CITATION: Bibeau v. Bibeau, 2017 ONSC 4510
COURT FILE NO.: 011814/01-03
DATE: 2017-07-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARC BIBEAU
Applicant
– and –
GENEVIEVE BIBEAU
Respondent
T. Frederick Baxter, for the Applicant
John Paul Paciocco, for the Respondent
HEARD: July 13, 2017
MCMILLAN J.
ENDORSEMENT
[1] The applicant has moved for a plethora of relief relating to the issue of guideline child support for his daughter, Sarah Bibeau, born September 26, 1995. On January 6, 2014, I fixed his obligation for her child support as well as his contribution to her post-secondary education, later to be waived, on an interim basis. The issue was the subject of a trial determined by final order, dated October 20, 2014, of Varpio J.
[2] The determination at trial was successfully appealed by the respondent mother to a three-judge panel of the Divisional Court. By order dated November 17, 2015, the Divisional Court fixed the father’s arrears at $13,454.74 for the period September 26, 1995 to November 30, 2013; together with further arrears from November 1, 2014 to the determination of the appeal at the rate of $641.91 per month. Ongoing child support for Sarah was fixed at $641.91 per month, based on the father’s annualized income of $70,355.00, so long as Sarah is attending school and residing with her mother. Costs were awarded to the appellant mother in the sum of $8,000.
[3] The applicant father next sought leave to appeal the Divisional Court decision and on March 11, 2016 the Ontario Court of Appeal dismissed the motion for leave to appeal and awarded costs of $9,750.00 against the appellant father. The applicant father then filed this motion to change on April 23, 2016 claiming similar, if not identical, relief to that made in the previous proceedings and challenging the reliability of the appellate courts’ decisions. The respondent mother then brought a motion to stay the father’s motion to change based on arrears of child support and unpaid costs, amounting to $41,577.19. The motion was successful and costs of $4,250.00 were awarded to the respondent mother. As of January 23, 2017 the applicant had paid all outstanding amounts and was granted leave to proceed herewith.
[4] With respect to this court’s jurisdiction and authority to go behind the order of the Divisional Court, the applicant relies upon s. 37(2.1)(a) Family Law Act, R.S.O. 1990, c.F. 3 whereunder the court may vary an order for child support “prospectively or retroactively”, if satisfied “that evidence not available on the previous hearing has become available”. The applicant further contends that the respondent misled the trial court in her evidence. Both prongs relate to Metis Nation funding made available for Sarah’s post-secondary education expenses.
[5] It should be noted that the applicant has never been obliged to contribute to Sarah’s post-secondary school education expenses. The sole issue presented on this motion concerns basic child support.
[6] On the material before me, I do not find that the respondent mother either misled or deceived the trial judges on the Metis Nation educational funding referred to as a “training allowance”. Similarly, I find that the subject of Metis Nation educational funding was raised at trial and was also referenced in several places within the applicant’s factum placed before the Divisional Court. Any failure on the part of the applicant to pursue or obtain evidence thereon does not equate to it being previously unavailable.
[7] Accordingly, I am not prepared to go behind the orders of the appellate courts in this matter in regard to any of the items of relief sought by the applicant on this motion.
[8] The second ground for consideration is that there has been a material change in circumstances subsequent to the Divisional Court order, namely Sarah’s enrolment in another post-secondary course of study in London, Ontario, and whether she continues to be a child of the marriage entitled to support. The respondent acknowledges that the foregoing is a material change in circumstances.
[9] In September 2014 Sarah commenced studies in the Occupational Therapy Assistant (O.T.A.) at Sault College and continued to reside with her mother. This was a two-year fulltime program and she graduated in the spring of 2016. During a brief four-month period between the last week of February 2015 to the last week of June 2015, Sarah did not reside at her mother’s home. She had a brief stay with her boyfriend. During that time her belongings remained at her mother’s, in her unoccupied bedroom, she came and went, ate meals with her mother, did her laundry there and spent much time with her mother who continued to assist her financially. Sarah continued fulltime in her O.T.A. program.
[10] By September 2016, Sarah was enrolled in the Medical Radiation Technology Program at Fanshawe College in London, Ontario, a three-year fulltime program in which she has successfully completed her first year. Three previous applications to this program had proven unsuccessful. She is now on an honour roll earning exceptional grades and there is no reason to believe that she will not graduate. Following graduation, she can expect to earn income double to what she could have expected with her O.T.A. diploma.
[11] Sarah shares accommodation and associated expenses with her roommate, who happens to be her boyfriend. Sarah continues to report to her mother regularly in terms of her schooling requirements, results, progress, needs, manner of payment of tuition and seeks and heeds her advice and direction. Although Sarah had planned to return to Sault Ste. Marie for the summer months and live with her mother, she has now obtained employment in London. During Christmas 2016, Sarah occupied her room at her mother’s home where many of her possessions remain. She only saw her father once when visiting her paternal grandparents. Ultimately, Sarah seeks to obtain employment in a hospital setting. Sarah’s mother pays for her monthly $400.00 share of the rent in London.
[12] The applicant father submits through counsel that Sarah is no longer under the control or charge of her mother; is not a dependant; nor a child of the marriage. The applicant contends that in the alternative, the guideline amount would be inappropriate and suggests that the nominal sum of $100.00 a month would be appropriate pursuant to the provision of s. 3(2)(b), Child Support Guidelines. Counsel for the respondent contends that the only appropriate variation to be made here would be an increase from the current $641.91 per month to $750.00 in accordance with either approach, namely 3(2)(a) or (b).
[13] Sarah is only 21 years of age and has been a fulltime student continuously since 2013, without interruption. She is employed part-time during school terms and fulltime when not in a semester to contribute to her expenses. She maintains good grades. She is motivated with career aspirations. She continues to be financially dependent on her mother who has been paying her tuition fees and expenses for the past two semesters in her current program amounting to $5,002.77. She also pays her rent in London. She has paid legal expenses to obtain child support from the applicant. Sarah does not have extended health care coverage.
[14] The applicant has not challenged the nature or amounts of Sarah’s stated expenses, and which I do not consider to be unreasonable. Her annual schooling and living expenses are:
(a) Tuition - $5.003
(b) Books - $1,697
(c) Rent - $4,800
(d) Car insurance - $2,160
(e) Utilities - $240
(f) Cable - $944
(g) Groceries - $3,600
(h) Laundry - $240
(i) Gas - $720
(j) Clothing - $1,200
(k) Grooming - $480
Total - $21,107
Sarah is expected to contribute the sum of $5,000 to her expenses, which I also find to be reasonable.
[15] The deficit for which she looks to her parents amounts to $16,107. Given the comparative amounts of her parents’ respective incomes, the applicant’s share is 55.9% or $750.00 per month.
[16] I previously alluded to “training allowances” and indeed Sarah received a total amount of $12,785 during her three years at Sault College from Metis Nation funding. She expended $7,000 to purchase a vehicle for transportation and $2,160 for insurance thereon. The balance of approximately $3,600 represents $100.00 per month for miscellaneous expenses. None of those proceeds flowed through to her mother who covered all of her living expenses.
[17] Considering all of the foregoing, I have arrived at the following conclusions:
(a) A material change in circumstances as of September 1, 2016 is acknowledged.
(b) Sarah Bibeau continues to be a child of the marriage for child support purposes so long as she continues in her fulltime course of study to the spring of 2019.
(c) The applicant will continue to be responsible for the guideline support fixed by the Divisional Court at the rate of $641.19 per month, to the completion of her current program of studies.
(d) The applicant’s submissions respecting the disposition of the balance of funds in the RESP are not the subject of a claim pleaded in this motion and are therefore dismissed.
(e) The issue of arrears of child support in the sum of $5,637.02 was a subject of the appeal disposed of by order of the Divisional Court on November 17, 2015 and for which leave to appeal was refused. The order is final.
[18] Counsel may address the issue of costs in writing, limited to two typewritten pages each, unless the matter of costs is settled between the parties. Applicant’s submission to be served and filed within 7 days hereof and the respondent’s within 14 days hereof.
McMillan J.
Released: July 26, 2017
CITATION: Bibeau v. Bibeau, 2017 ONSC 4510
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARC BIBEAU
- and –
GENEVIEVE BIBEAU
ENDORSEMENT
McMillan J.
Released: July 26, 2017