CITATION: Luciani v. Luciani, 2017 ONSC 5209

COURT FILE NO.: 13405/11-01

DATE: 2017September15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTINE LESLIE DEMPSTER (formerly LUCIANI)

Applicant

– and –

GIULIANO MICHAEL LUCIANI

Respondent

Howard Staats, for the Applicant

Birkin Culp, for the Respondent

HEARD: August 30, 2017

The Honourable Mr. justice r.j. harper

ENDORSEMENT

Issues

[1] 1. Should income be imputed to the Applicant (Christine) thus changing the ratio of the parents’ contribution to s. 7 expenses?

2. What amount should be repaid to the Christine by the Respondent (Giuliano) from an RESP that he cashed in?

3. What contribution should Giuliano make towards the gymnastics expenses of the child Samantha for the 2017/2018 season?

4. What contribution should Christine make to the cell phone charges for the child Samantha?

5. Should Giuliano pay base guideline support to Christine for the summer school break from May 1, 2017 until August 31, 2017, while the child Samantha resides with Christine?

Background

[2] Christine and Giuliano were married on August 23, 1997.

[3] They have two children of the marriage, namely, Samantha Luciani born June 16, 1998 (19) and Sara Luciani, born April 27, 2003 (14).

[4] The parties separated on December 28, 2003. They entered into a separation agreement on May 25, 2004.

[5] On July 6, 2011 Justice Arrell issued an Order pursuant to minutes of settlement signed by the parties.

Order of Justice Arrell dated July 6, 2011

[6] The Order of Justice Arrell provided for shared parenting with primary residence of the children to be with Christine. Christine was also to have the final say if the parties could not agree on parenting issues.

[7] With respect to child support, Giuliano was to pay the monthly sum for the two children of $1,169.00 per month based on his income of $80,800.00 annually.

[8] With respect to Section 7 expenses, Christine and Giuliano were to pay their proportionate share in accordance with the respective incomes. That share was set out at 70% for Giuliani and 30% for Christine. The order further provided that “all expenses must be agreed to in advance and shall include cell phone, competitive dance, dental”.

The Motions to Change

[9] Giuliano brought a motion to change. That motion was issued on February 13, 2017.

[10] That motion sought a change to the Order of Justice Arrell as follows:

1. Child support for the child Samantha and Sara, to be terminated effective August 31, 2016;

2. Based on the annual income of Giuliano of $85,500.00 he should pay child support for Sara only in the amount of $766.00 per month;

[11] The above two claims were the only requests for relief in the motion to change aside from a request for costs.

Response to Motion to Change

[12] Christine filed a response sworn on March 13, 2017.

[13] In that response she asked the Court to make an order as follows:

1. Giuliano pay his 70% share of the child, Sara’s gymnastics and related expenses;

2. Giuliano pay 70% of the education costs for Samantha who has just completed her first year at McMaster University;

3. Giuliano pay to Christine her half share of the RESP money that Giuliano took when he cashed in the RESP.

4. Giuliano pay 70% of the child Samantha’s counselling costs.

5. The Court off set money owed by Giuliano from the RESP as set out above with the proper amount owed by Christine for her 30% share of the cell phone bills.

[14] Response to the motion to change was followed up by a further motion by Christine dated July 6, 2017. That motion sought the following:

1. That Giuliano pay to Christine the sum of $4,475.42 representing his 70% share of the gymnastics costs she paid for Samantha;

2. That Giuliano produce documentary confirmation of the amount that was in the RESP at RBC at the time he cashed it in;

3. That Giuliano pay $3,700.00 representing his share of the contributions to the RESP and such further amount as may be determined upon disclosure provided by the respondent as set out above;

4. That Giuliano provide documentary confirmation of the amount he is paying for the cell phones of Samantha and Sara;

5. That Giuliano pay child support for Samantha while she is residing with Christine between May 1, 2017 and August 31, 2017 for the summer school break.

[15] That motion was met with a cross-notice of motion by Giuliano originally returnable August 4, 2017. That cross- motion sought:

1. That Christine pay 35.1% of a trip to Europe that Giuliano paid for Samantha. He claimed the 35.1% amounted to $1, 193.00;

2. That Christine pay to Giuliano 35.1% of the cell phone bill that he claims he paid on behalf of Samantha for the period of January 2012 to July 2017.

3. That Christine pay 35.1% for transportation expenses for Samantha;

4. That Christine pay 35.1% of continuing cell phone bills for Samantha from July 1, 2017;

5. That Giuliano’s contribution to the gymnastics expenses of Sara be capped at $3,500.00 per year.

Position of the Parties at the Hearing of the Motion

Agreement of the Parties

[16] The parties agreed that Giuliano shall produce proof of the amount that was in the RESP when he cashed it in within 30 days. Giuliano undertook to produce that within the time frame.

[17] Giuliano agreed that the minimum amount that he owes to Christine for the RESP cash in is $3,700.00.

Imputing Income to Christine

[18] Giuliano submitted that Christine did not disclose in her financial statement that she had income from a rental property in the amount of $750 per month. He argued that that amount of money is pre-tax and should be further grossed up for tax and included in her income.

[19] Giuliano submits that as a result of this increased income Christine would be responsible for 35.1 % of the Section 7 expenses.

[20] I reject that submission of Giuliano.

[21] The affidavit of Christine dated August 18, 2017 states at paragraph 47 that while she does receive rent from a property she owns at 75 D’Aubigny Road in Brantford she has expenses that include mortgage, taxes, insurance, utilities and other related monthly expenses that total $773.54 per month. None of those expenses were challenged. There was no attempt to cross-examine Christine with respect to her representations in this affidavit.

[22] I find that Christine nets no income from this rental property.

[23] As a result her income remains at her Line 150 income that is shown to be $34,144.46. Giuliano’s income as shown on his Line 150 tax return is $85,700.00. Based on the respective incomes the proper ratio for Giuliano’s Section 7 expenses is 71.50% and Christine’s would be 29.50%.

RESP

[24] The issue of the RESP payment by Giuliano to Christine shall be adjourned to the trial coordinator to be rescheduled before me following the production by Giuliano proof of the amount in the RESP at the time he cashed it in.

Contribution by Giuliano to Gymnastics

[25] The child Sara has been in the same gymnastic program for the last two years. In his motion material Giuliano stated that the program was different and that Christine had not sought his permission prior to enrolling the child in that program. That position was not advanced in argument on the motion.

[26] On the motion, Giuliano submitted that because his expenses have increased due to his contribution to Samantha’s university expenses, it is no longer reasonable that Sara stay in the same level of gymnastics that she is. He stated that there is a lower level available at a lower cost and as a result his contribution should be capped at $3,500.00.

[27] The costs of gymnastics for the 2017/18 term are $4,150.00 plus related expenses that total an additional $1,232.87. For a total amount of $5,382.87.

[28] The related expenses are all the same expenses to which Giuliano contributed 70% to for the past two years.

[29] The relevant provision of the Guidelines reads:

7. (1) In 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:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least of $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;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[30] The Guidelines define “extraordinary” as follows:

1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

[31] Justice Broad reviewed many of the considerations that the court must address in dealing with claims under Section 7 of the guidelines in Smith v Smith, 2016 ONSC 4622, at paragraph 13 Justice Broad stated:

The governing principles applying to claims for special or extraordinary expenses brought under s. 7 of the Child Support Guidelines were usefully and comprehensively reviewed by O’Connell, J. in the case of Kloc v. Wozniak 2013 ONCJ 363, 2013 ONCJ 363 (O.C.J.) at paras 28-37. Some of the principles which have emerged from the case-law are as follows:

An order for s. 7 expenses involves the exercise of judicial discretion, considering the objectives of the guidelines, including section 1(a) which reads “to establish a fair standard for children that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation”;

• The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances;

• One of the factors to be considered is whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred;

• The list of special and extraordinary expenses under clauses 7(1)(a) to (f) is exhaustive and if a claim does not fall within any of the listed categories it must be dismissed;

• Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support;

• A court has a discretion to order that a payor contribute to an expense if the expense is extraordinary (that is, an expense that exceeds the amount which the recipient would reasonably be expected to cover taking into account the table amount of support payable and the recipient’s income), reasonable and necessary; and

• A custodial parent does not have a carte blanche to enrol a child in any number of extra-curricular activities and then look to the non-custodial parent to share all of the costs

[32] Are the expenses necessary and reasonable having regard to the parental financial circumstances?

[33] It is acknowledged by Giuliano and Christine that Sara excels in gymnastics and that continuing in gymnastics is in her best interests. His sole argument is that due to the increased costs of post-secondary education the costs of the program that Sara has been in for the last two years is not reasonable.

[34] The evidence in this case is that Giuliano is a part owner with his brother in a business that operates a pizza restaurant. He has earned in or around the same annual income for the past 3 years. In her affidavit sworn July 6, 2017, Christine stated that Giuliano has taken multiple holidays during 2016 and 2017 as follows:

• Trip to Florida in January 2016

• Golf trip to Arizona in February 2016

• Trip to Australia in June 2016

• Golf trip to Niagara Falls in the summer of 2016

• Vacation in Kingston in August of 2016

• Vacation in Cuba in January 2017.

[35] Giuliano claims that others contributed to the costs of these trips. I find that, at its minimum, Giuliano took significant periods of time away from his work in order to attend to all of these vacations. He was aware that his daughter was going to and did attend University and yet his claim of impecuniosity did not deter him from taking all of these vacations.

[36] I also find that Giuliano declared his true intention in a text message to Christine that was filed in evidence. Among other things he stated:

“I’ll see you in court and it and for the record I’m not paying family responsibility office and I’m not paying a dime for anything until we see each other in court so good luck and I hope your daughter doesn’t need nothing from me”.

[37] He also stated:

“And I can drag this out for a long time with lawyers and court don’t forget.”

[38] If Giuliano can afford to drag this out for a long time in court with lawyers, I have serious doubt that his financial circumstances are such that he can no longer afford to pay for Sara’s gymnastics as he has for the past number of years.

[39] I find that Giuliano has the means to pay the 70% of the gymnastics expenses and he shall pay the sum of $3,768.00 to Christine. That sum represents 70% of to the total expense of $5,382.87.

Guideline Amount for Summer School Break May 1, 2017 to August 31, 2017

[40] Christine seeks an order that Giuliano pay the guideline amount for the summer school break from May 1, 2017 to August 31, 2017. Child support for adult children in post- secondary school falls within the considerations of the Child Support Guidelines Section 3 which reads as follows:

Section 15.1 of the Divorce Act provides that a court may make an order requiring a spouse to pay for the support of a child of the marriage. Such an order must be made in accordance with the Guidelines.

[41] Section 3 of the Guidelines provides as follows:

(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.

(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.

[42] Section 3(2)(a) prescribes the table approach, unless the court considers it “inappropriate”, in which case the court is to apply the approach under s. 3(2)(b).

[43] In Senos v. Karcz, 2014 ONCA 459, the Ontario Court of Appeal dealt with the application of this section of the guidelines as they relate to children over 18 years of age and in University. The Court considered the commentary of James MacDonald and Wilton at paragraph 39:

In considering whether the Table approach is appropriate, a number of courts[2] have made reference to the commentary of James C. MacDonald, Q.C. and Ann C. Wilton, Child Support Guidelines: Law and Practice, 2nd ed., loose-leaf (Toronto: Carswell, 2004) vol. 1, at p. 3-10:

The usual Guidelines approach is based on factors that normally apply to a child under the age of majority; that is the child resides with one or both parents, is not earning an income and is dependent on his or her parents. It is also based on the understanding that, though only the income of the person paying is used to calculate the amount payable, the other parent makes a significant contribution to the costs of that child's care because the child is residing with him or her. The closer the circumstances of the child are to those upon which the usual Guidelines approach is based, the less likely it is that the usual Guidelines calculation will be inappropriate. The opposite is also true. Children over the age of majority may reside away from home and earn a significant income. If a child is not residing at home, the nature of the contribution towards the child's expenses may be quite different. [Emphasis added].

[44] In this case, Samantha resides in Hamilton during the school months from September to the end of April. She then resides with her mother for the months of May through August. While at school her parents contribute to her living costs and her tuition and other related school expenses. This amount is agreed to by the parties and that agreement factors in the resources of the child and the incomes of the parents.

[45] I find that the usual approach to determining support to be inappropriate under the circumstances set out above. It would be unfair that Giuliano would have to pay the guideline amount in addition to the expenses while the child is away at school. It would also be unfair that he did not contribute to Christine by not paying the guideline amount while Samantha is residing with her from May through August.

[46] I also find that Christine makes a significant contribution to the costs of that child’s care because the child is residing with her during those summer break months.

[47] I find that the guideline amount is appropriate for the 4 months in question. I find that Giuliano has the financial means to make the payments for those months for the same reasons I enunciated above with respect to his financial circumstances relative to the issue of his contribution to gymnastics.

[48] Giuliano shall therefore pay the guideline amount based on his income of $1,266.00 for two children from May 1 to August 31 during the periods of time that Samantha is at University and residing with Christine for those months.

The Cell Phone Bills

[49] The parties provided further submissions with respect to the Respondent’s share of Samantha’s cell phone. After reviewing the submissions, the parties agree that the Respondent’s share is $1,569.52. However she should be given a credit for a further amount of $160.00 that she has paid for the months of August, September and October of 2011. I find that her outstanding amount owing is $1,409.52

Harper, J.

Released: September 15, 2017