Lalande v. Pitre, 2017 ONSC 208

Court File and Parties

Court File No.: FC-02-862-3 Date: 2017/01/11 Superior Court of Justice - Ontario

Re: Carol Lalande, Applicant And: Bernard Pitre, Respondent

Before: Madam Justice Sylvia Corthorn

Counsel: Carol J. Craig, for the Applicant Kevin Kavanagh, for the Respondent

Heard: December 17, 2015 and April 27, 2016

endorsement corthorn j.

Introduction

1The mother commenced this motion in July 2013. As a result of time taken with respect to disclosure and changes in representation, the motion did not reach the hearing stage until December 2015. The hearing continued in April 2016. At the conclusion of the hearing the parties were ordered to attempt to resolve the amount in dispute for expenses within the meaning of section 7 of the Family Child Support Guidelines ¹. Additional materials in that regard were subsequently filed.

2The parties separated in 2000 after a 15-year marriage. They were divorced in 2002. There are two children of the marriage – Catherine (born on November 12, 1989) and Alexandre (born on June 18, 1992). A number of orders have been made over time with respect to child support, post-secondary education, and section 7 expenses.

3The most recent order is that of Polowin J., made in 2008 (“the Order”). The mother seeks relief with respect to the terms of the Order – specifically, one or more of child support, post-secondary education expenses, and section 7 expenses payable by the father in the years 2008 to 2015. The mother characterizes her motion to change as a matter of enforcement.

4In response, the father characterizes the motion as one for variation of the Order. The father submits that Catherine was not a “child of the marriage” within the definition of the Divorce Act ² when the mother’s motion was initiated in 2013. The father questions the jurisdiction of the Court to make a retroactive order dealing with support and expenses for Catherine. The father’s position is that the principles outlined by the Supreme Court of Canada in D.B.S. v. S.R.G. (“DBS”) ³ with respect to retroactive orders do not apply to the mother’s motion.

5The issues to be determined on the mother’s motion are as follows:

1. Child support for Catherine and Alexandre, including: a) The annual income of the father for each year from 2008 to 2015; b) The father’s province of residence – Ontario or Quebec – for each year from May 2008 to and including 2015; c) The period of time over which child support is payable for Catherine and Alexandre; d) The amount of child support payable with respect to Catherine and Alexandre; and e) Whether a retroactive order may be made with respect to Catherine.

2. The father’s contribution towards post-secondary education expenses for each of Catherine and Alexandre; and

3. The father’s contribution towards section 7 expenses (other than for post-secondary education) for each of Catherine and Alexandre.

Background

6The father’s child support obligations and each parent’s obligation with respect to post-secondary education expenses and section 7 expenses were addressed in the previous orders. The terms of those orders – made in 2002, 2004, and 2008 (with the latter being the Order) – are discussed in detail below. By way of general background, I highlight the following terms from the orders:

• 2002
  • Child support for two children was based on the father’s annual income of $106,000 or $107,000 and payable in the amount of $1,302 per month.
  • The father was required to provide financial disclosure by way of Notice of Assessment in June of every year commencing in 2003.
• 2004 (amending the 2002 order)
  • Effective May 1, 2004 child support for two children was based on the father’s annual income of $72,000 and payable in the amount of $948 per month.
  • The mother was also required to provide financial disclosure by June 1 of each year, with child support and sharing of expenses to be adjusted on the basis of the financial disclosure by both parents.
  • The 2004 order was made on a motion to change brought by the father.
• 2008
  • The father’s income was set at $100,000 per year for the purpose of child support payable for the years 2005 to 2006.
  • Effective January 1, 2008 child support for two children was set at $1,278 based on the Federal Child Support Table (Quebec).
  • Both parties are required to provide yearly financial disclosure by September 1, and the amount of child support and sharing of section 7 expenses are to be adjusted accordingly.
  • The Order was made on the consent of the parties.

7The circumstances of the children who are the subject of the orders have changed over time. Catherine graduated from high school in 2007. She pursued a four-year, Honours undergraduate degree in political science, with a minor in law. Catherine took undergraduate courses during the summer months in addition to courses taken during the regular academic year.

8In June 2010, Catherine learned that she had been accepted into law school at the University of Ottawa. She entered law school after completing three years of the four-year undergraduate program.

9Catherine turned 23 in November 2012, during the fall semester of her third year at law school. She completed her law degree, is now working, and is an independent adult. ⁴

10Alexandre completed high school in June 2010. He did not begin post-secondary education until September 2011, when he began a forestry course at college. Alexandre withdrew from this course before completing the fall semester. In the fall of 2013 Alexandre began a two-year electrical engineering technical program. He completed the program in the spring of 2015. He secured employment and is an independent adult. Alexandre turned 23 in June 2015.

11The father was residing in Quebec when, in 2008, the Order was made on consent. The father has since moved back to Ontario. The year in which he moved back to Ontario is in dispute.

12The father has throughout all but one year since 2008 been self-employed as an IT consultant (BR Pitre Consulting Inc.). In 2011-12 he was employed at IBM. The father continues to work. His income has, by reason of his self-employment, fluctuated over time.

13In 2008, the mother was employed with the Federal Government. She has since retired and receives pension income.

Issue No. 1 : Child Support

a) The Father’s Income

14At paragraph 4 of the Order, Polowin J. specifically recognized the potential for the father’s income to fluctuate over time:

The Applicant’s Income has fluctuated in the past due to the nature of his employment; and the amount of child support payable will be adjusted in the event of a material change in circumstances. In the event that the Applicant loses his existing contract or is terminated or there is a material change in circumstance, either party may seek the earliest available appointment before Justice Polowin to determine the appropriate quantum of child support payable given the circumstances. If after the appointment with Justice Polowin, the parties are not able to agree on an adjustment to the child support payable, then either party may bring a motion to seek the appropriate Order.

15Although Polowin J. allowed for the possibility that the father’s income would change over time, she also provided certainty to both parties by including the following term at paragraph 9 of the Order:

Until the child support is adjusted by an amending agreement, court order or arbitration award, the father shall continue to pay the child support and his contribution to the children’s special and extraordinary expenses under the parties’ most recent written agreement, court order or arbitration award, without prejudice to him claiming retro-active adjustment.

16The financial disclosure terms of the orders made over time, including in the Order, imposed specific obligations on the parties to be fulfilled on an annual basis. Those obligations, continued on the consent of the parties as of 2008, make it clear that the parties expected that the amount of child support and the pro rata sharing of section 7 expenses would be adjusted, as might be required, from year-to-year.

17For the purpose of her motion, the mother is prepared to accept the income figures calculated by Mr. Clarke (the father’s expert) for five of the eight years in the period to be addressed. Counsel for the mother informed the Court that the particulars of HST expenses incurred by the business were not received until December 2015. As a result, the mother was unable prior to the return of the motion to have Mr. Desnoyers (the mother’s expert) review that information and assess the impact, if any, that it would have on his calculation of the father’s income.

18The parties are therefore in agreement with respect to the years and income figures set out below:

2008 $ 113,614 2010 $ 71,097 2012 $ 133,288 2013 $ 135,237 2014 $ 101,808

19The only years for which the father’s income is in dispute are 2009 and 2011.

20The differences between the parties’ respective income figures for 2009 and 2011 arise from the treatment of certain expenses claimed by the father’s consulting business. The income figures proposed by the parties are as follows:

Year Mother Father 2009 $ 81,000 $ 67,447 2011 $ 104,000 $ 94,782

21With respect to 2009, the mother submits that expenses claimed by the business in that year are excessive. She highlights that the expenses claimed in 2008 and 2010 are significantly lower than those claimed in 2009.

22The approach taken by Mr. Desnoyers (the mother’s expert) to expenses is as follows:

• If ‘personal expenses’ are excluded from those claimed by the business, the income figures calculated by the two experts are the same for each year (2008 – 2014). In his report, Mr. Desnoyers does not identify the personal expenses he is questioning. There is no evidence as to the nature of those expenses.
• Mr. Desnoyers concludes that for 2009, the personal expenses (including gross-up for income tax) claimed by the business were in the amount of $13,333 and for 2011 were $8,333. I note that those amounts are the differences, respectively, between the figures in the columns in the chart immediately above.
• For the period 2012 to 2014, the average of the expenses claimed is $30,000. There were no employees, other than the father.
• An assumption is made that for each of the years, the true business expenses are in the range of $15,000 to $25,000.
• Mr. Desnoyers therefore used the mid-point of $17,500 for business expenses when calculating the father’s personal income for 2009 and 2011.

23In his report, Mr. Clarke (the father’s expert) expresses the opinion that all of the expenses claimed by the business are valid business expenses. The accountant who prepared the financial statements for the business had the opportunity to consider the legitimacy of the expenses claimed. Even if some of the expenses claimed fall within the scope of ‘aggressive accounting’ practices, the author of the financial statements considered the expenses to be validly claimed.

24Two accounting professionals ⁵ accepted the expenses claimed as valid. There is insufficient evidence from Mr. Desnoyers in support of his query about the validity of the business expenses claimed. I find that the business expenses claimed in 2009 and 2011 are valid. The father’s support obligations for those years shall therefore be based on the income as calculated by Mr. Clarke: $67,447 for 2009 and $94,782 for 2011.

25In the submissions made on behalf of the mother, a concern was expressed as to the validity of business expenses claimed for all years. However, for the reasons set out above, I am not prepared to make any adjustments to any of the income figures calculated by Mr. Clarke.

26The parties are in a position to determine the father’s support obligations for 2015 based on the exchange of documents mandated by the Order. That exchange was to have been made no later than August 2016, which post-dates the April 2016 continuation of the hearing.

27The child support payable by the father for the months of January through April, 2015 is to be determined by the parties in accordance with the terms of the Order.

b) The Father’s Province of Residence

28As noted above, the father was living in Quebec when the Order was made. The child support payable for two children was set at $1,278 per month, based on income of $100,000 and the Federal Child Support Table (Quebec).

29The mother’s position is that retroactive to June 2009 child support should be payable based on the Federal Child Support Table (Ontario). She relies on the following:

• In each year from 2008 forward, the father’s Notices of Assessment identify him as a resident of Ontario.
• In June 2009, the mother saw a posting on the father’s Facebook page in which he referred to and included a photograph of his family visiting his home in Ottawa. I note that the father’s evidence does not include any explanation, or even an attempt at an explanation, for the Facebook posting of the June 2009 BBQ seen by the mother.
• In May 2010, the mother sent an email sent to the father’s counsel (at the time) requesting proof of residence for the father. The mother advised counsel of her belief that the father had, as of that date, been living in Ontario for some time.

30The father acknowledges that he moved to Ontario. His evidence is that he did not do so until July 2010. The father’s explanation as to why the Notices of Assessment for 2008 and 2009 identify him as an Ontario resident is that he followed the advice of his accountant. That advice was to use the location in which the father conducted “much of his work” ⁶ (i.e. Ontario) as his place of residence for income tax purposes. The father’s understanding was that he would pay less in income tax if he identified his place of residence as Ontario.

31Copies of the father’s income tax returns for the years 2008, 2009 and 2010 are not included in the record before me (“the Record”). In their respective reports, each of Mr. Clarke and Mr. Desnoyers make reference to copies of the father’s income tax returns produced to and reviewed by them.

32The father’s financial statements filed in December 2013 and December 2015 include only Notices of Assessment. In any event, the documents included with the financial statements do not date any earlier than 2010.

33With respect to his place of residence, the father relies on the October 2015 report prepared by Mr. Clarke. From my review of that report, I note the following:

• Mr. Clarke had available to him copies of the father’s “personal income tax returns” for the years 2008 to 2014.
• BR Pitre Consulting Inc. is identified as the father’s business. The business is described as providing “software testing and quality assurance solutions to various companies in and around Ottawa, Ontario.”
• When preparing the report, Mr. Clarke spoke with the father and with John Beardsley of Beardsley and Associates. The report identifies Mr. Beardsley as the external corporate accountant.
• nowhere in the report is mention made of the father residing in Quebec, locating his business in Ontario, and therefore filing his personal income tax returns based on Ontario residency.
• No reference is made to a recommendation from the father’s accountant to identify an Ontario residence in personal income tax returns for the years 2008 to 2010.

34Mr. Desnoyers prepared two reports; they are dated September and December 2015. Mr. Desnoyers had available to him the father’s personal income tax returns for the years 2010 to 2013. There is nothing in either of the Desnoyers reports with respect to a change in the father’s residence from Quebec to Ontario or the year of such a change.

35The father has not included in the evidence upon which he relies copies of any documents related to his specific place(s) of residence in Quebec in 2008, 2009, or 2010. If he were a resident in Quebec in each of those years the father could have retrieved from his personal papers or third party institutions, copies of one or more of invoices, monthly bills, statements of account, or even a letter confirming his place of residence. Some of these documents may even have been provided to the accountant who prepared the father’s personal income tax return – assuming those returns were prepared by an accountant.

36The father has had over two years, since this motion was initiated by the mother, within which to obtain documentary evidence of his place of residence from 2008 to 2010. I note that in the mother’s motion document served in 2013, the relief requested by the mother included the disclosure of documents as proof of residence. The documents requested include a lease agreement, a deed of transfer for a home, a residential mortgage, and electricity bills.

37The documents the father has produced are not of assistance; they identify a Quebec address in each of 2008, 2009, 2010, and 2013. The documents dated in 2008, 2009, and 2010 are from Primerica Series of Funds, refer to an RESP, and are addressed to the father at a post office box in Brossard, Quebec. The documents include an account statement for each of those calendar years. Even the statement for 2010, by which point the father admits he had moved to Ontario, is addressed to the father at the Brossard, Quebec post office box.

38The document dated October 2013 is from Revenue Quebec. It is a statement of account relating to enforcement of support obligations from November 2006 to November 2012. The document is addressed to the father in Greenfield Park, Quebec. The address appears to include “CP36059”. It is not known whether that portion of the address indicates a post office box.

39The father consented to the inclusion at paragraph 17 of the Order, of the term which provides for enforcement of support obligations through the Family Responsibility Office (Ontario) or through Revenue Quebec.

40It is clear from the Revenue Quebec document that when the father moved from Quebec to Ontario, he did not notify the support enforcement offices in Quebec or Ontario of his change of address. At a minimum, the father had reason to do so as of the summer of 2010 – when he says he moved to Ontario.

41I draw an inference and find that when the father moved to Ontario he did not notify the provincial support enforcement authorities of his Ontario residential address because he knew that if he did so the information might (a) reach the mother; (b) trigger discussion about, if not a motion for, an increase in support; and (c) result in an increase in his support obligation. In all of the circumstances, I rely on the information in the Notices of Assessment and conclude the father’s support obligations from June 2009 forward are to be based on residence in Ontario and therefore the Federal Child Support Table.

c) Period of Payment

42Included in the Order is a term which identifies when the father’s child support obligation ends. Paragraph 15 of the Order provides as follows:

The parent’s obligation to pay child support will continue until one of the following occurs:

a) The child ceases to reside with one or both parents … ⁷ b) The child becomes eighteen years of age and ceases to be in full-time attendance at a school, college, or university, or other educational institution approved by both of the parents; c) The child obtains a first post secondary [sic] degree or diploma; d) The child becomes 23 years of age; e) The child marries; f) The child dies; g) The child is no longer a child of the marriage as defined by the Divorce Act.

43The parties disagree as to how this term applies to the father’s support obligation with respect to Catherine. The parties agree as to how the term is to apply to Alexandre, with the exception that the parties do not agree as to the father’s support obligations for the semester from September to December 2011, when Alexandre withdrew from his college forestry program.

i) Catherine

44The mother seeks a retroactive increase in child support payable from June 2009 forward. The mother’s position is that the father’s child support obligation for Catherine ended on November 12, 2012 (when Catherine turned 23 years old).

45The father’s position is that his child support obligations for Catherine ended in the summer of 2010. The father relies on Catherine’s decision to drop two spring/summer courses and enter law school in the fall of 2010. The father’s evidence is that Catherine made the decision to drop the courses when she was only a few credits short of completing her undergraduate degree. The father submits that Catherine’s decision to drop the courses was deliberate and the result of pressure from her mother. The father’s evidence is that Catherine was only two credits shy of completing her undergraduate degree; had she completed the two summer courses, she would have completed the degree.

46The mother’s evidence is that the father’s belief as to the potential for Catherine to complete her first undergraduate degree in the summer of 2010 is based on a misapprehension on the father’s part as to the program in which Catherine was enrolled and the number of credits required to complete that program.

47Catherine was living with her mother throughout her years of study in the Bachelor of Social Science program. She was also living with her mother when she applied to and was accepted into the University of Ottawa Law School.

48The father has no first-hand information regarding Catherine’s course of study upon which to base his belief regarding Catherine’s program status and decision-making in the summer of 2010. The father describes what he believes Catherine’s decision-making to be and her reason for it. He does not, however, identify the source of the information upon which he bases his belief in that regard.

49I prefer the mother’s evidence to that of the father. I find as follows with respect to Catherine’s decision to enter law school prior to completing the four-year Bachelor of Social Science degree in which she was enrolled at the University of Ottawa:

• The decision was made for reasons personal to Catherine.
• Catherine’s decision was not influenced in any way by the impact it would have on the father’s child support obligation.
• The decision is in keeping with Catherine’s long-standing plan to attend law school.
• It made economic sense for Catherine to enter law school without completing the Bachelor of Social Science program.
• By entering law school when she did, Catherine pursued post-secondary education for a total of six years before obtaining her first degree. That number of years matched the number of years of study in what had been Catherine’s first choice of program – a six-year joint Bachelor of Political Science and Bachelor of Laws program. Catherine had applied to but was not accepted into such a program.

50I therefore find that the father’s obligation to pay child support with respect to Catherine did not terminate in the summer of 2010. The father’s obligation to pay child support for Catherine continued until her 23^rd^ birthday on November 12, 2012.

ii) Alexandre

51The parties are in agreement, as follows, with respect to child support for Alexandre from June 2010 (when he graduated from high school) to April 2015 (when he completed the electrical engineering technician program):

• July 2010 to August 2011 – no child support is payable.
• January 2012 to August 2013 – no child support is payable.
• September 2013 to April 2015 – child support is payable.

52The parties disagree as to whether child support is payable for Alexandre from September to December 2011.

53Alexandre was enrolled in and withdrew from the forestry program at La Cité Collégiale in the fall of 2011. The only evidence as to when Alexandre withdrew from the program is that of the father. According to the father, Alexandre said he withdrew from the program in late September 2011.

54Alexandre did not obtain a refund of the tuition paid for the fall semester. Based on the mother’s evidence I draw an inference and find as follows:

• Alexandre withdrew from the program after the deadline for withdrawal with a refund of tuition, partial or otherwise.
• Alexandre was 19 years old when he withdrew from the program.
• The withdrawal from the program in late September 2011 was a terminating event within the meaning paragraph 15(b) of the Order.

55In summary, the father was not obligated to pay child support with respect to Alexandre for the months of October to December 2011.

d) Summary of Support Obligations

56The father’s support obligations from June 2009 to April 2015 are based on the following factors:

• The father’s income as calculated by Mr. Clarke;
• The father’s change in July 2009 from a Quebec resident to an Ontario resident;
• Termination of the support obligation with respect to Catherine as of November 12, 2012;
• Suspension of the support obligation for Alexandre for the months of October to December 2011;
• Resumption of the support obligation for Alexandre in September 2013; and
• Termination of the support obligation for Alexandre in April 2015.

57Appendix ‘A’ attached to this endorsement sets out the child support paid and child support ordered, the latter as per this endorsement, from May 2008 forward. The Appendix sets out the father’s support obligations to the end of the 2014 calendar year. The figures for child support payable are based on the following versions of the Federal Child Support Table:

For 2008 and the first six months of 2009 − the 2006 version of the Federal Child Support Table (Quebec); From July 2009 through December 2011 − the 2006 version of the Federal Child Support Table (Ontario); and From January 2012 through December 2014 – the current version of the Federal Child Support Table (Ontario).

e) Retroactive Order re Catherine

58In Appendix ‘A’ the child support obligation with respect to Catherine is calculated on the basis of termination of that obligation on her 23^rd^ birthday on November 12, 2012.

59As noted above, Polowin J. recognized the uncertainty arising from fluctuations in the father’s income (paragraph 4 of the Order) and provided certainty for the parties (paragraph 9 of the Order). The opening phrase of paragraph 9 is “[u]ntil child support is adjusted by an amending argument, court order or arbitration award, the father shall continue to pay child support”. The father is, in the circumstances, required to pay support pursuant to the Order because it is “the parties most recent … court order”. He is required to do so without prejudice to him claiming retroactive adjustment.

60The father seeks a retroactive adjustment; he claims that he overpaid child support in 2009 and 2010 given that his income in those years dropped to $67,450 and $71,100, respectively. Both figures are below the $100,000 income figure upon which child support is set in the Order.

61The father’s position is that the mother is not entitled to a retroactive award with respect to Catherine. The father characterizes the mother’s motion as a motion for a variation made pursuant to section 17 of the Divorce Act. He submits that the principles established in the Supreme Court of Canada decision in DBS, with respect to retroactive relief for a child who is no longer a “child of the marriage”, apply only to a motion made pursuant to section 15 of the Divorce Act.

62The father acknowledges that the Alberta Court of Appeal decision in Buckingham v. Buckingham, 2013 ABQB 155 ⁸ provides an interpretation of DBS which applies the ‘retroactivity principles’ to motions to change pursuant to section 17 of the Divorce Act. The father’s position is that Buckingham amounts to a “re-interpretation” of DBS and is wrongly decided; cases which follow or apply reasoning similar to that found in Buckingham, including a number of cases from Ontario, ⁹ are said by the father to be wrongly decided as well.

63The father characterizes Buckingham as ‘an arrears case’. It is the father’s position that Buckingham did not involve a claim for retroactive support as do DBS and the motion before me. In support of his position, the father relies on five appellate level decisions (one from each of Alberta, British Columbia, Manitoba, Nova Scotia, and Saskatchewan). ¹⁰

64The father’s position is that as of November 2013, when the mother initiated this motion to change, Catherine was no longer a child of the marriage within the meaning of section 2 of the Divorce Act. The definition of “child of the marriage” is as follows:

child of the marriage means 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

65There is no dispute that Catherine was not “a child of the marriage” as of December 2013. The mother’s primary submission is that her motion to change is a matter of enforcement of terms of an existing order. As noted in the introductory section of this endorsement, the mother characterizes her motion as one of enforcement and not as a motion to change. Therefore regardless of Catherine’s status as of December 2013, the mother was entitled to seek a retroactive award with respect to Catherine.

66In the alternative, the mother’s position is that if DBS applies to her motion, then the application of the retroactivity principles from DBS clearly support the retroactive award requested.

67I agree with the mother’s primary position and characterize her motion as one of enforcement. In Meyer v. Content, Chappel J. concluded as follows:

Where a Separation Agreement or court order clearly establishes an obligation to make annual income disclosure and to adjust child support in accordance with increases in income, a subsequent proceeding by the recipient to pursue increased support in accordance with the terms of the agreement or order is a matter of enforcement rather than a claim for retroactive support. In these circumstances, neither the threshold test in D.B.S. for commencing a retroactive claim nor the time limitations set out in that case apply. The terms of the order or agreement clearly establish the legal right to pursue the relief in question, and the court should proceed directly to the merits of the case. ¹¹

68I acknowledge that in Meyer, Chappel J. was required to determine a motion to vary based on legislation other than the Divorce Act. However, her review of the principles established in DBS, and the manner in which those principles have been applied historically in this Court, is sufficiently broad to apply to the matter before me pursuant to the Divorce Act.

69There is no concern on the motion before me that the father is facing an unexpected retroactive claim. The parties consented to the terms of the Order, which clearly set out the financial disclosure obligations and the potential for adjustments to the father’s support obligations over time. The Order does not include any term requiring the mother to pursue the father on an annual basis to comply with those obligations.

70I agree with the conclusions of Chappel J. in Meyer that in circumstances such as those before me:

• To require the support recipient to compel compliance on the part of the support payor undermines the integrity of existing orders.
• The burden is not on the support recipient to “jump hoops to explain why they should be granted the privilege to seek the court’s assistance to ensure compliance.”
• The burden is unequivocally on the support payor to satisfy the Court that it is appropriate to release them from all or a part of their support obligations. ¹²

71Over time the orders made evolved from requiring only the father to make financial disclosure to requiring both parties to make financial disclosure. Paragraph 8 of the Order requires both parties to make financial disclosure by September 1 each year. It also provides that child support shall be adjusted “effect[ive] as of September 1 of each year commencing in 2009.” The Order requires that “any agreed to changes will be set out in writing.”

72Paragraph 9 of the Order provides that the specific terms of the Order, including the amount of child support payable, shall govern the father’s child support obligations pending a further order of the Court. Paragraph 9 is without prejudice to the father claiming a retroactive adjustment.

73I find that the mother’s motion is an effort on her part to enforce clear terms of the Order.

74The father submits that Henry v. Henry, 2003 ABQB 717 ¹³ (one of the three cases considered in DBS) dealt with retroactive variations exactly the same as the one before me. I disagree. The circumstances in Henry are distinguishable from those of the matter before me.

75Henry stems from a divorce order made in 1997, prior to the Federal Child Support Guidelines coming into force. The divorce order provided for a fixed amount to be paid in child support. In both 2000 and 2003 Mr. Henry changed (increased each time) the amount of child support paid. He did so based on the Table Amount. There is no mention in the decision at first instance, in the appellate level decision, or in DBS, as to the terms of the divorce order, if any, other than the term setting child support at $700 per month.

76My understanding of the terms of the order in Henry – as one for a fixed amount of support without provisions for adjustment – is supported by the contents of paragraphs 64 to 68 of the decision of Bastarache J. in DBS. ¹⁴ In those paragraphs, Bastarache J. addressed the balance between certainty in support orders and the ongoing obligation of parents to ensure that their children receive the proper amount of support. For example, Bastarache J. said the following:

[P]arents should not have the impression that child support orders are set in stone. (para. 64) The certainty offered by a court order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support. (para. 65) Thus, the support obligation of a payor parent, while presumed to be the amount ordered by a court, will not necessarily be frozen to the amount ordered by a court. It is the responsibility of both parents to ensure that the payor parent fulfils his/her actual obligation, tailored to the circumstances at the relevant time. Where they fail in this obligation, a court may order an award that recognizes and corrects that failure. Such an award is in no way arbitrary for the payor parent. To the contrary, it serves to enforce an obligation that should have been fulfilled already. (para. 68)

77The appellate level decision in Henry focused on the change in circumstances, by reason of increased income for the payor, as both a “material change” pursuant to section 17(4) of the Divorce Act and a trigger of an obligation to be fulfilled by the payor spouse.

78The circumstances in Henry are distinguishable from those of the parties before me. The terms of the Order make it clear that the amount of child support is not frozen; prescribe the disclosure obligations of both parties; and mandate adjustment of support obligations as may be required. The annual review and adjustment of child support, the latter if warranted, are not triggered by a “material change”.

79I find that the father failed to fulfill his disclosure obligations pursuant to the Order. The mother was entitled to expect that the father would comply with those obligations. As per the decision of Chappel J. in Meyer, the proper approach in these circumstances is to place the burden on the father to explain why he should be released in whole or in part from his obligations pursuant to the Order.

80In all of the circumstances of this case, I see no reason why the father should be released from his support obligations to Catherine. He was well-aware that it was open to him adjust support payable from 2008 forward. He was represented when he consented to the terms of the Order. With the assistance of counsel and on the consent of the mother, the father agreed to the logistics prescribed by the Order. It was even agreed that the father could seek retroactive adjustments (presumably decreases). In my view that term was included not to preclude adjustments upwards. It was included to preserve the father’s right to seek an adjustment downward in his support obligations, given the historical fluctuations in the father’s income.

81I also take into consideration that the father continued to pay support for Catherine (until November 2012), even though he now says as of the summer of 2010 he believed that he had fulfilled his support obligation for Catherine. I note that the father brought a motion to change in 2004; the order made at that time reflects that the proceeding was initiated by the father. I find that the father was aware that it was open to him in 2010 to seek to terminate child support for Catherine. Yet the father chose to do nothing.

82I also take into consideration the father’s conduct with respect to post-secondary education expenses. In my view, the father failed to fulfil his obligations with respect to same. I find that the father’s conduct amounts to obfuscation and was deliberate.

83Given my finding that the mother’s motion is one for enforcement and not one for variation of the terms of the Order, it is not necessary for me to consider the principles from DBS and the issue of ‘retroactivity’ with respect to a child (Catherine) who was not a “child of the marriage” when the mother’s motion was initiated. However, if I am wrong in that regard, and it is necessary for me to apply the DBS principles to this matter, then I would find in favour of the mother and adjust support for Catherine retroactively. I would do so for the following reasons:

1. The timing of the mother’s motion does not amount to delay. She commenced the motion when Alexandre returned to school and, as agreed by the parties, once again became a “child of the marriage”. She also addresses the matter of the father’s share of post-secondary education expenses.
2. For the reasons set out above, I find that there was blameworthy conduct on the part of the father, including: a) His failure over a period of several years to fulfill his financial disclosure obligations; and b) His failure to notify the provincial support enforcement offices of his change in address.
3. Catherine worked diligently both at school and in part-time employment to achieve her academic goals. She had a plan from the outset and achieved her goal of obtaining a law degree after six years of post-secondary education.
4. The financial burden to the father, if any, can be managed by ordering payment over time.

84In summary, I agree with the mother’s primary position that her motion is one of enforcement. This endorsement provides for adjustment of child support payable for Catherine until November 12, 2012. The adjustments made are both increases and decreases based on the annual fluctuation in the father’s income.

85In the alternative, if consideration of the DBS retroactivity principles is required, I follow the Ontario cases, apply the principles, and find that the principles support making a retroactive order with respect to Catherine.

Issue No. 2 : Post-Secondary Education Expenses

a) Generally

86Post-secondary education expenses are addressed in paragraph 10 of the Order. That paragraph identifies the types of expenses that fall within this category of expenses. It states that “[t]hese expenses will include tuition, books, and related academic fees, which the parties agree to, provided that the child attends a recognized Canadian university or college.” Paragraph 10 also prescribes how these expenses are to be apportioned between the child and the parents:

• In the first year of post-secondary study, the expenses are apportioned as follows: 40 percent to be paid by each parent and 20 percent to be paid by the child; and
• In all following years of study, until the child completes his or her first degree or diploma, the expenses are apportioned as follows: each parent pays one-third and the child pays one-third of the expenses.

87Once again I highlight that the parties consented to this provision.

88I agree with the father that a bus pass does not fall within the category of post-secondary education expenses. The fact that the educational institution includes the cost of a bus pass in the fees to be paid by a student does not, in my view, make the bus pass part of tuition or related academic fees within the meaning of paragraph 10 of the Order. In calculating post-secondary expenses below I have excluded the amounts claimed by the mother for bus passes for each of Catherine and Alexandre.

b) Catherine

89For the reasons set out in the previous section of this endorsement, neither Catherine nor the mother are to experience financial hardship because of Catherine’s decision to proceed to law school prior to completion of an undergraduate degree. I draw an inference and find that in 2008, when the parties negotiated this term, they were aware of Catherine’s (a) original plan to pursue, had she been able to do so, the joint political science and law degree; and (b) alternative plan proceed to law school in any event.

90The parties could, if they had been concerned about the number of years it might take one or both of the children to complete their first degree, have set a maximum number of years during which the parents would contribute to post-secondary education expenses. There are any number of reasons why it might take a student ‘additional’ years to complete a first degree. For example, a student might choose to take less than a full course load, but still be considered attending full-time.

91There is a dispute between the parties as to the extent to which the father contributed to the post-secondary education expenses for Catherine. In summary, the figures relied upon by the parties are as follows:

• $21,151.25 is the amount initially claimed by the mother. That amount:
  • includes bus passes ($813.94);
  • is for second year through sixth year and based on each parent and child contributing one-third of the expenses;
  • is based on no contribution from the father.
• $6,594.96 is the total amount the father says he withdrew from the Primerica RESP and paid towards post-secondary education expenses incurred for or by Catherine in 2008, 2009, and 2010; and
• $868.90 is the amount by which the mother subsequently reduced the expenses claimed
  • Based on the father’s one-third share of tuition included for a course ultimately not taken by Catherine.

92The mother ultimately revised her calculation of the father’s share of post-secondary education expenses for Catherine to $20,423.90. It is not clear to me how she arrived at that figure. When $868.90 is subtracted from $21,151.25, the result is $20,282.35. In any event, I calculate the father’s share of post-secondary education expenses for Catherine to be $19,469.41 ($20,282.35 – $813.94). ¹⁵

93What remains to be determined is the credit to be given to the father based on his evidence that he withdrew $6,594.96 from an RESP and paid that amount towards Catherine’s post-secondary education expenses. The father’s evidence is that $1,904.84 from the RESP funds was deposited to Catherine’s bank account in October 2008. His evidence is that the deposit made at that time relates to the withdrawals made from the RESP account. Based on my review of the RESP statements of account for 2008 I am unable to reconcile the $1,904.84 with the various withdrawals made in 2008.

94It was incumbent upon the father to manage his documents and keep records of payments made. I find that he has not established on a balance of probabilities that he contributed any amount towards Catherine’s post-secondary education expenses. The mother demonstrated diligence in recordkeeping and verification of dates, such that I prefer her evidence to that of the father. The mother’s record-keeping is detailed. She sought and obtained additional records so as to specifically respond to the evidence filed on behalf of the father.

95I am unable to find that any of the monies withdrawn from the RESP accounts held by the father were applied towards post-secondary expenses for Catherine. In summary, the father shall reimburse the mother his share, pursuant to paragraph 10 of the Order, of the expenses for three years of undergraduate study in the Bachelor of Social Science program and three years of law school. I find that the father’s share in of those expenses is $19,468.41.

c) Alexandre

96As noted above, there are a number of reasons why a student might not complete a course of study embarked upon. By way of further example, a student might determine that their first course of study is one that they will not complete because it is not what they expected it to be. A change in course of study might add to the number of years to complete a degree or diploma.

97Alexandre and the mother are not to bear the financial responsibility for the tuition and academic expenses incurred for the forestry program in which Alexandre was enrolled in the fall of 2011. Had the parties wished to do so they could have agreed as to what would happen in the event a child withdrew from a program prior to completion of a semester. Understandably, it would be cumbersome to provide for every possible outcome with respect to post-secondary education. In any event, it is not unreasonable to expect nor is it surprising that a student enters a program to find that it is not to his liking. Repeated withdrawals might be treated differently than a singular withdrawal and change in course of study.

98In my view, it is reasonable to require the parties to pay the expenses for the forestry program as prescribed by paragraph 10 of the Order.

99The father acknowledges that he made no contribution to the post-secondary education expenses incurred for or by Alexandre. I rely on the figures set out in the Excel spreadsheet attached as exhibits ‘M’ and ‘P’ to the mother’s affidavit sworn on December 8, 2015. Those exhibits appear to me to be identical. In any event the amount claimed for Alexandre is $4,639.04. I deduct from that amount a total of $471.42 identified for bus passes.

100I agree with the mother’s calculation, which is based on treating (a) the incomplete fall semester in 2011 and the completed fall semester in 2013 as the first year; and (b) the remaining three semesters (winter 2014, fall 2014, winter 2015) as the second and following years.

101In summary, the parties shall share in accordance with paragraph 10 of the Order the expenses for Alexandre for the fall 2011 semester of the forestry program and for the two-year electrical engineering technician program. The father’s share of those expenses $4,167.62. ¹⁶

Issue No. 3 : Section 7 Expenses

102In 2008, the parties agreed that the pre-existing term with respect to section 7 expenses would be replaced with the following term:

The parties will only contribute to a child’s additional special or extraordinary expense if the parties consent to the expense(s) in advance, in writing. Neither party will unreasonably withhold consent. If the parties cannot agree as to what constitutes a section 7 expense(s), or whether or not the other party should be contributing to same, or any other matter related to special or extraordinary expense(s), either party may commence negotiations through his or her lawyer, and or commence an application to a Court of competent jurisdiction failing agreement by negotiation. ¹⁷

103The Order mandates that section 7 expenses be shared on a pro rata basis in accordance with the respective incomes of the mother and father. ¹⁸ The pro-rating of section 7 expenses is to be adjusted annually based on financial disclosure required by September 1 each year. ¹⁹

104The mother’s position is that she was not required to seek the father’s consent for each expense which fell within a category of expenses that the parties were sharing and agreed, when they consented to the Order, were appropriately designated as section 7 expenses. For example if the parties had, when the Order was agreed to, been sharing expenses for coaching courses for Catherine it was not necessary for the mother to seek the father’s consent to coaching courses taken subsequent to the date of the Order.

105The father’s position is that the terms of the Order are clear in setting out the requirement to seek consent for each expense, regardless of the nature of the expense, and regardless of whether the parties previously treated the particular item as a section 7 expenses.

106I agree with the father that flexibility is required when determining which expenses fall within the scope of section 7 over time. For an expense to fall within section 7, it must be necessary, taking into account the best interests of the child. It must also be reasonable in relation to the means of the parties and the child. These factors can and do vary over time.

107The Order makes it clear that each parent had an obligation to seek the other’s consent on an expense-by-expense basis. Paragraph 6 of the Order provided a remedy in the event the responding parent failed to or unreasonably withheld consent. I find that the mother has effectively disregarded the very process to which she agreed.

108If the mother was concerned about how the father might handle (or ignore) requests for consent, then it was open to her in 2008 to deal with the matter differently. In my view paragraph 6 of the Order was intended to provide certainty over time, and avoid what has resulted because of the mother’s failure to seek consent as required – an accumulation of expenses that the father did not have an opportunity to plan for or consider.

109With respect to some of the specific issues raised or submissions made by the parties, I find as follows:

• I find that the prescription expense for Catherine in dispute is not a section 7 expense.
• Catherine’s decision not to purchase benefits available to her as a University of Ottawa student was reasonable given that medical and dental coverage was available to her under plans in effect for each of her parents. The expenses to be shared are not to be reduced on the basis of the coverage that Catherine had the option to purchase. I note that had that coverage been purchased, the premium would have been a section 7 expense.

110In the event the parties are unable to agree upon the expenses for which consent was sought and obtained, and their respective pro rata shares based on historical income (including the father’s historical income as determined by this endorsement) they may make further submissions in writing. The submissions, if made, are to be joint submissions in chart form. The chart is to include the following information:

• The nature or type of expense, with particulars where available;
• The full amount of each expense item;
• The amount, if any, which the mother has already been reimbursed for each particular expense (whether by her own benefits insurer or by the father);
• The amount, if any, which the father has already been reimbursed for each expense item by his benefits insurer. For any such expense items, the parties are to identify whether the mother received any of the monies by which the father was reimbursed and, if so, the amount received by the mother;
• The balance which the mother claims is outstanding and the parties’ respective pro rata shares of the balance; ²⁰
• In the event the father disagrees with the calculation by the mother as to the balance outstanding, the amount he claims is outstanding, and the parties’ respective pro rata shares of that amount;
• In the event the father agrees with the calculation by the mother as to the balance outstanding but disagrees with the pro-rating of the expense by the mother, the father’s suggested pro-rating of the expense is to be included in the chart;
• For each item in dispute the mother’s position and the father’s position are to be summarized in point-form in ‘notes’ appended to the chart.

111Each item in the chart is to be given a number. The notes, if any, are to reference the items using the numbering from the chart. The format of the notes is to comply with Rule 4 of the Rules of Civil Procedure ²².

112The only documentary evidence to be included with the chart and notes is that with respect to the issue of consent – as sought and as alleged to be withheld unreasonably. Invoices, receipts, and benefits statements are not to be included as documents accompanying the chart and notes.

113I emphasize that if consent for an expense item was not sought by the mother then she is not entitled to be reimbursed for any portion of the expense and the item is not to be included in the chart. The only expense items to be included in the chart are those for which consent was sought and those for which the issue of consent (sought or withheld) is in dispute.

Disposition

114I order as follows:

1. The father’s annual income for the purpose of child support and sharing of section 7 expenses shall be as follows:

2008 $ 113,614 2009 $ 67,447 2010 $ 71,097 2011 $ 94,782 2012 $ 133,288 2013 $ 135,237 2014 $ 101,808

2. The father’s obligation to pay child support with respect to Catherine Lalande terminates effective November 12, 2012 (i.e. Catherine’s 23^rd^ birthday).

3. The father’s obligation to pay child support with respect to Alexandre Lalande: a) Is suspended for the period July 2010 to August 2011; b) Continues in September 2011; c) Is suspended for the period October 2011 to August 2013; d) Continues for the period from September 2013 to April 2015; and e) Terminates effective April 30, 2015.

4. The arrears in the child support to be paid by the father, to and including December 2014 is as set out in Appendix ‘A’ to this endorsement. The arrears total $14,936.00.

5. The father’s child support obligations, as they relate to Alexandre Lalande, for January through April 2015: a) Shall be determined on the basis of the terms of the 2008 order of Justice Polowin; b) Once determined, shall be added to the total arrears of $14,936.00; and c) Bear interest to be calculated in accordance with this Ruling.

6. The father shall reimburse the mother in the amount of $19,469.41, which amount represents the father’s share of post-secondary education expenses for Catherine Lalande pursuant to the terms of the 2008 order of Justice Polowin.

7. The father shall reimburse the mother in the amount of $4,167.62, which amount represents the father’s share of post-secondary education expenses for Alexandre Lalande pursuant to the terms of the 2008 order of Justice Polowin.

8. The total amount of $23,637.03 ($19,469.41 + $4,167.62), which the father is to reimburse the mother for post-secondary education expenses, shall be paid at the rate of $750.00 per month, commencing on February 1, 2017 and continuing on the first each mother thereafter until such time as said amount, and interest thereon (both interest to date and as continues to accrue with the passage of time) have been paid.

9. The child support in the amount of $14,936.00 shall be paid at the rate of $500.00 per month, commencing on February 1, 2017 and continuing on the first of each month thereafter until such time as said amount and interest thereon (both interest to date and as continues to accrue with the passage of time) have been paid.

10. In the event the parties are unable to resolve the issue of section 7 expenses (other than for post-secondary education), they shall proceed as set out in paragraphs 110 to 113 above.

11. The order arising from this endorsement shall be enforceable in accordance with paragraph 17 of the 2008 order of Justice Polowin.

115The orders made in 2002, 2004, and 2008 do not include any term with respect to interest accruing on arrears. The mother requests that interest be paid on arrears. I agree that she is entitled to interest. However, no submissions were made with respect to the basis upon which interest is to be calculated for the arrears and from the date of this Ruling forward. In the event the parties are unable to agree upon the rate of interest applicable to the arrears (monthly child support, post-secondary education expenses, and section 7 expenses) they shall:

a) Bring the matter of interest before me; and b) Deliver written submissions with respect to interest within the time required by the Family Law Rules ²¹.

Costs

116In the event the parties are unable to agree upon costs of the motion, they may make written submissions as follows:

a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs; b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure ²²; c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size; d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages; e) Written submissions shall be delivered by 5:00 p.m. on the tenth business day following the date on which this Ruling is released; and f) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the fifteenth business day following the date on which this Ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.

Madam Justice Sylvia Corthorn

Released: January 11, 2017

Footnotes

Footnotes

1. 1Family Child Support Guidelines, SOR/97-175, as amended.
2. 2Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
3. 3D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.
4. 4In the first quarter of 2012, Catherine applied for and was accepted into a Masters in International Sports Law. The claim with respect to post-secondary education expenses does not include expenses related to that program, which Catherine pursued at an education institution in Spain.
5. 5Mr. Clarke and the individual who prepared the financial statements for B.R. Pitre Consulting Inc.
6. 6Pitre Affidavit, December 11, 2015 at para. 53.
7. 7The full sub-paragraph is not included because the children’s residence over time is not relevant to the issue of child support before me.
8. 8Buckingham v. Buckingham, 2013 ABQB 155, 32 R.F.L. (7th) 180.
9. 9Lemay v. Longpré, 2014 ONSC 5107, 2014 ONSC 5107, 2014 CarswellOnt 12022 and George v. Gayed, 2014 ONSC 5360, 2014 CarswellOnt 12841.
10. 10Calver v. Calver, 2014 ABCA 63, 2014 CarswellAlta 223 (C.A.); Semancik v. Saunders, 2011 BCCA 264, 2011 CarswellBC 1390; Daoust v. Alberg, 2016 MBCA 24, 2016 CarswellMan 53 (C.A.); Smith v. Selig, 2008 NSCA 54, 2008 CarswellNS 307 (C.A.); and Hall v. Hall, 2011 SKCA 86 375, Sask. R. 126.
11. 11Meyer v. Content, 2014 ONSC 6001, at para. 61, 2014 CarswellOnt 14770.
12. 12Meyer, at para. 61
13. 13Henry v. Henry, 2003 ABQB 717, 2003 CarswellAlta 1202 (Q.B.) and Henry v. Henry, 2005 ABCA 5, 2005 CarswellAlta 17 (C.A.).
14. 14My understanding is also supported by the decision of Chappel J. in Meyer. At paragraph 60 of her decision, Chappel J. highlighted that “[i]n DBS, the Supreme Court of Canada was dealing with original child support applications and variation proceedings in circumstances where there was no pre-existing agreement or order requiring automatic adjustment to child support based on increases in income.”
15. 15The amount claimed is calculated by excluding the total of the figures provided for bus passes ($20,282.35 – $813.94).
16. 16That figure is based on the following calculation: $4,639.04 - $471.42.
17. 17See paragraph 6 of the Order.
18. 18See paragraph 7 of the Order.
19. 19See paragraph 8 of the Order.
20. 20For both the mother’s and father’s figures as to the amount outstanding, the pro rata calculations are to be based on the father’s income as determined in this endorsement and the mother’s income as per the notices of assessment for the relevant years.
21. 22Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
22. 21Family Law Rules, O. Reg. 114/99, as am.