NEWMARKET COURT FILE NO.: FC-08-29261-0001 DATE: 20170613 CORRECTED DATE: 20170721 CORRECTED 2 DATE : 20170802 CORRECTED 3 DATE : 20170803
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL ALBERT GENGA Applicant – and – JACQUELINE COLAIANNI Respondent
The Applicant, Self-Represented
The Respondent, Self-Represented
HEARD: May 15 and 16, 2017
REVISED REASONS FOR DECISION Corrected decision: The text of the original judgment was corrected on August 3, 2017 the description of the corrections are appended
P.A. DOUGLAS J.
OVERVIEW
[1] This matter comes before me by way of trial upon the Applicant father’s Motion to Change the final order of Justice Kaufman dated June 16, 2011 (hereinafter “the Order”) regarding child support and the Respondent mother’s Response to Motion to Change the order, again with respect to child support (both base amount and s. 7 expenses).
[2] The issues raised on these motions to change are as follows:
a. Is Simona still a “child of the marriage” within the meaning of the Divorce Act? b. Should the terminating events set out at paragraphs 21(e) and (f) be deleted from the Order? c. When should Applicant father’s child support obligation for Simona cease? d. What are the s. 7 expenses for Simona to be shared by the parties? e. What is Applicant father’s 2015 and 2016 income for child support purposes? f. What is Applicant father’s obligation regarding base amount of child support for Simona, Thomas, or both, effective July 1, 2016? g. Has there been an over/under payment of child support by Applicant father? h. What change should be made regarding spousal support?
BACKGROUND
[3] The salient terms of the Order are as follows:
The parties shall have joint custody of the children of the marriage namely Thomas Genga born August 1, 1998 (“Thomas”) and Simona Genga born September 19, 1994 (“Simona”).
The primary residence of Thomas and Simona shall be with the Respondent…
The Respondent shall be the librarian of the children’s passports, birth certificates, health cards, SIN cards and any other important documentation…
The Applicant shall pay child support for the two children to the Respondent in accordance with the Child Support Guidelines, as defined in s. 2(1) of the Divorce Act. For the purpose of clarity, the Applicant’s 2011 income is $137,800, therefore in accordance with the Guidelines, the Applicant shall pay child support in the amount of $1850 commencing July 1, 2011 and thereafter from year to year they are reviewed and recalculated amount by July 1 of that year…
Child support ends for each child upon the happening of one of the following events. When
a. The child ceases to be a “child” as defined in the Divorce Act; b. The child no longer resides with the Respondent (“resides” does not include the child living away from home for school, summer employment or vacation); c. The child turns 18, unless he or she is unable to become self-supporting due to illness, disability, full-time post-secondary education or other cause; d. The child becomes self-supporting; e. The child obtains one post-secondary degree or diploma; f. The child turns 23 years of age; g. The child marries; h. The child dies; or i. The Applicant dies, if adequate life insurance is in place. If it is not, the Applicant’s estate will continue to pay the support.
If the Applicant’s obligation to support a child ends, the parties will determine the support payable for the other child at that time under the Guidelines.
Each year, on or before May 15 starting May 15, 2012, the parties shall provide each other with a copy of all of the documents set out in s. 25 of the Federal Child Support Guidelines…
Commencing July 1, 2011, and continuing for so long as a child is entitled to support, the cost of all currently agreed special or extraordinary expenses (agreement to be in writing to be obtained in advance) will be shared by the parties in proportion to their incomes…
The special or extraordinary expenses that the parties now agree are to be shared by the parties in proportion to their incomes are currently the following: piano lessons for Simona and Thomas, and vocal lessons for Simona, school bus transportation for Simona and school enrolment fees for Simona.
The parties shall treat post-secondary education of the children as an extraordinary expense. This expense shall be shared in accordance with the parties’ proportionate income taking into account any bursary, student loan, employment income, etc. The existing Registered Educational Savings Plan (RESP) shall be applied firstly to any post-secondary education expenses prior to determining the proportionate amount each party is to contribute.
The Respondent shall give notice to the Applicant of any future special or extraordinary expenses that may arise and if the Applicant does not agree that the expense is a special or extraordinary expense, then the Respondent may apply to the court to determine the validity of the request.
Whenever possible, all special or extraordinary expenses shall be paid by the parties by way of each party paying their share of such expense directly to the third party to whom they are owed. The party who becomes aware of such an expense shall provide full particulars of the expense, the party to be paid and the amount to be paid by each party, to the other party in advance and each party shall make their own arrangements to ensure that their share is paid to the third party to whom it is payable, on time….
Michael Albert Genga shall pay spousal support to Jacqueline Colaianni in the amount of $1000 per month commencing July 1, 2011 and continuing on the first day of each month that follows. The last spousal support payment shall be made on June 1, 2019.
Spousal support is to be increased each year in accordance with the Consumer Price Index for Toronto. Any change to be effective July 1 of the year when a change occurs. No variation proceeding with respect to spousal support may be commenced based on the Applicant’s or Respondent’s change of circumstances. Save and except for the above variation, spousal support is not be varied.
The children’s accounts are to be released to them, absolutely, excluding the RESP accounts which are to be applied as set out above…
[4] There is another order relevant to these proceedings dated July 11, 2016, which is not subject to a motion to change. The salient provisions of this order are as follows:
Spousal support as of July 1, 2016 for the upcoming year shall be set at $1,069 (based upon an income of $143,321). …
In calculating the payor’s income for future purposes of future support, any amount indicated as RRSP income shall not be included. …
[5] The parties very helpfully cooperated in developing an extensive Statement of Agreed Facts to assist me in my deliberations. The salient components of the Statement of Agreed Facts are:
The Applicant and Respondent were married on September 8, 1990 and separated on September 9, 2006.
The parties have two children of the marriage, a daughter Simona who is 22 and son Thomas who is 18.
At the end of April 2016 the parties’ daughter Simona completed and obtained a post-secondary degree from Western University.
In September 2016 Simona entered her first year University of Toronto Master’s program in Music Performance.
Simona is currently in her first year of a two-year Master’s program in music/opera performance at the University of Toronto.
After completing high school and up until the 2006/2007 school year, the Applicant and Respondent had each completed and obtained only one post-secondary degree…
Simona began holding (and continues to hold) part-time employment (in various capacities) while attending high school.
Simona has always maintained a part-time job and has contributed to her own personal expenses to the best of her ability.
Over the four year period 2012 to 2015…Simona’s total income (excluding scholarships, bursaries and fellowships) was $23,292.
Over the four year period 2012 to 2015…Simona received an additional $16,609 from scholarships, bursaries and fellowships.
Over the four year period 2012 to 2015…Simona applied for and obtained $22,727 in student loans.
As of November 10, 2016…the total student loan funds of $22,727 disbursed to Simona…were still not used.
The Applicant and Respondent have each paid their respective proportional shares of Simona’s Western University full tuition amounts based on tuition details provided by the University the month preceding the start of each school year.
Simona’s Western University tuition totals were approximately:
a. $4,990 in year 1; b. $6,855 in year 2; c. $7,019 in year 3; and d. $7,291 in year 4.
As at November 10, 2016…with the scholarships and various grants Simona continues to receive, they anticipate being short about $3,000 of her approximate $12,000 in year one tuition fees.
The parties to-date have yet to pay any tuition fees toward [Simona’s] Master’s program at the University of Toronto due to scholarships and awards based on academic excellence. It is projected that second year of Master’s program will most likely be covered as well.
Simona is an extremely talented operatic vocalist. Her exceptional talent was evident as early as 2008 when Simona auditioned for, was accepted, and attended the Vocal Arts Program at St. Elizabeth Catholic High School (Thornhill).
Simona has always demonstrated a passion for the arts and maintained being on the Honour Roll in high school and Dean’s List.
In June 2011, Simona was finishing grade 11, and was highly recognized in the vocal program, achieving final marks of 90 and 91 in music over the first and second semesters respectively.
Over the course of Simona’s attendance in the vocal arts program, St. Elizabeth Catholic High School, she received training and guidance from highly qualified vocal instructors and tutors…
During Simona’s final two years in high school, and through ongoing feedback and dialogue from her instructors and tutors, the Applicant and Respondent recognized that continuing studies at a post-graduate level was highly probable.
…the Applicant and Respondent recognized that continuing studies at a post-graduate was likely required to pursue a professional career music opera (something Simona showed a desire for).
Simona is an exceptionally gifted child recently graduated from Western University with honours and recipient of the Gold Medal Award for highest academic achievement in vocal performance.
The parties’ son Thomas began post-secondary education September 2016.
Thomas is currently studying cinema media studies at York University.
Thomas resides with the Respondent and commutes to school on the days he has classes.
The Applicant lives common-law with Linda Barbiero and is the father of two boys they are raising together; Milan Genga 7 years old and London Genga 5 years old.
…the Applicant and Respondent have exchanged their required information (i.e. Notices of Assessment, T1 Generals, T4 and latest pay slips) annually.
For each of the years following the final order dated June 16, 2011 the Applicant sent email requests to the Respondent to initiate the exchange of financial information…
…the Applicant has satisfied his monthly child support obligations up to and including April 30, 2016, taking into account adjustments made to reflect the Applicant’s annual income changes since 2011.
Since the final order of Justice Kaufman dated June 16, 2011, many issues such as retroactive child support, retroactive spousal support and health insurance benefits have been addressed and settled up until and including July 1, 2016.
Continuation of child support, s. 7 expenses and retroactive child support (owing from July 2016) are issues still in dispute.
Since May 1, 2016, the Applicant has continued to pay the Respondent monthly child support in the amount of $1,850.
The $1,850 monthly child support amount the Applicant currently pays the Respondent is $637 higher than the $1,213 monthly prescribed child support amount for one child based on the Applicant’s 2015 total income of $143,321 (after adjusting for a one-time $5,000 RESP withdrawal the Applicant made in 2015).
The $1,850 monthly child support amount the Applicant currently pays the Respondent is $85 less than the $1,935 monthly prescribed child support amount for two children, based on the Applicant’s 2015 total income of $143,321 as adjusted.
Upon receipt and review of the Respondent’s Response to Motion to Change…the Applicant emailed the Respondent…in an effort address all eligible expenses listed on the corresponding sworn Financial Statement dated February 10, 2016.
On April 28, 2016 the Applicant deposited $1,831.67 into the Respondent’s bank account.
The $1,831.67 deposit…represents the Applicant’s proportional share of what he believed were eligible special/extraordinary expenses the Respondent claimed…they specifically covered his portion of items noted below, less $78 representing the Respondent’s share of a January 9, 2016 $200 Ontario Universities Application fee for Thomas paid by, and owed to the Applicant:
a. Thomas’ St. Elizabeth $215 course selection fee (61% = $131.15); b. $1,556.18 in various school fees for Simona (61% = $949.27); c. $1,337.50 in expenses related to the Opera Nuova program Simona attended, representing part of overall expenses claimed by the Respondent (62% = $829.25).
Based on the Respondent’s tax return information from 2012 to 2015 inclusive…the Respondent received tax benefit credits by claiming tuition amounts transferred from Simona.
The Respondent claimed the following tuition amounts transferred from Simona on each of her T1 General Federal and Ontario Tax Forms respectively:
a. $5,065.03 in 2012; b. $5,066.20 in 2013; c. $5,066.86 in 2014; and, d. $5,068.20 in 2015.
[6] In addition to the foregoing agreed facts, the parties presented oral testimony and have filed relevant exhibits to assist me in my decision. Also, on consent, I received an affidavit signed by Jeffrey Jackson sworn January 31, 2017, being an accountant in the Respondent’s employ whose affidavit touches on the tuition tax credit issue.
[7] The parties are both highly intelligent and articulate individuals who for the most part demonstrated, in their presentation in court and in the documented history of their communication, a positive and constructive engagement in addressing issues arising from time to time. Having said this, it appears that the Respondent was not always responsive to the Applicant’s proactive efforts to address support changes annually.
[8] I have no doubt that both parties have endeavoured to be honest and comprehensive in presenting their evidence; however, the Applicant was clearly more careful and precise in presentation of his evidence. He struck me as someone comfortable with numbers who had expended considerable effort in preparing charts and summaries to assist in organizing the evidence while the Respondent offered objections thereto without having expended the same degree of effort in developing her position and analysis. Subject only to the foregoing, I have no reason to prefer the evidence of either party to that of the other.
The Legal Context
[9] The order was made under the Divorce Act, which is specifically referenced in para. 21 (a). The intention is clearly to invoke the Act’s definition of “child of the marriage” as a component of one of the listed terminating events for payment of child support.
[10] Section 2(1) of the Act provides:
A “child of the marriage” means a child of two spouses or former spouse who, at the material time,
(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.
[11] Changes to an order for child support are governed by s. 17 of the Act which provides as follows:
17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses…
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
Factors for spousal support order
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
[12] There is a matrix of factors that must be considered in assessing whether a parent is obligated to pay for more than one university degree. These factors look at both the child’s circumstances and the financial circumstances of the parents (see Mustaphic v. Capin, [2016] O.J. No. 4783 S.C.J.)
[13] Where the parties had a previous agreement set out in a final order that the first degree only would be paid by the parents that agreement should be enforced for the following reasons:
(a) The onus to demonstrate dependency grows heavier the longer a child is in post-secondary education. There is a great deal of evidence that [the child] has significant expenses, but it is not clear that she remains a dependant… she has been able to arrange financing to pay for this second degree.
(b) [The child] already has a first degree, and was supported by her parents in obtaining this degree. It is quite possible that she is employable with this degree.
(c) [The child] has been able to arrange financing to pay for her second degree, although her mother has been paying the interest on that credit line.
(d) The expectations of the parents and the child seeking support are clearly a relevant factor for the court to consider. In this case, the expectation was that the parents would fund one degree (see Mustaphic, supra, at para. 49).
[14] The family history is important: the post-secondary education of an older sibling can provide the “benchmark” against which the reasonableness of another child’s post-secondary expenses can be measured (see Lo v. Lo, [2011] O.J. No. 621 S.C.J. and Oates v. Oates, 2004 ONSC 2544, [2004] O.J. No. 2984 (S.C.J.))
[15] A “benchmark” may be established by several factors including the parties’ agreement to support a child through her undergraduate degree (see Lo, supra, at para. 159).
[16] Where contribution to post-secondary education exceeding an established benchmark is sought, such may not be “reasonable” within the meaning of s. 7 of Child Support Guidelines (see Lo, supra, at paras. 159 and 160).
[17] The court’s power to order a parent to pay child support arises from s. 15.1(1) of the Act. That provision stipulates that the obligation depends upon a child being a “child of the marriage”. Where a child is 18 years or older s. 2(1) of the Act provides she must be unable to withdraw from her parents’ charge or obtain the necessaries the life, by reason of illness, disability or other cause. The term “other cause” usually means continued education or training (see Marsh v. Jashewski, [2011] O.J. No. 3170 (S.C.J.)).
[18] The onus of proving that a child satisfies this statutory criteria and the definition is on the person claiming the support (see Whitton v. Whitton (1989), 21 R.F.L. 3d 261 (Ont. C.A.))
[19] As a general rule, if a child is diligently pursuing studies in a suitable program and there is evidence establishing a need for support, there is a strong presumption that support should be provided for at least her initial college or university program (see Marsh, supra, at para. 43, Caterini v. Zaccaria, 2010 ONSC 6473, [2010] O.J. No. 5291 (S.C.J.) and Metter v. Solomon, [2005] O.J. No. 959, 2005 CarswellOnt 986 [2005] W.D.F.L. 1856)
[20] The entitlement of post-secondary education, and in particular second and third post-secondary programs, depends on the circumstances of the case. The factors most often cited include,
(1) The financial circumstances of the family; (2) The child’s educational and career plans; (3) The child’s age; (4) The child’s academic performance; (5) The family’s educational expectations; (6) The parent’s involvement in the decision-making process; and (7) The extent to which the program prepares the child to become financially independent (see Albert v. Albert, 2007 ONSC 29972, [2007] O.J. No. 2964 S.C.J.).
[21] Although in the past some courts hesitated to grant support beyond a first degree, that is no longer the case (see Albert, supra, at paras. 49-56, Caterini, supra, at paras. 99-106, Haist v. Haist, [2010] O.J. No. 785, at paras. 54-58, MacLennan v. MacLennan, 2003 NSCA 9, [2003] N.S.J. No. 15 (C.A.) at paras. 37-41). In MacLennan the court (at para. 38) cited with approval the view of Freeman, J.A. in Martell v. Height (1994), 130 N.S.R. 2d 318 (C.A.):
It is clear from the various authorities cited by counsel that courts recognize jurisdiction under s. 2(1) of the Divorce Act to hold parents responsible for children over 16 during their period of dependency. How long that period continues is a question of fact for the trial judge in each case. There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase the onus of proving dependency grows heavier. As a general rule parents of a bona fide student will remain responsible until the child has reached a level of education, commensurate with the abilities he or she has demonstrated, which fit the child for entry level employment in an appropriate field. In making this determination the trial judge cannot be blind to prevailing social and economic conditions: a bachelor’s degree no longer assures self-sufficiency.
[22] Dependency is the key criterion for entitlement to support under the Act where the child is over the age of majority (see McCrea v. McCrea, [2005] O.J. No. 50 at para. 11).
[23] There are criteria established by the courts as being relevant to the question of dependency where a child is pursuing an education:
(a) Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; (b) Whether the child has applied or is eligible for student loans or other financial assistance; (c) The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; (d) The ability of the child to contribute to his own support through part-time employment; (e) The age of the child; (f) The child’s past academic performance, whether the child is demonstrating success in the chosen course of studies; (g) What plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (h) At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship with the parent from whom support is sought (see Farden v. Farden (1993), 48 R.F.L. 3d 60 (BCSC)).
[24] In Thompson v. Thompson (1988), 28 O.A.C. 383 (Ont. Div. Ct.) the court held that parents who are responsible for support should not be excused therefrom merely because the child could borrow from the government. The courts have rejected the notion of a “scholastic cut-off point” (see also Martell, supra).
[25] It is the purpose, not the number, of degrees that is relevant (see Barbeau v. Barbeau (1998) CarswellOnt 3458 Ont. Gen. Div.).
[26] One post-secondary degree does not necessarily lead to self-sufficiency. Frequently further education is required, education “designed to fit the child for years of life ahead” or “equip a child for a career.” (see Welsh v. Welsh (1998), CarswellOnt 4338 Ont. Gen. Div.).
[27] The quantum of child support is governed by the Federal Child Support Guidelines, s. 3(1) and (2) of which provide as follows:
Presumptive rule
3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
Child the age of majority or over
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, 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:
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
Positions of the Parties
[28] The Applicant’s positon is that there should be an order as follows:
(1) Paragraph 20 of Order should be set aside and varied as follows:
(a) The Applicant’s child support obligation for the child Simona Genga born September 19, 1994 is terminated effective April 30, 2016;
(b) Commencing May 1, 2016 and on the first day of each month thereafter until June 30, 2017, the Applicant’s monthly table child support obligation is fixed at $1,213 per month for the remaining child of the marriage Thomas Genga born August 1, 1998 (“Thomas”) based on the Applicant’s 2015 income of $143,321 (after deducting $5,000 RSP income pursuant to July 11, 2016 order).
(c) Commencing July 1, 2017 and on the first day of each month thereafter the Applicant’s monthly table child support obligation is fixed at $1,196 per month for the remaining child of the marriage, Thomas Genga based on the Applicant’s 2016 income of $141,045 (after deducting RSP income of $11,662.55 pursuant to the July 11, 2016 order).
(d) The overpayments in child support from May 1, 2016 onward (currently $8,281 i.e. 13 months x $637) arising as a result of subparagraphs (a) to (c) above will be applied as credits against the future child support and/or spousal support payments to be made by the Applicant to the Respondent.
(e) The Respondent shall pay to the Applicant the sum of $2,780.19 representing tuition amounts overpaid by him for Simona based on the “net cost” of the tuition expenses after adjusting for the tax benefits received by the Respondent for the period 2012 to 2015 tax years.
(f) Effective July 1, 2017 the parties’ proportionate shares for purposes of contribution to s. 7 expenses are 58 percent for the Applicant (based on his 2016 income of $141,045 less spousal support paid to the Respondent of $12,414 = $128,631) and 42 percent for the Respondent (based on her 2016 income of $92,182).
(g) Effective July 1, 2017 the spousal support amount payable by the Applicant to the Respondent pursuant to paras. 32 and 33 of the June 16, 2011 final order of Justice Kaufman is fixed at $1,091 per month.
[29] The Respondent’s position is summarized as follows:
(a) She seeks continuation of child support for Simona as long as she is pursuing an education and remains a “child of the marriage” within the meaning of the Divorce Act.
(b) Paras. 21(e) and (f) of the Order should be deleted.
(c) The Applicant should pay child support for two children in accordance with the Child Support Guidelines based on the Applicant’s income of $152,707, in the amount of $2,042 per month commencing July 1, 2017 and thereafter from year to year to be reviewed and recalculated effective July 1st of each year.
(d) The Applicant shall pay the shortfall of support owing to the Respondent accruing for the period July 2016 to June 2017.
(e) All issues of support prior to July 11, 2016 have been settled.
(f) Based on income of $152,707 the Applicant should pay table support of $2,042 per month; therefore, the difference per month owing is $193 per month. Therefore the retroactive catch-up from July 2016 to June 2017 is $2,316.
(g) She asks the court to consider all of the expenses listed for the children as per Schedule ‘C’ of her Financial Statement sworn April 12, 2017 taking into account provisions for special and extraordinary expenses including “the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the spouses and those of the child and the family’s spending pattern prior to separation.”
(h) The total amount paid by the Respondent for expenses to date is $13,948.56. She is seeking reimbursement for the Applicant’s share with the understanding that the amount of $1,831 be deducted as she acknowledges receipt of that amount from the Applicant.
(i) Special expenses shall continue to be shared in proportion to the parties’ respective incomes after deducting from the expense the contribution, if any, from the child.
(j) In determining the Applicant’s income there should be no ongoing deduction for income from his RSPs.
Issue No. 1: Is Simona still a “child of marriage” within the meaning of the Divorce Act?
[30] These are the primary issues in dispute between the parties.
[31] I consider the definition of “child of the marriage” which, for a child over the age of majority such as Simona, presupposes an inability to withdraw from parental charge or to obtain the necessaries of life. In this context consideration needs to be given to the resources available to Simona beyond the contributions from her parents.
[32] In this regard I am satisfied that the Applicant’s more careful and precise evidence is somewhat more reliable and persuasive than that of the Respondent. Exhibit 7, being a summary of Simona’s “total financial resources” for the period 2012 to 2015 includes in “resources” Simona’s employment income and interest, government grants, scholarships, student loans and contributions by the parties, measured against her post-secondary education expenses including tuition fees, residency/meals, rent (in some cases based on estimates which, based on the evidence received by me, and acknowledged by the Respondent, are reasonable). In his summary the Applicant included as a line item for Simona’s own resources the sum of $11,100 annually representing what he describes as “Simona’s portion” of the base monthly child support he has been paying. I am not considering this as an appropriate component of this analysis despite the Applicant having continued to pay the full base Guideline amount for two children while Simona was living away from home while attending University of Western Ontario for her undergraduate studies.
[33] Summarizing the Applicant’s evidence in this regard (subject to the foregoing caveat):
(a) 2012 Total funding resources $17,882 Total schooling expenses $16,907 Difference (excess of $975 resources over expenses)
(b) 2013 Total funding resources $22,802 Total schooling expenses $13,643 Difference (excess of $9,159 resources over expenses)
(c) 2014 Total funding resources $23,696 Total schooling expenses $18,905 Difference (excess of $4,791 resources over expenses)
(d) 2015 Total funding resources $25,122 Total schooling expenses $18,865 Difference (excess of $6,257 resources over expenses)
[34] Therefore, there was an excess of resources over expense in each of the academic years summarized above.
[35] I agree with that line of cases that holds that there is no rule that child support should end upon acquisition of the first undergraduate degree or diploma; rather, entitlement to child support for post-secondary education, and in particular, second and third post-secondary programs, is dependent on the circumstances of each case (see Albert, supra and Martell, supra). Those circumstances may be assessed in accordance with the “Farden factors” and others as may be suggested by the facts of the individual case under consideration.
[36] Having said that, this is not an application ab initio. The parties consented to the terms of the order. It falls to the Respondent to establish that there should be a change to the terminating events to which the parties agreed and which were endorsed by the court in the order. Clearly, if the terminating events remain unchanged, the Applicant’s child support obligation for Simona ended when she obtained her first undergraduate degree from Western University in April, 2016.
[37] Referring to the factors outlined in Farden, supra, the first consideration is “whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies”. There is no dispute that Simona remains enrolled in a full-time course of study.
[38] Considering the next “Farden factor” (“whether the child has applied for or is eligible for student loans or other financial assistance”), the evidence is that Simona qualified for and secured almost $23,000 in student assistance with respect to her undergraduate program. She did not need to access any of it as a result of the receipt of bursaries, awards, scholarships and her own efforts through part-time employment. The practice developed for Simona to apply and qualify for student assistance, secure the funds and then bank same to draw upon only if required. The evidence before me confirms that there has been no need to erode these funds and in fact almost $21,000 has recently repaid. This component of the analysis includes consideration of bursaries, scholarships, etc. For the four year period from 2012 to 2015, Simona received $16,609 in scholarships, bursaries and fellowships. She earned a $3,000 scholarship for her first year of the Master’s program. The Respondent anticipated a shortfall of $3,000 after applying Simona’s scholarship and various grants to her $12,000 year one tuition fees. This can more than be made up from Simona’s part-time income based on the history available to me.
[39] As to the next “Farden factor” (“the career plans of the child, i.e. whether the child has some reasonable and appropriate plan”) Simona’s plan is to become a profession mezzo soprano opera singer. She is clearly very talented and gifted. Her parents are rightfully proud of her achievements. I have no hesitation in concluding that her career plans are reasonable given her obvious talent. Indeed, she has already secured contract employment in this regard.
[40] As to the next “Farden factor” (“the ability of the child to contribute to her own support through part-time employment”) Simona has consistently generated income from part-time employment. Her income may be summarized as follows:
(a) 2012 - $4,243 (b) 2013 - $4,928 (c) 2014 - $6,859 (d) 2015 - $7,262 (e) 2016 - $3,251 Total $25,543 (average $5,308/year)
[41] More recently, Simona secured a contract position in her chosen field and it too will generate income over the nine weeks the contract covers. In short, Simona has shown a consistent and determined effort to pursue part-time employment and to thus contribute to her own support.
[42] As to the next “Farden factor” (“the age of the child”) Simona is 22 years of age. I note that on September 19, 2017 she will be 23 years old, thus triggering another terminating event in the Order, unless it is changed.
[43] As for the next “Farden factor” (“the child’s past academic performance and whether the child has demonstrated success in the chosen field of studies”), as indicated above Simona is clearly a gifted student and to describe her as “demonstrating success” would be an understatement.
[44] Regarding the next “Farden factor” (“what plans the parents made for the education of their children, particularly where those plans were made during cohabitation”), I consider the parents’ own educational history as having informed plans that they made for the education of their children. In this regard both parties completed and obtained one post-secondary degree following completion of high school. The Respondent, after the children were born, continued her education and obtained a Master’s degree in education into 2007. This is the best evidence that I have of the parties’ plans for the education of their children developed during cohabitation. As to plans after separation, the best evidence is the Order itself, based on the parties’ negotiated consent, which contemplated termination of child support upon any one of a series of specified events occurring including a child obtaining one post-secondary degree or diploma. According to the Agreed Facts summarized in part above, at the time the order was entered into Simona had already demonstrated great promise as a singer and the likelihood of post-graduate studies had already been contemplated. The parties had “recognized that continuing studies at a post-graduate level was highly probable.”
[45] With respect to the Respondent’s evidence that she secured her Master’s degree, I note that such did not happen until the children had been born and the parties were well established in their respective employment careers. Also, pursuit of this degree by the Respondent was not funded by the parties’ parents but through the parties’ own resources. The “benchmark” is in my view established by the parties’ own experience of having pursued one undergraduate degree immediately following completion of high school which is consistent with the terms agreed upon by the parties and embodied in the order which requires termination of child support upon a child acquiring a first undergraduate degree.
[46] As to the final “Farden factor” (“whether a mature child who has reached the age of majority has unilaterally terminated a relationship from the parent from whom support is sought”) I find there is no relevance of this consideration to the case before me as both parties clearly enjoy an ongoing loving and positive relationship with Simona.
[47] The foregoing analysis of the Farden factors favours on balance, the conclusion that Simona is no longer a “child of the marriage”. The consistent absence of need to access student loans, the consistent access to scholarships and bursaries, Simona’s consistent ability to generate part-time income in her chosen field and the parties’ own intention to fund her education until acquisition of her first undergraduate degree all support this conclusion. Further, this result is consistent with the parties’ own academic history of having each acquired one post-secondary degree or diploma immediately following high school.
[48] Martell raised the issue of whether the child has reached a level of education commensurate with the abilities she has demonstrated which fit the child for entry level employment in an appropriate field. This is an appropriate consideration but one with respect to which I have received little evidence. I note however, that Simona has secured a position as a mezzo soprano in St. Louis and she has also qualified for a program in Chautauqua, New York for the summer of 2017. She will be earning income of $616.75 per week for nine weeks as a “gerdine young artist” with the Opera Theatre of St. Louis to perform in four separate productions. The evidence before me confirms that the contract includes shelter and the Respondent testified that she expected there to be some monies left over from her income earned through this contract. Exhibit 49, signed by Simona, is a “Standard Artist’s Contract for Employment” signed November 4, 2016. From this it appears that Simona already has acquired “entry level employment” in her chosen field, albeit for a short-term contract basis. The question should not be whether Simona could survive on her part time income while attending school full time but rather whether she now has the skills necessary to support herself were she to cease her academic pursuits. I find that the evidence supports the conclusion that she does.
[49] I note in particular the Applicant’s position that he intends to continue to assist Simona as he reasonably can without an ongoing legal obligation given the court ordered termination effective April 2016 in accordance with the Order. He testified that he is attempting to be consistent with the parties’ own life experience in having secured one undergraduate degree immediately following high school and his desire to spread his resources over his three remaining dependent children including the parties’ son Thomas. This is not an unreasonable consideration, as it was informed by the terms of the parties’ agreement as to duration of support, incorporated into the order.
[50] This reasonable position is contrasted with the Respondent’s strongly held conviction that Simona should not be required to exhaust all of her resources in order to pursue her chosen course of study to completion, which may include a PhD; indeed, the Respondent submits that so long as Simona is attending school the parties have an obligation to assist her. In my view, the Respondent is overreaching in her position. There is nothing in the Act or case law that imposes an obligation upon parents to fund a child’s education indefinitely, which is the practical effect of this submission.
[51] For these reasons I find that Simona is no longer a “child of the marriage”.
Issue No. 2: Should paragraphs 12(e) and (f) of the Order be deleted?
[52] The Respondent submits that paras. 21(e) and (f) of the Order should be deleted. Doing so would have an impact upon support for both Simona and Thomas. The Respondent bears the burden of proof.
[53] Regarding Thomas there is no reason to determine this issue now as he has just completed his first year of post-secondary education. He is not nearing any of the terminating events contemplated by the order. His circumstances may well be different from those of his sister. There is no material change in circumstances relating to child support for Thomas to warrant a change in the earlier ordered terminating events for child support.
[54] Regarding Simona, I find there is no change in circumstances warranting deletion of paras. 21(e) and (f) for the following reasons:
(a) The parties agreed to this term and considered it reasonable in June 2011. (b) Both parties had themselves progressed to one undergraduate degree following high school. (c) Simona has demonstrated an ability to muster resources to more than cover her expenses without contribution from her parents. (d) The parties were cognizant of Simona’s talents before agreeing to the terms of the Order, and as to the likelihood of her pursuit of post-graduate studies; therefore, there has been no change in circumstances.
I therefore reject the Respondent’s submissions in this regard.
Issue No. 3: When should the Applicant father’s child support obligation for Simona cease?
[55] I have found that Simona is not a “child of the marriage”. This triggers a termination of child support obligations regarding Simona.
[56] Consistent with my findings above regarding Issue #2, the Applicant’s child support obligation for Simona ceased effective April 30, 2016, upon acquisition of her first undergraduate degree. I find that Simona was no longer a child of the marriage after April 30, 2016 but it is unnecessary for me to determine precisely when that occurred given the intervention of the terminating event specified in paragraph 21(e) of the order.
Issue No. 4: What are the s. 7 expenses for Simona to be shared by the parties?
[57] Consistent with my findings above, the Applicant’s obligation to contribute to s. 7 expenses has also terminated, effective April 30, 2016. There are no unpaid s. 7 expenses or contributions as of that date according to the agreed facts.
Issue No. 5: What is Applicant father’s 2015 and 2016 incomes for child support purposes?
[58] There is no Motion to Change the order of July 11, 2016 before me. It therefore continues to govern the parties.
[59] This order is very clear in defining the Applicant’s income for support purposes on an ongoing basis, to exclude RRSP income.
[60] Therefore, the Applicant’s income for support purposes in 2015 is $143,321 and for 2016 is $141,045.
Issue No. 6: What is Applicant Father’s obligation regarding base support for Thomas following July 1, 2016?
[61] The parties advance the common position that ongoing child support be reconfigured effective July 1, 2016.
[62] Based on income in 2015 of $143,321, the Applicant should pay child support for Thomas commencing July 1, 2016 in the amount of $1,213 per month through June 30, 2017. Based upon income in 2016 of $141,045, the Applicant should pay child support for Thomas commencing July 1, 2017 in the amount of $1,196 per month.
Issue No. 7: Has there been an over/underpayment of child support by Applicant father?
[63] The Applicant calculates that he has overpaid child support from May 1, 2016 forward and through May 31, 2017 in the amount of $8,281 (i.e. 13 months x $1,850 - $1,213 = $637). As the parties have agreed that child support issues up to July 1, 2016 have been resolved, this should be recalculated to cover the period July 1, 2016 through June 30, 2017 (the latter being the month of release of these Reasons) a period of 12 months’ overpayment of $637 per month for a total overpayment of $7,644. This calculation is consistent with my findings above.
[64] The Applicant is therefore entitled to a credit of $7,644.
[65] The Applicant proposes that this amount be applied as credits against future child support and/or spousal support payments.
[66] This is a reasonable proposal, assuming the credits are applied at a reasonable pace on a monthly basis. I will address this below.
[67] As to the issue of $1,831.00 claimed by the Applicant, this relates to a payment by the Applicant to the Respondent in April of 2016 (while Simona remained a child of the marriage) pertaining to expenses incurred prior to April 30, 2016 but with respect to which the Applicant did not receive complete disclosure from the Applicant until the fall of 2016. The Applicant chose to make the payment that he did without full details of Simona’s financial resources. Having done so, he should not be entitled to a repayment or a credit at this stage.
[68] Regarding the issue raised by the Applicant identified at paragraph 28(1)(e) above, the Applicant should be entitled to a credit of $2,780.00 representing tuition amounts overpaid by him for Simona based on the “net cost” of the tuition expenses after adjusting for the tax benefits received by the Respondent for the period 2012 to 2015 tax years. The Respondent acknowledges that Simona transferred her credits to the Respondent in this regard. She does not dispute the Applicant’s calculation of the claimed credit. Section 7(3) of the Guidelines confirms that the expenses subject to proportionate sharing by the parties should be net of any tax benefits or credits. As the parties did not incorporate this consideration into calculation of the Applicant’s contributions, he should receive the resultant credit of $2,780.19.
Issue No. 8: What change should be made regarding spousal support?
[69] Strictly speaking, this issue is not before me as it has not been raised in either party’s Motion to Change; however, the Applicant has historically been proactive in recalculating spousal support annually in accordance with the order of June 16, 2011 which references the Consumer Price Index.
[70] In the absence of opposition from the Respondent, who stands to benefit from this order as it represents an increase, I accept the Applicant’s request that spousal support be fixed in the amount of $1,091 per month effective July 1, 2017.
Conclusion and Order
[71] For the foregoing reasons, the following Final order shall issue:
(a) The Applicant’s child support obligation for the child Simona shall terminate effective April 30, 2016.
(b) Commencing July 1, 2016 the Applicant shall pay base support for Thomas in the amount of $1,213 per month based upon income of $143,321 in 2015.
(c) Commencing July 1, 2017 the Applicant shall pay base support for Thomas in the amount of $1,196 per month based upon income of $141,045 in 2016.
(d) The Applicant is entitled to a child support credit of $7,644 + $2,780 = $10,424. $4,000 of this sum shall be credited to the Applicant against his ongoing base child support obligation at the rate of $200 per month. The remainder shall be credited against the Applicant’s obligation to contribute to Thomas’ s. 7 expenses.
(e) Commencing July 1, 2017 the spousal support payable by the Applicant to the Respondent pursuant to paragraph 32 of the Order dated June 16, 2011 shall be changed to the amount of $1,091 per month. The remaining spousal support provisions of the June 16, 2011 Order remain unchanged.
(f) The parties’ proportionate shares of section 7 expenses are 58% Applicant and 42% Respondent.
(g) If unable to agree on costs, the parties may make written submissions (limited to three pages excluding Offers to Settle and Bills of Costs), filed with my assistant in Barrie, as follow:
i) Applicant, within 3 weeks; ii) Respondent, within 4 weeks; iii) Applicant in reply, if desired, within 5 weeks.
(h) Future disclosure by the Respondent shall include such evidence as may be reasonably available to her regarding the income of the child Thomas.
Douglas J.
Released: August 3, 2017
CORRECTIONS
Paragraph [71] (e) shall be amended to read as follows: