Makdissi v. Masson, 2017 ONSC 6498
COURT OF ONTARIO,
SUPERIOR COURT OF JUSTICE, FAMILY COURT
RE: Paul Makdissi, Applicant
AND:
Suzanne Masson, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Julius Dawn, for the Applicant
Meagan LePage, for the Respondent
HEARD: July 18th, 2017
ENDORSEMENT
1The question posed by this motion to change is whether child support should remain payable for adult children pursuing higher education at the PhD level and if so how that support should be calculated.
2This is a high income family which values academic achievement and these are highly intelligent high achieving children. Under the circumstances particular to these parents and these children, do the Divorce Act and the Child Support Guidelines recognize an ongoing legal obligation for the Respondent to subsidize the Applicant’s household through the child support regime while the children pursue PhD studies?
3I have concluded that in the circumstances of this family with the level of parental income available to them, the academic expectations of the parents and the children and the demonstrated academic achievement of the children, continued entitlement to support would not be unreasonable. The governing factor is therefore one of need and the ability of the children to cover their own costs. The question is whether the father (the support recipient) remains financially responsible for the children because they are unable to support themselves.
Background & Existing Order for Child Support
4The Applicant father is a university professor who lives in Ottawa and the Respondent mother is a physician who lives in Drummondville, Quebec. For purposes of this motion it is not necessary to detail the history of the relationship or the legal proceedings that followed separation.
5In brief, the parties were married on June 26th, 1993, they separated on September 17th, 2001 and were divorced on March 28th, 2004. They are parents of two children, Étienne and Jeanne. Étienne will be 24 in just over a month and Jeanne turned 22 earlier this year. Following separation, the parents exercised joint custody for many years and had both moved to Ottawa for a time. In 2010 the mother gave up her Ottawa residence and moved to Drummondville. In 2011 the existing child support obligations were imposed following a motion before The Honourable Madam Justice Parfett of this court.
6The decision of the court was set out in reasons released on December 15th, 2011. After some dispute over the form of the order, it was ultimately signed by Parfett J. on February 13th, 2012 and made into a final order. It constituted a variation of the support provisions set out in the original divorce judgment granted in Quebec on March 28th, 2004 (Cour Supérieure de Quebec, District de Saint-François, Dossier no. 450-12-020958-015).
7The relevant provisions of the current order read as follows:
THIS COURT ORDERS THAT commencing January 1, 2011 the Respondent/Mother shall pay the Applicant/Father child support for the two children of the marriage, namely Étienne Masson-Makdissi, born November 23, 1993 and Jeanne Masson-Makdissi born July 12, 1995 in the amount of $4,000 per month on the first day of every month, based on her income of $593,500.
THIS COURT FURTHER ORDERS THAT the children’s extraordinary expenses shall be shared in proportion with the parties’ income, namely the Respondent/Mother shall pay 82% of the children’s extraordinary expenses and the Applicant/Father shall pay 18% of the children’s extraordinary expenses. The children’s extraordinary expenses include post-secondary expenses (tuition, incidental fees and books, and private school fees). For the 2011/2012 school year, the Respondent/Mother’s share of extraordinary expenses is fixed in the amount of $7,226.00.
THIS COURT FURTHER ORDERS THAT the Applicant/Father will pay any extraordinary expenses and provide receipts to the Respondent/Mother for her to pay in accordance with the percentages set out above. The Respondent/Mother will pay those expenses within 30 days of receiving the receipts.
8I am advised that the Family Responsibility Office is enforcing not only the ongoing monthly support but also the “extraordinary expenses” based upon lists submitted to FRO by the Applicant father. This is part of the dispute as the respondent mother claims that the expenses are in excess of those authorized by the order, are inflated and constitute “double dipping”.
9The current variation proceeding (motion to change) was started on May 4th, 20161 but the motion was reconstituted and amended prior to the hearing and there is also a cross motion.2 Basically the Respondent mother seeks an order terminating the support for each child on the date when they completed or will complete a second postsecondary degree. That is when they have each earned a master’s degree. For his part the Applicant seeks an increase in support because of the Respondent’s increased income and they both seek retroactive adjustments. In particular the Respondent claims to have overpaid support by approximately $80,000 because of inflated claims for extraordinary expenses and because of failure to disclose the incomes available to the children themselves.
The State of Affairs at the time of the 2011 motion
10It is important to consider the findings of fact that were made at the time of the last order. Firstly, Parfett J. found that as a medical doctor the mother had always been the primary income earner and until she relocated to Drummondville, she had paid all of the children’s expenses other than the day to day expenses during the weeks the children resided with the father. Following the relocation to Drummondville, she found that the children were in the primary care of the father and the mother had an obligation to pay child support.3
11At the time of the hearing, the court found that the father’s annual income was $127,000.00 per year and the mother’s income was $583,700.00. Secondly, the court found that the child support tables were inappropriate and instead child support was to be determined with regard to the condition, means, needs and other circumstances of the children.4 In determining the latter, the court found that the budget proposed for the children by the father was unduly rich and that proposed by the mother was unduly parsimonious.5
12The judge fixed the support obligation at $4,000.00 per month. Of particular importance, part of this amount was to cover the “indirect expenses” for the children such as housing, utilities, groceries and transport while the children were living at home. Part of the regular monthly support was also to cover clothing, spending allowance, sports participation and equipment, meals outside the home, vacation, discretionary spending, cellular telephones and internet. In fact a detailed budget for the children formed part of the reasons and was the basis for the support order.6
13When it came to extraordinary expenses, the judge held that the only extraordinary expenses at the time were Étienne’s net cost of tuition, incidental fees and books and Jeanne’s private school fees. At the time Étienne had no tuition cost because he was attending the University of Ottawa where his father is a professor. It was the decision of the court that 100% of bursaries, scholarships or academic awards be applied in reduction of the cost of education before the parents were required to contribute. The court found that Étienne’s scholarship covered all of his educational and extraordinary expenses and therefore ordered the Respondent to pay only 82% of Jeanne’s tuition at Lycée Claudel.7
14Equally significant was the fact the court declined to quantify the extraordinary expenses for future years and declined to specify a termination date for child support. The judge did declare that 50% of each child’s summer earnings should be contributed to their own post-secondary expenses before the parents’ shares were calculated. She also indicated that in her view if either child attended university away from home that would trigger the necessity to recalculate support.8
15These findings are important because of the nature of the issue before the court. This is a variation motion. It is not a hearing de novo of issues already decided.
Changes since 2011
16At the time of the motion in 2011 the father had primary responsibility for the children and they were both residing at home. Étienne was attending the University of Ottawa (where the father could get free tuition for the children) and Jeanne was at Lycée Claudel finishing high school.
17Since that time, Étienne has completed a bachelor’s degree and master’s degree at U of O and has been admitted to a prestigious doctoral program at the University of Toronto. He has been studying in Toronto since September of 2015. Jeanne has also completed a first postsecondary degree at U of O and is enrolled in the master’s program. She expects to finish her degree in 2018 and also hopes to pursue a doctoral program at another university.
18The incomes of each of the parents have changed. The Applicant father earned $158,399 in 2016 while the Respondent mother earned $684,281. The mother’s income fluctuates however. In 2012 and 2014 she earned over $700,000. She asserts that her earnings will be lower in 2017.
The Legal Test
19Variation of child support pursuant to a divorce judgment is governed by s. 17 (4) of the Divorce Act.9 The Act provides that the court must be satisfied that there has been a “change of circumstances as provided for in the applicable guidelines”. The test is then set out in the Federal Child Support Guidelines themselves.10
20Justice Parfett decided in 2011 that the child support tables were not appropriate in determining the level of child support. As illustrated above, she made a support order based on what she regarded to be a reasonable budget for the children at the time. She treated tuition and other costs of education as extraordinary expenses.
21Section 14 of the Guidelines provides that where the amount of support in the previous order was calculated using a basis other than the child support tables, any change in the “condition, means, needs or other circumstances of either spouse or of any child who is entitled to support” constitutes a change in circumstances.
22With respect to child support, this is not a high bar. Changes in the incomes of the parents, the academic circumstances of the children, the needs of the children or their ability to contribute to their own support will constitute a change in circumstances within the meaning of the Act and the Guidelines.
23As I have said, there have been significant changes in circumstances. Jeanne completed high school and began university. She has completed a first degree and is well on her way to completing her master’s. Étienne completed his first and second degrees and is now enrolled in the PhD program. Étienne moved to Toronto to pursue his education. The incomes of the parents have changed and the incomes of the children have changed. All of these changes justify a review of child support. This is not an invitation to re-open issues already decided or to review support de novo. The variation should only be the variation that is required by the change in circumstances since the making of the order.11
Analysis
24The first question is whether the change in circumstances has ended the obligation to pay child support. Under the Divorce Act an order may be made requiring one parent to pay child support to the other parent for a child that “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 necessities of life”.12
25The operative words here are “under their charge” and “unable by reason of … other cause to withdraw from their charge”. In short the parent seeking child support must be supporting the child and it must be reasonable for him or her to do so because the child is not able to support him or herself. It is well established that attendance at post-secondary education will satisfy this test but it is rare for the court to find that the obligation to pay support continues once the child has earned two post-secondary degrees.13 The question however is not whether there is a magical bright line cut-off after one or two university degrees. There is not. The question is whether the parent seeking support remains financially responsible for the adult child and whether or not that is reasonable under all of the circumstances.14 The key consideration is dependency.15
26This is a family with high academic expectations, highly intelligent and academically motivated children and a combined parental income approaching a million dollars per year. What may be reasonable for these children and these parents may be quite different from a situation where the incomes are more modest and the academic potential of the children less dramatically evident.
27The factors often applied in deciding this question are the “Farden factors”. These were first set out in a decision of the late Master Joyce (as he then was) in the Supreme Court of British Columbia in 199316 but they have often been cited in this court and elsewhere.17 Those factors were set out as follows:
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 or not the child has applied for, 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 their relationship from the parent from whom support is sought.
28The Child Support Guidelines were passed in 1997.18 With respect to children over the age of majority, s. 3 (2) of the regulation provides that the court may either order support in the manner that would be appropriate for a child under the age of majority (i.e. the table amount plus section 7 expenses) or “if the court considers that approach 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.” This codification is consistent with the Farden factors and includes consideration of the extent to which the child is able to contribute to his or her own upkeep.
29The evidence in this case is very clear that this is a family that can afford postsecondary education for their children and that during the marriage the children were both encouraged and expected to excel academically. They have both done so.
30While the mother deposes that the children have distanced themselves from her and she suspects they are only maintaining the relationship in order to justify ongoing child support, it cannot be said on this evidence that the children have repudiated the relationship. As recently as 2014 the mother specifically pledged to support Étienne financially if he attended “Harvard or another prestigious university”. She has similarly encouraged Jeanne and promised her financial assistance. It is true that parents must be treated as more than a wallet but the evidence before the court does not persuade me the children have repudiated their relationship with their mother such that she is no longer responsible for supporting them.19
31On the facts of this case all of the Farden factors favour ongoing entitlement to support. The variable factors are b), d) and h). That is the extent to which the children are able to support themselves taking into account all sources of revenue. Justice Parfett ruled that all of their grants, bursaries and scholarships should be applied to tuition costs and educational expenses and 50% of their income from summer employment should be utilized for that purpose. The parents should only have to subsidize the net cost of education as extraordinary expenses.
32In 2011 she also calculated a monthly support obligation based on what she felt was a reasonable budget for children living at home but which was considerably less than the amount which would have resulted had she applied the child support tables. All of the children’s day to day living expenses were included in the monthly support and were not treated as extraordinary expenses. This is one of the issues that will have to be re-examined once the children leave home.
33Beginning at a date which the mother puts as September of 2015 Étienne started living in Toronto and attending U. of T. That requires a different approach to both the monthly amount of support and to the calculation of educational expenses. In the case of a child living away from home, in my view all of the residence and living costs are more appropriately dealt with as extraordinary expenses to the extent that they cannot be funded from the child’s own resources.
34In my view once Étienne started living in Toronto, all of his reasonable living expenses should be regarded as extraordinary expenses and he should be applying all of his own revenue against those expenses before any contribution from his parents is legally required. It follows that the monthly support amount should be reduced. If and when Jeanne leaves home, I would apply a similar formula and at that point the monthly payments should cease to be replaced by a proportionate share of her net budget after deducting funds or subsidies available to her from her own resources.
Income of the Parents
35The support will have to be adjusted for the years 2012 – 2017 because of changes in the parent’s income. It appears the mother’s income increased substantially in the year following the previous order. Since then it has fluctuated but has been higher than the amount used by Justice Parfett. Of course the father’s income has also increased but by a much smaller percentage.
36It should be a simple matter to recalculate the percentage of contribution year to year but in order to do that, the court must also consider the fluctuations in the income of the Respondent mother. In 2012 she earned $740,575.00 and in 2013 and 2014 it was $612,574.00 and $709,031.00 respectively. In 2015 she earned $631,202.00 and $684,281.00 in 2016. It is her evidence that her income will be reduced to $566,017.82 in 2017 although it will of course be possible to ascertain her 2017 income very shortly as we are close to the end of the year.
37In cases with fluctuating income, the courts have frequently utilized a three year average or some other method to calculate income for the purpose of applying the Guidelines.20 In my view an averaging approach is the fairest approach when dealing with income that fluctuates from year to year. This is particularly true of professional income which is in part based on fee for service because various factors may result in income that might have fallen into December being realized in January or vice versa. Accordingly I have concluded that the Respondent’s income for 2012 – 2014 should be averaged to $687,393.00 for each of those years. The income for 2015 – 2017 should be averaged in the same manner once the 2017 income can be finally determined.
Contribution by the Children
38As noted earlier, the children’s resources have also changed but as I will come to in a minute it is impossible on the evidence before me to determine precisely what those resources are and how they match with expenses for each of the years in question. While at the University of Ottawa, for example, they continued to receive a full refund of tuition fees because their father is a professor. But one year while he was on an exchange in Australia, they attended university in Australia so the expenses were much higher.
39Their incomes or resources are also confusing. Parfett J. held that their scholarships, bursaries and other financial supports from the university should be deducted. She held that 50% of summer employment should be contributed towards educational costs. At the time the children had no significant teaching income but at least part of the income they now earn as teaching assistants is part of a package of support provided by the university. In my view income earned during the school year for teaching is a form of support from the university and it should be entirely applied to supporting the child who is living away from home.
40To be clear, I would not interfere with the formula utilized by Parfett J. while the children were both residing at home and attending the University of Ottawa. Once Étienne started living in Toronto, the monthly support amount should be reduced and instead all of his expenses should be funded by first applying his own resources and then requiring a proportionate contribution from his parents. Jeanne’s expenses should continue to be funded by a combination of monthly support and proportionate contribution to the net cost of education. To make these calculations accurately, however, will require considerably more detail than can be gleaned from the affidavit evidence.
41As an example, in 2016 Jeanne earned $9,040.00 in employment income but it is not clear whether that was earned during the school year or was earned during the summer. Moreover since T4 slips are based on a calendar year, it includes income earned during parts of two academic years.
42The evidence is that Étienne has a financial package from the University of Toronto which provided him with $30,586.00 in guaranteed funding for the 2016 - 2017 academic year and will provide him with at least $27,463.00 in funding for the remaining three years of his PhD program. If he secures additional teaching assistantships or research assistantships these will generate additional income. This is detailed in the letter offering him admission to the PhD program dated February 19th, 2016.
Missing Evidence
43The evidence on this motion was primarily devoted to the question of whether the children remained children of the marriage, whether they had repudiated the relationship, the income of the mother and allegations that the father had claimed excessive amounts of s. 7 expenses. These are indeed questions that require adjudication and on this evidence I am able to provide the rulings necessary to calculate prospective and retroactive support adjustments. Despite the volume of affidavit material that has been filed since the motion to change was first initiated however, there is insufficient evidence to perform the necessary calculations because there are gaps in the financial information.
44Examples of missing evidence are as follows. There is no sworn evidence showing the income of the father in 2012. There is a number in the Divorce Mate calculations but there is no tax return for that year. A second example is the allegation that the father has exaggerated the extraordinary expenses. There are examples in the affidavit evidence from which it may be inferred that expenses other than the educational expenses permitted by Parfett J. have been claimed but nowhere in the affidavit is there a complete list of the expenses submitted by the father for each of the years 2012 – 2017.
45The most glaring omission is that the material does not clearly set out the resources available for each of the children for each of the years in question. This appears to be partly because of disagreement between the parents as to how the tuition subsidy was to be recognized. There is no room for disagreement on this point. Parfett J. made it quite clear that it was the net cost of educational expenses after deducting all bursaries, scholarships, fee rebates and 50% of the children’s summer employment income that constituted an extraordinary expense. The failure by the father to clearly provide this information supports the argument by the mother that he has also withheld this information from her.
46Providing only partially complete numbers and then expecting the court to make detailed financial rulings is not appropriate. A court should not be called upon to produce its own calculations or to run its own reports. In our court system, the court does not conduct its own investigations or calculations or create evidence to fill in gaps in the record. Rather the role of the court is to adjudicate based on the evidence and the submissions of the parties assisted by experts if necessary.21
47In some cases gaps in the evidence have resulted in dismissal of the motion or application because the moving party has failed to meet the burden of proof. I am not persuaded that is a just approach particularly in a case such as this where both parties seek retroactive recalculation of the support amounts but disagree on how the principles should be applied.
48A better approach on the facts of this case will be to rule on the framework for support and then invite the parties to do the necessary accounting. They may return to court for further more specific rulings based on clearly organized financial information if they cannot resolve this themselves.
Conclusion
49My rulings are therefore as follows:
a. Under the circumstances of this family, given the combined financial resources of the parents, the expectations and abilities of the children and representations that were made to the children when they were younger, the children will continue to be children of the marriage until they complete their postsecondary education to the extent that they are not self supporting.
b. The children have not repudiated the relationship with their mother and she remains obligated to pay support.
c. The proper approach to adjustment of the monthly amount of support ordered by Parfett J. until the time that Étienne began, and Jeanne begins, to live away from home is to adjust the support based on the budget established in the original order and the income of each parent. To the extent that the budget required legitimate changes because of changing circumstances of the children, this would justify a change in support. To the extent that the mother’s income materially increased in relation to that of the father, this would justify an increase in the monthly support.
d. From the date that Étienne started renting accommodation in Toronto and attending school in Toronto, all of his expenses should be treated as extraordinary expenses and the monthly support should be reduced by an appropriate amount. The reduction should not necessarily be to 50% of the monthly support originally ordered but would reflect the needs of only one child living at home.
e. Given the fluctuations in the income of the mother, a three year average is the fairest way to treat her income. Accordingly the income from 2012 – 2014 will be the average of those three years. The income for 2015 – 2017 will be the average of those three years once the income for 2017 is determined.
f. In accordance with the original order, the only extraordinary expense was the net cost of postsecondary education. That is to be calculated by adding the cost of tuition, books and university incidental fees or other legitimate costs of education, not included in the budget. From that amount is to be deducted all scholarships, bursaries, funding or income from any source earned by the children during the school year and 50% of any income from summer employment. The net cost is then to be shared by the parents proportionate to their income.
g. I agree that the cost of postsecondary education while in Australia when the father was on his exchange year is a legitimate cost of post-secondary education.
h. If Jeanne attends university out of town then the same approach will be followed and monthly support will cease. The only child support after that date will be the proportionate cost of the net cost of pursuing their respective PhD degrees.
i. Any amounts that the father claimed through FRO as extraordinary expenses which are items contained in the children’s budget attached to the reasons of Parfett J. represent overpayments because those are amounts that were intended to be covered by the $4,000 per month.
50Counsel are directed to obtain the missing information and attempt to complete the calculations and negotiations with the assistance of an accountant should that be necessary. I will hear further argument if the parties are unable to finalize the calculations. In that event I will require the following:
a. Income figures for each of the parents for each of the years in question.
b. Budget for the children for each of the years in question if the original budget has materially changed.
c. List of the educational expenses actually incurred on behalf of each child for each of the years in question.
d. List of the expenses claimed by the father as educational expenses in each of the years in question if different from c)
e. List of the resources paid to or on behalf of each child in each of the years in question that are to be offset against the costs of education.
f. Date when Étienne began to live in Toronto and a complete list of living and educational expenses for each year thereafter.
51I will deal with costs of this motion should that be necessary when all of the issues are resolved.
Mr. Justice C. MacLeod
Date: November 1, 2017
SCHEDULE A – Resources of the Parents and Children
| Year | Mother’s income | Mother’s income based on 3 year average | Father’s income | Étienne | Jeanne |
|---|---|---|---|---|---|
| 2012 | $740,575.00 | $687,393.00 | |||
| 2013 | $612,574.00 | $687,393.00 | $144,583.00 | ||
| 2014 | $709,031.00 | $687,393.00 | $144,812.87 | $2,027.82** | |
| 2015 | $631,202.00 | $627,167.00* | $152,390.48 | $6,249.59** | $5,875.04** |
| 2016 | $684,281.00 | $627,167.00* | $158,399.00 | $18,163.50** | $8,478.00** |
| 2017 | $566,018.00* | $627,167.00* | $158,399.00* |
* To be verified
** To be verified and to include all tuition rebates, scholarships, bursaries and earned income from all source but only 50% of any summer employment income while living at home.
CITATION: Makdissi v. Masson, 2017 ONSC 6498
COURT FILE NO.: FC-11-1333-1
DATE: 2017/11/01
ONTARIO
SUPERIOR COURT OF JUSTICE, FAMILY COURT
RE: Paul Makdissi, Applicant
AND:
Suzanne Masson, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Julius Dawn, for the Applicant
Meagan LePage, for the Respondent
ENDORSEMENT
MacLeod J.
Released: November 1, 2017
Footnotes
- Motion to change, Tab 1, Vol 1, CR
- Notice of Motion of the Applicant, Tab 1, Vol 2, CR and Notice of Motion of the Respondent, Tab 1, Vol 4, CR
- 2011 ONSC 7484, para. 3 (“reasons”)
- See reasons, paras. 5 & 6, and see s. 4 of the Federal Child Support Guidelines, SOR 97-175
- See reasons, paras. 7 & 8
- See reasons, para. 8 and Appendix B.
- Reasons, paras. 10 – 12
- Reasons, paras. 19 – 20
- RSC 1985, c. 3 (2d supp) as amended.
- Federal Child Support Guidelines, SOR 97-175
- L.M.P. v. L.S., 2011 SCC 64
- Divorce Act, RSC 1985, c. 3 (2d supp) as amended, ss. 2 (1) and 15.1
- See for example Levandusky v. Levandusky (2003) 2003 64321 (ON SC), 39 RFL (5th) 134 (Ont. SCJ)
- See Morissette v. Ball [2000] O.J. No. 73 (SCJ) ; upheld but varied [2000] O.J. No. 4307 (CA)
- See Haist v. Haist 2010 ONSC 1283, Berger v. Berger 2016 ONCA 884 @ para 64
- Farden v. Farden (1993) 1993 2570 (BC SC), 48 RFL (3d) 60 (SCBC – Master)
- See for example Warsh v. Warsh, 2012 ONSC 6903 @ para 35
- SOR 97-175 as amended
- The threshold for a reduction or termination of support due to a child’s repudiation of the payor parent is high and should only be ordered in the clearest of cases: Beach v. Tolstoy, 2015 ONSC 7248, at para. 39.
- Section 17 (1) of the FCSG. See also Sobczak v. Evraire, 2013 ONSC 1249, Shaikh v. Shaikh 2016 ONSC 7400 and Quiquero v. Quiquero 2016 ONSC 6696
- See Lihou v. Lihou, 2011 ONSC 7671 and Lajoie v. Woito (2009), 80 R.F.L. (6th) 325 (S.C.J.)
