CITATION: Hurrell v Reckzin, 2017 ONSC 647
COURT FILE NO.: 10-655
DATE HEARD: January 25, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hurrell v Reckzin
BETWEEN: Deborah Marie Hurrell, Applicant and Yancy Earl Reckzin, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Self-Represented Applicant, Respondent on the Motion
Carolyn Kelly for the Respondent, Moving Party on the Motion
ENDORSEMENT
Introduction
[1] This motion is made by Mr. Reckzin seeking a variation of the following provisions:
a. My previous order of April 20, 2015, made with the consent of the parties, wherein the amount payable for child support for Brittany and Zackery was revised to $675 per month; and
b. The consent order of Kershman, J dated August 19, 2011 directing that the parties would contribute to the children’s post-secondary education expenses proportionately with their incomes with the child contributing one third of the cost, whether through loans, bursaries or savings.
[2] Mr. Reckzin must demonstrate a material change of circumstances in order to seek a variation. I am satisfied that this prerequisite has been met because Brittany is now residing away from home for most of the year while attending Canadore College in North Bay, Ontario and Ms. Hurrell’s gross income for income tax purposes increased due to RRSP withdrawals in varying amounts in the last few years, but particularly in 2015.
[3] Brittany lived with her mother until she left for college and returns home when not in school. Zackery lives with both parents on a week-about basis.
Issues
a. Should Ms. Hurrell’s RRSP withdrawals be included in her income for child support purposes?
b. How are Brittany’s post-secondary school expenses to be apportioned?
c. How should child support in relation to Brittany be calculated from September 1, 2015 when she became a student at Canadore College in North Bay?
d. Allocation of section 7 expenses in relation of the extended health benefits available to the parties.
Calculation of Ms. Hurrell’s Income for Child Support Purposes
[4] Ms. Hurrell’s income from employment is straightforward and easily identified. In 2015 she received employment income of $42,766. Her 2014 employment income was $41,288. In addition, Ms. Hurrell made RRSP withdrawals in both 2015 and 2014. She explained that as a result of home expenditures and cost overruns, it was necessary to make RRSP withdrawals to cover all the expenses. Since Ms. Hurrell is involved in the financial services industry, it was essential that the bills not become overdue and/or go to collection because of the implications for her employment. In 2015 she withdrew $30,042 from her RRSP and in 2014 she withdrew $9,890.
[5] I agree that Ms. Hurrell’s RRSP withdrawals should be included in her income for child support purposes even after the parties’ equalized their family property. This is consistent with the reasoning of our Court of Appeal in Fraser v. Fraser, 2013 ONCA 715 at paras. 98-105. Different considerations would apply if the parties were dealing with spousal support rather than child support issues.
[6] I do not see that there would be a significant benefit to averaging her income over several years to smooth out the annual variations. In my view there are no compelling fairness issues that would warrant a different approach to her income calculation other than by way of annual adjustments, in part because the parties have traditionally adjusted child support annually based on their incomes for the previous year.
[7] As for the rental income, Mr. Reckzin contends that Ms. Hurrell received net rental proceeds of $2,400 and in his 2015 child support calculations he added this amount to Ms. Hurrell’s income. Ms. Hurrell’s affidavit evidence is inconsistent on this point. Her tax filings appear to suggest that she has received some rental income net of expenses and this is the most reliable evidence notwithstanding her claim that there has been no net rental income. I accept that the sum of $2,400 should be added to Ms. Hurrell’s income for 2015.
[8] Mr. Reckzin says that the parties traditionally adjusted child support mid-year based on the previous year’s reported income. This is a common practice and I do not see any reason to depart from this method of adjusting child support annually based on changes in income.
[9] I accept that child support should be re-calculated as of September 1, 2015 to reflect the fact that Brittany was no longer living at home.
[10] I also accept that Ms. Hurrell is entitled to receive child support for Brittany for four months during the summer vacation in 2016. The evidence was that Brittany returned home at the end of the 2015-2016 school year prior to resuming her studies in North Bay in September, 2016.
Apportionment of Post-Secondary Education Expenses
[11] The position of Mr. Reckzin is that he was never included in the discussions regarding Brittany’s program and school choices, education budget discussions or other planning for her post-secondary education, many of the details of which were only disclosed to him after this motion was filed.
[12] He says that through a combination of employment income, bursaries, grants and loans received by Brittany, her first and second year of college should have been paid without the need for parental contribution, especially considering her income potential following graduation. It is clear that Brittany had substantial employment income from working at two jobs. She also obtained a bursary from her school and received both student loans and grants. Mr. Reckzin says her 2015-2016 receipts total $20,048 and her anticipated 2016-2017 receipts could amount to $15,022.
[13] Ms. Hurrell’s position is that Mr. Reckzin was not part of the planning process because he does not have a relationship with Brittany through no fault of Brittany’s and the existing order provides how her schooling is to be paid for.
[14] Specifically, the order of Kershman J. of August 19, 2011, made on consent, provided that:
- The parties shall contribute to the children’s post-secondary education expenses in proportion to their incomes with the child applying one third of the expense initially either through their own employment, gifts, bursaries, loans etc. The post-secondary costs include but are not limited to tuition, books, residence etc.
[15] Mr. Reckzin also says that the parties took a different approach in dealing with the post-secondary expenses of their eldest child, Amanda, so there is a precedent for not following the order on how post-secondary expenses are to be paid.
[16] On this point I have three comments. Firstly, I note that the court order applies to “the children” without exception. Secondly, parties are free to waive contractual provisions if they both wish to do so. Thirdly, the evidentiary record on this motion does not contain a complete picture of how Amanda’s schooling was paid for so it is difficult to determine exactly and to what extent the parties departed from the terms of the order when paying for Amanda’s education.
[17] Counsel for Mr. Reckzin referred to several cases on how to apportion post-secondary education expenses. As I understand it, none of these cases dealt with a situation where the parties had previously agreed by contract and by court order as to how these costs were going to be shared. The agreement of the parties has considerable persuasive effect and ought to be respected unless there are unusual circumstances which are not present in this case. My impression of the situation here is that now, several years later, Mr. Reckzin doesn’t like some aspects of the deal he made in 2011 and wishes to cherry-pick what terms he wants to modify. This should not be permitted.
[18] While it is troubling that a parent may be required to pay substantial sums with very little input, if any, with respect to matters such as the school chosen, the costs incurred and the courses selected, the court order that the parties agreed to is silent on these points. Sadly, it is often the case in these situations that the parent who is complaining about the education arrangements does not enjoy open communications with the child involved. In my view, it should be implied that both the student and the other parent have a responsibility to make a reasonable effort to consult and provide on-going information to the parent who is being asked to contribute to these costs. To date, that does not appear to have taken place in relation to Brittany’s post-secondary education. There is an element of unfairness where a student pursues school plans and incurs substantial expenses while providing no information to a parent who is then asked to contribute to the costs after the fact. Some consideration ought to be given to the fact that Mr. Reckzin was not provided with timely disclosure of the education plan and the associated costs.
[19] Balancing these completing principles, I have concluded that the order should apply from this point forward. Effective the current semester and going forward, Mr. Reckzin and Ms. Hurrell shall be responsible for two-thirds of Brittany’s reasonable education expenses for her current program in proportion to their income. I am assuming that a new semester has just or is about to start.
[20] Ms. Hurrell’s income shall include the RRSP withdrawals and the rental income previously identified in this Endorsement. Brittany shall be responsible to pay the remaining one-third.
[21] Brittany or Ms. Hurrell shall provide Mr. Reckzin with details of all school-related expenses and transcripts together with all relevant supporting documentation so that the costs can be verified on a timely basis.
[22] Mr. Reckzin is not liable for any of Brittany’s prior post-secondary expenses due to a failure by Brittany and Ms. Hurrell to consult with Mr. Reckzin and to and provide basic information to him before or at the time the expenses were incurred.
Table Amount Child Support for Brittany From September 1, 2015
[23] Table amount child support for Brittany shall be deemed to have been suspended as of September 1, 2015 when she went away for school until the end of the school year in April, 2016. Brittany is entitled to child support for four months during the summer of 2016 and for next summer as well if still enrolled in her current program and assuming she returns to her mother’s home for the summer. Mr. Reckzin’s child support obligation for Brittany shall end completely when she either withdraws from, or completes, her current course of study.
Section 7 Expenses
[24] The issue here as I understand it relates to the parties’ responsibilities to contribute to their children’s extraordinary expenses in light of the respective extended health benefits offered by their employers. The parties’ submissions focused on dental expenses. Mr. Reckzin’s employer offers a cost free benefit plan with dental coverage up to a defined limit. Ms. Hurrell’s employer offers a more complicated and less generous package. It appears that Ms. Hurrell can opt out of some coverages and if she does, she receives a cash adjustment in her favour. Mr. Reckzin’s complaint is that Ms. Hurrell should be required to obtain (and if necessary, to pay for) the full range of benefits available to her so that Mr. Reckzin’s requirement to contribute to the uninsured portion of dental expenses will be less.
[25] I am not persuaded that it would be appropriate in the circumstances of this case to order Ms. Hurrell to purchase a better benefit package. The fact that Mr. Reckzin’s benefits are provided cost-free by his employer is a major consideration. I don’t see a compelling reason to depart from the current system of requiring the parents to split the cost of the uninsured portion but it should be done on a 50-50 basis. While I am not going to require Ms. Hurrell to purchase better coverage, I think it would be fair to share the expense equally rather than in proportion to their income. In years when Ms. Hurrell does not receive income from sources other than from her employment, this arrangement will require a somewhat higher contribution by Ms. Hurrell than what proportionate sharing would indicate. This measure will go some distance in addressing Mr. Reckzin’s complaint without forcing Ms. Hurrell to buy more coverage than she may realistically need.
Disposition
[26] The parties are directed to calculate the state of accounts in accordance with the terms of this endorsement and to incorporate the results into a draft order. In the event that there is a credit in Mr. Reckzin’s favour after the adjustments are made, he will be entitled to exercise a set-off against his ongoing support and section 7 obligations until the state of accounts is brought into equilibrium. Conversely, any shortfall owing by Mr. Reckzin shall be paid forthwith.
[27] Brittany’s schooling costs should include a reasonable allowance for food and meals and a reasonably-priced cell phone plan. I see no reason why Mr. Reckzin should not be permitted to pay his contributions to Brittany’s schooling expenses directly to Brittany so long as he provides details of any payments to Ms. Hurrell as well.
[28] In the event that the parties cannot agree on the calculations or the terms of the order based on this endorsement, either party may make an appointment with the trial coordinator to settle the order. If this becomes necessary, each party shall file a brief containing their calculations and any assumptions upon which their calculations are based and a proposed draft order for consideration 7 days in advance of the hearing date.
[29] On the issue of legal costs, Ms. Kelly may submit a costs outline and a bill of costs within 15 days and Ms. Hurrell shall have 15 days to respond.
James, J.
DATE: February 13, 2017
CITATION: Hurrell v Reckzin, 2017 ONSC 647
COURT FILE NO.: 10-655
DATE HEARD: January 25, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hurrell v Reckzin
BETWEEN: Deborah Marie Hurrell, Applicant and Yancy Earl Reckzin, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Self-Represented Applicant
Self-Represented Respondent
ENDORSEMENT
James, J.
DATE: February 13, 2017