CITATION: Elkout v. Elkout, 2017 ONSC 5475 COURT FILE NO.: FC-99-60075-2 DATE: 2017/09/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nazareen Elkout, Applicant
AND
Mahmud Elkout, Respondent
BEFORE: Madam Justice Maria Linhares de Sousa
COUNSEL: Nazareen Elkout, for self, for the Applicant and Responding Party on Motion
Carleigh Taggart, Respondent and Moving Party on Motion
HEARD at Ottawa: September 7, 2017
ENDORSEMENT
[1] Mr. Elkout brings this motion to change seeking the following relief, namely an order terminating his obligation to pay child support for the remaining child, Adam, and an order crediting to him amounts of overpayment for child support that he has paid since January 2014 which Mr. Elkout calculates to be $6, 296.00
[2] Ms. Elkout contests the motion to change. She submits that Adam continues to be a dependent child of the marriage and is enrolled in school on a full time basis at Algonquin College in Ottawa. Ms. Elkout acknowledges that there may indeed have been an overpayment in child support during the time period identified by Mr. Elkout. Her calculation is less that that submitted by Mr. Elkout at $3,696. In any event, Ms. Elkout argues that there should not be any retroactive credit for child support payments made by Mr. Elkout for the period identified by him in view of the respective history of the parties’ earnings, which has materially fluctuated, in certain years since 2012 without any change to the original order for child support, that of Mackinnon J., dated February 22, 2006, which has not been changed since that time.
[3] I am persuaded by the argument put forward by Ms. Elkout concerning the issue of retroactive credit for over payment of child support. Having examined the respective annual incomes of the parties since 2012 (found in the material filed by the parties), and who has borne the brunt of the financial support and child care of the three children of this union, I cannot conclude that there would be any great injustice to Mr. Elkout in refusing his claim for retroactive credit for the overpayment of child support he says he made in the time period identified by him. For that reason that item of relief on the motion is refused.
[4] The two older children are now independent and have essentially funded on their own their post-secondary education.
[5] With respect to ongoing support, both base support and his section 7 expenses (identified as his Algonquin College fees and his ongoing medical and dental expenses) for the child Adam, this child suffers from many personal challenges including mental health. As the evidence demonstrates, these personal challenges have disrupted from time to time, including periods of hospitalization, Adam’s education which is why it took him almost 8 years to complete his high school education. He is currently enrolled at Algonquin College and began his second year of a two year course in September of 2017.
[6] Mr. Elkout, during the course of the motion acknowledged that Adam is pursuing an education program at Algonquin College on a full time basis. As a result, Mr. Elkout accepted that Adam continued to be a child of the marriage and was entitled to support.
[7] Nonetheless, Mr. Elkout submitted that he should still receive some retroactive credit for the months for which he paid support for Adam between the months of January, 2016 (when Adam graduated from high school) and September, 2016 (when Adam commenced his first year at Algonquin College which, as of the date of the motion, he had successfully completed.
[8] Ms. Elkout submits that although there was a gap of approximately 9 months (January to September, 2016) in Adam being in school, Adam had from the very beginning of that period every intention of pursuing studies at Algonquin College. In fact, according to Ms. Elkout, Adam received his acceptance to Algonquin College in February, 2016.
[9] While Adam has had part-time employment, his earnings over the last few years have been minimal. Ms. Elkout has continued to provide Adam with a home. I am not persuaded that Mr. Elkout should receive any retroactive credit for child support paid by him for the child Adam for the months for January to September, 2016.
[10] In response to Mr. Elkout’s motion to change, Ms. Elkout has also claimed some retroactive payment of child support relating to the other two children and their school expenses. Given the time that has passed and that these two children are now independent, I dismiss this part of Ms. Elkout’s response to Mr. Elkout’s motion.
[11] There will therefore be an order of ongoing support for the child Adam for so long as he pursues his studies in his current program at Algonquin College. The parties agree that the amount to be paid by Mr. Elkout for the support of Adam is $736 per month, in accordance with the child support guidelines, based on Mr. Elkout’s declared income for 2017 of $81,710 per annum. This shall be effective September 1, 2017.
[12] Mr. Elkout raised the question of Adam being eligible, in his own right because of his mental health challenges, to receive upon application a regular monthly allowance under ODSP. He might even be eligible to receive upon application a retroactive lump sum. I do not take this contingency into account at this time in considering the final quantum of Adam’s monthly child support. Child support for Adam shall continue to be paid in accordance with the child support guidelines amount until further order of the court.
[13] The parties are obligated to exchange by July first of each year, commencing in July 1, 2018, their income tax returns and notices of assessment for the purpose of determining the appropriate child support guideline amount, if any, that ought to be paid for Adam effective the first of August of the year of exchange.
[14] The parties are agreed that Mr. Elkout may accompany Adam to assist him in making his application to ODSP. The parties are further agreed that should Adam make such application and as a result receive a lump sum retroactive payment from ODSP, that Adam would receive such retroactive lump sum without any retroactive amendment to the child support paid by Mr. Elkout for Adam.
[15] The second support issue concerns Adam’s section 7 expenses. The evidence showed that the Algonquin College school fees and the cost of his computer required for Adam’s first year at Algonquin College were paid for by an RESP that Ms. Elkout had set up for Adam. In view of that Mr. Elkout does not owe Ms. Elkout any section 7 school expenses for that year.
[16] With respect to his second year Algonquin College school fees Adam has applied and received some OSAP funding. The evidence shows that Ms. Elkout is out of pocket $2,116.44 which she paid for the cost of Adam’s first semester in September of 2017 and seeks to have a pro rata sharing between the parties of this expense.
[17] Mr. Elkout submits that this expense should be shared equally. I do not understand that position because Ms. Elkout’s earnings are so much less than his. Ms. Elkout agreed that despite her low earnings, a sharing of the s. 7 expenses at a 65%/35% ratio would be fair. I could not disagree with this. There will be an order that all of the remaining school fees and other necessary post-secondary education expenses required for Adam to complete his current course of studies are to be shared pro rata between the parties on a 65% (Mr. Elkout) to 35% (Ms. Elkout) basis. As a result Mr. Elkout is ordered to pay Ms. Elkout forthwith the amount of $1,376 as his pro rata share of Adam’s first semester school fees. This shall be enforced by FRO.
[18] There is also an issue raised as to whether Adam continues to be covered on Mr. Elkout’s medical and dental plan. Mr. Elkout was ordered to provide this court with proof that Adam is still covered on his medical and dental plan as he represented to this court. This has now been filed with the Court.
[19] The evidence indicated that Ms. Elkout spends roughly $80 per month in purchasing medication for Adam which he needs to deal with his mental health. She has no medical plan, while Mr. Elkout does have one, and she has been out of pocket these expenses for the last few years. This expense shall be shared by the parties on a pro rata basis of 65% (Mr. Elkout) and 35% (Ms. Elkout) This amount ($52 per month) shall be added to his regular support payments payable by Mr. Elkout effective October 1, 2017.
[20] The evidence showed that Mr. Elkout has not contributed to Adam’s medical expenses since January 2015. As a result Ms. Elkout has incurred to date some $2,059 on behalf of Adam. Mr. Elkout is ordered to pay his pro rata share of these expenses (65% of $2,059 = $1,338) forthwith. This amount shall also be enforced by FRO.
[21] Mr. Elkout is free to seek out any reimbursement to which he may be entitled under his plan for this payment and is to reimburse Ms. Elkout for any amount of this expense which she paid for and for which Mr. Elkout may receive a reimbursement under his medical or dental plan.
[22] The last issue is that of costs. Mr. Elkout shall have two weeks from the release of this endorsement to file and serve his written submissions on the costs of the motion. Ms. Elkout shall have two weeks from that date to file and serve her written submissions on the costs of the motion. One week from that date Mr. Elkout shall be permitted to file and serve any reply he deems appropriate.
Madam Justice Maria Linhares de Sousa
Date: September 14, 2017
CITATION: Elkout v. Elkout, 2017 ONSC 5475 COURT FILE NO.: FC-99-60075-2 DATE: 2017/09/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Nazareen Elkout, Applicant
AND
Mahmud Elkout, Respondent
BEFORE: Madam Justice Maria Linhares de Sousa
COUNSEL: Nazareen Elkout, for self, for the Applicant and Responding Party on Motion
Carleigh Taggart, Respondent and Moving Party on Motion
ENDORSEMENT
LINHARES DE SOUSA J.
Released: September 14, 2017