trial Coordinator within 30 days hereof, at which time I shall rule on the dispute and settle the terms of the order, together with costs of this motion to change.

25If costs are unresolved, I will accept from Mr. Toolsie a 3 page submission, any Rule 18 offers and a Costs Outline, within 15 days hereof. Mr. Balmer may likewise respond within 10 days thereof. I will, during the telephone conference call, decide the costs of the motion.

G.A. Campbell J.