COURT FILE NO.: FC-09-1058-4
DATE: 2018/05/17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ms. Nafar-Ross, Applicant
AND
Mr. Raahemi, Respondent
BEFORE: Justice P.E. Roger
COUNSEL: Kellie Stewart, lawyer for the Applicant
John E. Summers, lawyer for the Respondent
HEARD: February 6 and April 23, 2018
ENDORSEMENT
P.E. ROGER
[1] The respondent brings a motion to change, seeking to terminate child support for the parties’ eighteen-year-old daughter on the basis that she has rejected any relationship with him. I have decided not to terminate child support.
Background
[2] The parties were married and lived together for about 15 years (1992-2007). They have two children: a 23-year-old son and an 18-year-old daughter. This motion relates only to the daughter, as confirmed by both parties on April 23. The daughter, who I will refer to as “D”, lives with her mother. D currently studies cognitive science and neuroscience at Carleton University.
[3] The parties are highly educated; each has a PhD, the applicant in engineering and the respondent in neuroscience. Both work and both have re-partnered.
[4] After their separation, the parties negotiated a comprehensive separation agreement dated May 21, 2008. Relevant to this motion, it provides that important decisions relating to the children will be made jointly, that the children’s primary residence will be with the applicant mother, that the respondent father will have access as outlined in the agreement, that the father may have to go to Iran to teach for an extended period of time (which he in fact did), and that the parties will contribute to approved special or extraordinary expenses on an equal basis. The parties have subsequently brought a number of court proceedings and this matter became a high conflict case.
[5] The respondent explains that he had fairly regular access with D until about October 2012, when D was 13 years old. He explains that D then started to ignore his telephone calls and text messages. The respondent further explains that he sought counselling in 2013 and asked D to attend some of the sessions. He states that D went to the police station at least twice to complain about the text messages that he had sent asking to see D.
[6] The respondent brought a number of proceedings to vary support. The applicant brought a motion to change in 2014, seeking: sole custody of D, a change to D’s last name, and termination of the respondent’s access to D. During that proceeding, the Office of the Children’s Lawyer (OCL) was appointed and a lawyer and a social worker became involved. An affidavit from the social worker, dated July 6, 2015, was filed on this motion. Amongst others, it indicates:
• D consulted a psychologist for anxiety. The respondent contacted the psychologist seeking guidance on how to establish a relationship with D. The respondent is described as pleasant and happy that this psychologist is working with D. The psychologist expressed frustration that the applicant cancelled appointments. The applicant expressed concern and displeasure that the psychologists and the OCL were pressuring D. D was not open to having a relationship with her father.
• The OCL reviewed a total of 39 general occurrence reports involving the parties and the Ottawa police, 13 of which were found to be relevant to their assessment. Some involved allegations of assault (alleging that the respondent had assaulted the applicant). A number involved allegations of harassment, including that: on March 16, 2013, the applicant called the Ottawa police to report harassing text messages from the respondent to D; on March 18, 2013, the applicant and D attended at the Ottawa police to report that the respondent was harassing D by telephone and text messages; on April 13, 2013, the respondent attended at the Ottawa police alleging that he was harassed by the applicant’s messaging; on October 11, 2013, the applicant and D attended at the Ottawa police to report ongoing harassment by the respondent’s messaging; on January 20, 2014, D called the Ottawa police to report that the respondent had, contrary to her wishes, contacted her high school; on April 2, 2014, the respondent called the Ottawa police to report harassing communications by the applicant; and on May 9, 2014, the applicant’s husband contacted the Ottawa police stating that the respondent had been observed at D’s school (contrary to D’s wishes).
• The husband of the applicant advised the OCL that D did not want to see her father, and that D’s complaining about seeing her father increased with time. He explained that D was bored when she visited the respondent and that D disagreed with the respondent’s religious views.
• The parties’ son, then 20 years old, indicated to the OCL that the applicant tried to turn them against the respondent, and that the applicant warned the children that the respondent could abduct them.
• The applicant complained to the OCL that the OCL representatives were biased against her and that they occupied too much of D’s school time with their meetings. The applicant filed a complaint to the General Counsel of the OCL.
• D’s views were noted by the OCL as consistent and strong: D was adamant that she did not want any form of contact with her father. She refused to meet him in any context, supervised or not. She was highly resistant to any type of therapeutic access or therapeutic reunification. D was also clear that she wanted to change her family name. Her stated reasons included that: after separation her father spoke badly about her mother, he favoured her over her brother, he left for Iran for several months at a time, he made her feel uncomfortable and anxious, he was controlling, abusive and wanted to harm her mother, and he could abduct her and take her to Iran.
• However, the social worker indicated that she had concerns that D’s strong views and preferences were not fully independent. Moreover, the social worker did not feel that D was at risk should contact with her father have occurred and she supported therapeutic reunification and counselling.
[7] In the context of this motion, both parties offer conflicting explanations regarding the above. In addition, the respondent states that the applicant consistently alienated D and the applicant states that the respondent is a difficult man who pressured D to adopt his fundamentalist views.
[8] In December 2015, the parties consented to an order, which includes:
• The parties will continue reunification therapy with Nadine Crowley for as long as Ms. Crowley recommends.
• Ongoing section 7 expenses for D shall continue to be governed by paragraph three of the order dated November 3, 2010 (i.e., that they be shared equally as per the provisions of the separation agreement).
• The table amount of child support for D shall be $1,100.00, which is less than the table amount for the respondent’s income, because of the respondent’s obligations towards the parties’ adult son. That amount shall not be amended while the parties’ have ongoing contributions to their son (I note that they both still do), and when D reaches the age of 18, the amount of child support shall be reviewed in August 2017 considering the following factors: where D is attending school; whether D maintains a relationship with both parents; D’s income; the parties’ household incomes; and D’s need and the parties’ ability to pay.
• Except as specifically varied herein, all previous agreements and court orders shall remain in full force and effect.
[9] In 2015, D agreed to meet with the respondent on four occasions (three very brief visits of about 15 minutes each in a food court and one in a coffee shop) and, as well, she invited the respondent and his wife to attend a production at her school.
[10] In her report dated January 23, 2018, Ms. Crowley indicates that D described the respondent as emotionally manipulative. Ms. Crowley, on the other hand, describes the respondent as committed to repairing the relationship with his daughter. Ms. Crowley further explains that in February 2016, D met with the respondent once in the offices of Ms. Crowley. D then expressed concern that the respondent was racist and that he was not respectful of her beliefs. Ms. Crowley notes that this session ended with D empathetically stating that she no longer wanted to have any further contact with her father and with the respondent informing D that he was willing to keep the door open with the hope that she would change her mind. Ms. Crowley further explains that in July 2016 she met with D who reiterated her position of not wanting any contact with the respondent.
[11] Ms. Crowley found the respondent to be motivated to reconcile with his daughter. She also found the applicant to be open and willing to support D in her efforts to resume a relationship with her father. She notes, in her report, that over the course of her involvement the applicant had to deal with a number of incidents involving both children and the respondent, which were quite emotionally consuming for all. Finally, she notes that these ongoing crises and conflicts stalled the reunification process prematurely and that she terminated her involvement.
Issues
[12] The core issue raised in this motion is whether the adult child, D, is still entitled to child support despite her lack of any relationship with the respondent. The Order of December 16, 2015 provides specifically for such a review when D reaches the age of 18. Other issues, depending on the answer to this core question, include: the appropriate amount of child support, whether D’s university expenses are necessary and reasonable given that the respondent is a full-time professor at the University of Ottawa with free education for his children at that university, the end-point for university expenses (if they are allowed), and whether any conditions should be imposed on D.
[13] I note that the respondent is not arguing undue hardship. I note also that the applicant still agrees with the equal allocation of section 7 expenses (as provided for initially in the separation agreement of 2008, then at para. 3 of the Order of November 3, 2010, and recently at para. 12 of the Order of December 16, 2015). Finally, I note that the applicant agrees that $1,100.00 per month is still the appropriate amount for the table amount of child support (as previously agreed at para. 13 of the Order dated December 16, 2015 – the parties are still supporting their son).
Analysis
[14] The parties have referred the Court to many court decisions.
[15] The respondent relied on:
• Law v. Law (1986), 1986 CanLII 6291 (ON SC), 2 R.F.L. (3d) 458, 37 A.C.W.S. (2d) 285 (Ont. S.C.)
• Lawrence v. Mortensen (2000), 2000 CanLII 22525 (ON SC), 8 R.F.L. (5th) 133, 96 A.C.W.S. (3d) 1018 (Ont. S.C.)
• Zhang v. Jones, 2013 ONSC 4990, 230 A.C.W.S. (3d) 811
• Lampron v. Lampron (2006), 2006 CanLII 16375 (ON SC), 29 R.F.L. (6th) 307, 148 A.C.W.S. (3d) 440 (Ont. S.C.)
• Colford v. Colford (2005), 138 A.C.W.S. (3d) 886, [2005] O.J. No. 1537 (S.C.)
[16] The applicant relied on:
• A.C. v. M.Z., 2010 ONSC 6473, 97 R.F.L. (6th) 249
• Athwal v. Athwal, 2007 BCSC 221, 155 A.C.W.S. (3d) 373
• Bradley v. Zaba (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295, 18 R.F.L. (4th) 1 (C.A.)
• Cawker v. Hackshaw, 2015 ONSC 5424, 257 A.C.W.S. (3d) 654
• Charron v. Dumais, 2016 ONSC 7491, 274 A.C.W.S. (3d) 605
• George v. Gayed, 2014 ONSC 5360, 244 A.C.W.S. (3d) 398
• Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321, 209 O.A.C. 344 (C.A.)
• Menegaldo v. Menegaldo, 2012 ONSC 2915, 215 A.C.W.S. (3d) 705
• Metcalfe v. Metcalfe, 2015 ONSC 1002, 250 A.C.W.S. (3d) 649
• Musgrave v. Musgrave, 2013 ONSC 7481, 235 A.C.W.S. (3d) 1014
• Roth v. Roth, 2010 ONSC 2532, 188 A.C.W.S. (3d) 769
• Starr v. Starr, 2008 MBQB 305, 234 Man. R. (2d) 130
• Tran v. Le, 2003 CanLII 11863, 130 A.C.W.S. (3d) 793 (Ont. S.C.)
[17] I will deal firstly with the question of entitlement to child support and then with the question of quantum (the appropriate amount) of child support.
Entitlement to Child Support
[18] Section 15.1 of the Divorce Act imposes an obligation on spouses to pay support for children of the marriage. A child of the marriage is defined at section 2 of the Divorce Act to mean (a) a child who is under the age of majority and who has not withdrawn from the spouses’ or former spouses’ charge or (b) a child who is the age of majority or over but unable, by reason of illness, disability or other cause, to withdraw from the spouses’ or former spouses’ charge or to obtain the necessaries of life.
[19] These sections do not include language that would indicate that a child’s rejection of a parent is a factor that may or may not be considered when determining whether child support should be ordered for an adult child. I note as well that the Family Law Act, although not applicable in this case, also does not contains any such language.
[20] Many court decisions, relying on Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. S.C.), consider a number of factors when deciding whether an adult child’s attendance at school is sufficient for that adult child still to be a child of the marriage, including whether the adult child has unilaterally and without justification terminated his or her relationship with a parent. These factors are not exhaustive and include all relevant circumstances, including the factors agreed upon by the parties in the Order of December 16, 2015, described above at paragraph 8, and the factors described in Beach v. Tolstoy, 2015 ONSC 7248.
[21] D always stated that her father was too rigid, that he was trying to impose his religious and cultural views, and that he belittled her. In addition, there is independent evidence from the OCL that D’s strong views were not independently formed, implying that she was alienated by the applicant.
[22] D made it clear from the age of about 13 that she no longer wished to have any contact with her father, the respondent. The respondent has continuously but without success attempted to resume a relationship with his daughter. As such, this case is rather extreme. For example:
(i) when D was 14 years old, the applicant brought D to the police station to complain that the respondent was harassing D with his text and voice messages seeking to see D;
(ii) when the respondent sought information about D from her high school, he was warned by the applicant that D “has decided not to have a relationship with you, stating very clearly she does not want any communication with you … If you think these actions will force her to contact you or I to force her to do so, you are mistaken”;
(iii) when the respondent was suspected of attending at D’s school to see her during a music recital, complaints were made to the Ottawa police that he was not to attend;
(iv) for a number of years now, the respondent has had very limited contact with D;
(v) D recently indicated that upon turning 18 she changed her family name, that she no longer relates to her father, and that she still wishes to have no contact with him.
[23] Applying the Farden factors (including those factors outlined in the Order of December 16, 2015, and those outlined in Beach v. Tolstoy), I note:
• D is in fact enrolled in a full-time course of studies at Carleton University and has been since January 2018 (she was previously enrolled at Queen’s University since September 2017).
• D is not eligible for student loans because of the parties’ income and D received some bursaries for the fall 2017 when she attended at Queen’s University.
• Both parents are highly educated; the respondent is a professor at the University of Ottawa, the 2008 separation agreement contemplates that the children will pursue some form of post-secondary education, and there is no evidence that D is going to university because there is nothing better to do.
• D has limited ability to contribute to her own support while going to school, and she is registered in a relatively demanding program. In 2017 she earned about $2,800 working part-time. She still works at the same part-time employment but with few hours considering her stated course load.
• D is 18 and in her first year at university.
• D is bright and succeeded well in high school. At Queen’s, in music, her grades were in the low 90’s and at Carleton she apparently has A’s in all courses.
• There is no reason to doubt that D will succeed at university in her chosen field of studies. Although D seems committed to her studies, it is still too early to assess any long term educational plan for D.
• In their 2008 separation agreement, the parties expressly provided for the children’s ongoing education, indicating, for example, that child support would end for a child at the earliest of a number of dates including when one post-secondary degree or diploma is obtained. This is repeated more recently by the parties in the consent Order of December 16, 2015, which provides that where D attends school for post-secondary education will be a factor to consider when reviewing child support when D reaches the age of 18.
• D decided when she was about 13 that she would no longer have a relationship with her father. Her father has unsuccessfully tried to have a relationship with her. However, the history of this situation is complex and if any blame is to be allocated, it should be shouldered by both parents likely in varying degrees over time. In years past the applicant provided to the respondent little information about D despite the requirements of the separation agreement. The respondent was not consulted before D attended Queen’s and Carleton, and the alleged brief conversation two years earlier between D and the respondent is not sufficient. It appears, at this time, that D is simply not yet ready to reunite with her father.
• The parties’ household income is in the range of $230,000 for the applicant and $170,000 for the respondent. However, the parties’ many and most recent financial statements indicate that each party has been and is still financially stretched. The respondent’s March 2018 financial statement declares annual income of $173,796 and annual expenses of $165,240 (including the amount of support paid directly to the parties’ adult son but not the monthly amount of $1,100 in child support for D that he currently pays to the applicant). The applicant’s April 2018 financial statement declares annual income of $108,283 and annual expenses of $183,292 (including the amount of support that she pays directly to the parties’ son and also $12,000 for D’s university tuition and fees).
[24] As can be seen from the above factors, one of the Farden factors—termination of the relationship between the child and parent—favours the respondent’s position. However, most court decisions have held that an adult child terminating his or her relationship with a parent, standing alone, is rarely sufficient (unless this is clearly unilateral and without any apparent reason). In this case there is a long and complicated history and, as a result, the reasons for D’s decision are many and complex.
[25] When I consider the evidence relating to the long and complicated history between the parties, it does not appear that D’s decision was reached without justification or without any apparent reason. The parties separated in 2007, when D was only eight years old. The parties’ actions before and since their separation, as well as the facts relating to the many unresolved allegations made by each of the parties, have no doubt played a significant part in the current situation (including the mother’s alienation and the father’s rigid positions). As such, this case is an unfortunate illustration of how badly parents can behave and how this can impact their children. It is obvious from the materials filed on this motion that both parties and the children have been hurt by the actions of the parties, and this is particularly evident in the recent exchange of text messages between the respondent and D.
[26] This case is also a good example of how difficult it can be to assess conduct when deciding entitlement to child support. The conduct of a child and now of a young adult such as D is particularly difficult to assess when the parents separated over 10 years ago; in such instances the child’s conduct invariably incorporates much past parental unpleasantness, the impact of which varies depending on how each unpleasantness was then perceived by the child and how it was managed by the parents. As indicated at para. 142 of A.C. v. M.Z., at what stage does the onus shift to the child to assume responsibility for a parental relationship whose flaws were perhaps years in the making? This is a difficult question and the past practice—of making a finding that a child is not “a child of the marriage” because of the lack of a relationship only in the clearest of cases—seems a wise approach.
[27] Consequently, applying the factors outlined in the many cases, starting with Farden, and with the onus on the applicant to establish that D is a “child of the marriage”, it becomes apparent that these factors support a finding that D is still at this point a child of the marriage (as this is defined in the Divorce Act for purposes of child support – I add this to explain that the words “child of the marriage” are in this decision used as legal terms and are not used in any way as a reflection or as an assessment of the state of the relationship between D and her father). As such, D is still entitled to child support and that part of the motion is dismissed.
[28] The respondent argues the applicability of section 3(2)(b) of the Federal Child Support Guidelines and I propose to deal with this argument in the next section of my decision.
The Appropriate Amount of Child Support
[29] Section 3(2) of the Federal Child Support Guidelines provides that the amount of child support for an adult child is (a) the amount determined by applying the 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. Section 7 of the Guidelines provides for special or extraordinary expenses, which include expenses for post-secondary education.
[30] Section 3 of the Guidelines relates to the amount of child support and not to the question of entitlement to child support, (see A.C. v. M.Z, at para. 134). Indeed, that section makes reference to “the amount of the child support order”. Entitlement is dealt with by the Divorce Act or by the Family Law Act, as may be applicable and as described above.
[31] The standard Guidelines approach, outlined by the Ontario Court of Appeal in Lewi v. Lewi, is for the payor to pay the applicant the table amount plus section 7 expenses in proportion to the parties’ respective income. This, or section 3(2)(a), is the standard or presumptive approach. The party seeking to deviate from this, under section 3(2)(b), must show that the standard or presumptive approach is inappropriate. If the court considers the standard or presumptive approach inappropriate, then the court has discretion to set the amount of support that it considers appropriate having regard to the circumstances of the child and the financial ability of each spouse to contribute.
[32] The broad language of section 3(2)(b) has been interpreted to allow courts to find “that approach to be inappropriate” in circumstances where an adult child has effectively ended the relationship with the parent from whom support is sought (see, for example: Colford v. Colford and the articles, Philip M. Epstein & Ilana I. Zylberman, “Support for Adult Children in Cases of Estrangement: The Parent as a Wallet” (2006) in Law Society of Ontario Special Lectures 2006: Family Law, and Nicholas Bala and Sara Baum, “Support for Adult Children in Canada: When Does Childhood End?” (Paper delivered at the National Family Law Program, Quebec City, 7 February 2018) [unpublished]).
[33] Section 3(2)(b) of the Guidelines could give the Court added flexibility when dealing with such circumstances as it is not necessarily an all or nothing proposition (as is the case when dealing the question with entitlement). However, any such analysis brings us back to the thorny issue of conduct and child support, which has already been addressed above. As a result, the standard to deviate from the presumptive approach on the basis of a lack of relationship is high and restricted to serious cases, often involving other factors. In Colford, for example, the Court found the child to be a child of the marriage and ordered contribution towards the child’s university expenses, yet found that it would be inappropriate to order table child support in circumstances that included, among others, the lack of a relationship between the father and his son.
[34] When arguing this motion, the lawyer for the applicant indicated that $1,100 per month is the appropriate amount for table child support despite the current income of the respondent (the table amount under the Guidelines for his income would be about $1,440), and that special expenses should continue to be shared equally despite the parties’ unequal income, as provided in the separation agreement and the recent court orders (implying that the standard approach is inappropriate).
[35] As indicated at paragraph 26, this case is not one of those rare clearest of cases; both parties contributed to D’s behaviour. However, considering the fact that D attended Queen’s University and lived in Kingston from September to December 2017, and that both parties find the standard approach inappropriate, I find that the respondent has established that the standard Guidelines approach is inappropriate. The next step is determining the appropriate amount.
[36] Starting in September 2017, D attended Queen’s in a music program. She lived in residence in Kingston from September to December 2017. D did not enjoy the Queen’s music program and in January 2018 she transferred to Carleton University, now in cognitive sciences, and lives with the applicant.
[37] D’s tuition at Queen’s for the September 2017 term, inclusive of room and board, was $11,664.33 minus $3,130.49 in bursaries and minus small credits for dental and health expenses, for a net cost for that term of $8,235.34. Half of that amount is $4,117.67, which over four months is $1,029.42 per month.
[38] D is back living with the applicant while she studies at Carleton. D provided a budget. Her expenses are stated to currently be in the range of $955 per month for living expenses plus tuition of about $10,000, books and school supplies of about $1,300, and dental, therapies, and glasses of $500 per year. Considering the expenses claimed by D on her current budget, I assess her monthly expenses while at Queen’s (over and above tuition and room and board – shown at paragraph 37) in the range of about $400 per month. Her income in 2017 was about $2,800. She still works at the same part-time employment but apparently with few hours.
[39] The financial circumstances of both spouses are described above. As indicated, the evidence indicates that both spouses are financially stretched. Both parties have reasonable income but significant expenses and debt. Moreover, the applicant indicates that she sold one of her rental properties last year, apparently in an effort to pay for D’s university expenses.
[40] I find that D should make a reasonable contribution to the cost of her post-secondary education. Considering the evidence, I find that D should contribute a minimum of $1,300 per year towards her university expenses. I will therefore order the applicant to disclose yearly to the respondent, by September 10, particulars of D’s income and order that the highest amount between $1,300 and 50% of D’s annual income be deducted from D’s university expenses.
[41] I find that the parties contemplated that their children would be university educated and find that the amounts of post-secondary expenses sought for D are reasonable.
[42] The parties provided little evidence about their intention regarding post-secondary education. However, the parties’ separation agreement specifically provides for post-secondary education and both parties are highly educated, each with multiple degrees and a PhD.
[43] The respondent works as a professor at the University of Ottawa. One of his employment benefits is that his children can study for free at that university. The respondent therefore argues that D’s university expenses are not reasonable because D could study for free at the University of Ottawa. This is an interesting argument which, in other circumstances, could have been successful.
[44] However, in this case it is clear from the earlier separation agreement and consent orders that the parties contemplated university expenses, and that they contemplated D attending university outside of Ottawa or a university other than the University of Ottawa. At paragraph 14 of the Order of December 16, 2015, which provides for this review, the parties agreed on factors to be considered by this court, including “where D is attending school for a post-secondary education”. It is clear to me that as highly educated parents both parties value education and contemplated that their children might select a program and a university other than at the University of Ottawa.
[45] When arguing this motion, the respondent asked that any ordered child support be ordered to terminate at the earliest of D completing a first degree or turning 23, as is provided in the separation agreement. I find that it is premature to make such an order because the required factual background is missing. We do not know: how D will actually perform over the course of her selected program, if she will wish to pursue additional studies, or what, where, or why she might wish to pursue additional studies. Each case has to be considered on its own merits and it is too early to make any such finding, which cannot be made in a vacuum. I make this finding without prejudice to the position of either party if and when this issue is next heard.
[46] In addition, when arguing this motion the respondent asked for stringent conditions to be imposed upon D, including that she continues with the reunification process. I have decided not to impose many conditions on D and to leave it to her to decide when to seek a relationship with the respondent. Although I do not agree with D’s stated reasons for terminating the reunification process, I believe that there is little merit in adding pressure to an already strained relationship. Sometimes good things come to those who wait and this may now be the respondent’s best strategy at establishing some future relationship with D. I will therefore order the applicant to advise the respondent by June 30 of each year whether D will be attending school in September and, if so, to advise where and in what program. I will also order the applicant to disclose to the respondent by September 10 and January 10 of each year proof of registration and proof of payment for the upcoming session or year, as the case may be. I will not order the applicant to disclose D’s university transcript at this time; these will have to be disclosed if D wishes to continue her studies past a first degree with ongoing support from the respondent. I also debated whether it would be preferable to order that payments be made directly to D and have decided that it was not because this would further involve D and it might complicate enforcement.
[47] The respondent has been paying child support of $1,100 per month as per paragraph 13 of the Order of December 16, 2015. I order this to continue until August 31, 2017, and order that paragraphs 12 and 13 of the Order of Justice Blishen dated December 16, 2015 terminate effective on July 21, 2017 for paragraph 12 (section 7 expenses) and on August 31, 2017 for paragraph 13 (table child support).
[48] Starting on September 1, 2017, I find and order that under section 3(2)(b) of the Guidelines, considering the above, the appropriate amount payable by the respondent to the applicant is:
a) $1,229.42 per month for the period starting on September 1, 2017 and ending on December 31, 2017 ($1,029.42 for Queen’s tuition plus $200 for D’s additional expenses – see paragraphs 37 and 38 above).
b) $1,100 per month starting on January 1, 2018 (as table child support) while D is registered in a full-time program of post-secondary education, lives with the applicant, and until she graduates from her first degree, on a without prejudice basis to reviewing this if and when D wishes to pursue additional studies. This amount is arrived at having regard to the condition, means, needs and other circumstances of D and the parties’ financial ability, see above.
c) In addition to the amount ordered at (b), $437.50 per month starting on January 1, 2018 while D is registered in a full-time program of post-secondary education, lives with the applicant, and until she graduates from her first degree, on a without prejudice basis to reviewing this in the event that D wishes to pursue additional studies. This amount is arrived at considering D’s stated tuition of $10,000, books and supplies of $1,300, health related expenses of $500, minus D’s contribution of at least $1,300; shared equally between the parties.
d) The amount ordered at (c) shall continue to be paid by the respondent as provided at (c) but shall be subject to an annual retrospective adjustment to take into account the following:
(i) the applicant shall disclose yearly to the respondent, by September 10, particulars of D’s income for the preceding 12 months together with, if applicable, a notice of assessment for D for the preceding year or else a statement by the applicant that D did not file an income tax return, and the highest amount between $1,300 and 50% of D’s employment income for the preceding 12 months shall be deducted from D’s university expenses. In the event that no such disclosure is made by the applicant by September 10 then the amount to be deducted for D’s contribution, for purposes of calculating this annual adjustment, shall be $2,000;
(ii) the applicant shall also disclose to the respondent by September 10 of each year proof of payment for the preceding and upcoming university terms for: tuition, books and school supplies, and for health related expenses; and
(iii) using the above disclosure, the parties shall by September 30 of each year calculate any adjustment owing for the preceding 12 month period considering any difference between the payments made under (c) above and actual university expenses and contribution of D during that same period and, as the case may be, the respondent or the applicant shall pay any difference as an annual adjustment to the other by October 31 of each year.
[49] In addition, an adjustment is required to account for any difference between the amounts ordered payable under paragraphs 47 and 48 and the amounts paid to date by the respondent. The parties are both represented by a lawyer and should be able to calculate this difference and any required adjustment payment within the next 30 days. Any such adjustment payment shall be paid by the respondent to the applicant within the next 60 days. If the parties cannot agree on the amount of this required adjustment, or of any adjustment, they may seek an appointment before me to settle the terms of the order and shall then provide brief written submissions to be delivered by the applicant five days before the schedule appointment, by the respondent three days before, and any reply two days before (not to exceed five pages per party).
[50] In the event that D’s music lesson expenses, outlined at volume 2, tab c, are still in dispute, I have reviewed these and find them to be extraordinary expenses. This would result in a payment of $588 by the respondent to the applicant, if this issue is still in dispute, then to be made within the next 60 days.
[51] As indicated above, the Order shall also provide that the applicant shall advise the respondent in writing and with supporting proof by June 30 of each year whether, where, and in what program D will be attending school in September. The Order shall require the applicant to disclose to the respondent by September 10 and by January 10 of each year proof of registration and proof of payment for the upcoming session(s) or year, as the case may be.
[52] Finally, if the parties cannot agree on costs within the next 20 days, then each party shall provide to my assistant brief written submissions not exceeding three pages plus a costs outline, any offers and relevant documents within the next 30 days, and reply within the next 35 days.
Justice P.E. Roger
Date: 2018/05/17
COURT FILE NO.: FC-09-1058-4
DATE: 2018/05/17
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Zahra Nafar-Ross, Applicant
AND
Bijan Raahemi, Respondent
BEFORE: Justice P.E. Roger
COUNSEL: Kellie Stewart, Counsel for the Applicant
John E. Summers, Counsel for the Respondent
HEARD: February 6 and April 23, 2018
ENDORSEMENT
Justice P.E. Roger
Released: 2018/05/17